Bellamy v. Appellate Department

Opinion

Factual and Procedural Background

Garnet Bellamy filed a complaint in Kings County Municipal Court on August 23, 1993, against Central Valley General Hospital, also known as Sacred Heart Hospital, and various Doe defendants. The action was described as one for personal injury and medical malpractice; it alleged two causes of action, one for general negligence and another for premises liability. Bellamy alleged that on May 22, 1992, she was injured at the hospital “when she fell off a rolling X-ray table onto her head. Plaintiff was left unattended and said X-ray table was not secured.” In the general negligence cause Bellamy further alleged that the table rolled, and that as medical professionals the defendants had a duty either to secure the table or not leave her unattended. The complaint also alleged compliance with all applicable claims statutes.

The hospital demurred to the complaint on the sole ground that the action was barred by the one-year statute of limitations for personal injury actions.

For purposes of appellate review, the hospital conceded the fall was proximately caused by the negligence of its technician and that it was liable unless the suit was time-barred. The hospital argued since the complaint was not filed within one year, as required for actions to recover damages for personal injury, it was barred. Gopaul maintained the negligence action was based on professional negligence and therefore, under applicable decisional law, the statute of limitations did not begin to run until she either discovered, or should have discovered, the tortious injury. (38 Cal.App.3d at p. 1005.)

While recognizing that “the dividing line between ‘ordinary negligence’ and ‘professional malpractice’ may at times be difficult to place” (38 Cal.App.3d at p. 1007), the Gopaul court found no difficulty with the facts before it and affirmed the judgment of nonsuit. “The need to strap plaintiff to the gurney while she was ill and unattended would have been obvious to all. The situation required no professional ‘skill, prudence and diligence.’ It simply called for the exercise of ordinary care." (Gopaul v. Herrick Memorial Hosp., supra, 38 Cal.App.3d at p. 1007.) “The test reasonably must be whether the negligence occurred within the scope of the ‘skill, prudence, and diligence commonly exercised by practitioners of his profession.’ [Citation.]” (Ibid.)

The Gopaul test for professional negligence was cited with approval in Wasmann v. Seidenberg (1988) 202 Cal.App.3d 752 , 757 [ 248 Cal.Rptr. 744 ], where the court was called upon to decide whether an attorney has a duty to safeguard property entrusted to him during settlement negotiations by an adverse party. The court answered the question in the affirmative, holding that “[a]n attorney’s failure to prevent a client’s unauthorized seizure and recordation of a document held in escrow is not negligent lawyering: ‘The situation required no professional “skill, prudence and diligence.” It simply called for the exercise of ordinary care[,]’ ” citing Gopaul.

Murillo agreed with the premise in Gopaul that “not every act of negligence by a professional is an act of professional negligence, even where the victim is a client[.]” (Murillo v. Good Samaritan Hospital, supra, 99 Cal.App.3d at p. 56.) Hypothetical examples of ordinary, negligence suggested in Gopaul (38 Cal.App.3d at p. 1006) such as injury to a patient from a collapsing chair in a doctor’s office, or injury to a client from his attorney’s negligent driving en route to the courthouse, were deemed “apt.” (Murillo v. Good Samaritan Hospital, supra, at p. 56.) But Murillo had difficulty with the third example found in Gopaul—injury to a hospital patient from a chandelier falling onto his bed. “[T]he professional duty of a hospital, as we have seen, is primarily to provide a safe environment within which diagnosis, treatment, and recovery can be carried out. Thus if an unsafe condition of the hospital’s premises causes injury to a patient, as a result of the hospital’s negligence, there is a breach of the hospital’s duty qua hospital.” (99 Cal.App.3d at pp. 56-57.) Noting Gopaul was decided under law that preceded the enactment of section 340.5, Murillo concluded that the result reached in Gopaul was incompatible with the definition of professional negligence found in section 340.5: “Under that definition, the test is not whether the situation calls for a high or a low level of skill, or whether a high or low level of skill was actually employed, but rather the test is whether the negligent act occurred in the rendering of services for which the health care provider is licensed. When a seriously ill person is left unattended and unrestrained on a bed or gurney, the negligent act is a breach of the hospital’s duty as a hospital to provide appropriate care and a safe environment for its patients." (Murillo v. Good Samaritan Hospital, supra, 99 Cal.App.3d at p. 57.)

