S209836

IN THE

Supreme Court OF THE STATE OF CALIFORNIA

_________

CATHERINE FLORES,

Plaintiff and Appellant,

v.

PRESBYTERIAN INTERCOMMUNITY HOSPITAL,

Defendant and Respondent.

__________

After a Published Decision by the Court of Appeal,

Second Appellate District, Division Three

Case No. B235409

__________

APPLICATION FOR LEAVE TO FILE AMICUS BRIEF;

AMICUS BRIEF IN SUPPORT OF PETITIONER BY

CALIFORNIA MEDICAL ASSOCIATION,

CALIFORNIA DENTAL ASSOCIATION, AND

CALIFORNIA HOSPITAL ASSOCIATION

_________

COLE PEDROZA LLP

CURTIS A. COLE, SBN 52288

KENNETH R. PEDROZA, SBN 184906

* MATTHEW S. LEVINSON, SBN 175191

(mlevinson@colepedroza.com)

2670 Mission Street, Suite 200

San Marino, CA 91108

Tel: (626) 431-2787

Fax: (626) 431-2788

Attorneys for Amicus Curiae

CALIFORNIA MEDICAL ASSOCIATION, CALIFORNIA DENTAL

ASSOCIATION, AND CALIFORNIA HOSPITAL ASSOCIATION

i

TABLE OF CONTENTS

Page

APPLICATION FOR LEAVE TO FILE AMICUS BRIEF ............... 1

ISSUES PRESENTED ........................................................................ 4

ANSWERS PROPOSED BY AMICI ................................................. 4

SUMMARY OF ARGUMENT ........................................................... 6

STATEMENT OF THE CASE ........................................................... 9

LEGAL ANALYSIS ......................................................................... 13

I. PLAINTIFF’S APPROACH TO STATUTORY

CONSTRUCTION AND APPLICATION IS WRONG ........ 13

A. Plaintiff Incorrectly Approaches The Procedural

Issue In This Case – The Resolution Of Which

Requires Statutory Construction And

Application Of Two Statutes Of Limitation – As

A Question Of Substantive Law ................................... 13

B. Plaintiff Recognizes That The Question Turns

On The Breadth Of The Statutory Phrase “In

The Rendering Of Professional Services” .................... 16

C. Plaintiff’s Proposal That MICRA Should Be

Limited To Specialized Medical Skills Or Errors

In Professional Judgment Is Not Supported By

Statutory Interpretation ................................................. 18

ii

II. MICRA APPLIES TO CLAIMS FOR INJURIES –

SUCH AS THE ONE BEFORE THE COURT – THAT

ARE DIRECTLY RELATED TO THE RENDERING

OF PROFESSIONAL SERVICE FOR WHICH THE

HEALTH CARE PROVIDER IS LICENSED ........................ 20

A. Code Of Civil Procedure Section 340.5, Like

The Other Provisions Of MICRA, Should Be

Broadly Applied To All Risks Of Harm That

Arise From Acts Or Omissions By Health Care

Providers “In The Rendering Of Professional

Services” ....................................................................... 20

B. Legislative History Corroborates That The

Statutory Intent Is To Apply MICRA Broadly ............. 22

1. Code Of Civil Procedure Section 340.5

Was Enacted In 1975 As A Specific

Statute Of Limitations For Professional

Negligence .......................................................... 22

2. Applying MICRA To Cases Such As The

One Before The Court Is Not Incongruous

With Code Of Civil Procedure Section

335.1 – The General Statute Of

Limitations For Negligence ................................ 24

C. The Conflict Between Gopaul And Murillo

Should Be Resolved By Adopting The Rule

That MICRA Applies To Claims For Injuries

Directly Related To The Services Of Health

Care Professionals ......................................................... 27

1. The Court Should Reject The

“Professional Skill Or Judgment” Test

Promoted By Plaintiff ......................................... 27

2. The Court Should Hold That MICRA

Applies Where The Injury Was Caused

By Conduct That Is Directly Related To

The Services Of The Health Care

Professional ......................................................... 28

iii

III. THE COURT OF APPEAL’S DECISION IS

INCORRECT .......................................................................... 35

A. The Court Of Appeal’s Decision Fails To

Address Licensure Requirements Imposed On

Health Care Professionals ............................................. 36

B. The Opinion Does Not Consider Contrary

California Decisions And Mischaracterizes

Foreign Authority .......................................................... 40

C. The Opinion’s Analysis Is Otherwise Based On

A Poorly Developed Record ......................................... 44

D. The Opinion Will Encourage Skeletal Pleadings ......... 45

CONCLUSION .................................................................................. 46

CERTIFICATION ............................................................................. 48

iv

TABLE OF AUTHORITIES

Page(s)

CASES

American Bank & Trust Co. v. Community Hospital (1984)

36 Cal.3d 359 ........................................................................... 22

Arroyo v. Plosay (2014)

225 Cal.App.4th 279 ................................................... 29, 36, 37

Bell v. Sharp Cabrillo Hospital (1989)

212 Cal.App.3d 1034 ............................................................... 41

Bellamy v. Appellate Department (1996)

50 Cal.App.4th 797 ............................................ 7, 11, 31, 41, 43

Blevins v. Hamilton Medical Center, Inc. (La. 2007)

959 So.2d 440 ........................................................................... 43

Canister v. Emergency Ambulance Service (2008)

160 Cal.App.4th 388 .................................. 29, 32, 33, 35, 36, 37

Central Pathology Service Medical Clinic, Inc. v. Superior

Court (1992) 3 Cal.4th 181 .......................................... 14, 30, 37

Flowers v. Torrance Memorial Hospital Medical Center

(1994) 8 Cal.4th 992 ............................. 13, 14, 15, 27, 30, 32, 43

Gopaul v. Herrick Memorial Hosp. (1974)

38 Cal.App.3d 1002........................................................... passim

Guillory v. Royal, Inc. (La. Ct. App. 2007)

971 So.2d 1234 ......................................................................... 43

Harts v. Caylor-Nickel Hospital, Inc. (Ind. App. 1990)

553 N.E.2d 874 ............................................................. 42, 43, 44

Hedlund v. Superior Court (1983)

34 Cal.3d 695 ........................................................................... 23

Marks v. St. Luke’s Episcopal Hospital (Tex. 2010)

319 S.W.3d 658 ........................................................................ 43

v

Murillo v. Good Samaritan Hospital (1979)

99 Cal.App.3d 50............................................................... passim

Prater v. Smyth County Community Hospital

(Va. Cir. Ct. 1995) 35 Va. Cir. 406 .......................................... 44

Rowland v. Christian (1968)

69 Cal.2d 108 ..................................................................... 20, 21

Taylor v. United States (9th Cir. 1987)

821 F.2d 1428 ............................................................... 32, 40, 41

United Western Medical Centers v. Superior Court (1996)

42 Cal.App.4th 500 ............................................................ 29, 40

Walsh v. Lo Piccolo (Sup. Ct. NY 1985)

485 N.Y.S.2d 946 ............................................................... 42, 43

Waters v. Bourhis (1985)

40 Cal.3d 424 ........................................................................... 30

Western Steamship Lines, Inc. v. San Pedro Peninsula

Hospital (1994) 8 Cal.4th 100 ............................................ 36, 41

Williams v. Superior Court (1994)

30 Cal.App.4th 318 ...................................... 7, 28, 30, 35, 41, 42

STATUTES

Business & Professions Code

§ 6146 ................................................................................. 23, 35

Civil Code

§ 3333.1 .............................................................................. 23, 35

§ 3333.2 .................................................................................... 23

Code Civil Procedure

§ 335.1 ............................................................................ 4, 18, 24

§ 340.5 ............................................................................... passim

§ 364 ......................................................................................... 35

§ 425.13 .................................................................................... 14

vi

§ 667.7 ...................................................................................... 35

§ 1295 ....................................................................................... 35

California Code of Regulations, Title 22

§ 70045 ..................................................................................... 38

§ 70129 ..................................................................................... 38

§ 70207 ..................................................................................... 38

§ 70815 ..................................................................................... 38

§ 70837 ..................................................................................... 39

Stats. 1975, Second Ex. Sess., ch. 2, § 12.5, p. 4007 ......................... 23

Stats. 2002, ch. 448, § 688 .................................................................. 26

OTHER

Assembly Select Committee on Medical Malpractice,

Preliminary Report, June 1974, Hon. Henry A.

Waxman, Chairman .................................................................. 24

Hospital Bed Safety Work Group, Clinical Guidance for the

Assessment and Implementation of Bed Rails in

Hospitals, Long Term Care Facilities, and Home Care

Settings (April 2003) <http://www.ecri.org/documents/

patient_safety_center/bedsafetyclinicalguidance.pdf >

(accessed July 2, 2014) ............................................................. 39

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. 887 ...................... 42, 43

1

APPLICATION FOR LEAVE TO FILE AMICUS BRIEF

California Medical Association (“CMA”) is a non-profit

incorporated professional association of more than 39,400 member

physicians practicing in California, in all specialties. California

Dental Association (“CDA”) represents over 24,000 California

dentists, which include 70% of the dentists practicing in this state.

