MUELLER v. SAINT JOSEPH MEDICAL CENTER

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Court of Appeal, Second District, Division 2, California.

Margaret MUELLER et al., Plaintiffs and Appellants, v. SAINT JOSEPH MEDICAL CENTER et al., Defendants and Respondents.

No. B108322.

Decided: October 09, 1997

Richard M. Seff, for Plaintiffs and Appellants. Horvitz & Levy, Sandra J. Smith, Encino, Christine A. Pagac, Garcia, Emmons, Maranga & Morgenstern, John F. Peterson, Gibson, Dunn & Crutcher, Peter J. Arturo, Jay P. Srinivasan, Los Angeles, O'Flaherty & Belgum, and Robert M. Dato, Long Beach, for Defendants and Respondents.

This case concerns the Elder Abuse and Dependent Adult Civil Protection Act (the “Elder Abuse Act”).  (Welf. & Inst.Code § 15600 et seq.1 )  The sole issue concerns the type of claim which may be asserted against a health care provider under the Elder Abuse Act.

I. The Issue Presented.

The Elder Abuse Act is lengthy and detailed.   It applies generally to caregivers, family members, and others who might abuse elders.   In issue here are certain provisions of the Act which create civil remedies against those who abuse elders.   These provisions allow a potentially larger measure of recovery in the event of an elder's death than would be allowable in a wrongful death action which does not come within the scope of the Elder Abuse Act.2  The civil remedy provisions of the Elder Abuse Act are contained in Article 8.5, entitled “CIVIL ACTIONS FOR ABUSE OF ELDERLY OR DEPENDENT ADULTS.”   The precise issue is raised by section 15657.2, also contained within Article 8.5.   Section 15657.2 reads as follows:

“Notwithstanding this article [Article 8.5, which controls civil actions for the abuse of the elderly], any cause of action for injury or damage against a health care provider, as defined in Section 340.5 of the Code of Civil Procedure, based on the health care provider's alleged professional negligence, shall be governed by those laws which specifically apply to those professional negligence causes of action.”

The instant case concerns an elderly man who died while in the care of the hospital and doctor defendants.   These defendants are concededly “health care providers” as that term is used in the statutes.   Pursuant to section 15657.2, the civil remedy provisions of the Elder Abuse Act do not apply to them if the claim against them is “based on” their “alleged professional negligence.”   The question is thus whether the allegations against the health care provider defendants in this case are “based on the health care provider's alleged professional negligence,” within the meaning of that phrase as used in the Elder Abuse Act.

II. Procedural Background.

The plaintiffs are the decedent's surviving wife and daughter.   In their Fourth Amended Complaint, plaintiffs alleged that the health care provider defendants had numerous duties:  i.e., to react properly to conditions, to identify care needs, to update a patient care plan when a patient's condition changes, to notify attending physicians promptly of changes in a patient's condition, to follow physician's orders, not to feed a patient while a nasogastric tube is in place, to change a chairfast patient's position periodically, to provide food and fluids “in a safe manner,” to implement measures to reduce incontinence, to accept only those patients for whom adequate care can be provided, to maintain adequate levels of staffing, to maintain accurate health records, to monitor fluid intake and urinary output accurately, and similar duties.   Plaintiffs alleged that the health care provider defendants failed to discharge these duties, that this failure caused the decedent's death, and that the health care provider defendants acted “recklessly and/or intentionally.”   Plaintiffs styled their claim against the health care provider defendants as one for “Wilful Misconduct” pursuant to the Elder Abuse Act.

The health care providers demurred.   The trial court found that the claims advanced against the health care providers were excluded from the coverage of the Elder Abuse Act by section 15657.2, quoted above.   The court therefore sustained the demurrer to the Fourth Amended Complaint without leave to amend insofar as the Elder Abuse Act claims against the health care providers were concerned.   Although plaintiffs had other claims to pursue, plaintiffs were apparently unwilling to proceed to trial without the Elder Abuse Act claims against the health care providers.   The parties therefore stipulated to the entry of judgment against plaintiffs.   This appeal followed.

