In October 2023, Joely Ng filed a complaint against the Los Alamitos Medical Center, Inc. and certain doctors alleging that Ng’s husband, Kenneth Ng, was admitted to the Medical Center in December 2022 due to a malfunction of his G-tube. In the emergency room, one of the defendant doctors replaced the G-tube—but placed it in the wrong location inside his body—and misread a portable X-ray as indicating that it had been properly placed. Kenneth Ng was then admitted to the hospital, where he was seen by the other three defendant doctors who allegedly failed to perform testing to confirm proper placement of the G-tube. When the tube feedings started, Kenneth Ng began to complain of severe pain. A radiologist later reviewed the X-ray film and realized the error. During this time, Kenneth Ng had been continually fed through his G-tube, which caused him to develop sepsis and ultimately die roughly three months after his admission to the Medical Center.
Ng’s California medical malpractice wrongful death complaint alleged two causes of action against all defendants: (1) wrongful death, in Ng’s individual capacity; and (2) medical malpractice, in Ng’s capacity as successor in interest to the Decedent (the survival claim). In addition to economic damages, Ng sought noneconomic damages for each claim: (1) for the wrongful death claim, damages for the loss of the Decedent’s love, companionship, comfort, care, assistance, protection, affection, society, and moral support, up to the cap allowed in Civil Code section 3333.2; and (2) for the survival claim, damages for the Decedent’s pre-death pain and suffering, up to the cap allowed in Code of Civil Procedure section 377.34, subdivision (b).
Objecting to Ng’s request for two separate caps for noneconomic damages, the Medical Center filed a motion to strike the following language from the complaint. Although the Medical Center agreed that Ng is entitled to seek noneconomic damages for both claims, it contended those damages are subject to one MICRA cap. In other words, the Medical Center interpreted the relevant statutes as prohibiting Ng from recovering two separate noneconomic damages caps, one for each claim.
The trial granted the motion to strike, and Ng appealed.
The Court of Appeal, Fourth District, Division 3, California stated in its January 29, 2025 Opinion: “At issue here is whether the recent amendment to Code of Civil Procedure section 377.34, which authorizes a decedent’s personal representative or successor in interest to recover noneconomic damages, means a plaintiff can seek two MICRA cap awards (one for himself or herself and one for the decedent) under Civil Code section 3333.2. We conclude it does. Because a wrongful death claim and a survival claim—even when premised on the same alleged medical malpractice—are separate and distinct claims, a plaintiff suing for both claims can seek to recover two MICRA caps.”
“Ng’s action, filed in 2023, is subject to the recent amendments to these statutes. As relevant here, effective January 1, 2022, subdivision (b) was added to section 377.34 of the Code of Civil Procedure to allow for the recovery of damages for a decedent’s “pain, suffering, or disfigurement” in survival actions “filed on or after January 1, 2022, and before January 1, 2026.” (Stats. 2021, ch. 448, § 1.) It also provided that “[n]othing in this section alters Section 3333.2 of the Civil Code.” (Code Civ. Proc., § 377.34, subd. (e).) Effective January 1, 2023, Civil Code section 3333.2 was amended to, among other things, increase the $250,000 cap on noneconomic damages. (Id., § 3333.2, subds. (a)–(c) [$350,000 in medical malpractice cases not involving wrongful death, $500,000 in wrongful death cases, with annual increases]; Stats. 2022, ch. 17, § 3.) These amendments raised the question of whether a survival claim was subject to a separate MICRA cap.”
The California appellate court stated that a survival claim (§ 377.30) is a separate and distinct cause of action which belonged to the decedent before death but, by statute, survives that event. In contrast, a wrongful death claim (§ 377.60) compensates the heirs of the decedent for the loss of companionship and for other losses suffered as a result of the decedent’s death. Such [d]mages are in the nature of compensation for personal injury to the heir and include (1) the loss of the decedent’s financial support, services, training and advice, and (2) the pecuniary value of the decedent’s society and companionship. Unlike some jurisdictions wherein wrongful death actions are derivative, California’s wrongful death statute creates a new cause of action in favor of the heirs as beneficiaries, based upon their own independent pecuniary injury suffered by loss of a relative, and distinct from any the deceased might have maintained had he survived.
“Crucially, a wrongful death claim may not include any damages recoverable as part of a survival claim, and the claims may be tried separately … For these reasons, we conclude respondent court erred in finding the claims were “not separate and distinct” and subject to one MICRA cap.”
Ng v. Los Alamitos Medical Center, Inc., G064257.
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