BARRIS v. COUNTY OF LOS ANGELES

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Court of Appeal, Second District, Division 4, California.

Dawnelle BARRIS, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Respondent.

No. B105216.

Decided: December 24, 1997

Kenneth M. Sigelman & Associates, Kenneth M. Sigelman, San Diego, and Penelope A. Phillips, Sherman Oaks, for Plaintiff and Appellant. Drivon & Tabak, Laurence E. Drivon, Stockton, and Richard Massa, Lakeport, as Amici Curiae on behalf of Plaintiff and Appellant. Veatch, Carlson, Grogan & Nelson, William G. Lieb, Los Angeles, Greines, Martin, Stein, & Richland LLP, Timothy T. Coates and Alison M. Turner, Beverly Hills, for Defendant and Respondent. Thelen, Marrin, Johnson & Bridges, Curtis A. Cole, Matthew S. Levinson, Los Angeles, Horvitz & Levy and Mitchell C. Tilner, Encino, as Amici Curiae on behalf of Defendant and Respondent.

This appeal concerns the interrelationship of the Emergency Medical Treatment and Active Labor Act (EMTALA;  42 U.S.C. § 1395dd), a federal statute enacted to prevent patient dumping, and the California Medical Injury Compensation Reform Act (MICRA), which includes a provision limiting non-economic damages in medical malpractice cases to $250,000.  (Civ.Code, § 3333.2.)   We conclude that in this case the MICRA cap on damages applies to the EMTALA claim for failure to stabilize prior to transfer because the conduct underlying that claim is “based on professional negligence.”   That is the conclusion reached by the trial court, which we affirm.

FACTUAL AND PROCEDURAL SUMMARY

Dawnelle Barris appeals the trial court's application of the MICRA cap on damages to her EMTALA cause of action against the County of Los Angeles (County).   The essential facts pertinent to this issue are not disputed.

On May 6, 1993 at approximately 5:30 p.m., Mychelle Barris, appellant's daughter, was brought to King Drew Medical Center Emergency Room by paramedics.   King Drew Medical Center is a facility operated by the County.   Mychelle had a temperature of 106.6 degrees, her pulse was 134, and her respiratory rate was 42.   Her symptoms included diarrhea, five episodes of vomiting, shortness of breath, and lethargy.   Later tests revealed she was suffering from septicemia (sepsis), a life-threatening bacterial infection which requires antibiotics for treatment.

Mychelle was transferred from the emergency room to the facility's Pediatric Outpatient Clinic.   Shortly after her arrival, she was examined by a staff physician, Dr. Trach Phoung Dang. Dr. Dang's examination revealed several abnormalities including an elevated temperature of 105.4 degrees, slight lethargy, an ear infection, bilateral rhonchi, wheezing, suprasternal retractions, a pulse rate of 86 indicating a respiratory problem, acute gastroenteritis, five percent dehydration, and asthma exacerbation.   At 8 p.m.   Mychelle had a seizure.   Dr. Dang testified that he believed at the time that Mychelle was suffering from a viral infection, not sepsis.

Dr. Dang treated Mychelle's symptoms.   She was given Tylenol and ibuprofen for her fever and intravenous fluids for her dehydration.   Her breathing problem was treated with albuterol and her seizure with Ativan.

Based on his examination, Dr. Dang believed a complete blood count and blood culture needed to be done.   He spoke several times to Dr. Thompson at Kaiser Permanente Hospital.   Mychelle was covered under a Kaiser health plan.   Dr. Dang told Dr. Thompson that he wanted to do the blood work.   Dr. Thompson responded that the blood work would be done at Kaiser, not at King.

At approximately 9 p.m., Mychelle was transferred to Kaiser by ambulance.   At that time she was slightly lethargic and her temperature was 101 degrees.   Dr. Dang testified that when Mychelle was transferred, he thought that her condition had stabilized.

Mychelle arrived at Kaiser at 9:35 p.m., suffered cardiac arrest at 9:50 p.m., and died shortly afterwards.

Mychelle's parents filed a complaint alleging causes of action for wrongful death and for violations of EMTALA.1  The EMTALA claims alleged violations for failure to provide an appropriate medical screening examination and for transferring Mychelle without stabilizing her emergency medical condition.   The trial court granted the County's motion for nonsuit on the failure to screen allegation under EMTALA.  (The correctness of that order is not questioned on appeal.)

The jury found both Dr. Dang and Dr. Thompson negligent, and found that their negligence was a legal cause of Mychelle's death.   It apportioned fault 75 percent to Dr. Dang and 25 percent to Dr. Thompson.   The jury assessed economic damages at $3,000 and non-economic damages at $1,350,000.2  The jury also found that County violated EMTALA by failing to stabilize Mychelle before her transfer.

The trial court granted the County's motion to reduce the non-economic damages to $250,000 pursuant to the MICRA cap.   Appellant contends that the MICRA cap does not apply to her EMTALA claim.3

DISCUSSION

Because no reported California case has discussed EMTALA, we begin with a review of that statute.   We next examine the purpose of the MICRA statute.   We then address the critical issue in this case:  whether the MICRA cap on non-economic damages applies to the EMTALA action for failure to stabilize prior to transfer.

I

 EMTALA was enacted amid concern that hospitals were “refusing to provide emergency medical treatment to patients unable to pay, or transferring them before emergency conditions were stabilized.”  (Power v. Arlington Hospital Association (4th Cir.1994) 42 F.3d 851, 856 (“Power ”).)   The purpose of the statute is to prevent “patient dumping.”  (Ibid.) “Congress enacted the EMTALA not to improve the overall standard of medical care, but to ensure that hospitals do not refuse essential emergency care because of a patient's inability to pay.”  (Eberhardt v. City of Los Angeles (9th Cir.1995) 62 F.3d 1253, 1258.)   EMTALA does not substitute for state law malpractice actions, but is a distinct cause of action.  (Power, supra, 42 F.3d at p. 856.)

