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SACRAMENTO — California’s Supreme Court justices were like a group of top-flight surgeons in disagreement Tuesday, trying to decide where to cut in a pair of closely watched health care cases. Whether the plaintiffs or defendants would survive was hard to tell from the justices’ tough questioning of both sides in the cases, which attracted a slew of amici briefs. In the first case, Joel Parnell sued to prevent Adventist Health System/West from claiming damages he won against the driver of a car that slammed into a taxicab in which he was riding. Adventist used the state’s Hospital Lien Act to place a lien on more than $14,000 of the damages he won in a suit against the driver who injured him — this even though Adventist had already been paid the $5,000 contracted for with Parnell’s health care plan. Adventist claimed it was entitled under the lien act to recover the full cost of Parnell’s treatment at Fresno’s San Joaquin Community Hospital. In 2003, the Fresno-based Fifth District Court of Appeal disagreed, saying the law doesn’t authorize hospitals to file liens for the difference between what they contractually agree to accept and their “usual and customary” charges for similar services. That ruling seemed to resonate with the Supreme Court on Tuesday. “Did your client agree under the terms of the contract to accept certain payment � as payment in full?” Justice Kennard asked. When La Mesa lawyer Deborah Giles responded in the affirmative, Justice Ming Chin added: “So didn’t the hospital get exactly what it contracted for?” Kennard and Justice Janice Rogers Brown pointed out that case law allows liens only to collect existing debt. “Here there is no underlying debt,” Kennard said. “Here the plaintiff didn’t owe a thing to the hospital.” Minutes later, however, the justices pounced with almost equal force on William Hanagami, a partner in Los Angeles’ King & Hanagami representing Parnell. Several of them asked why the high court shouldn’t follow Arizona courts, which upheld similar liens in which hospitals had contracted with the express right to recapture total treatment costs. Why, they asked, would that not work in California? Hanagami said that would violate certain California insurance codes and would be just plain unfair. But, Chin asked, “Isn’t your client getting a benefit because there are expenses the hospital incurred treating your client? Why shouldn’t they get paid for them?” Chin also was tough with Torrance attorney Bruce Brusavich, who sided with Hanagami in representing the Consumer Attorneys of California as amicus. The justice repeated his questions about why hospitals simply couldn’t contract for the right to recover, especially since the lien act entitles providers to only half of the tort recovery and leaves the rest to the plaintiff. Adventist attorney Giles was backed by Barry Landsberg, a partner at Manatt, Phelps & Phillips in Los Angeles who argued on behalf of amici Catholic Healthcare West, Scripps Health and the University of California, which operates several teaching hospitals. The case is Parnell v. Adventist Health System/West, S114888. In the second case, Brandi Fox is fighting to sue Ethicon Endo-Surgical Inc., manufacturer of a stapler that she blames for a severe internal injury during gastric bypass surgery six years ago. Ethicon claims Fox missed the statute of limitations by not filing a product liability claim months earlier when she sued her doctor for medical malpractice. State law, they argued, requires that all potential defendants in a tort be sued within two years of the initial discovery of a possible injury. But in 2003 the Fifth District Court of Appeal held that the statute didn’t start running until Fox had actual knowledge about what might have caused the injury — such as a faulty stapler — rather than earlier when she only realized she was hurt. It wasn’t until Fox’s lawyer was deposing her doctor that she learned about the stapler that might have accidentally perforated her bowel. On Tuesday, most of the Supreme Court justices seemed to at least partly agree with the lower court. “How significant is it that [Fox] was hospitalized for 11 months?” Justice Carlos Moreno asked Alan Lazarus, a partner at Drinker Biddle & Reath representing the manufacturer. “Is she supposed to sue everyone?” When Lazarus suggested that Fox should have filed a products liability claim listing all so-called “Doe” defendants to preserve a suit, Justice Joyce Kennard suggested that was “circular” reasoning. “The plaintiff here had no reason to believe a defective product was guilty,” she said. Justice Chin and Chief Justice Ronald George piled on, with George saying Lazarus’ suggestion would “clutter up the court.” Fresno lawyer Lynette Hecker, representing Fox, had it easier, but still had to answer questions about whether or not her client should have made a much more diligent effort to find all possible defendants in the first place. Lazarus had suggested that Fox should have questioned her doctor immediately. “Is it wise not to let the patient inquire?” Justice Werdegar asked. “As your opponent said, why couldn’t she ask the doctor what happened?” Argument on Fox’s behalf was also made by Sharon Arkin, a partner at Newport Beach’s Robinson, Calcagnie & Robinson who was representing the Consumer Attorneys of California as amicus. The case is Fox v. Ethicon Endo-Surgical Inc., S121173. Rulings in both cases should be released within 90 days.

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