Exemplary Damages in Medical Malpractice Actions: California\u27s Requirement for Posting of a Cost Bond by Plaintiff

In recent years there has been a growing concern with what has come to be called in California a medical malpractice crisis. In 1972 the California Legislature passed Senate Bill 941 amending Section 1029.6 of the Code of Civil Procedure to allow a defendant in a medical malpractice action to move for an ex parte order requiring the plaintiff to post security of not less than $2,500 in order to pursue a cause for exemplary damages. This legislation was aimed at the problem arising as a result of the California policy of prohibiting medical malpractice insurance from covering exemplary damages. Under the old law a complaint which included a prayer for exemplary damages therefore gave the plaintiff a wedge with which to bargain for a favorable settlement. This comment briefly discusses the implications of the new legislation upon the constitutional rights of the plaintiff. The author concludes that while the changes involved in Civil Procedure Code Section 1029.6 may in fact prevent the threat of the use of exemplary damages as a bargaining device in any but the most flagrant situations, it appears inherently unfair and presents serious questions of constitutional validity under the due process and equal protection provisions of the fourteenth amendment