CMA’s and CDA’s membership includes most of the California

physicians and dentists who are engaged in the private practices of

medicine and dentistry. California Hospital Association (“CHA”)

represents approximately 450 hospitals, including virtually all of the

state’s acute care hospitals. Together, CMA, CDA, and CHA

(“Amici”) represent a broad array of health care providers and

hospitals.

Amici have been active before the California Legislature, this

Court, and the California Courts of Appeal in regard to many areas of

concern to health care providers. For example, Amici filed briefs in

all of this Court’s cases in which the damage limitations of the

Medical Injury Compensation Reform Act (“MICRA”) were at issue,

including Fein v. Permanente Medical Group (1985) 38 Cal.3d 137;

Central Pathology Service Medical Clinic, Inc. v. Superior Court

(1992) 3 Cal.4th 181; Western Steamship Lines, Inc. v. San Pedro

Peninsula Hospital (1994) 8 Cal.4th 100; and Barris v. County of Los

Angeles (1999) 20 Cal.4th 101. Amici filed briefs in other recent

important cases before this Court, including Howell v. Hamilton

Meats & Provisions, Inc. (2011) 52 Cal.4th 541; Sargon Enterprises,

2

Inc. v. University of Southern California (2012) 55 Cal.4th 747; and

the pending case in Cordova v. City of Los Angeles (No. S208130).

Amici are concerned that the approach of the Court of Appeal

and plaintiff in the instant case unduly narrows the application of

MICRA’s statute of limitations codified as Code of Civil Procedure

section 340.5. More importantly, plaintiff’s approach would also

unduly limit the application of MICRA’s other provisions, all of

which include the same definition of “professional negligence.”

Such a narrowing is unwarranted by MIRCA’s statutory

language, extant decisional authority, and public policy. What is

more, under the approach proposed by plaintiff and the Court of

Appeal, certain liability would be removed from coverage of

professional liability insurers in California, which include many

specialized, physician owned insurance companies. This means that

the concentrated and specialized risk management benefits, of which

these companies have a comparative advantage, would not be

available to increase safety in areas that involve “the rendering of

professional services” – including proper maintenance of hospital

equipment, but which are alleged merely to be the provision of a safe

premises.

There are organizations and entities that share Amici’s interests

in these issues and, therefore, provided some of the funding for the

proposed brief. Those organizations and entities include physician-

owned and other medical and dental professional liability

organizations and non-profit and governmental entities engaging

physicians for the provision of medical services: the Cooperative of

American Physicians, Inc.; The Dentists Insurance Company; The

Doctors Company; Kaiser Foundation Health Plan, Inc.; The Mutual

Risk Retention Group, Inc.; Medical Insurance Exchange of

California; NORCAL Mutual Insurance Company; and the Regents of

the University of California.

No party or counsel for a party authored the proposed brief in

whole or in part, nor has any party or counsel for a party made a

monetary contribution intended to fund the preparation or submission

of the proposed brief.

For these reasons, CMA, CDA, and CRA respectfully request

permission of the Court to file the proposed amici curiae brief.

Dated: July 2, 2014 COLE PEDROZA LLP

By fl1~x/~Curtis A. ColeKenneth R. PedrozaMatthew S. LevinsonAttorneys for AmiciCALIFORNIA MEDICALASSOCIATION, CALIFORNIADENTAL ASSOCIATION, andCALIFORNIA HOSPITALASSOCIATION

3

4

ISSUES PRESENTED

(1) Does the one-year statute of limitations for claims under

the Medical Injury Compensation Reform Act (Code Civil Proc., §

340.5) or the two-year statute of limitations for ordinary negligence

(Code Civil Proc., § 335.1) govern an action for premises liability

against a hospital based on negligent maintenance of hospital

equipment?

(2) Did the injury in this case arise out of “professional

negligence,” as that term is used in Section 340.5, or ordinary

negligence?

ANSWERS PROPOSED BY AMICI

A claim for an injury is “based on alleged professional

negligence,” which is to say, based on “a negligent act or omission to

act by a health care provider in the rendering of professional

services,” where the injury is directly related to the services of health

care professionals in diagnosing or treating patients, or the methods,

procedures, plant, and equipment that are necessary or convenient to

the provision of such services. This relationship is informed by a

number of factors: (1) whether the plaintiff is a patient, or whether

plaintiff’s claim arises from injury to a patient (although MICRA is

not limited to such claims); (2) whether the injury arises as part of the

course and scope of diagnosis or treatment; and (3) whether the injury

5

arises out of conduct for which the health care provider is licensed or

regulated as part of such licensure.

MICRA is not limited merely to cases based on errors in

professional judgment or involving specialized skill or training.

Accordingly, where injury arises to a patient as a result of negligent

maintenance of plant or equipment that is necessary or convenient to a

patient’s care, a claim based on that injury is subject to MICRA.

In this particular case, the injury was based on or arose out of

professional negligence because the provision of a bed was necessary

for the care and treatment of a patient, and was required to be

provided by defendant pursuant to the law governing its licensure.

6

SUMMARY OF ARGUMENT

The rule plaintiff proposes – that MICRA should be limited to

conduct requiring specialized medical skills – is contrary to statutory

intent as evidenced by the statutory language, longstanding decisional

authority, and legislative history.

The one-year statute of limitations for claims under MICRA,

not the two-year statute of limitations for ordinary negligence, should

govern this action against a hospital even though this action is

characterized as based on “ordinary negligence” and “premises

liability,” and even though it is alleged to be based on “negligent

maintenance of hospital equipment.”

Despite plaintiff’s attempt to disguise the nature of her claim

through the use of particular labels, the injury in this case is based on

alleged “professional negligence,” as that term is used in Section

340.5, not ordinary negligence.

This case is before the Court following reversal of a judgment

entered after an order sustaining a demurrer in a lawsuit that was filed

by a patient against the hospital where she fell from her bed. She

claimed that her fall was due to the “ordinary negligence” of the

hospital, which negligence she also claimed to be “premises liability.”

The demurrer was based on the hospital’s claim that it was

“professional negligence.” Plaintiff’s opposition to the demurrer

explained that “while [she was] a patient at the hospital, a hospital

employee negligently secured a raised side rail on the hospital bed

provided her and/or otherwise negligently maintained the locking

mechanism on that side rail. As a result, while grasping that rail

7

attempting to exit the bed, the side rail collapsed causing plaintiff to

fall to the floor and injure herself.” (Appellant’s Appendix (“AA”)

26:25-27:3.)

The issue in this appeal arises from a fact that plaintiff never

explained: why she waited almost two years before filing her lawsuit.

For example, if she alleged that she did not discover her injury until

more than a year after the fall, perhaps because she was in a coma, she

would have had three years to file the lawsuit. Instead, plaintiff only

explained the effect of that delay in filing her lawsuit: “The

categorization of this case as ordinary versus professional negligence

is potentially critical for purposes of ascertainment of the applicable

statute of limitations.” (AA 26:25:4-5.) That is the issue in this case,

and it explains the two questions presented.

There is no merit to the appeal, despite the decision of the

Second Appellate District, Division Three, reversing the judgment. In

fact, the Court of Appeal’s decision is not well founded.

The trial court did not err in concluding that plaintiff’s injury

arose out of “professional negligence” and, thereby, in granting the

demurrer and entering judgment for defendant hospital. The trial

court did so because “professional negligence” is the phrase used in

Code of Civil Procedure section 340.5, which provides that plaintiff

must file her action within one year from the date of discovery of

injury or three years from the date of the injury itself. The trial court

relied primarily upon Murillo v. Good Samaritan Hospital (1979) 99

Cal.App.3d 50, Bellamy v. Appellate Department (1996) 50

Cal.App.4th 797, and Williams v. Superior Court (1994) 30

Cal.App.4th 318.

8

Plaintiff appealed, arguing that the injury arose out of “the

wrongful act or neglect of another,” as that phrase is used in Code of

Civil Procedure section 335.1, the statute of limitations for ordinary

negligence which provides two years from the date of injury to file a

lawsuit. The Court of Appeal agreed with plaintiff, relying on Gopaul

v. Herrick Memorial Hosp. (1974) 38 Cal.App.3d 1002, a decision

that was decided under law that predated MICRA.

The Court of Appeal also relied on an article in the American

Law Reports, but that article recounted non-California cases

addressing law that is not analogous to California’s. What is more,

the article omitted cases that support defendant’s position.

Worse yet, the Court of Appeal’s decision did not discuss the

applicable licensure requirements, even though it acknowledged that

“the test under section 340.5 is whether the negligent act occurred in

the rendering of services for which the health care provider is

licensed.” (Slip Opn., p. 15 [213 Cal.App.4th at 422].)

This Court should reject the analysis of the Court of Appeal,

declare that the Gopaul case is inconsistent with applicable statutory

authority, conclude that plaintiff’s injury arose out of “professional

negligence,” hold that the applicable statute of limitations is Section

340.5, not Section 335.1, and reverse the Court of Appeal.

