Metropolitan News-Enterprise


Monday, July 20, 2015


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Justices to Decide Whether County Retiree Entitled to Interest on Retroactive Benefits


By a MetNews Staff Writer


The California Supreme Court has agreed to decide whether a county retiree granted retroactive disability benefits is also entitled to interest from the date from which benefits are awarded.

The justices, at their weekly conference in San Francisco Wednesday, voted unanimously to grant review in Flethez v. San Bernardino County Employees Retirement Association (2015) 236 Cal. App. 4th 65.

A San Bernardino Superior Court judge ruled that the plaintiff, Frank Flethez, was entitled to disability benefits and interest retroactive to the date of his 2000 retirement. Flethez, a former equipment operator, suffered a back injury in 1998 and underwent three surgeries and years of therapy after leaving his job.

The county retirement board did not appeal the ruling on retroactive benefits, but argued that it should only have to pay interest from the date of the administrative hearing on Flethez’s application. The application was filed in 2008 and the hearing was held in 2011.

The retroactive interest awarded by the court came to more than $130,000.

Div. One of the Fourth District Court of Appeal agreed with the retirement system, known as SBCERA, that the right to benefits did not vest before the hearing, and thus interest from an earlier date is not recoverable under Civil Code §3287(a).

The statute reads:

“A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day, except when the debtor is prevented by law, or by the act of the creditor from paying the debt. . . .” 

In other conference action, the justices denied a depublication request in Keys v. Alta Bates Summit Medical Center (2015) 235 Cal. App. 4th 484.

The First District’s Div. Three held in that case that California law permits an award of damages for negligent infliction of emotional distress to family members who watched a patient choke to death while waiting for her doctor to arrive after surgery.

Div. Three yesterday certified for publication its Feb. 23 opinion affirming a judgment in favor of. The panel held, 2-1, that Phyllis Keys and Erma Smith, the daughter and sister, respectively, of Madeline Knox—who were awarded $375,000 in damages against Berkeley’s Alta Bates Summit Medical Center—satisfied the standard for bystander liability under Thing v. La Chusa (1989) 48 Cal.3d 644 and similar cases.

Thing holds that a witness to a tort may recover emotional distress damages if present at the scene and aware of the injury-producing event and its cause, and if a close relative of the victim who suffers emotional distress beyond that which a disinterested observer would be expected to experience.

Knox underwent thyroid surgery in September 2008 and was taken to a medical-surgical unit at Alta Bates. Once there, the plaintiffs said, the hospital appeared to lack a sense of urgency after a nurse noticed Knox’s breathing was “noisy,” indicating a possible obstruction in her upper airway.

According to testimony, the rapid assessment team, composed of a respiratory therapist and a nurse from the intensive care unit, were called in about 15 minutes before the surgeon arrived. The surgeon then suctioned Knox’s mouth and nose, and as the surgeon was trying to relieve pressure by removing the sutures on her incision, Knox stopped breathing.

Knox suffered a permanent brain injury as a result of her blocked airway and was transferred to the ICU. She died nine days later, after life support was withdrawn.

Justice Peter Siggins, writing for the Court of Appeal, said the Thing standard was satisfied because Smith and Keys “observed Knox’s acute respiratory distress and were aware that defendants’ inadequate response caused her death.”  

Presiding Justice William McGuiness concurred, while Justice Stuart Pollak dissented.

 The vote to deny depublication was 6-0, with Justice Goodwin H. Liu recusing himself.


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