## Facts

- Sandra Perry, after substantial weight loss, consulted plastic surgeon Dr. William Shaw for removal of excess skin from multiple areas.
- During preoperative consultations, breast procedures were discussed, but Perry decided she did not want any breast surgery at that time.
- At the hospital, Perry was presented a consent form that included breast-lifting; she twice refused to sign the portion authorizing breast surgery.
- After Perry was medicated and taken to the operating room, and after Shaw assured her he would not perform breast surgery, she signed the form.
- Shaw nonetheless performed a breast enlargement by moving tissue flaps from the sides of Perry’s chest into her breasts, in addition to the agreed-upon skin-removal procedures.
- Perry discovered the breast alteration after surgery; Shaw told her she would be happy later after additional revision surgeries.
- Perry sued for medical negligence and battery.
- The jury found for Perry on both theories and awarded $59,000 in economic damages and $1,030,000 in noneconomic damages.

## Issues

1. Whether Civil Code § 3333.2’s $250,000 cap on noneconomic damages in an “action based on professional negligence” applies when the plaintiff prevails on both medical negligence and common-law battery based on surgery beyond the scope of consent.

## Decision

- The Court of Appeal affirmed the trial court’s denial of Shaw’s motion to reduce noneconomic damages under Civil Code § 3333.2.
- The court held the MICRA cap did not apply because the jury found a common-law battery involving a deliberate deviation from the scope of consent.
- The noneconomic damages award of $1,030,000 was not reduced.

## Legal Principles

- A physician commits battery when the patient consents to one procedure but the physician performs a substantially different operation with deliberate intent to deviate from the consent given.
- Civil Code § 3333.2 limits noneconomic damages only in actions “based on professional negligence,” defined as negligent acts or omissions by a health care provider in rendering professional services.
- Intentional torts, including common-law battery, are outside MICRA’s statutory definition of “professional negligence” for purposes of § 3333.2.
- When a plaintiff proceeds on both MICRA and non-MICRA theories and the recovery may rest on a non-MICRA theory (such as battery), a MICRA limitation does not apply to reduce the award.

## Conclusion

Because the jury found that Shaw intentionally performed a substantially different, nonconsensual breast procedure, the claim included a true common-law battery rather than mere professional negligence, and Civil Code § 3333.2’s noneconomic damages cap did not limit Perry’s noneconomic damages award.


Perry v. Shaw, 88 Cal. App. 4th 658, 106 Cal. Rptr. 2d 7 (Ct. App. 2001)