Hrimnak

This medical malpractice case involves the application of Code of Civil Procedure section 667.7 (all further references to undesignated sections are to the Code of Civil Procedure). Section 667.7 was enacted as part of the Medical Injury Compensation Reform Act of 1975 (MICRA). The section allows a medical malpractice judgment awarding “future damages” of at least $50,000 to be paid on a periodic basis.

We conclude: (a) the trial court abused its discretion in fashioning a periodic-payment judgment (the trial court’s basic error was failing to correlate the evidence of plaintiff’s future losses with the payment of future damages); (b) a new jury trial to determine the gross amount of future economic damages is constitutionally required unless both parties agree to waive this right; and (c) the jury’s present value determination of future economic damages can be used in calculating the plaintiff’s attorney fees and the section 998-based prejudgment interest penalty. We decline the invitation to require that a satisfaction of judgment be entered if the periodic-payment portion of the judgment is funded by an annuity. The parties are certainly free to agree to such a…

Predictably, I find the majority quite persuasive. Nevertheless, I feel compelled to write separately to address the issue of satisfaction of judgment through annuity funding. Concerns about judicial restraint and the procedural posture of this case make the deferential tone of the majority on this issue appropriate. In this concurrence, I am not under these shackles, and my aim is to raise awareness, I hope legislative awareness, about this issue and about a possible framework for considering it.

A natural tension exists between the health care provider and his or her insurer in the application of Code of Civil Procedure section 667.7. (All further references to undesignated sections are to the Code of Civil Procedure.) The health care provider wants the insurer to pay the judgment off —now. The insurer, on the other hand, wants to defer payment. In other words, while the health care provider seeks to put the judgment behind him or her as soon as possible, the insurer wants to put the judgment in front of it for as long as it can. The present case aptly illustrates this tension as Emily’s future economic needs span a 75-year period.

This tension threatens the vitality of…

[Opinion certified for partial publication. [*] ]

OPINION

DAVIS, Acting P.J.

This medical malpractice case involves the application of Code of Civil Procedure section 667.7 (all further references to undesignated sections are to the Code of Civil Procedure). Section 667.7 was enacted as part of the Medical Injury Compensation Reform Act of 1975 (MICRA). The section allows a medical malpractice judgment awarding "future damages" of at least $50,000 to be paid on a periodic basis.

We conclude: (a) the trial court abused its discretion in fashioning a periodic-payment judgment (the trial court's basic error was failing to correlate the evidence of plaintiff's future losses with the payment of future damages); (b) a new jury trial to determine the gross amount of future economic damages is constitutionally required unless both parties agree to waive this right; and (c) the jury's present value determination of future economic damages can be used in calculating the plaintiff's attorney fees and the section 998-based prejudgment interest penalty. We decline the invitation to require that a satisfaction of judgment be entered if the periodic-payment portion of the judgment is funded…