Metropolitan News-Enterprise


Friday, April 1, 2005


Page 1


C.A. Raises Award to Man Whose HIV Was Disclosed by Doctor


By KENNETH OFGANG, Staff Writer/Appellate Courts


Settlements received from third parties who are not medical providers are deducted from a malpractice plaintiff’s total damages, not from the statutory cap on noneconomic damages, the First District Court of Appeal has ruled.

Div. Three Wednesday agreed with Nicholas Francies that San Francisco Superior Court Judge Anne Bouliane shorted him by about $100,000 on his malpractice award against William Kapla. Francies alleged that Kapla both invaded his privacy and committed malpractice when he or an employee disclosed to the plaintiff’s employer that Francies was HIV-positive.

The appeals court ordered that the award—the judge tried the case without a jury—be increased from $25,332 in economic damages and $166,667 in punitive damages be upped to $41,575 in economic and $250,000 in non-economic damages.

Francies is the former general manager of the Savoy Brasserie restaurant in San Francisco. He was HIV-positive and under Kapla’s care when he took that job in 1995.

The lawsuit stems from a 1996 incident in which Francies went to Kapla’s office with complaints that he was under too much stress to work. The doctor agreed, and told his assistant to fax a note to the restaurant certifying that Francies was temporarily disabled and would miss a month of work.

The doctor completed a “first report” form in order for Francies to claim workers’ compensation benefits. The form included a notation that the employee was “managing HIV disease.” A copy of that form was later faxed to Francies’ employer, who subsequently discharged him as manager, allegedly to avoid a “PR nightmare” that would occur if it were known that the restaurant was being run by someone who had the virus.

Francies settled his wrongful termination action for $160,000 and recovered $43,000 in workers’ compensation benefits.

Causes of Action

Following the non-jury trial, Bouliane found for Francies on his causes of action for constitutional invasion of privacy, violation of the Confidential Medical Information Act, and medical malpractice. The judge rejected the defendant’s claim that Francies consented to the disclosure.

She found that the plaintiff had suffered $70,000 in economic damages and $425,000 in noneconomic damages, then reduced the amounts to reflect the $203,000 that Francies had previously received from other parties, as well as the $250,000 Medical Injury Compensation Reform Act cap on noneconomic damages.

The judge calculated the economic damages for which the doctor was liable by dividing the $70,000 in economic damages by $320,000, the total damages including the MICRA cap. Since the economic damages were 22 percent of that total, Bouliane realized, 22 percent of the third-party recoveries had to be deducted from $70,000, leaving less than $26,000 for the plaintiff.

The jurist then calculated the noneconomic damages by reducing the award to the cap, then reducing the remainder by one-third to reflect the percentage of fault attributed by the judge to the plaintiff’s employer.

Both sides appealed. In an unpublished portion of his opinion, Justice Stuart Pollak rejected the doctor’s contention that the action was barred by the litigation privilege or by judicial estoppel.

Judicial Estoppel Claim

The judicial estoppel claim was based on evidence presented in the wrongful termination action that Francies’ employer knew he was HIV-positive on Nov. 8, 1996, three days before receiving the fax from the doctor’s office. The trial judge found that the Nov. 8 date was based on a declaration submitted by a fellow employee, who later said he was mistaken.

Since that testimony “was entirely plausible,” Pollak wrote, the trial judge was entitled to find that the plaintiff had not take inconsistent provisions in the two suits. The doctrine of judicial estoppel, the justice explained, does not bind a litigant to a position that was taken in a prior suit as a result of “an honest mistake.”

In the published portion of his opinion, Pollak explained that the judge should have, in calculating both economic and noneconomic damages, applied the MICRA cap after, rather than before, the damages were determined. While the doctor is entitled by MICRA to the protection of the cap, the justice said, there was no requirement that the amount be reduced to reflect third-party payments by non-medical providers.

This, Pollak concluded, the judge should have divided $70,000 by the total damages of $495,000 to come up with a ratio of approximately 14 percent; then subtracted 14 percent of the $203,000 in third-party payments from $70,000 for net economic damages of $41,575.

To calculate the noneconomic damages recoverable from the doctor, the court should have taken the $425,000 that it found to be the total non-economic damages, then reduced it by the one-third of fault attributable to the employer. Since the result exceeds the cap, Pollak explained, the net recovery of noneconomic damages from the doctor is the maximum $250,000.

The case is Francies v. Kapla, 05 S.O.S. 1621.


Copyright 2005, Metropolitan News Company