Cox

In this case we hold that in a trial for medical malpractice, while evidence that plaintiff is receiving disability insurance benefits is admissible under Civil Code section 3333.1, evidence of the tax treatment of those benefits is not.

Factual and Procedural Summary

Plaintiff Kerry C. Cox is a board-certified ophthalmologist. In February 1996, Dr. Clarence L. Shields performed surgery on plaintiff’s shoulder. After surgery, plaintiff experienced substantial pain in his neck and shoulder, and loss of dexterity in his right hand. Further examination revealed he had a “non-union” clavicle fracture. The fracture did not heal on its own. Plaintiff had a bone graft to attempt to alleviate the problem, but his symptoms continued. He was unable to continue working, and sold his ophthalmology practice. He receives approximately $180,000 a year from disability policies. Because he paid the premiums for these policies with after-tax dollars, the disability benefits he receives are currently not taxed as income.

Plaintiff brought this action for legal malpractice against Dr. Shields and the Kerlan Jobe Orthopedic Institute; his wife, Kathy Cox, sued for loss of consortium. The…