The Ninth Circuit Court of Appeals followed Murillo in Taylor v. U.S. (9th Cir. 1987) 821 F.2d 1428 , 1432, holding that Letterman Army Hospital had a professional duty to prevent plaintiff’s husband from becoming separated from his ventilator, “regardless of whether separation was caused by the ill-considered decision of a physician or the accidental bump of a janitor’s broom. . . .”

Finally, the California Supreme Court criticized the analysis in Gopaul in Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992 , 1000 [ 35 Cal.Rptr.2d 685 , 884 P.2d 142 ], In Flowers the trial court granted summary judgment in favor of a hospital and a nurse on an emergency room patient’s complaint for negligence. The defendants’ expert declared that prevailing standards of care did not require emergency room personnel to raise gurney siderails for patients like Flowers whose condition (bladder pain) did not appear to warrant this precaution. (Id. at pp. 995, 1001.) The Court of Appeal reversed. It concluded defendants had negated an action for professional negligence but determined the pleadings were broad enough to state a cause of action for ordinary negligence. (Id. at p. 1000. ) The Supreme Court reversed and remanded, holding a plaintiff cannot, on the same facts, state causes of action for ordinary negligence as well as professional negligence, as a defendant has only one duty that can be measured by one standard of care under any given circumstances. (Id. at p. 1001.)

“[A]s a general proposition one ‘is required to exercise the care that a person of ordinary prudence would exercise under the circumstances.’ [Citations.] .... ‘Persons dealing with dangerous instrumentalities involving great risk of harm must exercise a greater amount of care than persons acting in less responsible capacities, but the former are no more negligent than the latter for failing to exercise the required care. . . .’” (Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 Cal.4th at p. 997, fn. omitted.) “[A] hospital’s ‘business is caring for ill persons, and its conduct must be in accordance with that of a person of ordinary prudence under the circumstances, a vital part of those circumstances being the illness of the patient and incidents thereof.’ [Citations], italics added.” (Id. at p. 998.)

The Flowers court added the following to its critique of the lower court opinion: “An additional analytical flaw, derived from the rationale of Gopaul v. Herrick Memorial Hosp., supra, underlies the decision below. In drawing

While the Flowers court declined to resolve the conflict between Murillo and Gopaul on the question whether a patient’s fall from a hospital bed or gurney implicates professional or ordinary negligence in a statutory context “[b]ecause the question [was] not squarely presented,” it did state “to the extent either decision may be inconsistent with the analysis herein, it is disapproved.” (Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 Cal.4th at p. 1002, fn. 6.)

Cases from other jurisdictions involving statutes similar to MICRA are not wholly consistent in articulating the dividing line between ordinary and professional negligence for tort claims based on failure to supervise or protect the safety of a patient in a hospital or other health care facility. (See generally, Annot., What Patient Claims Against Doctor, Hospital, or Similar Health Care Provider Are Not Subject to Statutes Specifically Governing Actions and Damages for Medical Malpractice (1991) 89 A.L.R.4th 887 , 899, 931-948 (hereafter cited as Annotation).)

The Complaint Here Sufficiently Alleged Professional Negligence

When reviewing a ruling on demurrer, the court gives the complaint a reasonable interpretation and treats the demurrer as admitting all material facts properly pleaded. “The court does not, however, assume the truth of contentions, deductions or conclusions of law.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962 , 966-967 [ 9 Cal.Rptr.2d 92 , 831 P.2d 317 ].)

Bellamy’s complaint does not expressly allege that she was on the X-ray table for the rendering of some professional service, but a reasonable interpretation of her allegations supports that inference. People do not commonly mount X-ray tables in hospitals except for a radiological examination or therapy. The hospital does not contend otherwise. Thus, we will assume that Bellamy was injured either in preparation for, during, or after an X-ray exam or treatment.