III. The Meaning of “based on the health care provider's alleged professional negligence.”

a. The Central Pathology case and its progeny.

The case of Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 10 Cal.Rptr.2d 208, 832 P.2d 924 (Central Pathology) involved the applicability of Code of Civil Procedure section 425.13.  Code of Civil Procedure section 425.13 applies to any case “arising out of” the “professional negligence” of a “health care provider.”  (See Cooper v. Superior Court (1997) 56 Cal.App.4th 744, 65 Cal.Rptr.2d 674.)   The Supreme Court in Central Pathology concluded that “[A]n action for damages arises out of the professional negligence of a health care provider if the injury for which damages are sought is directly related to the professional services provided by the health care provider.”  (Central Pathology, supra, 3 Cal.4th 181, 191, 10 Cal.Rptr.2d 208, 832 P.2d 924.)

“The applicability of section 425.13 does not depend upon technical pleading distinctions between intentional versus negligent tort theories.   ‘[I]dentifying a cause of action as an “intentional tort” as opposed to “negligence” does not itself remove the claim from the requirements' of section 425.13.  (Central Pathology, supra, 3 Cal.4th 181, 192 [10 Cal.Rptr.2d 208, 832 P.2d 924].)   Instead, ‘[t]he allegations that identify the nature and cause of a plaintiff's injury must be examined to determine whether each is directly related to the manner in which professional services were provided.’  (Id. at p. 192 [10 Cal.Rptr.2d 208, 832 P.2d 924]).   Thus a claim of battery ‘predicated on treatment exceeding or different from that to which a plaintiff consented is governed by section 425.13’ (id. at p. 192 [10 Cal.Rptr.2d 208, 832 P.2d 924]), a claim of fraud in communication of test results is covered (id. at pp. 192-193 [10 Cal.Rptr.2d 208, 832 P.2d 924]), a claim of intentional infliction of emotional distress arising from the rendition of professional services is covered (id. at p. 193 [10 Cal.Rptr.2d 208, 832 P.2d 924]), a claim of falsification of medical findings and conspiracy to deprive a patient of workers' compensation benefits is covered (Davis v. Superior Court (1994) 27 Cal.App.4th 623 [33 Cal.Rptr.2d 6] ), and a claim that a hospital allowed two hospital employees to rape a patient is covered.  (United Western Medical Centers v. Superior Court, supra, 42 Cal.App.4th 500 [504-505, 49 Cal.Rptr.2d 682].)”  (Cooper v. Superior Court, supra, 56 Cal.App.4th 744, 749, 65 Cal.Rptr.2d 674.)   In Cooper, a claim of sexual battery allegedly occurring during a gynecological examination was similarly found “directly related” to the performance of professional services.  (Cooper v. Superior Court, supra, 56 Cal.App.4th 744, 751, 65 Cal.Rptr.2d 674.)

Plaintiffs' allegations in the instant case are clearly “directly related” to the rendition of professional services by the health care provider defendants.   Plaintiffs' claims are thus clearly claims “arising out of” the rendition of such professional services.  (Cf. Central Pathology, supra, 3 Cal.4th 181, 10 Cal.Rptr.2d 208, 832 P.2d 924.)

b. “Arising out of” versus “based on.”

