LEUNG v. VERDUGO HILLS HOSPITAL

Appellant's Answer to Petition for Review

Cal.May 24, 2011

No. $192768 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA AIDAN LEUNGbyand through his Guardian ad B204908 Litem NANCY LEUNG (Los Angeles County mee Plaintiff, Appellant and Respondent Super. Ct. No. BC343985) op eN : VS. VERDUGO HILLS HOSPITAL SUPREME COURT | FILED MAY 2.4 2011 Frederick K. Ontr ich Clerk Deputy Defendants, Respondent, Appellant and Petitioner ANSWERTO PETITION FOR REVIEW INCLUDING CONDITIONAL ADDITIONAL ISSUES FOR REVIEW California Court of Appeal, Second District, DivisionFour Case No. B204908 Los Angeles Superior Court Case No. BC343985 Honorable Laura A. Matz THOMAS & THOMAS, LLP GREINES, MARTIN,STEIN & RICHLAND LLP Michael Thomas, State Bar No. 41597 Robert A. Olson, State Bar No. 109374 Maureen F. Thomas,State Bar No. 105194 Feris M. Greenberger, State Bar No. 93914 801 North Brand Boulevard Suite 220 5900 Wilshire Boulevard, 12th Floor Glendale, California 91203 Los Angeles, California 90036 Telephone: (818) 500-4800 Telephone: (310) 859-7811 Facsimile: (818) 500-4822 Facsimile: (310) 276-5261 Attorneys for Petitioner, Defendant, Appellant and Respondent VERDUGOHILLS HOSPITAL No. 8192768 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA AIDAN LEUNGbyand through his Guardian ad Litem NANCY LEUNG Plaintiff, Appellant and Respondent Vs. VERDUGOHILLS HOSPITAL Defendants, Respondent, Appellant and Petitioner B204908 (Los Angeles County Super. Ct. No. BC343985) ANSWERTO PETITION FOR REVIEW INCLUDING CONDITIONAL ADDITIONAL ISSUES FOR REVIEW TABLE OF CONTENTS INTRODUCTION QUESTION PRESENTED ADDITIONALISSUES IF REVIEW IS GRANTED STATEMENTOF THE CASE B. The Nature OfThe Case And The Judgment. C. The Plaintiff's Prejudgment Non-Good Faith Settlement With The Doctor. D. The Trial Court Precludes Evidence Of Likely Insurance Coverage For Future Medical Expenses. E. The Trial Court Awards $1 Million In “Prejudgment Interest” Under Civil Code Section 3291. F, The Causation Evidence. G. The Court Of Appeal Opinion. H. The Rehearing Petition. ARGUMENT I, There is No Reason For Review. A. Regardless Of Its Academic Interest, The Issue Presented Is Of Little Practical Import, Arising Only On Exceedingly Rare Occasion, And Here Only Because OfPlaintiff's Counsel’s Knowing Gambit. B. Given Code Of Civil Procedure Section 877’s Central Role AndIts Careful Balance Of CompetingInterests, The Legislature, Not This Court, Is The Proper Forum To Address Any Remake Of The Law Governing Prejudgment Settlement Offsets. Page 10 15 16 18 18 18 19 TABLE OF CONTENTS (Continued) Page Il. If Review Is Granted, This Court Should Review The Whole Panoply Of Important, Unresolved Issues In This Case. 21 A. The Petition Fails To Fairly Pose The Alternatives To Be Considered If This Court Decides To Review The Offset Effect OfA Non-Good Faith Settlements. 21 B. This Court Should Review Whether Civil Code Section 3333.1’s Abrogation Of The Collateral Source Rule In Medical Professional Liability Cases — Which Undoubtedly Applies To Past Damages — Applies To Future Damages, An Important Unresolved Recurring Legal Question. 24 C. This Court Should Review How Civil Code Section 3291 Interest Is To Be Calculated In Periodic Payments Cases, An Important, Unresolved Issue Affecting Countless Cases And On Which PrecedentIs At Odds. 28 D. This Court Should Clarify The Standard For Establishing Causation In A Medical Malpractice Case — Including The Extent To Which A Hospital Must Provide Medical Advice To Patients Under The Treatment OfA Physician, An Issue OfBroad Impact And Potentially Great Confusion. 30 CONCLUSION 34 CERTIFICATION 36 il TABLE OF AUTHORITIES Cases: Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208 Amerada Hess Corp. v. Owens-Corning Fiberglass Corp. (Ala. 1993) 627 So.2d 367 Bee v. Cooper (1932) 217 Cal. 96 Burkett v. Continental Cas. Co. (1969) 271 Cal.App.2d 360 Carlsen v. Unemployment Ins. Appeals Bd. (1976) 64 Cal.App.3d 577 Deocampov. Ahn (2002) 101 Cal.App.4th 758 Ermoian v. Desert Hosp. (2007) 152 Cal.App.4th 475 Espinosav. Little Co. ofMary Hospital (1995) 31 Cal.App.4th 1304 Fein v. Permanente Medical Group (1985) 38 Cal.3d 137 Franklin v. Kaypro Corp. (9th Cir. 1989) 884 F.2d 1222 Graham v. Workers’ Comp. Appeals Bd. (1989) 210 Cal.App.3d 499 Hessv. Ford Motor Co. (2002) 27 Cal.4th 516 Howell v. Hamilton Meats & Provisions review granted Mar. 10, 2010, No. $179115 iii Page 30 22 15 27 26 6, 9, 10, 29 33 6, 30 26 22 26 5, 6, 28, 29 3, 26 TABLE OF AUTHORITIES (Continued) Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108 Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396 McDermott, Inc. v. AmClyde (1994) 511 U.S. 202 Miranda v. Bomel Const. Co., Inc. (2010) 187 Cal.App.4th 1326 Petrolane Inc. v. Robles (Alaska 2007) 154 P.3d 1014 Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154 Raven H. v. Gamette (2007) 157 Cal.App.4th 1017 River Garden Farms,Inc. v. Superior Court (1972) 26 Cal.App.3d 986 Rollins v. Pizzarelli (Fla. 2000) 761 So.2d 294 Tadros v. City ofOmaha (Neb. 2007) 735 N.W.2d 377 Whalen v. Kawasaki Motors Corp. (N.Y. 1998) 703 N.E.2d 246 iv Page 31 31, 33 22 33 22 33 31 18, 22, 23 26 22 22 TABLE OF AUTHORITIES (Continued) Federal Statutes: 42 U.S.C. § 300gg 42 U.S.C. § 300gg-1 42 U.S.C. § 300gg-41 42 U.S.C. § 300gg-42 California Rules and Statutes: Civil Code, § 3291 Civil Code, § 3333.1 Code of Civil Procedure, § 667.7 Code of Civil Procedure, § 877 Code of Civil Procedure, § 998 Evidence Code, § 500. Health & Safety Code, § 1270 Health & Safety Code, § 1366.20 Health & Safety Code, § 130301 Court Rules: California Rules of Court, rule 8.500 Page 25 25 25 25 3, 5,7, 9, 16, 28-30, 35 2, 3,5, 9, 24, 25, 27, 35 28 1, 2,5, 15, 18, 20-24, 34 3, 9, 28, 29 32 25 25 25 14 TABLE OF AUTHORITIES (Continued) Page Other Authorities: GoodFaith Settlements: The Inequitable Result of the Evolving Definition of Equity (1986) 22 Cal. Western L.Rev. 362 23 Rest.3d Torts: ApportionmentofLiability 22, 23 al INTRODUCTION Thepetition posits an issue of academic and perhapslegislative interest, but of limited practical significance in California. It is not an issue deserving of this Court’s time and attention. The reason is simple. The Legislature by enacting Code of Civil Procedure section 877 to encourage goodfaith settlements has occupied muchofthe field. Given section 877’s success in generating goodfaith settlements, the issue of non-good faith prejudgmentsettlement offsets rarely arises. Indeed, in the more than 50 years since section 877’s enactment this is only the second published appellate decision to address theoffset effect of a non-goodfaith settlement. The reason whyis clear: As the Legislature intended, section 877 has channeled settlement efforts into the good faith realm. The plaintiff and his counsel here chose to knowingly flout section 877. They decided to proceed with a settlement that they knew had been determinednot to be in good faith, a determination that had withstood an appellate writ challenge. They took a knowing gamble. Now they ask this Court to relieve them of the