CACI No. 3929. Subsequent Medical Treatment

Judicial Council of California Civil Jury Instructions (2017 edition)

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3929.Subsequent Medical Treatment or Aid
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 medical treatment or
other aid that [name of plaintiff]’s injury reasonably required, even if
those acts were negligently performed.
New September 2003; Revised December 2007, October 2008
Directions for Use
Under Proposition 51 (Civ. Code § 1431.2), the original tortfeasor is entitled to
have the jury allocate fault to any subsequent tortfeasors with regard to the
subsequent aggravation of the injury. Each is responsible only for a comparative
share of the noneconomic damages attributable to the aggravated injury. (Henry v.
Superior Court (2008) 160 Cal.App.4th 440, 455 [72 Cal.Rptr.3d 808]; see also
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 flowin 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.)
• “To the extent damages for [plaintiff]’s injured shoulder can in fact be divided
by causation into distinct component parts—the original injury that resulted
from the fall at the [defendants]’ property and the aggravation of that injury
caused by [plaintiff]’s negligent treatment by . . . physicians—liability for each
indivisible component part should be considered separately. The [defendants], if
they were negligent, are solely responsible for the initial injury; liability for the
indivisible enhanced or aggravated injury, however, is properly apportioned
between the [defendants] and the . . . physicians in accordance with the rules
of comparative fault and section 1431.2.” (Henry, supra, 160 Cal.App.4th at p.
• “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 to 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
• This rule applies to the firs 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 (10th ed. 2005) Torts, § 1676
Flahavan et al., California Practice Guide: Personal Injury (The Rutter Group)
¶ 4:189.6a
California Tort Damages (Cont.Ed.Bar) Bodily Injury, § 1.85
5 Levy et al., California Torts, Ch. 74, Resolving Multiparty Tort Litigation,
§ 74.04[3], [4] (Matthew Bender)
25 California Forms of Pleading and Practice, Ch. 300, Contribution and
Indemnity, § 300.63[2] (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.74[3][a]
(Matthew Bender)
11 California Points and Authorities, Ch. 115, Indemnity and Contribution, § 115.61
(Matthew Bender)

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