9

STATEMENT OF THE CASE

Plaintiff’s complaint alleged causes of action for “general

negligence” and “premises liability” against Presbyterian

Intercommunity Hospital. The form complaint’s description of

liability states in its entirety:

At said time and place, Defendants and each

of them, failed to use reasonable care in

maintaining their premises and failed to

make a reasonable inspection of the

equipment and premises, which were open

to Plaintiff and the public, and failed to take

reasonable precautions to discover and make

safe a dangerous condition on the premises.

Said Defendants also failed to give Plaintiff

a reasonable and adequate warning of a

dangerous condition so Plaintiff could have

avoided foreseeable harm. As the result of

the above, Plaintiff sustained injuries and

damages when the bed rail collapsed causing

plaintiff to fall to the ground injuring her left

knee and elbow.

(AA 4, 5.) Plaintiff did not allege in her complaint that she was a

patient at the defendant hospital.

In her opposition to defendant-hospital’s demurrer, however,

plaintiff did admit that she was a patient at defendant hospital. (AA

42A.) She also explained the factual basis of her claim of negligence:

“[w]hile a patient at the hospital, a hospital employee negligently

secured a raised side rail on the hospital bed provided her and/or

10

otherwise negligently maintained the locking mechanism on that side

rail. As a result, while grasping that rail attempting to exit the bed,

the side rail collapsed causing Plaintiff to fall to the floor and injure

herself.” (AA 26:25-27:3.) Based upon those facts, plaintiff argued

that, “[i]n the case at bar, no negligence was committed in assessing

the condition of Plaintiff and in failing to raise the siderails. That

medical assessment had already been made and a medical decision to

raise the siderails had been made.” (AA 30:15-17.) Plaintiff offered

the conclusion that “[i]t was only after the rendition of all professional

services (i.e. the assessment of Plaintiff’s condition and medical

decision to employ siderails), and after the siderails had been

negligently latched, that those siderails collapsed, injuring Plaintiff.”

(AA 30:18-20.)

Even though defendant’s demurrer was based on the statute of

limitations, plaintiff never explained why she waited almost two years

before filing her lawsuit. For example, plaintiff did not claim that she

failed to discover her injury until more than a year had passed after

the fall. Instead, plaintiff only explained the effect of that delay in

filing her lawsuit: “The categorization of this case as ordinary versus

professional negligence is potentially critical for purposes of

ascertainment of the applicable statute of limitations.” (AA 27:4-5.)

The Los Angeles Superior Court sustained the demurrer on the

ground of the one-year statute of limitations imposed by Code of Civil

Procedure section 340.5, a provision of MICRA. The court reasoned

that “[e]nsuring that bedrails, to the extent they are needed by a

particular patient, are properly raised or lowered and properly latched

is a duty that arises from the professional services being rendered.”

11

(AA 42A.) The court held that MICRA’s one-year statute of

limitations applied, instead of the two-year statute of limitations in

Section 335.1, which otherwise governs personal injury claims. The

court reasoned that the action was based upon a health care provider’s

alleged professional negligence, which by definition includes any act

or omission by a health care provider in the rendering of professional

services for which the provider is licensed. (AA 42A; Code Civ.

Proc., § 340.5.)

Citing the decisions in Murillo, supra, 99 Cal.App.3d 50 and

Bellamy, supra, 50 Cal.App.4th 797, the Superior Court concluded

that a hospital has a duty “to recognize the condition of patients under

its care and to take appropriate measures for their safety.” (AA 42A.)

For example, Murillo stated that,

[I]f 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.

(Murillo, supra, 99 Cal.App.3d at 57.)

The Court of Appeal, Second Appellate District, Division

Three, reversed the order in a published opinion authored by the

Honorable Presiding Justice Joan Dempsey Klein, with whom

Associate Justices Patti Kitching and Richard Aldrich concurred. The

Court held that the allegations sounded in “ordinary negligence,” not

“professional negligence,” such that MICRA’s statute of limitations

did not apply, making the lawsuit timely. (213 Cal.App.4th at 1399-

1400 [Slip Opn., p. 16].) The Court reasoned that “Flores does not

allege the Hospital was negligent in failing to elevate the bed rails or

12

in otherwise failing to supervise or secure her. Rather, Flores alleges

she was injured by an equipment failure, i.e., a collapsed bed rail.”

(213 Cal.App.4th at 1398 [Slip Opn., p. 14, emphasis omitted].) It

stated: “We reject Murillo’s dictum that a negligently maintained,

unsafe condition of a hospital’s premises which causes injury to a

patient falls within professional negligence.” (213 Cal.App.4th at

1399 [Slip Opn., p. 16].)

Defendant hospital petitioned for review, and this Court granted

the petition.

13

LEGAL ANALYSIS

I. PLAINTIFF’S APPROACH TO STATUTORY

CONSTRUCTION AND APPLICATION IS WRONG

A. Plaintiff Incorrectly Approaches The Procedural Issue In This Case – The Resolution Of Which

Requires Statutory Construction And Application Of

Two Statutes Of Limitation – As A Question Of

Substantive Law

This case presents a question of procedural law, specifically

which of two statutes of limitation should be applied. This also is a

case of statutory construction and application, in particular the

statutory definition of “professional negligence.” That is because, in

order for plaintiff to reverse the judgment for defendant in this case,

plaintiff must avoid the statute of limitations that is applicable to

“professional negligence,” Code of Civil Procedure section 340.5. To

that end, plaintiff argues that defendant hospital is liable for

“ordinary” negligence, which plaintiff also characterizes as “premises

liability,” not “professional negligence.” Plaintiff reasons that it does

not require “professional” skill for hospital staff to prevent a bed rail

from collapsing; it only requires “ordinary” skill. That is, plaintiff

approaches the procedural issue – which statute of limitation applies –

in this case as one of substantive law – what evidence is necessary to

prove negligence.

Twenty years ago, in Flowers v. Torrance Memorial Hospital

Medical Center (1994) 8 Cal.4th 992, this Court “consider[ed] the

distinction between ‘ordinary’ and ‘professional’ negligence and

14

conclude[ed] that with respect to questions of substantive law they

comprise essentially one form of action.” (Flowers, supra, 8 Cal.4th

995, emphasis added.) The Court explained, however, that “this

distinction may be relevant and necessary for purposes of statutory

construction and application.” (Id. at 995-996, emphasis added,

citing Central Pathology Service Medical Clinic, Inc. v. Superior

Court (1992) 3 Cal.4th 181 [construing “professional negligence” as

used in Code Civ. Proc., § 425.13].)

The reason why review of the procedural issue in this case is

necessary is because the Court of Appeal in the instant case did not

address the procedural question inherent in the conflict of decisions

between Gopaul, supra, 38 Cal.App.3d 1002, on the one hand, and a

line of cases beginning with Murillo, supra, 99 Cal.App.3d 50, on the

other. This Court declined in Flowers to resolve the conflict, stating

in a footnote that the issue was not “squarely presented.” (Flowers,

supra, 8 Cal.4th at 1002, fn. 6.)

Plaintiff demonstrates how she argued the procedural issue in

this case as a question of substantive law when she claims to have

“argued successfully for an interpretation that ‘professional

negligence’ was not the cause of her injuries, i.e. a fall from bed

occasioned by a defective or broken bedrail latch.” (Plaintiff’s

Answer Brief on the Merits [“ABM”], p. 5) “No specialized medical

skills are required to maintain a bedrail in good, operating condition.

One does not go to medical school, nursing school or train as a

physician’s assistant to maintain a bedrail. One goes to trade school

or on the job training as a mechanic/maintenance worker.” (ABM, pp.

12-13.) “Flores suggests that applying the usual, ordinary import of

15

the word ‘professional’ leads to a conclusion that it relates to a job

that requires special education, training or skill. When a doctor

performs surgery, he or she exercises a task that requires specialized

education training and skill. When a hospital is asked to maintain a

bed, no such specialized education, training or skill is brought to

task.” (ABM, p. 31-32.) “When the usual and ordinary import of the

word ‘medical malpractice is examined, it does not conjure up visions

of a janitor or maintenance worker maintaining a bed. Botched

surgery, yes, but maintaining a bedrail latch, no.” (ABM, pp. 32.)

This is the “professional judgment” or “professional skill” test of

Gopaul, supra, 38 Cal.App.3d 1002, or, as plaintiff puts it, “a job

requiring a particularized degree of medical skill.” (ABM, p. 32.)

For the reasons identified by this Court in Flowers, that test is

substantive in nature. “[C]haracterizing misfeasance as one type of

negligence or the other generally only serves to define the standard of

care applicable to the defendant’s conduct.” (Flowers, supra, 8

Cal.4th at 995.) “Because application of this principle [of negligence]

is inherently situational, 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.” (Id. at 997.)

16

B. Plaintiff Recognizes That The Question Turns On The

Breadth Of The Statutory Phrase “In The Rendering

Of Professional Services”

Plaintiff acknowledges that the issue in this case is one of

statutory interpretation (see, e.g., ABM, p. 13 [“a matter of statutory

interpretation/construction”]), which, for purposes of analyzing Code

of Civil Procedure section 340.5, plaintiff describes as “the breadth of

the term ‘in rendering professional services’.” (ABM, p. 5.) Plaintiff

argues for a narrow definition (ABM, p. 12 [“a more limited

definition”]), and plaintiff accuses defendant of urging “an expansive

definition.” (ABM, p. 7; see also, p. 12 [“co-extensive with

everything that occurs within a hospital”].)