consequencesoftheir ignoring the balance that the Legislature consciously struck in enacting section 877. But that is not this Court’s role. Indeed, to fairly revisit the issue posited this Court would haveto revisit the Legislature’s enactment of section 877. That would usurp the Legislature’s role. Review,thus,is inappropriate and should be denied. Butif this Court grants review (it shouldn’t), it should review the issues comprehensively and as a whole — both that posited in plaintiff's 1 petition and the other important review-worthy issues in this case. The petition posits a stark choice between a release-of-one/release-of-all rule and a pro tanto (dollar-for-dollar) offset. Certainly, those are the two poles that the Legislature set up to encourage goodfaith settlements in enacting section 877. But if, ignoring the legislative balance, this Court is to look at only oneside of the equation — that applicable to non-goodfaith settlements — it should look at the whole array of possible options. Most prominently,it should consider the modern, post-comparative fault, commonlaw rule applicableto all types of settlements that a prejudgment settlementeffects a release of the settling defendant’s fault-allocated proportional share of liability. Andreview, should it be granted, should not skip the other important issues on which this Court’s direction is necessary for cases beyondthis one. This case has already lingered in the appellate courts for three and one half years. Its review-worthy issues should be decided all at once, not piecemealoverthebetter part of a decade. The Court of Appeal skipped over twoissues that ultimately will be necessary to the outcomeofthis case on appeal. Both present key unresolvedissuesthat crop up repeatedly in healthcare professionalliability cases. Both issues ultimately will demand this Court’s attention no matter how the Court of Appeal might resolve them. The first is whether Civil Code section 3333.1’s abrogation ofthe collateral source rule applies only to past damages(as the trial court held) or also applies to future damages. Thatissueis critical both to how many 2 medical malpractice claims are tried and to whether future healthcare payors may have subrogated entitlements to a portion ofa periodic payments judgment. It is related to the issue of measuring medical expense damages coveredbyplaintiff's health insurance pending in Howell v. Hamilton Meats & Provisions, review granted Mar. 10, 2010, No. S179115. Andif the hospital is right on the section 3333.1 issue, then plaintiffs posited settlement offset issue is not even ripe, as damages will have to be retried. The second issue is how section 3291 interest (available to a plaintiff obtaininga better result than a Code of Civil Procedure section 998offer) is calculated on a periodic payments judgment. Again, this issue crops up repeatedly in healthcare professionalliability cases. The law on the subject is confused. A decision of this Court in a non-periodic payments context suggests oneresult, but a later published Court of Appeal decision suggests another in the periodic payments judgment context. Only this Court can clear up the confusion. Oneadditional issue that the Court of Appeal addressed also deserves review: causation in the medical malpractice context. Here, the Court of Appeal ventured into storm-tossed waters. Causation in the medical malpractice context is the subject of conflicting and frankly irreconcilable approaches. One approach requires a showing ofactual, but for causation. Another approach, exemplified in this case, allows causation to be inferred from a reasonable expectation that a better outcome was available. Layered on top of this legal standard uncertainty is the tension 3 between imposing advice duties on hospitals and the bar on hospitals practicing medicine, e.g., by having to provide information that interferes with the doctor-patient relationship. How can a hospital notpractice medicine yet at the same time beliable as a matter ofproximate cause for failing to educate a patient to disagree with a treating physician’s medical advice? The bottom line is that review should not be granted. That would put an end to this case. But if review is granted, this Court should review the full scope and range of issues involved sothat this appeal can be resolved in something less than a near decade. QUESTION PRESENTED 1. In enacting Code of Civil Procedure section 877, the Legislature provided for a pro tanto (dollar-for-dollar) offset ofgoodfaith settlements, consciously inserting the good faith requirement and knowing that the alternative for non-good faith settlements would betheexisting common law release-of-one/release-of-all rule. Should this Court intervene to upsetthe careful legislative balance betweenthe offset effect of good faith and non-goodfaith settlementsoris that a matter bestleft to the Legislature? ADDITIONAL ISSUES IF REVIEW IS GRANTED 2. If this Court is to intervene without the Legislature, should it adopt the modern, post-comparative fault commonlaw rule that a prejudgmentsettlement, of whatevernature, releasesthe settling defendant’s proportionateliability? 3. Is Civil Code section 3333.1’s abrogation of the collateral source rule in healthcare provider professionalliability cases limited to past expensesor does it apply equally to future expenses? 4. Doesthe rule announced in Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 532, that Civil Code section 3291 interest runs only on the judgmentas entered and does notcreate “prejudgment”interest, apply to medical malpractice periodic payments judgments oris section 3291 5 interest on suchjudgments to be calculated twice, once on the verdict’s presentvalue up until the time ofjudgment and then solely on the periodic payments amounts as they become due as suggested post-Hess in Deocampo v. Ahn (2002) 101 Cal.App.4th 758, 775? 5. By what standard must causation be proven in a medical malpractice case? Is proof required that but for the alleged omission, there is a reasonable medical probability the patient, in fact, would have obtained a better outcome,as held in cases such as Espinosav. Little Co. ofMary Hospital (1995) 31 Cal.App.4th 1304, 1314-1316? Or doesa gestalt substantial factor test apply as held in this case, requiring merely that the plaintiff introduce evidence sufficient to support the expectation that had more exacting care been provided there might have been a better result? Andgiven the ban on hospitals practicing medicine, can a hospital’s allegedly inadequate medical advice have proximately caused patient to accept a physician’s later erroneous medical advice? STATEMENT OF THE CASE B. The Nature Of The Case And The Judgment. This is a medical malpractice action against a hospital and an independentpediatrician. The plaintiff claims that after his discharge from the hospital as a newborn,the pediatrician’s failure to adequately diagnose andtreat his jaundice resulted in severe injuries. (Opn. 6-12.) As to the hospital, he claimsthat it failed to adequately warn his parents about the dangers ofjaundice, even thoughthe hospital’s