Section 340.5 defines professional negligence as “a negligent action or omission ... in the rendering of professional services.” Under the

The hospital strongly urges us to reject the Murillo test. It argues the test is overbroad and “would make any act inside a hospital which causes any harm to a patient or to any person inside a hospital an act of ‘professional negligence.’ ” The hospital criticizes the Murillo court’s dictum that a negligently maintained, unsafe condition of a hospital’s premises which causes injury to a patient falls within professional negligence. According to the hospital, this rationale “obliterates” the word “professional” from the statutory definition, making any negligence by an agent or employee of a health care facility professional negligence.

We do not need to agree with the Murillo dictum to apply that court’s actual holding in this case. Murillo's facts showed that a patient hospitalized for treatment of shingles on her lower back was placed on a hospital bed and given sedatives and tranquilizers. The alleged negligence was failure of the hospital staff to raise bedrails designed to prevent the patient’s falling while she was asleep. On these facts we agree with the court’s holding that the case fell within the statutory definition of professional negligence. That holding does not necessarily lead to the further conclusion that any negligent act or omission by a hospital causing a patient injury is professional negligence.

The rationale advanced by the hospital is that expressed in Gopaul, that is, if the need for restraint is “obvious to all,” the failure to restrain is ordinary negligence. (Gopaul v. Herrick Memorial Hosp., supra, 38 Cal.App.3d at p. 1007.) We agree with Murillo that this standard is incompatible with the

The hospital also argues that in adopting MICRA the Legislature intended the term “professional negligence” to have the same meaning given it in antecedent case law (including Gopaul), which the hospital claims was restricted to “a breach of the duty to provide professional skill, procedure and diligence.” We disagree.

Gopaul relied on a dictionary definition of “malpractice” as being “ ‘any professional misconduct or any unreasonable lack of skill in the performance of professional or fiduciary duties.’ ” (Gopaul v. Herrick Memorial Hosp., supra, 38 Cal.App.3d at p. 1005.) Shortly after that decision the Legislature codified a statutory definition of “professional negligence” which differs considerably from that in Gopaul. The statutory definition does not refer to “professional misconduct” or “unreasonable lack of skill.” Instead, it includes any “negligent act or omission to act . . . in the rendering of professional services” by a licensed health care provider, if the services are within the scope of the provider’s license. (§ 340.5, subd. (2).)

The hospital also seeks to distinguish this case from Murillo on the ground that there the plaintiff was asleep after being given sedatives and tranquilizers, but no similar allegations are made here. We agree that a particular patient’s condition, including age, state of alertness, and the nature of any injuries or disease is a relevant circumstance which should be considered in assessing the patient’s need for supervision and protective measures. But that circumstance bears on the question of whether there was any negligence, that is, whether the amount of care given was reasonable. (See Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 Cal.4th at p. 997 [“. . . the amount of care deemed reasonable in any particular case will vary, while at the same time the standard of conduct itself remains constant, i.e., due care commensurate with the risk posed by the conduct taking into consideration all relevant circumstances”].) It does not alter the character of the negligence which is governed by the statutory definition.

In Olsen v. Richards (1989) 232 Neb. 298 [ 440 N.W.2d 463 ], the plaintiff-patient alleged she went to her physician’s office for an examination and treatment. She sat in the doctor’s examination chair, and he moved the headrest down onto her neck, causing injuries. Her action against the doctor was filed nearly four years later and was timely if considered one for ordinary negligence, but barred if one for professional negligence or malpractice. The Nebraska Supreme Court affirmed a judgment dismissing the action after the defendant’s demurrer was sustained. The court said: “[W]hen the Legislature enacted the special limitation statute of 2 years on malpractice, it did not intend to separate certain portions of the whole physician-patient relationship and apply a confusing standard of 2 and 4 years to different portions of that relationship, or to require the courts to make such a nebulous and difficult fact separation and determination.” (440 N.W.2d at p. 465.)

Bellamy’s complaint sufficiently alleges facts amounting to professional negligence, bringing it within section 364 and the other MICRA provisions. The lower courts erred in finding her action barred.

Disposition

Let a peremptory writ of mandate issue to respondent appellate department of the superior court directing it to vacate its order of January 19,1996, affirming the judgment of dismissal in Hanford Municipal Court action No. CIV 15085, and to enter a new order reversing said judgment.

Petitioner shall recover her costs in this proceeding.

Martin, Acting P. J., and Wiseman, J., concurred.