Section 340.5 provides that,

In an action for injury or death against a

health care provider based upon such

person’s alleged professional negligence,

the time for the commencement of action

shall be three years after the date of injury or

one year after the plaintiff discovers, or

through the use of reasonable diligence

should have discovered, the injury,

whichever occurs first. In no event shall the

time for commencement of legal action

exceed three years unless tolled for any of

the following: (1) upon proof of fraud, (2)

intentional concealment, or (3) the presence

of a foreign body, which has no therapeutic

or diagnostic purpose or effect, in the person

of the injured person. Actions by a minor

shall be commenced within three years from

the date of the alleged wrongful act except

that actions by a minor under the full age of

six years shall be commenced within three

17

years or prior to his eighth birthday

whichever provides a longer period. Such

time limitation shall be tolled for minors for

any period during which parent or guardian

and defendant’s insurer or health care

provider have committed fraud or collusion

in the failure to bring an action on behalf of

the injured minor for professional

negligence.

For the purposes of this section:

(1) “Health care provider” means any person

licensed or certified pursuant to Division 2

(commencing with Section 500) of the

Business and Professions Code, or licensed

pursuant to the Osteopathic Initiative Act, or

the Chiropractic Initiative Act, or licensed

pursuant to Chapter 2.5 (commencing

with Section 1440) of Division 2 of the

Health and Safety Code; and any clinic,

health dispensary, or health facility, licensed

pursuant to Division 2 (commencing

with Section 1200) of the Health and Safety

Code. “Health care provider” includes the

legal representatives of a health care

provider;

(2) “Professional negligence” means a

negligent act or omission to act by a health

care provider in the rendering of

professional services, which act or

omission is the proximate cause of a

personal injury or wrongful death, provided

that such services are within the scope of

services for which the provider is licensed

and which are not within any restriction

imposed by the licensing agency or licensed

hospital.

18

(Code Civ. Proc., § 340.5, emphasis added.)

Code of Civil Procedure section 335.1, by comparison, applies

to “an action for assault, battery, or injury to, or for the death of, an

individual caused by the wrongful act or neglect of another.” While

an act of “professional negligence” can be characterized as “the

wrongful act or neglect of another,” it is clear that the Legislature

intended that a different statute of limitations applies to health care

providers who are sued for their negligence. That includes

corporations that are licensed as health care providers and are sued for

the acts or omissions of their employees.

And, while the repeated references to “professional negligence”

and “license” in Section 340.5 may suggest that there is merit to

plaintiff’s test of “professional judgment” or “professional skill,” that

fails to explain why the Legislature used the phrase “in the rendering

of professional services” to identify “a negligent act or omission to

act by a health care provider” that qualifies as “professional

negligence.”

Finally, even plaintiff acknowledges the issue in this case is one

of statutory interpretation of the phrase “in rendering professional

services.” (ABM, pp. 5, 13.)

C. Plaintiff’s Proposal That MICRA Should Be Limited

To Specialized Medical Skills Or Errors In

Professional Judgment Is Not Supported By Statutory

Interpretation

What plaintiff proposes is to limit MICRA to only those risks

which result from errors in “professional judgment.” In effect,

19

plaintiff proposes to create categories within the concept of “the

rendering of professional services” between “specialized medical

skills” and “no specialized skills” (ABM, pp.12-13), “a job that

requires special education, training or skill” and “no such specialized

education, training or skill” (ABM, pp. 31-32), “[b]otched surgery,

yes, but maintaining a bedrail latch, no” (ABM, pp. 32), and “a job

requiring a particularized degree of medical skill.” (ABM, p. 32.) To

repeat, this is nothing less than the “professional judgment” or

“professional skill” test of Gopaul, supra, 38 Cal.App.3d 1002.

This test will not work. First, and most obviously, it duplicates

that feature of “professional negligence” that already is a part of

Section 340.5(2): “provided that such services are within the scope of

services for which the provider is licensed.” (Code Civ. Proc., §

340.5, emphasis added.) Second, it fails to consider the vicarious

liability of corporate entities that are licensed health care providers,

which are liable for all the harm that occurs through one or more

employees involved in “the rendition of professional services,” who

may not be licensed. Third, it assumes that the phrase “in the

rendition of professional services” refers to a single “professional

service” that occurs in a single moment in time, rather than a course of

“services” that occur over a period of time. Fourth, even before

MICRA was enacted, this Court rejected such “classifications” for

purposes of evaluating questions of duty and made it clear that the

relevant focus is on the “risk of harm.”

20

II. MICRA APPLIES TO CLAIMS FOR INJURIES – SUCH

AS THE ONE BEFORE THE COURT – THAT ARE

DIRECTLY RELATED TO THE RENDERING OF

PROFESSIONAL SERVICE FOR WHICH THE HEALTH

CARE PROVIDER IS LICENSED

A. Code Of Civil Procedure Section 340.5, Like The

Other Provisions Of MICRA, Should Be Broadly

Applied To All Risks Of Harm That Arise From Acts

Or Omissions By Health Care Providers “In The

Rendering Of Professional Services”

In order to effectuate the legislative intent of MICRA generally

and of Code of Civil Procedure section 340.5 specifically,

Section 340.5 should be applied broadly, so that it applies to all risks

of harm from acts or omissions by health care providers “in the

rendering of professional services.” The scope of the statutory

language is broad – MICRA applies to all claims for injury “based

upon . . . alleged professional negligence.” Its application is not

limited by the label or classification a plaintiff uses.

That is consistent with Rowland v. Christian (1968) 69 Cal.2d

108, in which this Court declared,

It bears repetition that the basic policy of

this state set forth by the Legislature

in section 1714 of the Civil Code is that

everyone is responsible for an injury caused

to another by his want of ordinary care or

skill in the management of his property.

The factors which may in particular cases

warrant departure from this fundamental

principle do not warrant the wholesale

immunities resulting from the common law

classifications, and we are satisfied that

21

continued adherence to the common law

distinctions can only lead to injustice or, if

we are to avoid injustice, further fictions

with the resulting complexity and confusion.

We decline to follow and perpetuate such

rigid classifications.

(Rowland, supra, 69 Cal.2d at 118-119, emphasis added.) With

regard to common law rules to be applied to Civil Code section 1714,

A departure from this fundamental principle

involves the balancing of a number of

considerations; the major ones are the

foreseeability of harm to the plaintiff, the

degree of certainty that the plaintiff suffered

injury, the closeness of the connection

between the defendant’s conduct and the

injury suffered, the moral blame attached to

the defendant's conduct, the policy of

preventing future harm, the extent of the

burden to the defendant and consequences to

the community of imposing a duty to

exercise care with resulting liability for

breach, and the availability, cost, and

prevalence of insurance for the risk

involved.

(Rowland, supra, 69 Cal.2d at 112-113, citations omitted.)

The broad reach of MICRA’s statutory language is corroborated

by its legislative history, addressed below.

22

B. Legislative History Corroborates That The Statutory

Intent Is To Apply MICRA Broadly

1. Code Of Civil Procedure Section 340.5 Was

Enacted In 1975 As A Specific Statute Of

Limitations For Professional Negligence

The statutory preamble to MICRA, quoted in American Bank &

Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, states:

The Legislature finds and declares that there

is a major health care crisis in the State of

California attributable to skyrocketing

malpractice premium costs and resulting in a

potential breakdown of the health delivery

system, severe hardships for the medically

indigent, a denial of access for the

economically marginal, and depletion of

physicians such as to substantially worsen

the quality of health care available to

citizens of this state. The Legislature, acting

within the scope of its police powers, finds

the statutory remedy herein provided is

intended to provide an adequate and

reasonable remedy within the limits of what

the foregoing public health safety

considerations permit now and into the

foreseeable future. (Stats. 1975, Second Ex.

Sess. 1975-1976, ch. 2, § 12.5, p. 4007.)

(American Bank & Trust co., supra, 36 Cal.3d at 372, fn. 11.) In the

context of the MICRA statute of limitations, Code of Civil Procedure

section 340.5, this Court said,

Our conclusion that the term “professional

negligence” encompasses a failure to warn

third persons is consistent with and furthers

23

the legislative purpose in adopting

M.I.C.R.A. Because they involve

“professional negligence,” actions based on

failure to warn are subject to the several

other restrictions on recovery that are part of

M.I.C.R.A., including the limits on attorney

contingent fees and recovery for

noneconomic losses (Bus. & Prof. Code, §

6146; Civ. Code, § 3333.2), and reduction of

damages to reflect payments received from

collateral sources. (Civ. Code, § 3333.1.)