warningssufficed to cause his motherto call the pediatrician about the jaundice butthe pediatrician thereafter gave inadequate medical advice. (Opn. 9-10, 12-15.) Thejury returned a verdict finding the pediatrician 55% at fault, the hospital 40% at fault, and the parents 5% at fault. (Opn. 3, 26.) It found present value economic damages of $15.237 million and $250,000 in noneconomic damages. (Opn. 3 & fn. 1.) The trial court entered a periodic payments judgmentcalling for immediate payment of $1.505 million (plus an additional $1.1 million in Civil Code section 3291 “prejudgment interest”) and varying monthly payments over the ensuing 57 years. (Ibid.) C. ‘The Plaintiff’s Prejudgment Non-Good Faith Settlement With The Doctor. Beforetrial, plaintiff and the pediatrician agreed to settle plaintiff's claims against the pediatrician for $1 million. (Opn. 28.) The settlement was conditioned on a determination that the settlement was in “good faith.” (Opn. 28-29; IV AA 15:900.) Thetrial court denied the goodfaith 7 determination. (Opn. 29.) The doctor (butnotthe plaintiff) sought writ relief. (Opn. 29, fn. 16.) The Court of Appeal denied writ relief. Plaintiff and the doctor then modified the settlementto delete the goodfaith determination requirement. (Opn. 29.) Attrial, the court instructed the jury that the plaintiff had settled with the doctor, although the settlement had not yet been confirmedby the court as a minor’s compromise. (Opn.20,fn. 9.) Post-verdict but before judgment, the trial court held a minor’s compromise hearing. (Opn. 29-30.) Both before andat that hearing, the hospital expressly argued that approving the non-goodfaith settlement wouldrelease all or part of its liability beyond the amountpaid in settlement. (Opn. 30-31; AOB 37, VII AA 68:1741; see VIII AA 79:1990- 1992; 2 RT 611-612; see also 2 RT 902-903.) Plaintiff's counsel, nonetheless, insisted upon going forward with the settlement. (Opn. 29-30; 2 RT 905; see VII AA 1681; see 2 RT 648; 2 RT 929-930.) Thetrial court approved the minor’s compromise. (Opn. 30.) D. The Trial Court Precludes Evidence Of Likely Insurance Coverage For Future Medical Expenses. Insurance had paid most ofplaintiff's past medical expenses. The parties stipulated to limit past medical expense recovery to the amount (about $78,000 out of $405,000) not covered by insurance. (Opn.5,fn. 2; 9 Aug.RT 3042.) The trial court, however, precluded defendants from introducing evidence thatplaintiff's future medical expenses would likewise be paid by 8 (or reduced due to) medical insurance. It read Civil Code section 3333.1’s abrogation ofthe collateral source rule in medical malpractice cases as limited to past expenses and not applying tofuture expenses. (8 Aug.RT 2771; 11 Aug.RT 3905.) Thetrial court instructed the jury that it was not to consider any insurance any of the parties might have. (12 Aug.RT 4275; 13 Aug.RT 5102-5103, 5106, 5413-5415.) E. The Trial Court Awards $1 Million In “Prejudgment Interest” Under Civil Code Section 3291. Plaintiff made a Code of Civil Procedure section 998 demand. The judgmentas entered exceededthe section 998 demand. (X AA88:2477- 2478.) The hospital argued that Civil Code section 3291 interest ran from the date of the settlement demandonly on those amounts immediately due as of the date of the judgment. (2 RT 927, 1203-1206.) Thetrial court, following Deocampov. Ahn, supra, 101 Cal.App.4th 758, however, awardedinterest on the jury’s total present value determination from the offer date to the judgment date, incorporating that amountinto the judgment as “prejudgmentinterest under Civil Code section 3291.” (X AA88:2477- 2478, 2481.) The trial court ruled that after entry ofjudgment, interest would run only on unpaid amounts. Thetrial court foundthe result puzzling, but felt compelled by Deocampo: [I]t looks strange to me. I don’t understand why youget prejudgment interest on the entire judgment but then say you 9 don’t getit after the judgment because someofit is not due. That makes no sense to me, but it made senseto [the Court of Appeal in Deocampo and] Iam bound. (2 RT 1205-1206; see also 2 RT 1507 [(F)rankly, the prejudgmentinterest calculation escapes me. . . . I don’t know how wereconcile periodic payments and prejudgmentinterest’’].) F. The Causation Evidence. The causation evidence came from a single expert, plaintiff's expert, Dr. Bhutani. The basic facts were undisputed. Plaintiffwas discharged from the hospital (with no indication ofjaundice and within the standard of care) on Tuesday. (Opn. 7; 3 Aug.RT 1294, 1356, 1365; 4 Aug.RT 1654; 5 RT 1837, 1887, 1920-1921; IV AA29:1137.) His mother called the pediatrician’s office on Thursdayto report his jaundice and was advised that there was no needto bring him in to be seen. (Opn. 9-10.) By Saturday night/Sunday morning his condition had deteriorated to the point that he suffered injury. (Opn. 11-12.) The Court of Appeal summarized what it thought wasthe relevant causation evidence. “Had Dr. Nishibayashi actually examined Aidan on Thursday, substantial evidence proved that he would have diagnosed Aidan’s hyperbilirubinemia. He reasonably could be expected to have observed Aidan’s progression ofjaundice (it was already recognizable to the Leungs in Aidan’s eyes). He 10 would have observed Aidan’s chappedlips (as noted at Huntington Memorial Hospital, that condition was not normal and wasrelated to dehydration). He would have learned that Aidan hadlost weight (Julie Donnelly testified that infants are weighed when examined at Dr. Nishibayashi’s office, and Dr. Bhutani opined, based on Aidan’s weight loss of two pounds when admitted to Huntington Memorial on Sunday, that Aidan hadlost weight by Thursday). Such a weight loss was a danger sign suggesting a needfor intervention -- according to Dr. Bhutani, by that date Aidan should have been gaining, not losing, weight. It is also reasonable to expectthat Dr. Nishibayashi would have inquired ofNancy Leung and obtained accuratefirst-hand information from her on the topics Julie Donnelly inquired about: whether Aidan was feeding properly and his stools were adequate to expel bilirubin. He also may have donea bilirubin test (according to Dr. Nishibayashi, it would have been “good medical practice,” though not required). Thus,it is certainly probable that a pediatrician of 26 years’ experience such as Dr. Nishibayashi would have detected Aidan’s hyperbilirubinemia and treated it. As Dr. Bhutani testified, if Dr. Nishibayashi had seen Aidan on Thursday,“there would have been a recognition of a need for further testing [and] there would 1] have been a finding that [Aidan] had a highlevel of bilirubin and he needed treatment.” (Opn. at 48-49.) Thelast two statements, however, are not borne out by the record. Dr. Bhutani did nottestify that, “‘there would have been a recognition of a need for further testing [and] there would have been finding that [Aidan] had a high levelofbilirubin and he needed treatment.’” The Opinion quotes the question asked, not Dr. Bhutani’s answer. (5 RT 1917-1918.) Dr. Bhutani’s answer was “I already testified to that.” (5 RT 