The Risky Business of Judges and Counsel, Both Trial and Appellate, Predicting How the Supreme Court Will Decide An Undecided Issue, Such as Award for Reasonable Value of Negotiated Medical Services

Posted in: Appellate Practice, Collateral Source Rule, Medical Damages, Trial Practice by Steven Vartabedian on

In my last posting, I discussed the recently published appellate court opinion in Cabrera. Part of the rationale of that opinion was that the court was following “current” California published case law. My question is how should judges and attorneys handle legal authority that may appear shaky based upon currently pending cases before higher authority? In the present situation, three previously published appellate opinions reaching the opposite result of Cabrera are under review by the California Supreme Court. For attorneys, it all depends which side you are on; you will want to shed the best possible light on the arguments that favor your client. Judges have a tougher call.

On the specific issue of jury awards for reasonable medical services rendered yet not actually paid due to a plaintiff’s private insurance company’s negotiated rate with the provider, defense counsel should not expect Cabrera to remain for very long as a citable opinion. I suspect it will have the shelf life of the “catch of the day.” It will likely be promptly depublished by the Supreme Court as part of a review grant-and-hold order awaiting the Supreme Court’s opinion in Howell. So until the Supreme Court rules, what will lower courts do? Based on everything I have read, the foundational case of Cabrera’s “current law” rationale (Hanif) teeters on shaky ground. I draw a strong inference from the Supreme Court saying in Parnell that it had no opinion as to whether Hanif applies outside of the Medi-Cal context that it will find it does not. The Court need only summon the Supreme Court’s authoritative language found in Helfend to say that Hanif is different from the collateral source principles that apply to private insurance, recognizing the important public policy of rewarding ones investment in medical insurance. The mere fact that Helfend is 41 years old does not make it bad law–it actually reads as a prescient statement of what has happened in medical cost financing during these many years since. I also suspect that a good predictor is Chief Justice Cantil-Sakauye’s previous authorship of King the third case in the Howell trilogy, in which she concludes that Hanif (a case that came out of that same district) and two other cases that follow it, “do not provide governing authority for the question directly presented in this case.”

So I would conclude that until the Supreme Court resolves Howell, there is no precise, persuasive, citable authority on point. In cases on this issue, as well as other cases involving unresolved case law, I suggest that attorneys both in the trial court and on appeal make arguments based on the reasoning of the cases that are precisely on point, yet not citable. Also, don’t be afraid to cite “old” cases, especially if they are Supreme Court cases. And don’t shy away from arguing trends in the law and public policy that help predict how a pending case might be decided. Lower court judges are not in a position to continue all cases on such issues, so they themselves have to try to decide the outcome, based on the type of factors I have discussed. As a former judge of 29 years, including 21 years on the Court of Appeal, Fifth Appellate District, who now gives appellate advice in private practice at Dowling Aaron Incorporated, I recognize the work of a judge is somewhat risky, but no one ever said that making judicial decisions is risk-free.

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