California Civil Jury Instructions (CACI)

3929. Subsequent Medical Treatment

If you decide that [name of defendant] is legally responsible for [name of plaintiff]'s harm, [he/she/it] is also responsible for any additional harm resulting from the acts of others in providing aid that [name of plaintiff]'s injury reasonably required, even if those acts were negligently performed.

Directions for Use

A physician is entitled to have the jury allocate fault among other negligent physicians who subsequently treat the plaintiff and is not barred by Proposition 51 from presenting evidence regarding the negligence of those other physicians. (Marina Emergency Medical Group v. Superior Court (2000) 84 Cal.App.4th 435 [100 Cal.Rptr.2d 866].)

Sources and Authority

"It has long been the rule that a tortfeasor responsible for the original accident is also liable for injuries or death occurring during the course of medical treatment to treat injuries suffered in that accident. In Ash v. Mortensen (1944) 24 Cal.2d 654 [150 P.2d 876], the Supreme Court stated: 'It is settled that where one who has suffered personal injuries by reason of the tortious act of another exercises due care in securing the services of a doctor and his injuries are aggravated by the negligence of such doctor, the law regards the act of the original wrongdoer as a proximate cause of the damages flowing from the subsequent negligent medical treatment and holds him liable therefor.' " (Anaya v. Superior Court (2000) 78 Cal.App.4th 971, 974 [93 Cal.Rptr.2d 228].)

"Obviously, if the original tortfeasor is liable for injuries or death suffered during the course of the treatment of injuries suffered in the accident, the original tortfeasor is liable for injuries or death suffered during transportation of the victim to a medical facility for treatment of the injuries resulting from the accident." (Anaya, supra, 78 Cal.App.4th at p. 975.)

"While it is true the original tortfeasor is liable for additional harm (even death) resulting from the negligent care and treatment of the original injury by physicians and hospitals, such liability is not limited o negligently caused additional harm or that caused by malpractice." (Hastie v. Handeland (1969) 274 Cal.App.2d 599, 604-605 [79 Cal.Rptr. 268], internal citations and footnote omitted.)

This rule applies to the first doctor who treats a patient who subsequently is treated by other doctors. (Maxwell v. Powers (1994) 22 Cal.App.4th 1596, 1607-1608 [28 Cal.Rptr.2d 62].)

Restatement Second of Torts section 457 states: "If the negligent actor is liable for another's bodily injury, he is also subject to liability for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other's injury reasonably requires, irrespective of whether such acts are done in a proper or a negligent manner."

Secondary Sources

6 Witkin, Summary of California Law (9th ed. 1988) Torts, § 1414, pp. 885-886

California Tort Damages (Cont.Ed.Bar 1988) Bodily Injury, § 1.85

15 California Forms of Pleading and Practice, Ch. 177, Damages (Matthew Bender)

6 California Points and Authorities, Ch. 65, Damages (Matthew Bender)

(New September 2003)