The Legislature stated the purpose of

M.I.C.R.A. is “to provide an adequate and

reasonable remedy” for the “major health

care crisis . . . attributable to skyrocketing

malpractice premium costs and resulting in a

potential breakdown of the health delivery

system, severe hardships for the medically

indigent, a denial of access for the

economically marginal, and depletion of

physicians such as to substantially worsen

the quality of health care available to

citizens of this state.” (Stats. 1975, Second

Ex. Sess., ch. 2, § 12.5, p. 4007.) When a

health care provider’s professional

negligence results in harm to parties other

than a patient the legislative purpose of

reducing health care costs by reducing the

dollar amount of judgments in actions for

failure to warn would be frustrated if the

M.I.C.R.A. restrictions were not applicable.

It would be anomalous, too, if a third party's

cause of action based on the same negligent

act were treated differently than an action by

the patient.

(Hedlund v. Superior Court (1983) 34 Cal.3d 695, 704, footnote

omitted.)

24

In summary, as this Court said in Burgess v. Superior Court

(1992) 2 Cal.4th 1064, the legislative purpose of MICRA is to

“ameliorate the impact of increasing costs of liability coverage for

health care providers.” (Id. at 1083.)

The expense of maintaining plant and medical equipment and

devices certainly is part of health care costs, and therefore falls within

the scope of MICRA’s statutory intent. In fact, MICRA’s legislative

history corroborates the intent that it apply to maintenance of plant

and medical equipment and devices. To be sure, the Preliminary

Report of the California Assembly Select Committee on Medical

Malpractice, reflecting the motivating concerns underlying MICRA’s

enactment, identifies hospital liability of multiple types, including

“physical mishaps” for which it cited “[p]atients falling out of their

beds” as a common example, in addition to other occurrences of

hospital liability, including liability for interns and residents employed

by the hospital, and liability for the acts and omissions of “allied

health personnel – i.e., nurses and technicians.” (Assembly Select

Committee on Medical Malpractice, Preliminary Report, June 1974,

Hon. Henry A. Waxman, Chairman, at p. 45.)

2. Applying MICRA To Cases Such As The One

Before The Court Is Not Incongruous With

Code Of Civil Procedure Section 335.1 – The

General Statute Of Limitations For Negligence

Applying MICRA to cases such as the one before the Court is

not inconsistent with Code of Civil Procedure section 335.1, the

general two-year statute of limitations for negligence.

25

Section 335.1 was amended in 2002 in response to the tragedy

of 9/11 and to reconcile California’s general statute with the general

limitations period in other states.

The Legislature finds and declares, as follows:

(a) The California system for the

administration of civil justice is one of the

fairest in the world, but certain procedures

and standards should be amended to ensure

fairness to all parties.

(b) Under current law, victims of personal

injury and wrongful death are now required

to file lawsuits within a year in order to meet

unduly short statutes of limitations. Many

such matters would be resolved without the

need to resort to litigation if California’s

statute of limitations permitted such actions

to be filed within two years, as the vast

majority of other states provide for a longer

time to resolve claims short of litigation.

(c) A prime example of the inequity caused

by the one-year statute of limitations is that

residents of California who were victims of

the terrorist actions of September 11, 2001,

must prematurely choose between litigation

and federal remedies, while residents of

other states have more than twice as long to

pursue their remedies. Extending the statute

of limitations will reduce litigation in these

cases as well, because terrorist victims will

have the opportunity to fully evaluate and

use other alternatives, rather than being

forced to litigate prematurely.

26

(d) The special injustice worked against

victims of the September 11, 2001, terrorist

actions justifies applying the two-year

statute of limitations retroactively to those

victims.

(e) Longstanding California law favors trial

on the merits. Summary judgment is a

drastic procedure and should only be granted

when an action is without merit and both

sides have a fair opportunity to address the

merits of an action or when an action lacks a

triable issue of fact. It is important to extend

the time to respond to a motion for summary

judgment to assure that all evidence is

before a court before ruling on the motion.

This act will assure that frivolous actions are

disposed of, and those that have merit can

proceed to a fair trial.

(Stats. 2002, ch. 448, § 688.)

Here, MICRA’s Section 340.5 provides a longer statute of

limitations than Section 335.1. That is, Section 340.5 provides for

two statutes of limitations – one year from when plaintiff discovered

or should have discovered the injury, or three years from the date of

injury itself, whether or not discovered, whichever occurs first. On

the other hand, Section 335.1’s two-year provision commences on the

date of injury. This means that MICRA provides an additional year

for undiscovered injuries. In the instant case, plaintiff was aware of

her injury on the date it occurred.

27

C. The Conflict Between Gopaul And Murillo Should Be

Resolved By Adopting The Rule That MICRA

Applies To Claims For Injuries Directly Related To

The Services Of Health Care Professionals

As this Court observed twenty years ago, in Flowers, supra, 8

Cal.4th at 1002, fn. 6) there is a conflict between Gopaul, supra, 38

Cal.App.3d 1002, and Murillo, supra, 99 Cal.App.3d 50, on the

question of whether a patient’s fall from a hospital bed or gurney

implicates “professional” or “ordinary” negligence in a statutory

context. Because the question was not squarely presented in Flowers,

the Court declined to resolve the conflict, but the Court did state that

“to the extent either decision may be inconsistent with the analysis

herein, it is disapproved.” (Flowers, supra, 8 Cal.4th at 1002, fn. 6.)

In the instant case, the Court should declare that Gopaul is

disapproved, and that Murillo is approved.

1. The Court Should Reject The “Professional

Skill Or Judgment” Test Promoted By Plaintiff

The Court should reject the “professional skill or judgment” test

promoted by plaintiff. In support of that proposal, plaintiff argues that

“[n]o specialized medical skills are required to maintain a bedrail in

good, operating condition. One does not go to medical school,

nursing school or train as a physician’s assistant to maintain a bedrail.

One goes to trade school or on the job training as a

mechanic/maintenance worker.” (ABM, pp. 12-13.) Plaintiff’s

proposal, however, is unwarranted by interpretation of the MICRA

statutes, which point is discussed above in Section I.C.

28

2. The Court Should Hold That MICRA Applies

Where The Injury Was Caused By Conduct

That Is Directly Related To The Services Of

The Health Care Professional

Defendant relies upon Murillo, supra, 99 Cal.App.3d 50, and

the subsequent line of cases which rejected Gopaul and the

“professional judgment” or “professional skill” test announced

therein. The Court should adopt the following “bright line” rule:

MICRA applies where the injury is directly related to the services of

health care professionals in diagnosing or treating patients, or the

methods, procedures, plant, and equipment that are necessary or

convenient to the provision of such services. This relationship is

informed by a number of factors: (1) whether the plaintiff is a patient,

or whether plaintiff’s claim arises from injury to a patient (although

MICRA is not limited to such claims); (2) whether the injury arises as

part of the course and scope of diagnosis or treatment; and (3) whether

the injury arises out of conduct for which the health care provider is

licensed or regulated as part of such licensure.

This rule has a foundation in the numerous holdings of the

Court of Appeal and MICRA’s statutory definition of professional

negligence. For example, Williams v. Superior Court held that “the

test of whether a health care provider’s negligence constitutes

professional negligence is whether the negligence occurred in

rendering services for which the health care provider is licensed.”

(Williams v. Superior Court (1994) 30 Cal.App.4th 318, 324-325.)

Put another way, “[t]he MICRA statutes define ‘professional

negligence’ as that negligence that occurs while the health care

29

provider is providing services that are ‘within the scope of services for

which the provider is licensed.’” (Canister v. Emergency Ambulance

Service (2008) 160 Cal.App.4th 388, 404, citations and internal

quotations omitted.) More recently, the Court of Appeal followed this

rule in Arroyo v. Plosay (2014) 225 Cal.App.4th 279. Even the Court

of Appeal’s decision in the instant case recognizes this rule, without,

however, addressing licensing requirements. (213 Cal.App.4th at 422

[Slip Opn., p. 15].)1

In the instant case, providing equipment and environment

necessary for the patient’s treatment was directly related to the

medical services provided by the hospital to plaintiff. As the trial

court correctly noted, a hospital owes its patients a duty of protection.

(United Western Medical Centers v. Superior Court (1996) 42

Cal.App.4th 500, 504 [“The professional duty of a hospital . . . 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 . . . there

is a breach of the hospital's duty qua hospital”]; AA 42A.) Because a

hospital’s duty to protect its patients is fundamental to its mission, that

duty – in all its various facets – is clearly characterized as a

“professional duty.” What is more, providing a functional bed to a

hospital patient is required by state regulations that govern licensed

hospitals, which is discussed below in Section III.A.

1 The lack of discussion on this point in the Court of Appeal’s

decision is addressed below in Section III.A.

30

This “bright line” is consistent with the Court’s decisions in

Flowers, supra, 8 Cal.4th 992; Central Pathology Service Medical

Clinic, Inc., supra, 3 Cal.4th 181; and Waters v. Bourhis (1985) 40

Cal.3d 424.

