The California Supreme Court denied a petition for review of a lower court's ruling that employers must reimburse their employees who use their personal cell phones for work purposes, rendering the lower court's ruling the law of the land.

In Cochran v. Schwan's Home Service, Inc., the California Court of Appeal for the Second District ruled that employers must reimburse employees who use their personal cell phones for work purposes:

California Labor Code section 2802(a) provides that “[a]n employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer[.]”  The purpose of section 2802 is “‘to prevent employers from passing their operating expenses on to their employees.’”  Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554, 562 (citations omitted).  “In calculating the reimbursement amount due under section 2802, the employer may consider not only the actual expenses that the employee incurred, but also whether each of those expenses was ‘necessary,’ which in turn depends on the reasonableness of the employee’s choices.”  Gattuso, 42 Cal.4th at 568 (citations omitted).

The Cochran court delineated the rule with respect to cell phone plans as follows: 

San Diego employers should carefully assess whether their employees utilize their personal cell phones in carrying out their work duties.  If so, employers are legally mandated to pay a reasonable percentage of the cell phone bill based on the particular circumstances of the cell phone plan and work usage.

On November 25, 2014, the California Supreme Court granted the petition for review in the medical malpractice case Hughes v. Pham.  In Hughes, the plaintiff was injured while off-roading.  Due to a physician's delay in treatment, the plaintiff's injured spinal cord became much worse.  At trial, the jury determined that the physician was negligent and awarded the plaintiff $2,750,000 in noneconomic damages (pain and suffering).  Pursuant to California's statutory cap on medical malpractice noneconomic damages (California Civil Code section 3333.2), that award was reduced to $250,000.  

Hughes is a "grant and hold" case, meaning that no action will be taken on the case by the Supreme Court until another case is decided.  That other case is Rashidi v. Moser, and a decision is expected to be handed down in January 2015.

However, the issue granted for review in Rashidi, which will be applied to Hughes, is not whether the $250,000 cap violates the California Constitution's “inviolate” right to jury trial or the United States Constitution's Equal Protection Clause.  Rather, the issue granted for review is whether a settlement amount between the plaintiff and one of the defendants can offset the noneconomic damages against defendants who remain in the case, thus making the noneconomic damages "joint and several".  

Nevertheless, the California Supreme Court may open Hughes for briefing as to the constitutionality of California's medical malpractice damages cap before everything is said and done.  Despite several denials for review in the past, many legal commentators believe that the current makeup of the California Supreme Court, crafted by Governor Jerry Brown, opens the door to reevaluate MICRA against constitutional challenge.  

If so, there is a decent chance that MICRA's damages cap will be deemed unconstitutional, following in the footsteps of other States' decisions on similar caps.  

MICRA's $250,000 cap on noneconomic damages in medical malpractice cases was enacted by the California legislature in 1975, and has never been adjusted for inflation since that time.  To make matters worse, despite claims to the contrary, medical malpractice insurance premiums have continued to rise since MICRA's enactment.

As Consumer Watchdog's amicus letter to the California Supreme Court relays: "Review in this case is vitally necessary because the opinion of the appellate court will leave millions of Californians and their families who have suffered from medical negligence without fair compensation despite a jury’s verdict above an outdated cap on damages."

39 years after MICRA's enactment with no adjustments for inflation, it's about time that the California Supreme Court reevaluated the noneconomic damages cap to ensure that Californians are not being unfairly under compensated for injuries sustained as a result of negligence by medical providers.