1918.) WhatDr. Bhutani previously testified was: @ “[I]n all the babies thebilirubinis rising forthe first three to five days [i.e., up until between Thursday and Saturday].” (5 RT 1818.) @ “If at the age of about 48 hours[i.e., Wednesday], that [bilirubin] level is about 14, that is a level of concern. At the age of 72 hours[i.e. Thursday], if the level is about 17, that is above concern.” (5 RT 1820.) @ “WhatI’m interested as a clinician is whatis the bilirubin level. And I can’t judgea bilirubin level based on the level or absence or presence ofjaundice.” (5 RT 1827-1828.) @ “Q: From your perspective, had the baby being[sic] broughtin, he [the pediatrician] would have been ableto do those things 12 [e.g., assess weight and skin color] and you believe we wouldn’t be here today; is that fair? A: J -- hopefully not. Depends on whatthe bilirubin level was on that day [i.e., Thursday]. Q: We don’t know whatit was ‘cause it wasn’t taken; right? A: That’s right.” (5 RT 1868, emphasis added.) “Q: [O]n Thursday,isn’t it true that at that point in time it is more probable than not that child could have been cured? A: ...[Normally,] bilirubin values arerising fairly linearly, steadily, progressively, for the first 72 hours[i.e., through Thursday] and then they flatten out.... And so morelikely than not the bilirubin was elevated on Thursday, Friday, Saturday and reached the level of 41 on Sunday. The question really is as to what that numberis. And without a measurement we can only guess. (5 RT 1904, emphasis added.) “Q: Applying the retrospectus [sic] from Sunday back,isn’t it true that you’re of the opinion that on Thursday the child was diagnosable as having high level ofbilirubin and need of treatment and,if it had been rendered, he would have been cured? A: Again, I think you’re making multiple jumps becauseit depends on getting the bilirubin value, then reacting to the bilirubin value, and it depends on whatthe bilirubin value was. 13 If the bilirubin value was already very high, then there would have been a different response to hyperbilirubin value of17. Q: Don’t you think it’s more reasonably probable that it was high on Thursday than not? A: I cannot speculate either way. I can only give my best estimate as that it was rising. J don’t think I can give you an estimate what the number was and where the number was. (5 RT 1915-1916, emphasis added.) Thus, Dr. Bhutani’s testimony wasthat treatment depended on bilirubin level that wasitself speculative. All of this was brought to the Court of Appeal’s attention in a rehearing petition. (See Cal. Rules of Court, rule 8.500(c)(2).) In an extended footnote (Opn.at 21-23, fin. 10), the Opinion dismisses Dr. Bhutani’s testimony as “confused” and focused only on whether aggressive Thursday treatment would have preventedplaintiff's injury, not on what treatment, if any beyondthe existing breastfeeding and placing the plaintiff in the sun, would have beenprescribed. The Opinionalso recites that Dr. Bhutani opined thatplaintiffs motherdid not receive sufficient breastfeeding coaching once her milk came in. (Opn. 50-51.) Plaintiff was discharged (within the standard of care, 5 RT 1837) before his mother’s milk came in. (5 RT 1824, 1837- 1839, 1883.) Thus, at the relevant time neither the plaintiff nor his mother was underthe hospital’s care. As the Opinion recognizes, his mother did 14 receive coaching. She was instructed. She was evaluated. (See Opn. 50.) There is no evidencethat the instruction at that time was notentirely proper, appropriate and abundant.’ G. The Court Of Appeal Opinion. The Opinion held that as the settlement and release were not in good faith, Code of Civil Procedure section 877 did not apply. (Opn. 32.) It further held that plaintiff executed a release, not a covenantnot to execute. (Opn. 43, fn. 23.) Plaintiff challenges neither holding. Following Beev. Cooper(1932) 217 Cal. 96, the Opinion held that, therefore, the plaintiff's release of the doctor also released his joint and several claims against the hospital. (Opn. 33, 42.) The Opinion suggested, however, that this Court revisit Bee v. Cooperandreject the commonlaw release-of-one/release-of-all rule. (Opn.4, 28, 42-43.) In doing so, it explicitly declined to express an opinion whether this Court should replace that rule with a pro tanto (dollar-for- dollar) or release of proportionate fault offset rule. (Opn. 44.) Asto causation, the Opinion found sufficient evidence of causation. Critically, it asserted, ipse dixit, that it was probable that an experienced pediatrician, such as here, would have treated the plaintiff differently had he seen him. (Opn. 49.) It described Dr. Bhutani’s testimony tying the treatment decision to an admittedly speculative bilirubin numberas ' Again the omitted facts were brought to the Court of Appeal’s attention by rehearing petition. 15 “confusing” and characterized by “his refusal to state which specific treatment option (continued breast feeding [what the pediatrician,in fact, prescribed], phototherapy or exchangetransfusion) should have been used because a specific bilirubin reading was not done.” (Opn. 21, fn. 10.) The Opinion did not reach the collateral source rule as to future damagesor the section 3291 interest issues. H. ‘The Rehearing Petition. The hospital sought a limited rehearing. First, it urged the Court of Appeal as a matter ofjudicial efficiency to decide the future collateral source and Civil Code section 3291 interest issues, which will still have to be decided if this Court grants review and remandsfor further proceedings. It noted that this case is now eight years after the occurrence and three and one-half years on appeal. Second, the hospital pointed out that the opinion omitted the two mostcrucial causation facts: l. Plaintiff's expert — the only causation expert — testified that had the pediatrician seen plaintiff on Thursday whether he would have prescribed a different course of treatment depended upontheplaintiff's bilirubin level, a level that the expert testified was speculative. 2. There was no evidencethat the breastfeeding instruction in the hospital was inadequate and by the time the mother’s milk did come in (when the expert claimed that there neededto be additional coaching) 16 plaintiff had (within the standard of care) been discharged from the hospital and was no longer underits care. The Court of Appeal denied rehearing. 