This “bright line” is also consistent with Murillo, supra, 99

Cal.App.3d 50, which was correctly decided. In Murillo – which is

quite similar to the instant case – the plaintiff was injured when she

fell out of bed while a patient in the hospital. The hospital argued the

failure to raise the bedrails was “ordinary negligence” rather than

“professional negligence.” (Murillo, supra, 99 Cal.App.3d at 53.) The

Murillo Court disagreed with the “professional judgment/skill”

approach expressed in Gopaul. Murillo explained, “the test is not

whether the situation calls for a high or 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.” (Id. at 57.)

Murillo is not inconsistent with Flowers. And, the Courts of

Appeal continue to follow Flowers.

Williams v. Superior Court, supra, 30 Cal.App.4th 318, was

decided the same year as Flowers. Williams followed Murillo: “We

agree with the Murillo court that it is not the degree of skill required

but whether the injuries arose out of the rendering of professional

services that determines whether professional as opposed to ordinary

negligence applies.” (Id. at 327.) Allegations that the defendant

31

became aware of a patient’s dangerous propensities and failed to warn

a nonemployee who was drawing blood from the patient were directly

related to the manner in which professional services were rendered.

Accordingly, the action was one for “professional negligence.” (Id. at

325-326.)

Two years later, in Bellamy, supra, 50 Cal.App.4th 797, the

Court of Appeal again followed Murillo. The Bellamy Court noted,

[t]hat the alleged negligent omission was

simply the failure to set a brake on the

rolling X-ray table or the failure to hold the

table in place, neither of which requires any

particular skill, training, experience or

exercise of professional judgment, does not

affect our decision. We presume that during

the course of administering an examination

or therapy like that which Bellamy

underwent, an X-ray technician may

perform a variety of tasks, such as assisting

the patient onto the table, manipulating the

table into one or more desired positions,

instructing the patient to move from one

position to another, activating the X-ray

machine, removing the photographic plates,

assisting the patient from the table, etc.

Some of those tasks may require a high

degree of skill and judgment, but others do

not. Each, however, is an integral part of the

professional service being rendered. Trying

to categorize each individual act or

omission, all of which may occur within a

space of a few minutes, into ‘ordinary’ or

‘professional’ would add confusion in

determining what legal procedures apply if

the patient seeks damages for injuries

suffered at some point during the course of

32

the examination or therapy. We do not see

any need for such confusion or any

indication the Legislature intended

MICRA’s applicability to depend on such

fine distinctions.

(Id. at 808, footnote omitted.)

In Taylor v. United States (9th Cir. 1987) 821 F.2d 1428, which

was decided before Flowers, the Ninth Circuit followed Murillo. The

plaintiff’s husband was hospitalized in an Army hospital and became

disconnected from the ventilator on which he was dependent for

oxygen. The Ninth Circuit, relying on Murillo, held this was a case of

“professional negligence,” reasoning that, “[t]here is little evidence

concerning the reason that Taylor’s husband’s ventilator became

disconnected. However, Taylor’s husband was under the care of

government physicians at the time of the incident, the injury occurred

in the hospital, and the injury was caused by removal of medical

equipment integral to treatment . . . . [¶] The government had a

professional duty to prevent Taylor’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.” (Id. at p. 1432.)

That is not to say that “professional negligence” can only be

alleged by patients and that all other plaintiffs must allege “ordinary”

negligence. In Canister v. Emergency Ambulance Service, Inc.,

supra, 160 Cal.App.4th 388, the Court of Appeal held that negligence

by an emergency medical technician (EMT) while driving an

ambulance transporting a patient was “professional negligence”

within the meaning of MICRA. The plaintiff was a police officer who

33

was accompanying an arrestee in the back of the ambulance when it

hit a curb, injuring the officer. “The accident occurred while EAS’s

employees were transporting the patient from one hospital to another,

activities for which the ambulance driver and attendant were licensed.

An integral part of the duties of an EMT includes transporting patients

and driving or operating an ambulance.” (Canister, supra, 160

Cal.App.4th at 407.) “We hold, as a matter of law, that the act of

operating an ambulance to transport a patient to or from a medical

facility is encompassed within the term ‘professional negligence.’”

(Id. at p. 404.)

That appellant was not a patient does not

affect application of MICRA. By their

terms, MICRA statutes apply to negligent

conduct by a health care provider in the

rendering of professional services and is

[sic] not limited to actions by the recipient

of professional services. [Citations.]

Indeed, MICRA limitations apply “to any

foreseeable injured party, including patients,

business invitees, staff members or visitors,

provided the injuries alleged arose out of

professional negligence.” [Citation.] As

applied to the present facts, it is foreseeable

as a matter of law that a police officer

accompanying an arrestee in an ambulance

might be injured in the operation of the

ambulance.

(Id. at 407-408.)

Significantly, here the trial court focused on the plaintiff being

a patient: “Although not alleged, plaintiff acknowledges in her

opposition that she was a patient at the time her injury occurred.”

34

(AA 42, quoted at Opening Brief on the Merits (“OBM”), p. 6.)

Plaintiff’s original complaint alleged two causes of action, for

“general negligence” and “premises liability,” the key allegations of

which were that “plaintiff sustained injuries and damages when the

bed rail collapsed causing plaintiff to fall on the ground injuring her

left knee and elbow.” (AA 4 and 5, quoted at OBM, pp. 4-5.)

This is consistent with the rule the Court should announce here,

that if the injury for which damages are sought is caused by an act or

omission directly related to the services the defendant health care

provider is licensed to provide, the action is based professional

negligence.

Determination of a direct relationship between an injury and

acts or omissions can involve consideration of a number of factors,

not all of which are necessary to a determination that MICRA applies:

(1) whether plaintiff is a patient, or whether plaintiff’s claim arises

from injury to a patient; (2) whether the injury arises as part of the

course and scope of diagnosis or treatment; and, (3) whether the injury

arises out of conduct for which the health care provider is licensed.

The issue in the case can be examined by a trial court, in the

context of a demurrer, from either or both of two perspectives.

The first perspective relates to plaintiff’s allegations of her

“claims” – specifically a claim or “an action for premises liability

against a hospital based on negligent maintenance of hospital

equipment.”

The second perspective refers to plaintiff’s allegations of her

“injury” – specifically “did the injury in this case arise out of

“professional negligence.’”

35

III. THE COURT OF APPEAL’S DECISION IS INCORRECT

The Court of Appeal’s decision is wrong. It omits any

discussion of licensure requirements; it incorrectly followed the

Gopaul case, instead of the Murillo line of cases; it is based on an

incomplete consideration of non-California decisions; and, it does not

provide meaningful guidance to the bench and bar.

The Court of Appeal opinion in this case is inconsistent with

MICRA, and with the fact that “courts have broadly construed

‘professional negligence’ to mean negligence occurring during the

rendering of services for which the health care provider is licensed.”

(Canister, supra, 160 Cal.App.4th at 406, citing with approval, inter

alia, Murillo, supra, 99 Cal.App.3d at 57; Bellamy, supra, 50

Cal.App.4th at 808; Williams, supra, 30 Cal.App.4th at 323-324;

Taylor, supra, 821 F.2d at 1432.)

And because the opinion is published, it will be relied upon in

the future by medical negligence plaintiffs to circumvent MICRA’s

statute of limitations. The opinion will encourage plaintiffs to,

whenever possible, artfully plead negligent maintenance of medical

equipment, however related to the health care provider’s services,

merely to avoid MICRA’s statute of limitations. Worse, plaintiffs will

cite the opinion in an attempt to overcome all of the MICRA statutes

by arguing that the MICRA statutes employ the same test for

“professional negligence.” (See Bus. & Prof. Code, § 6146, subd.

(c)(3); Civ. Code, §§ 3333.1, subd. (c)(2) & 3333.2, subd. (c)(2);

Code Civ. Proc., §§ 364, subd. (f)(2), 667.7, subd. (e)(4) & 1295,

subd. (g)(2).)

36

In other words, the opinion frustrates the strong public policies

of reducing the number of malpractice actions and containing the

costs of malpractice insurance by “controlling or redistributing

liability for damages, thereby maximizing the availability of medical

services to meet the state’s health care needs.” (Western Steamship

Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100,

111-112.)

A. The Court Of Appeal’s Decision Fails To Address

Licensure Requirements Imposed On Health Care

Professionals

The opinion is incorrect in light of the hospital’s licensing

requirements, which the parties did not brief, and which are

unaddressed in the opinion. The provision and maintenance of safe

beds is part of the service for which the hospital is licensed, bringing

the acts and omissions related thereto within the scope of MICRA.

The opinion acknowledges that “[t]he test under section 340.5 is

whether the negligent act occurred in the rendering of services for

which the health care provider is licensed.” (213 Cal.App.4th at 1398

[Slip Opn., p. 15], citations and internal quotations omitted.) Put

another way, “[t]he MICRA statutes define ‘professional negligence’

as that negligence that occurs while the health care provider is

providing services that are ‘within the scope of services for which the

provider is licensed.’” (Canister, supra, 160 Cal.App.4th at 404,

citations and internal quotations omitted.)