 The Supreme Court in Central Pathology dealt with a statute using the phrase “arising out of.”  (Code of Civ. Proc. § 425.13.) By contrast, the statute involved here uses the phrase “based on.” (§ 15657.2, quoted above.)   The application of the teaching of Central Pathology to the allegations in the instant case clearly yields a determination that plaintiffs' claims “arise out of” the rendition of professional services.   Plaintiffs nevertheless contend that these claims are not “based on” the rendition of professional services, and hence that plaintiffs may sue under the Elder Abuse Act. Plaintiffs' contention thus depends on the proposition that a claim can be one “arising out of” the alleged negligence of a health care provider, but at the same time not be “based on” that same alleged negligence.   No principled theory has been articulated on which such an elusive distinction between “arising out of” and “based on” could be justified.   Plaintiffs here take precisely the same approach squarely rejected by the Supreme Court in Central Pathology:  plaintiffs focus on their theory of pleading and argue that applicability of the statute depends upon whether they have chosen to plead an intentional, rather than a negligent, tort.   The Supreme Court, by contrast, concluded in Central Pathology that the proper approach to determining the scope of the term “professional negligence” is to inquire whether “the injury for which damages are sought is directly related to the professional services provided by the health care provider.”  (Central Pathology, supra, 3 Cal.4th 181, 191, 10 Cal.Rptr.2d 208, 832 P.2d 924.)   In Central Pathology the Supreme Court rejected the approach of simply categorizing plaintiff's theory of pleading as a negligent tort or an intentional tort.   The reason for this rejection is readily apparent.   Focusing on theory of pleading alone eviscerates the statutes involved, for it leaves applicability of these statutes wholly in the hands of the pleader.   If this were the proper interpretation of the statute, the statute would have little applicability because any plaintiff can easily “plead around” the limitations of the statute merely by changing the characterization of the tort alleged.   Moreover, the only effect the statute would then have appears to be one at odds with the underlying legislative intent:  the statute would then serve not to confine claims against health care providers to those based on the statutes specified by the Legislature, but instead would have the contrary effect of simply escalating claims against health care providers from the negligent into the intentional category.   No basis has been suggested for a conclusion that the Legislature's objective here was simply to shift theories of pleading from the negligent to the intentional.   Nor is there a basis in this record to conclude that a Legislature attempting to define public policy would simply transfer the policy choice into the realm of a plaintiff's pleading choices.   This is a matter of legislative policy, and the Legislature could change it if it so chose.   At present, however, there is no basis for a departure from the mode of analysis applied by the Supreme Court in Central Pathology.

Applying the Supreme Court's approach in Central Pathology to this case inexorably leads to the conclusion that plaintiffs here have advanced claims which are “directly related” to the rendition of professional services by health care providers.   These claims are therefore “based on” the rendition of professional services.   Pursuant to section 15657.2, quoted above, the Elder Abuse Act has no application to such claims.   Since the application of the Elder Abuse Act is the only issue raised on this appeal, the orders of the trial court are affirmed.3

IV. Disposition.

The judgment is affirmed.   Each side to bear its own costs on appeal.

FOOTNOTES

1.   All further section references are to the Welfare and Institutions Code unless specifically stated otherwise.

2.   Section 15657(a) allows a plaintiff to recover attorney fees.   Section 15657(b) allows a plaintiff to recover punitive damages plus damages for pain, suffering or disfigurement.  (Section 15657(b) expands the measure of damages recoverable by removing the limitations otherwise set by Probate Code former section 573, limitations now found in Code of Civil Procedure section 377.34;  see ARA Living Centers-Pacific, Inc. v. Superior Court (1993) 18 Cal.App.4th 1556, 23 Cal.Rptr.2d 224 [reviewing legislative history;  examining provisions for recovery of fees and damages];  Sullivanv. Delta Air Lines, Inc. (1995) 15 Cal.4th 288, 63 Cal.Rptr.2d 74, 935 P.2d 781 [examining statutes regarding recovery of pain and suffering damages in wrongful death action].)

3.   Plaintiffs at times misstate the issue as whether health care providers enjoy a “blanket exclusion” from the Elder Abuse Act, or are somehow exempted from its operation.   There is no issue of exclusion or exemption raised by the record on this appeal.   Clearly a person enjoys no “exemption” from the Elder Abuse Act simply because that person happens to be a health care provider.   The question is whether a plaintiff's claim which is based on the rendition of professional services by a health care provider is within the scope of the Elder Abuse Act. Pursuant to section 15657.2, such a claim is not within the scope of the Act. Should a health care provider defraud or assault an elder in a context not “directly related” to the rendering of professional services, that health care provider would presumably be subject to a claim under the provisions of the Elder Abuse Act, just as we all are.   There are no such allegations in this case.

ZEBROWSKI, Associate Justice.

FUKUTO, Acting P.J., and NOTT, J., concur.