17 ARGUMENT I, There is No Reason For Review. A, Regardless Of Its Academic Interest, The Issue Presented Is Of Little Practical Import, Arising Only On Exceedingly Rare Occasion, And Here Only Because Of Plaintiff’s Counsel’s Knowing Gambit. In a pristine academic world, how settlement offsets should work for non-goodfaith settlements in a post-comparative fault world might be of someinterest, especially if one could write on a clean slate. But this Court is not an academic institution. It is a real world entity with limited resources. Its efforts necessarily and properly are directed towards pressing legal problemsandissues. In the more than 50 years since the Legislature enacted Code of Civil Procedure section 877 in 1957, there has been only one other reported decision addressing the issuein this case — the offset against a plaintiff's claim to be afforded a settlement that does not meet section 877’s good faith requirement. (River Garden Farms, Inc. v. Superior Court (1972) 26 Cal.App.3d 986.) Twocases in 50-plus years strongly suggests that this is not an area of the law requiring this Court’s attention. Whyhaven’t there been other cases? The answeris simple. Because counsel andlitigants understandthat if they are to obtain the benefits of Code of Civil Procedure section 877 — including limiting offsets to pro tanto amounts — they must comply with its good faith requirement. Parties either comply or they maketheir settlements conditional on a goodfaith 18 determination. That’s whatthe plaintiff and the doctor attempted to do here. Whatis remarkable about this case is that after the goodfaith determination wasrejected, the plaintiff and the doctor decided to go ahead with their settlement anyway. Plaintiff consciously undertook the gamble in order to obtain an immediate settlement payment. He and his counsel knew full well the risk. The hospital specifically warned them. Now,he asksthis Court to save him from a conscious once-in-five-decades gamble. That is not this Court’s function. An issue that comes up only once or twice every fifty years is hardly a pressing question of law. Even the Court of Appeal opinion recognizesthatthe issue is not unresolved. Rather, it asks this Court to intervene to change anexisting, workable, well-knownlegal principle in order to support a party’s and counsel’s gamesmanship in a circumstancethat rarely arises. That’s no ground for review. B. Given Code Of Civil Procedure Section 877’s Central Role And Its Careful Balance Of Competing Interests, The Legislature, Not This Court, Is The Proper Forum To Address Any Remake OfThe Law Governing PrejudgmentSettlement Offsets. There’s another problem with plaintiffs review request. It would be one thing if this Court could write on a blank canvas. But the canvasis far from blank. The Legislature has occupied a substantial portion ofthe field 19 with Code of Civil Procedure section 877. Section 877 affords a one-sided, pro-plaintiff rule — a nonsettling defendant only gets credit for a pro tanto (dollar for dollar) amount. Butit also comes with a substantial qualification. The settlement has to be good faith and pre-verdict or pre- judgment. In enacting section 877, the Legislature specifically added the good faith requirement. (See Request for Judicial Notice in the Court of Appeal, tab 4, p. 2.) It limited anypro tanto offset rule to goodfaith settlements. The Legislature consciously created a two-tier system — one for “good faith” settlements, one for other settlements. It necessarily understood that the existing, contrasting rule for non-good faith settlements was and would be release-of-one/release-of-all. It created a balance — an extreme pro- plaintiff (pro tanto offset) result for a good faith settlement and a countervailing extreme pro-nonsettling defendantresult (release of all) for a non-goodfaith settlement. This Court can’t address one side of the equation (a non-goodfaith settlement offset) without affecting the overall balancethat the Legislature expressly sought to achieve in section 877. Adopting the approachthatplaintiff advocates effectively rewrites section 877. It excises the good faith prerequisite that the Legislature inserted for a pro tanto settlement offset. It would eliminate the two-tier offset system that the Legislature thought important to encourage goodfaith offsets. Andthere is another problem. The Legislature enacted section 877 before the advent of comparative fault. Any current reevaluation of the 20 rules for settlement offsets (including of section 877) necessarily needs to take into account the comparative fault landscape. The only realistic solution is that the issue here — the offset effect of a settlement (especially a non-goodfaith settlement) in the post- comparative fault world — is one the the Legislature needsto revisit. The issue is necessarily entwined with section 877. This Court cannotrevisit section 877. Only the Legislature can. The Legislature, not this Court, is the proper place for the concerns raised in the Opinion and the petition. II. If Review Is Granted, This Court Should Review The Whole Panoply Of Important, Unresolved Issues In This Case. A. The Petition Fails To Fairly Pose The Alternatives To Be Considered If This Court Decides To Review The Offset Effect OfA Non-Good Faith Settlements. Thepetition readsasifthe only alternative to the current release-of- one/release-of-all rule is a pro tanto offset rule. To begin with, whatever the merits of a release-of-one/release-of-all rule in the abstract, that rule makes sense when viewedin contextas part of the balance that the Legislature created with section 877, as just demonstrated. The countervailing good faith/non-goodfaith settlement offset rules provide a strong incentive for what the Legislature sought to encourage: goodfaith settlements. They equally provide a strong disincentive for what the Legislature sought to discourage: non-goodfaith settlements(as here). 21 But were the release-of-all-rule to be rejected even in its context as a section 877 counterweight, the natural solution is not the pro tanto rule that plaintiff seeks. Rather, the modern, post-comparative fault common law rule is that a joint tortfeasor’s settlement completely releasesthe settling defendants’ proportionate liability share. A jointly and severally liable tortfeasor’s liability is “reduced by the comparative share of damages attributable to a settling tortfeasor who otherwise would have beenliable for contribution to jointly and severally liable defendants who do not settle.” (Rest.3d Torts: Apportionmentof Liability §16, emphasis added; see id., com. c, p. 133.) That is the federal commonlawrule (e.g., in admiralty). (See McDermott, Inc. v. AmClyde (1994) 511 U.S. 202 [adopting comparative share approach to effect of settlement in admiralty case]; see also Franklin v. Kaypro Corp. (9th Cir. 1989) 884 F.2d 1222, 1231-1232 [applying proportional offset as matter of federal common law].) Andthat is the modern rule in manystates.” That’s essentially the result reached in River Garden Farms, Inc.v. Superior Court, supra, 26 Cal.App.3d 986, the one other Court of Appeal decision in the last five decades to address the same issue. Decided before the advent of comparative fault, River Garden Farms concludedthata pro rata (i.e., per defendant) offset rather than a pro tanto offset should apply. * E.g., Amerada Hess Corp. v. Owens-Corning Fiberglass Corp. (Ala. 1993) 627 So.2d 367; Petrolane Inc. v. Robles (Alaska 2007) 154 P.3d 1014; Whalen v. Kawasaki Motors Corp. (N.Y. 1998) 703 N.E.2d 246; Tadros v. City ofOmaha (Neb. 2007) 735 N.W.2d 377. 