More recently, the Court of Appeal followed this rule in

Arroyo, supra, 225 Cal.App.4th 279. In that case, the plaintiffs

37

alleged that their decedent’s body had been mishandled post-mortem,

resulting in disfigurement to the face, which could not be concealed

by the mortuary. Alternatively, they argued that decedent had

erroneously been declared dead and placed in the hospital morgue

refrigerator while still alive, and that the disfigurement occurred when

she woke up in the refrigerator and attempted to escape before

freezing to death. Plaintiffs proceeded on two theories: (1) a theory

of body mishandling, and (2) medical negligence/wrongful death.

Plaintiffs argued that the body mishandling claim was timely

under the two-year statute applicable to general personal injury

claims. The Court rejected plaintiffs’ argument, and affirmed the

order sustaining the demurrer as to the body mishandling claim on the

ground that the claim was governed (and barred) by Section

340.5. The Court cited Central Pathology for the proposition that

“professional negligence” is “directly related to a matter that is an

ordinary and usual part of medical services.” (Arroyo, supra, 225

Cal.App.4th at 297.) It also followed Canister, supra, 160

Cal.App.4th at 406-407, in stating that “professional negligence”

means “negligence occurring during the rendering of services for

which the health care provider is licensed.” (Arroyo, supra, 225

Cal.App.4th at 297.)

The Court relied on the fact that the hospital was licensed as a

general acute care hospital with a capacity of more than 100 beds,

which means that, per regulation, it must have a morgue with

refrigerated compartments. Accordingly, the “transportation of a

deceased patients’ remains to the morgue, and the placement of the

remains in a refrigerated compartment, necessarily fall within the

38

scope of services for which the Hospital is licensed. In other words,

such conduct is undoubtedly ‘an ordinary and usual part of [its]

medical professional services.’ (Central Pathology, supra, 3 Cal.4th

at p. 193.)” (Arroyo, supra, 225 Cal.App.4th at 297-298.)

Notwithstanding this rule, neither the parties nor the opinion

addresses the pertinent licensing and regulations. In fact, the

provision and maintenance of safe hospital beds is a service for which

hospitals are licensed. Hospitals are licensed under Division 2 of the

California Health and Safety Code. Licensing regulations are adopted

by the State Department of Health Services, and published in Title 22

of the California Code of Regulations.

The California Code of Regulations requires that “[a]ll

hospitals shall maintain continuous compliance with the licensing

requirements.” (Cal. Code Regs. (“C.C.R.”), tit. 22, § 70129, subd.

(a).) The Department “may suspend or revoke any license issued . . .

upon any of the following grounds. [¶] (1) Violation by the licensee

of any of the provisions of Chapter 2 (commencing with Section

1250), Division 2, Health and Safety Code, or the regulations

promulgated by the Department.” (22 C.C.R. 70135(a).)

Section 70815 of the California Code of Regulations states: “A

bed with a suitable mattress and a chair shall be provided for each

patient.” The regulations also require that such equipment be

maintained. Section 70207 states: “There shall be adequate

equipment and supplies maintained related to the nature of the needs

and the services offered.” (22 C.C.R. 70207.) “Maintenance means

the upkeep of a building and equipment to preserve the original

functional and operational use.” (22 C.C.R. 70045.) Additionally,

39

Section 70837 requires that “[t]he hospital shall be . . . in good repair

at all times. Maintenance shall include provisions and surveillance of

services and procedures for the safety and well-being of patients,

personnel and visitors.” (22 C.C.R. 70837(a).)

Not only is the provision and maintenance of hospital beds

expressly part of the services for which a hospital is licensed, but the

maintenance of safe beds is otherwise considered to be within the

scope of a health care provider’s clinical decision making. For

instance, the Hospital Bed Safety Work Group, of which the United

States Food and Drug Administration is a member, states that, “[i]n

creating a safe bed environment, the following general principle[]

should be applied: [¶] Inspect, evaluate, maintain, and upgrade

equipment (beds/mattresses/bed rails) to identify and remove potential

fall and entrapment hazards . . . .” (Hospital Bed Safety Work Group,

Clinical Guidance for the Assessment and Implementation of Bed

Rails in Hospitals, Long Term Care Facilities, and Home Care

Settings (April 2003) < http://www.ecri.org/documents/

patient_safety_center/bedsafetyclinicalguidance.pdf > (accessed July

2, 2014), at p. 5.) It also states that: “Maintenance and monitoring of

the bed, mattress, and accessories . . . should be ongoing.” (Id. at p.

11.)

Bedrails, handgrips, lifting poles, transfer bars, and control bed

rails all are directly related to the care and treatment of a patient.

They are intended to prevent the patient from falling out of bed; to

remind the patient not to get out of bed when medically

contraindicated and/or medical equipment is attached to the patient;

and to help protect the patient from falling during transport. They

40

also help the patient with movement within the bed and with getting in

and out of bed, and with repositioning when necessary for

examination or treatment. Additionally, they are one of several

methods to provide the patient with easy access to bed controls, and

devices for communication with hospital staff. (Id. at p. 14.)

B. The Opinion Does Not Consider Contrary

California Decisions And Mischaracterizes Foreign

Authority

The opinion’s “survey of case law” is inadequate in several

respects. First, the opinion fails to acknowledge, let alone explain or

distinguish, authority that adopts that language in Murillo that the

opinion dismisses as dicta. In United Western Medical Centers,

supra, 42 Cal.App.4th 500, a decision on Code of Civil Procedure

section 425.13, the Court of Appeal approvingly cites in its holding

the “dicta” in Murillo, supra, 99 Cal.App.3d at 56-57, that the opinion

rejected. (United Western Medical Centers, supra, 42 Cal.App.4th at

504, citing Murillo, supra, 99 Cal.App.3d at 56-57.) This decision

was not mentioned in the briefs or in the opinion.

As discussed above, in Taylor, supra, 821 F.2d 1428, the Ninth

Circuit Court of Appeals considered whether MICRA applied to a

claim against a hospital based on injury sustained when a patient

became disconnected from a respirator. The Court held that MICRA

applied whether the negligence was a considered decision by a

physician or merely by a “bump of a janitor’s broom.” The Court

reasoned:

41

There is little evidence concerning the

reason that Taylor’s husband’s ventilator

became disconnected. However, Taylor’s

husband was under the care of government

physicians at the time of the incident, the

injury occurred in the hospital, and the

injury was caused by removal of medical

equipment integral to treatment.

(Taylor, supra, 821 F.2d at 1432.) It further explained:

The government had a professional duty to

prevent Taylor’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. Civil

Code § 3333.2 [a MICRA provision] applies

to this case.

(Ibid.)

The Court’s conclusion was based on Murillo and its statement

that “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.” (Taylor, supra, 821 F.2d at 1432,

citing Murillo, supra, 99 Cal.App.3d at 57.) The opinion does not cite

this decision.

Although Taylor is a federal case, it has been cited numerous

times for the subject at hand by the California Courts of Appeal as

well as by this Court. (Western Steamship Lines, Inc., supra, 8

Cal.4th at 116; Canister, supra, 160 Cal.App.4th at 407; Bell v. Sharp

Cabrillo Hospital (1989) 212 Cal.App.3d 1034, 1050; Bellamy, supra,

50 Cal.App.4th at 803; Williams, supra, 30 Cal.App.4th at 324.)

42

In Williams, supra, 30 Cal.App.4th 318, the Court of Appeal

relied on Murillo in holding that: “The professional duty of a hospital

is primarily to provide a safe environment within which diagnosis,

treatment and recovery could be carried out.” (Id. at 325, citing

Murillo, supra, 99 Cal.App.3d at 56-57.) The opinion does not cite

this decision.

Second, the opinion’s consideration of foreign authority is

incomplete. As part of its “survey,” it cites an article in the American

Law Reports for the proposition that “claims based on the negligent

maintenance of a health care provider’s premises or equipment failure

are the least likely to be found subject to the medical malpractice

statutes.” (213 Cal.App.4th at 1397 [Slip Opn., p. 13], citing

Annotation, 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. 887 (the “Annotation”) at § 2[a].) There are difficulties with

relying on the Annotation.

The four cases that the Annotation identifies in the section cited

by the opinion address laws significantly different from the MICRA

statutes. (Id. at § 31.) Those laws require a claim to be presented to a

medical panel for review before a complaint is filed, and the cases

turn on whether the claims involved negligence within the

understanding of a lay person, such that it was unrequired for

plaintiffs to present the claims to an expert panel as a prerequisite of

filing the action. (Harts v. Caylor-Nickel Hospital, Inc. (Ind. App.

1990) 553 N.E.2d 874 [split decision]; Walsh v. Lo Piccolo (Sup. Ct.

NY 1985) 485 N.Y.S.2d 946 [trial court decision]; Blevins v.

43

Hamilton Medical Center, Inc. (La. 2007) 959 So.2d 440; Guillory v.

Royal, Inc. (La. Ct. App. 2007) 971 So.2d 1234.) In fact, the

Annotation acknowledges that the reason most courts hold that

hospital bed fall claims “[are] not subject to the medical malpractice

statutes” is “because such claims [do] not implicate professional skill

and could be evaluated based on common knowledge.” (Annotation,

supra, 89 A.L.R.4th at § 2[a].)

