Award to Afflicted Girl Cut to $2.7 Million

A $5.4-million jury award granted two years ago to a retarded, blind, deaf and quadriplegic San Gabriel girl was reduced Thursday to $2.7 million by the 2nd District Court of Appeal.

Brandi Mendez, 12, had been awarded $3 million for pain and suffering, $1,989,800 for past and future medical care and $456,300 for lost earning capacity because she would never be able to work. The damages were assessed against Community Hospital of San Gabriel, whose emergency room personnel failed to quickly diagnose the child’s meningitis when she was an infant.

The appellate court decided, however, that the $3-million portion of the award must be cut to $250,000 because of a California statute enacted in 1975 limiting damages for pain and suffering in an attempt to curb medical malpractice suits and assist doctors in maintaining malpractice insurance.

Installments for Life

The 50-page opinion, written by Los Angeles Superior Court Judge Irving Shimer--sitting as an appellate justice by special appointment--with the concurrence of Justices Arleigh Woods and Eugene McClosky, also permitted the hospital to pay the remaining $2,696,100 in installments over the child’s expected 68-year life span.

Neither the hospital’s liability nor the amount of damages is affected, but payment in installments, rather than a lump sum, is considered an economic advantage for the hospital.

Gerald E. Agnew Jr., the girl’s attorney, had argued that the state law limiting damages for pain and suffering could not be made retroactive and that Brandi was entitled to whatever amount jurors decided, because her injuries occurred in 1974, more than a year before the law went into effect Dec. 12, 1975.

Suit Filed Later

Attorneys William D. Stewart and Alan G. Martin argued on behalf of the hospital, however, that the limit should apply, because the child’s civil suit was filed in 1978 and tried in 1984, well after the law was in effect.

The justices agreed.

“It has been the law in California for more than 100 years that when the Legislature changes the law regarding the measure of damages and related matters such as interest on judgments,” Shimer wrote, “the change impacts on suits then pending even though the operative facts occurred and the right to recovery arose before the legislative enactment.”

Another Review

Although the California Supreme Court and the U.S. Supreme Court have recently upheld the $250,000 damage limit, questions remain about the law’s retroactivity. Two previous appellate court opinions, Shimer noted, reached the opposite conclusion, making the Mendez decision one of first impression--meaning it will govern other cases pending an expected review by the state Supreme Court.

Brandi’s suit stemmed from incidents on Easter weekend, 1974, when she was 5 1/2 months old. Rushed to the Community Hospital emergency room on a Saturday night with a temperature of 106.5 degrees, she was given cooling baths and sent home.

Bacterial meningitis was not diagnosed until Monday morning, when Brandi was again rushed to the hospital with convulsions. Delay in treatment caused severe and permanent brain damage, leaving her substantially blind, deaf and retarded, with a mental age of five months.