22 (/d. at p. 1001.) With the advent of comparative fault, River Garden Farms logically translates into the fault-allocated test that represents the modern commonlaw rule. The proportional offset rule simply holds the plaintiff to the very bargain that he made — releasing the settling defendant’s shareofliability. Thepro tanto rule that plaintiffpromotes, in fact, undermines encouraging settlements in goodfaith — thatis, that are fair to plaintiff, settling defendant, and nonsettling parties alike — asit affords the plaintiff no incentive to treat all defendants fairly, and instead encourages gamesmanship (as here). (See Comment, Good Faith Settlements: The Inequitable Result ofthe Evolving Definition ofEquity (1986) 22 Cal. Western L.Rev. 362, 368 [“The good faith requirementis [] designedto limit the opportunity for an unscrupulousplaintiff to hand pick the best defendantto proceed against — the one whose deep pocketswill satisfy his judgmentor whoseevil disposition will ensure a sympathetic judgmentat trial — by dismissing the other defendants from the case”].) Plaintiff's references to other pre-section 877, pre-comparative fault rules (e.g., for covenants not to sue) ignore these developments in the law. Section 877 treats equally all mechanisms for resolving cases — so long as, unlike here, the settlementis in good faith. (See Code Civ. Proc., § 877.) So, too, does the modern commonlaw proportionalliability release rule. (Rest.3d, Torts: Apportionment ofLiability, § 24.) If this Court is going to revisit various settlement offset rules, it should do so in a comprehensive manner. Ifit is not to follow the precedent establishing the release-of- 23 one/release-of-all rule, it should equally revisit precedents creating countervailingly one-sided pro tanto offset rules for covenants not to sue and the like and address whether, instead, the modern release of proportionate liability rule should apply across the board (excluding, of course, “good faith” settlement arena where the Legislature hasalready occupied the field with section 877). B. This Court Should Review Whether Civil Code Section 3333.1’s Abrogation Of The Collateral Source Rule In Medical Professional Liability Cases — Which Undoubtedly Applies To Past Damages — Applies To Future Damages, An Important Unresolved Recurring Legal Question. Civil Code section 3333.1 abrogates the collateral sourcerule in healthcare professionalliability cases. Section 3333.1 directs that a professional negligence healthcare provider defendant “may introduce evidence of any amount payableas a benefit to the plaintiff as a result of the personal injury pursuant to”a healthcare insurancepolicy or similar contractual or government benefit. Thetrial court ruled that “any amount payable” waslimited to past medical expenses and did not apply to future medical expenses(here covering some 57 years) that might be covered by insurance or similar benefits. (8 Aug.RT 2771-2772; see 11 Aug.RT 3904 [court respondingto the reiteration of the section 3333.1 argument, “that battle is over” and “you lost”]; 11 Aug.RT 3905-3906.) 24 Thereislittle doubt that a jury could have concludedthatat least some future medical expenses were going to bepaid by insurance and similar benefits. Thetrial court itself thought so: “[T]he testimony wasat trial that there is insurancethat’s paid all of these expenses. I have no reason to believe it isn’t currently continuing to do that.” (2 RT 604; see 2 RT 605[plaintiffs counsel conceding insurance wasstill paying for medical expenses almost 3 monthsaftertrial].) Plaintiff's insurance was through his father’s position as a partnerin the law firm that represented him. (7 Aug.RT 2463.) Insurance continuation rights would exist under the Consolidated Omnibus Budget Reconciliation Act of 1986 (COBRA)and the Health Insurance Portability and Access Act (HIPAA)(e.g., 42 U.S.C. §§ 300gg, 300gg-1, 300gg-41, 300gg-42) and Cal-COBRA,Health & Saf. Code, § 1366.20, et seq.; see also Health & Saf. Code, § 130301, et seq. [implementing HIPAA in California].) Additionally, California statutory programs permit purchase of medical insurance by persons who otherwise are unable to obtain it. (E.g., The California Major Risk Medical Insurance Program, Health & Saf. Code, § 1270, et seq.) And, of course, federal law will soon require individuals to have health insurance. This issue is huge in medical malpractice cases, such as here, involving substantial amounts of economic damagesfor ongoing medical care. It will arise in virtually every birth injury case and manyother cases as well. Andit directly affects whether such future health insurance and other benefits payors have a subrogated claim to periodic payments judgment proceeds: If section 3333.1 applies, future payors have no 25 subrogatedrights; if it does not apply, future payors may be subrogated to a portion of the periodic payments judgment. The issueis related to that pending before this Court in Howell v. Hamilton Meats & Provisions, supra, No. 8179115. (See No. $179115, Supplemental Letter Brief of Howell filed May 5, 2011, at p. 9 [addressing whether evidence should be admitted of reduced ongoing medical expenses dueto health insurance].) | The law, webelieve, suggests that the collateral source ruleis abrogated as much asto future damagesasto past. (See Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 146, 164-165 & fn. 21 [affirming judgmentdirecting health provider “defendantto paythefirst $63,000 of any future medical expenses not covered by medical insurance,” emphasis added]; Graham v. Workers’ Comp. Appeals Bd. (1989) 210 Cal.App.3d 499, 505-506 [no employer credit against workers compensationliability for future medical expense damagesin injured employee’s medical malpractice claim,i.e., medical malpractice damages would not include future workers compensation collateral source payments].) But plaintiff disagrees. (See RB 82-91 citing Rollins v. Pizzarelli (Fla. 2000) 761 So.2d 294 [interpreting Florida no-fault auto insurance paymentsstatute; offset for other “payable”benefits limited to currently payable amounts, not contingently payable future amounts]; Carlsen v. UnemploymentIns. Appeals Bd. (1976) 64 Cal.App.3d 577 [unemploymentinsurancetrigger requiring that employee have no wages “payable” does notinclude contingent or unliquidated wage claims]; 26 Burkett v. Continental Cas. Co. (1969) 271 Cal.App.2d 360 [samere workers compensation insurancepolicy offset for wages payable].) The Court ofAppeal did not reach the issue. On rehearing, the hospital urged it to do so for reasons ofjudicial economy. Those reasons apply as much now as in the Court of Appeal. This case has been on appeal for three and one half years. If this Court grants review onthe release issue and reverses, the Court of Appeal would then need to reach the section 3333.1 collateral source issue. No matter how that issue might be determined,there likely would be anotherpetition for review giventhe issue’s importance. This case could spend nearly a decadein the appellate courts. It is better to determineall issues at once. Indeed, if the judgment must be reversed based on an impropersection 3333.1 ruling, then, at a minimum, damagesneed to beretried andthe settlement offset issue posed in the petition is not even ripe. The bottom lineis that, should it grant review, this Court should considerall of the review-worthyissues at once rather than fracturing the appeal into multiple components and consigning it to a decade’s long odyssey in the appellate courts.’ > Alternatively, this Court could grant review and retransferto the Court of Appeal directing the Court of Appeal to decide the remaining issues before this Court considers review on the offset issue. 27 OF This Court Should Review How Civil Code Section 3291 Interest Is To Be Calculated In Periodic Payments Cases, An Important, Unresolved Issue Affecting Countless Cases And On Which Precedent Is At Odds. This case includes anothercritical healthcare professionalliability issue. In such cases, a defendant can opt for a periodic payments judgment. (Code Civ. Proc., § 667.7.) That happened here. Such periodic payments judgmentsdirect future payments. Here, that period stretches out for 57 years. If the plaintiff dies prematurely, the paymentobligation ceases. (Jbid.) At the same time, healthcare professional liability defendants are as subject to Code of Civil Procedure section 998 andCivil Code section 3291 as other defendants. Underthosesections, if a party declines a pre-trial settlementoffer and the offering party receives a more favorable judgment, the offering party obtains, under Civil Code section 3291, interest on the judgment running from the section 998 settlement offer date. The issue in healthcare professionalliability cases is how that section 3291 interest is calculated on periodic payment judgments. Again, this important, unresolved issue affects a broad swath of cases. Unfortunately, it is also an issue where the case law is confused. Hess v. Ford Motor Co., supra, 27 Cal.4th at p. 532, not a periodic payments case,held that section 3291 interest is not prejudgmentinterest, is notto be incorporatedin the judgment andis to run on single amount, the amount of the judgment as entered. Six months after Hess, however, the 28 Court of Appeal, arguably in dicta, stated in a periodic paymentscase that the trial court properly applied a “two-step process”in splitting the section 3291 calculation into a prejudgment componentwith interest on the verdict’s full present value amount and a post-judgment componentwith interest only on such amounts as might be unpaid. (Deocampov. Ahn, supra, 101 Cal.App.4th at pp. 781-782.) The tension between Hess and Deocampoconfuses the section 3291 interest calculation in a periodic payments case. Thetrial court here expressed confusion and exasperation on this very issue: “I don’t understand why you get prejudgmentinterest on the entire judgment but then say you don’t get it after the judgment because someofit is not due. That makes no sense to me.” (2 RT 1205-1206.) Butit felt bound to follow Deocampo. (Id.; see also 2 RT 1507 [“(F)rankly, the prejudgmentinterest calculation escapes me. . . . I don’t know how wereconcileperiodic payments and prejudgmentinterest”].) Unless and until this Court intervenes,the confusion overcalculating section 3291 interest in periodic paymentscases will persist. The issue affects every periodic payments judgment wherea section 998 offer has been exceeded such that section 3291 interest is owed. Again, the Court of Appeal declined to address this issue, necessitating a fractured appellate process if review is granted on the offset issue. It would be grossly inefficient to remand this case to the Court of Appealto address the section 3291 interest only to have anotherpetition for 29 review. It is massively unfair to the parties to require such a procedure in a case that has already languished three and one half years on appeal. If review is granted, this Court should review the section 3291 interest issue as well. D. This Court Should Clarify The Standard For Establishing Causation In A Medical Malpractice Case — Including The Extent To Which A Hospital Must Provide Medical Advice To Patients Under The Treatment OfA Physician, AnIssue Of Broad Impact AndPotentially Great Confusion. Causation often is a pivotal issue in medical malpractice cases;it certainly was here. But the Court of Appeal’s decision exposes apparent confusion in California law concerning what it takes to establish causation in a medical malpractice case. Somecases hold that the evidence must“‘allow the jury to infer that in the absence of the defendant’s negligence, there was a reasonable medical probability the plaintiff would have obtained a better result.’” (Espinosa v. Little Co. ofMary Hospital, supra, 31 Cal.App.4th at pp. 1314-1315, quoting Alefv. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 216.) Under this approach, a reasonable medical probability means more likely than not: “‘A possible cause only becomes “probable” when,in the absence of other reasonable causal explanations, it becomes morelikely than notthat the injury was a result ofits action. This is the outer limit of 30 inference upon which an issue may be submitted to the jury.’” (Jenningsv. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118, quoting Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402-403, emphasis added by Jennings.) Thus, it must be morelikely than not that a better outcome would have, in fact, resulted had the defendant’s conduct not been negligent. The Opinion here exemplifies a different, much looser approach. According to the Opinion,a plaintiff need only produce evidencethat in “‘ordinary experience, a particular act or omission might be expected to producea particular result, and if that result has in fact followed, the conclusion maybejustified that a causalrelation exists.” (Opn. 46, quoting Raven H. v. Gamette (2007) 157 Cal.App.4th 1017, 1029-1030.) This approach subtracts from the causation equation the requirementto demonstrate to a reasonable medical probability that there was an actual nexus between the defendant’s negligence and the outcome. It endorses establishing causation based on speculation or something very close to it. It replaces a more-probably-than-not causation test with a reasonably foreseeable result test akin to that for determining duty. It was only by applying such an amorphous formulation that the Opinionstrained to find plaintiffs evidence sufficient to support a verdict against the Hospital on causation. The expert evidence on causation,fairly analyzed,falls notably short of the “reasonable medical probability” standard. Dr. Bhutani’s expert opinion was consistent and unvarying: (1) Whether more aggressive treatment would have beenprescribed (the 31 physician prescribed continued breastfeeding and sunlight) depended on what the bilirubin level was, (2) the critical level on Thursday would have been 17, (3) he could not say whatthe bilirubin level was on Thursday; indeed, it would be “speculation.” Thus, what Dr. Bhutani had “already testified to” was that he could not say that there “‘would have been a finding that [Aidan] had a high level ofbilirubin and he needed treatment.’” (Opn. 49; 5 RT 1917-1918.) To the extent that Dr. Bhutani was nonresponsive, evasive, and misfocused on prevention rather than treatment, as the Opinion characterized his testimony (Opn.21, fn. 10), the evidence failed to satisfy Plaintiff's burden ofproofto show causation. (See Evid. Code, § 500.) Causation, particularly what treatment would or would not have been undertaken wasnot in the jury’s knowledge but could only be proven by expert testimony. It was plaintiffs burden to showthat hadplaintiffbeen seen, he would have been differently treated. If he needed to do that under a more probably than not standard, then the absence of evidence,e.g., Dr. Bhutani’s testimony that he couldn’t tell, would befatal to plaintiff's causation proof. If, on that other hand, causation in a medical malpractice case only requires “a reasonable expectation” based on “ordinary experience” then the supposition — the retrospective lay hope — that an experiencedpediatrician, as here, would have recognized jaundice andtreated the condition differently than with the continued breastfeeding and sunlight advicethat was,in fact, given mightsuffice as the Opinion found. 