Thus, these cases do not apply to the present matter. Under

California law, the fact that common knowledge, rather than expert

testimony, may in some instances suffice to prove a defendant’s

liability does not remove those cases from MICRA’s ambit. (Flowers,

supra, 8 Cal.4th at 1000-1001; Bellamy, supra, 50 Cal.App.4th at

805.) “Professional negligence” as defined by the MICRA statutes is

not limited to conduct or omissions based on professional judgment or

a high level of skill. (Bellamy, supra, 50 Cal.App.4th at 808.)

What is more, Harts and Walsh are not compelling because the

former was a split decision and the latter was issued by a trial tribunal,

not a reviewing court.

Additionally, the Annotation omits two important decisions on

hospital bed falls that support application of MICRA to such claims.

Neither the opinion nor the parties below cite or address these cases

either.

In Marks v. St. Luke’s Episcopal Hospital (Tex. 2010) 319

S.W.3d 658, the Supreme Court of Texas held that the allegation that

a patient’s injury was caused by a “hospital’s improper maintenance

or assembly of his hospital bed” implicated standards of medical care

because “medical equipment specific to a particular patient’s care or

44

treatment is an integral and inseparable part of the health care services

provided.” (Id. at 664.)

In Prater v. Smyth County Community Hospital (Va. Cir. Ct.

1995) 35 Va. Cir. 406, the Court rejected the reasoning of Harts,

supra, stating: “The patient here was receiving health care from a

health care provider while confined to a bed that was confined to a

room confined to the defendant hospital.” (Id. at *2-3.) The Court in

Prater wondered whether the same decision would result in Harts if:

(1) the same rail on the same bed had collapsed while the patient was

positioning himself in the bed at the direction of the doctors to better

facilitate an examination; (2) the same rail on the same bed has

collapsed while the patient was positioning himself in the bed at the

request of the doctor to accommodate an injection; or, (3) the same

rail on the same bed had collapsed while the patient was being

transported on the bed by a doctor or nurse to surgery. (Id. at *4.)

C. The Opinion’s Analysis Is Otherwise Based On A

Poorly Developed Record

The opinion is based on a poorly developed record. First, as

addressed above, there is no record or briefing regarding the licensure

requirements governing a hospital’s provision and maintenance of

equipment, including hospital beds and bed rails.

Second, the complaint to which the demurrer was taken was

devoid of any allegations detailing the negligence that resulted in

plaintiff’s injury, other than to conclude that the defendant hospital

45

was negligent in failing to maintain the premises and to make safe a

dangerous condition.

Third, to the extent that the viability of a premises liability

claim is informed by whether the facility is open to the public, the

record is undeveloped on plaintiff’s allegation that the facility was

“open to the public.” In fact, access to hospital patient wings, rooms,

and beds is restricted, subject to a variety of limitations.

Such shortcomings in the record make it difficult for patients

and their attorneys, health care providers, and courts to identify the

fact patterns to which the case would apply as precedent.

D. The Opinion Will Encourage Skeletal Pleadings

The opinion presents the questions of what constitutes

“professional negligence” and what is “based upon” professional

negligence for purposes of applying MICRA and its statutory

definition of “professional negligence.” (E.g., Code Civ. Proc., §§

340.5 and 340.5(2).) It seeks to distinguish between “professional

negligence” and “ordinary negligence.” In doing so, it says only that

it rejects Murillo’s dictum, and concludes, without explanation, that

“Flores’s complaint, which alleged she was injured ‘when the bed

rails collapsed causing plaintiff to fall to the ground,’ sounds in

ordinary negligence because the negligence did not occur in the

rendering of professional services.” (213 Cal.App.4th at 1399 [Slip

Opn., p. 16].)

This terse conclusion does not explain what constitutes

professional services. While the opinion holds that “negligent

46

maintenance” is “ordinary” but not “professional” negligence, it does

not provide a rule statement supporting why this is purportedly so.

Not only does the opinion fail to present a clear rationale, it

suggests that MICRA is inapplicable to any case based on unsafe

equipment. Its conclusion was based on the fact that plaintiff alleged

that defendant failed to “make a reasonable inspection of the

equipment.” (213 Cal.App.4th at 1399 [Slip Opn., p. 16].) Thus, the

opinion will encourage skeletal pleadings to circumvent MICRA’s

application, including its statute of limitations, and defeat MICRA in

cases to which MICRA applies. But, the absence of a standard will

result in uncertainty, prompting more extended and expensive trial

and appellate court proceedings, precisely what the Legislature

intended to avoid by enacting MICRA.

CONCLUSION

For the foregoing reasons, the Court should hold that MICRA

applies to any injury that is directly related to the services of a health

care professional. In this case, the injury was based on professional

negligence because the provision of a bed was necessary for the care

and treatment of a patient. What is more, a functional bed was

required to be provided by defendant pursuant to the law governing its

licensure.

In so holding, the Court should state the rule that a claim is

“based on professional negligence,” as defined in MICRA, where it is

directly related to the services of health care professionals in

diagnosing or treating patients, or the methods, procedures, plant and

equipment, and medical devices that are necessary or convenient to

the provision of such services. This is informed by a number of

factors, not all ofwhich are required to establish application of

MICRA: (1) Whether the plaintiff is a patient, or whether plaintiffs

claim arises from injury to a patient; (2) whether the injury arises as

part of the course and scope of diagnosis or treatment; and (3) whether

the injury arises out of conduct for which the health care provider is

licensed or regulated as part of such licensure.

Dated: July 2, 2014 COLE PEDROZA LLP

By'l1t~!i~Curtis A. ColeKenneth R. PedrozaMatthew S. LevinsonAttorneys for AmiciCALIFORNIA MEDICALASSOCIATION, CALIFORNIADENTAL ASSOCIATION, andCALIFORNIA HOSPITALASSOCIATION

47

CERTIFICATION

Appellate counsel certifies that this brief contains 10,315

words. Counsel relies on the word count of the computer program

used to prepare the brief.

Dated: July 2,2014

By~A~Matthew S. Levinson

48

PROOF OF SERVICE

I am employed by Cole Pedroza LLP, in the County ofLosAngeles, State of California. I am over the age of 18 and not a partyto the within action. My business address is 2670 Mission Street,Suite 200, San Marino, California 91108.

On the date stated below, I served in the manner indicatedbelow, the foregoing document described as: APPLICATION FORLEAVE TO FILE AMICUS BRIEF; AMICUS BRIEF IN SUPPORTOF PETITIONER BY CALIFORNIA MEDICAL ASSOCIATION,CALIFORNIA DENTAL ASSOCIATION, AND CALIFORNIAHOSPITAL ASSOCIATION on the parties indicated below byplacing a true copy thereof, enclosed in a sealed envelope addressedas follows:

SEE ATTACHED LIST

By United States Postal Service - I am readily familiar with thebusiness's practice for collecting and processing of correspondence

for mailing with the United States Postal Service. In that practicecorrespondence would be deposited with the United States Postal

Service that same day in the ordinary course of business, with the

postage thereon fully prepaid, in Los Angeles County, California.

The envelope was placed for collection and mailing on this datefollowing ordinary business practice.

I declare under the penalty of perjury under the laws of theState of California that the foregoing is true and correct. Executedthis 2nd day of July, 2014.

SERVICE LIST

Edward W. Lloyd (SBN 92795)

EDWARD W. LLOYD &

ASSOCIATES

2900 Adams Street, Suite C130

Riverside, CA 92504

Tel: 951-656-1203

Counsel for plaintiff and

respondent

CATHERINE FLORES

Peter M. Fonda (SBN 57023)

pfonda@fhallp.com

FONDA, HESTER &

ASSOCIATES, LLP

1925 Century Park East, Suite 850

Los Angeles, CA 90067

Tel: 310-553-3320

Fax: 310-553-4232

Counsel for defendant and

petitioner

PRESBYTERIAN

INTERCOMMUNITY

HOSPITAL

Kristen J. Heim (SBN 132657)

kheim@fwcllp.com

FRASER, WATSON &

CROUTCH LLP

1100 West Town and Country Road,

Suite 1100

Orange, CA 92868

Tel: 714-533-3373

Fax: 714-543-3374

Counsel for defendant and

petitioner

PRESBYTERIAN

INTERCOMMUNITY

HOSPITAL

David P. Pruett (SBN 155849)

dpruett@cktfmlaw.com

CARROLL, KELLY, TROTTER,

FRANZEN, McKENNA &

PEABODY

111 W. Ocean Boulevard, 14th Floor

P.O. Box 22636

Long Beach, CA 90801

Tel: 562-432-5855

Fax: 562-432-8785

Counsel for amici

SOUTHERN CALIFORNIA

DEFENSE COUNSEL

Clerk

California Court of Appeal

Second Appellate District,

Division Three

300 So. Spring Street

Second Floor, North Tower

Los Angeles, CA 90013-1213

Court of Appeal

2d Civ. No. B235409

Clerk

Los Angeles Superior Court

12720 Norwalk Blvd.

Norwalk, CA 90650

for Hon. Yvonne T. Sanchez

Superior Court

LASC No. VC058225