32 The Opinion’s reasonable-expectation-based-on-ordinary-experience standardis irreconcilably contrary to the stated causation test in other cases requiring expert testimony, not lay expectation: “‘[c]ausation must be proven within a reasonable medical probability based upon competent expert testimony.” (Miranda v. Bomel Const. Co., Inc. (2010) 187 Cal.App.4th 1326, 1336, emphasis added, quoting Jones v. Ortho Pharmaceutical Corp., supra, 163 Cal.App.3d at pp. 402-403.) In this case, that meant Dr. Bhutani — the only expert whotestified on this subject. His testimony wasnot ofmedical probability, but expressly stated that the medically critical factor — the observable bilirubin level — was speculative. Atleast as troubling as the Opinion’s “expectation of ordinary experience” causation formulationis its holding that the Hospital’s failure to educate plaintiffs parents sufficiently to spur them to challenge the pediatrician’s medical advice proximately causedplaintiff's unfortunate outcome. (Opn. 51-52.) A hospital cannotpractice medicine;its liability for medical malpractice is necessarily vicarious. (E.g., Ermoian v. Desert Hosp. (2007) 152 Cal.App.4th 475, 501 [hospital cannot practice medicine; its medical malpractice liability must be based on vicariousliability]; see Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 166 [hospital liable for medical malpractice only if negligent physicians were its agents].) The jury here rejected any vicariousliability, though. The notionthat plaintiffs injury was caused by a hospital’s failure to lead its patients (here, aformerpatient by the time his parents telephoned the pediatrician) to second-guessa physician’s treatment effectively creates 33 direct hospital medical malpractice. At the least, it comes dangerously close to crossing the line into that territory. It raises serious questions of proximate cause, touching whether as a matter ofpublic policy hospitals are or should be responsible for interfering with and affecting the doctor-patient relationship and, specifically, doctor-supplied advice. In sum, this case muddies the waters of medical malpractice causation, both cause-in-fact (“but for” causation) and proximate causation. If this Court grants review, it should review the causation issues as well. In so doing, the Hospital urges the Court to clarify that causation in the medical malpractice context, as in negligence law generally, requires evidence sufficient to establish a “more likely than not” causal connection between negligence and damages,notjust a reasonable foreseeable result that happens to cometo pass. The Court should also makeplain that a hospital cannot proximately cause a patient’s injury where the onlyissueis the patient’s failure to question or disagree with a physician’s mistaken medical advice. CONCLUSION Review should be denied. To the extentthat the offset issue posited is of any widespread,real-world, practical significance, it is one the Legislature, not this Court, should address given how intertwinedit is with Code of Civil Procedure section 877. If review is not denied(it should be), this Court should broadly reviewthe rules for settlementoffsets, including considering leaving the 34 legislative balance intact or adopting a proportional offset rule. Equally,if, and only if, review is otherwise granted this Court should review whether section 3333.1’s abrogation of the collateral source rule in medical malpractice cases applies to future damages, how Civil Code section 3291 interest applies to a periodic payments judgment, and the standard by which causation is to be determined in a medical malpractice case, especially one cojoining the allegedly negligent acts of doctors and hospitals. Dated: May 23, 2011 Respectfully submitted, THOMASand THOMAS LLP Michael Thomas Maureen F. Thomas GREINES, MARTIN, STEIN & RICHLAND LLP Robert A. Olson Feris M. Greenberger Attorneys for Defendant, VERDUGO HILLS HOSPITAL 35 CERTIFICATION Pursuant to California Rules of Court, Rule 8.204(c), I certify that this ANSWER TO PETITION FOR REVIEW INCLUDING CONDITIONAL ADDITIONAL ISSUES FOR REVIEWcontains 7,726 words, not including the tables of contents and authorities, the caption page, and this Certification page. Dated: May 23, 2011 Busbeg’ Feris M. Greenbefger 36 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employedin the County of Los Angeles, State of California. 1 am over the age of 18 and not a party to the within action; my business address is 5900 Wilshire Boulevard, 12th Floor, Los Angeles, California 90036. On May23, 2011, I served the foregoing document described as: ANSWER TO PETITION FOR REVIEW CONDITIONAL INCLUDING ADDITIONAL ISSUES FOR REVIEWtheparties in this action by serving: Luan K. Phan LKP Global Law, LLP 1901 Avenueofthe Stars, Suite 480 Los Angeles, California 90067 [Attorneys for Plaintiff and Appellant Aidan Ming-Ho Leung] Thomas F. McAndrews Reback McAndrews & Kjar LLP 1230 Rosecrans Avenue, Suite 450 Manhattan Beach, California 90266 [Attorneys for Defendants and Respondents Steven Wayne Nishibayashi, M.D. and Steven Wayne Nishibayashi, M.D., Inc.] Clerk of the Court California Court of Appeal Second Appellate District, Division 4 300 S. Spring Street, Fl. 2, North Tower Los Angeles, California 90013-1213 [2d Civil Case No. B204908] Stuart B. Esner Esner, Chang & Boyer 234 East Colorado Boulevard, Suite 750 Pasadena, California 91101 [Attorneys for Plaintiff and Appellant Aidan Ming-Ho Leung] Clerk to Honorable Laura Matz Los Angeles County Superior Court 600 East Broadway, Dept. NC”E” Glendale, California 91206-4395 [Respondent Court, LASC Case No. 343985] (X) BY MAIL:Asfollows: I am “readily familiar” with this firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with United States Postal Service on that same day with postage thereonfully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion ofparty served, service is presumedinvalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mailing in affidavit. Executed on May 23, 2011, at Los Angeles, California. (X) (State) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. rth Sb. bel ANITA F,. COLE