 EMTALA imposes two requirements on hospitals that have emergency departments.   First, if a request is made, the hospital must conduct an “appropriate medical screening.”  (42 U.S.C. § 1395dd, subd. (a).)  To meet EMTALA's screening requirements, the hospital is obligated to apply its “standard screening procedure for identification of an emergency medical condition uniformly to all patients․”  (Baber v. Hospital Corporation of America (4th Cir.1992) 977 F.2d 872, 878.)   This provision of EMTALA is implicated when individuals 4 who are perceived to have the same medical condition receive disparate treatment.  (Vickers v. Nash General Hospital (4th Cir.1995) 78 F.3d 139, 142, 143.)

 EMTALA's second requirement is that a hospital stabilize a patient with an emergency medical condition.  (42 U.S.C. § 1395dd, subd. (b)(1).)   If the hospital knows that a patient's condition is unstable and does not stabilize it, the hospital may transfer the patient only with the patient's consent or after completing a certificate showing that the transfer will benefit the patient.  (Baber v. Hospital Corporation of America, supra, 977 F.2d 872, 882.)   A hospital violates this provision of EMTALA if it has “actual knowledge of the individual's unstabilized emergency medical condition,” fails to stabilize the condition, and nevertheless transfers the patient.  (Summers v. Baptist Medical Center Arkadelphia (8th Cir.1996) 91 F.3d 1132, 1140.)

It has been held that a hospital is strictly liable for a violation of EMTALA.  (Abercrombie v. Osteopathic Hospital Founders Association (10th Cir.1991) 950 F.2d 676, 681.)   This strict liability characterization describes the lack of any intent requirement, not the standard of care.  (See Repp v. Anadarko Municipal Hospital (10th Cir.1994) 43 F.3d 519, 522, fn. 5;  see also Dowdy, Friend & Rangel, The Anatomy of EMTALA:  A Litigator's Guide (1996) 27 Saint Mary's L.J. 463, 489, fn. omitted [“Although courts sometimes refer to EMTALA as a strict liability statute, this reference is incorrect.   Strict liability automatically imposes responsibility for an activity regardless of the care utilized in the act, whereas EMTALA requires hospitals to adhere to a certain level of care.”].)

 A hospital or physician that violates any EMTALA requirement is liable for specified penalties.  (42 U.S.C. § 1395dd(d)(1)(A) and (d)(1)(B).)   In addition, “[a]ny individual who suffers personal harm as a direct result of a participating hospital's violation of a requirement of this section may, in a civil action against the participating hospital, obtain those damages available for personal injury under the law of the State in which the hospital is located, and such equitable relief as is appropriate.”  (42 U.S.C. § 1395dd(d)(2)(A).)   The language we have emphasized in this passage is critical to the parties' claims.

Section 1395dd(d)(2)(A) was enacted because “Congress ‘was clearly aware of a growing concern in some states that excessive damage awards were fueling a medical malpractice “crisis,” ’ and that Congress apparently wished to preserve state enacted ceilings on the amount of damages that could be recovered in EMTALA through the incorporation of § 1395dd(d)(2)(A).”  (Power, supra, 42 F.3d 851, 862, quoting Reid v. Indianapolis Osteopathic Medical Hospital Inc. (S.D.Ind.1989) 709 F.Supp. 853, 855.)  Section 1395dd(d)(2)(A) is “an attempt on the part of Congress to balance the deterrence and compensatory goals of EMTALA with deference to the ability of states to determine what damages are appropriate in personal injury actions against hospitals.”  (Power, supra, 42 F.3d at p. 863.)

II

 MICRA serves a different purpose.  “[T]he Legislature enacted MICRA in response to a medical malpractice insurance ‘crisis,’ which it perceived threatened the quality of the state's health care․   In the view of the Legislature, ‘the rising cost of medical malpractice insurance was imposing serious problems for the health care system in California, threatening to curtail the availability of medical care in some parts of the state and creating the very real possibility that many doctors would practice without insurance, leaving patients who might be injured by such doctors with the prospect of uncollectible judgments.’․   The continuing availability of adequate medical care depends directly on the availability of adequate insurance coverage, which in turn operates as a function of costs associated with medical malpractice litigation․   Accordingly, MICRA includes a variety of provisions all of which are calculated to reduce the cost of insurance by limiting the amount and timing of recovery in cases of professional negligence․”  (Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100, 111, 32 Cal.Rptr.2d 263, 876 P.2d 1062, citations omitted.)

The MICRA provisions 5 (except Code Civ. Proc., § 1295) are triggered when an action against a health care provider is “based upon professional negligence” or “based on professional negligence.”   MICRA defines “professional negligence.”   It is “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.”  (Civ.Code, § 3333.2, subd. (c)(2).)   This definition is used throughout the MICRA statutes.  (Hedlund v. Superior Court (1983) 34 Cal.3d 695, 701, 194 Cal.Rptr. 805, 669 P.2d 41;  Waters v. Bourhis (1985) 40 Cal.3d 424, 431-432, 220 Cal.Rptr. 666, 709 P.2d 469.)

III

 We turn now to whether the MICRA cap on damages applies to appellant's EMTALA claim.   To determine that issue we must decide whether the underlying conduct challenged in the EMTALA claim, if brought under state law, would be encompassed within MICRA.  (See Power, supra, 42 F.3d 851, 862;  see also Brooks v. Maryland General Hospital Inc., (4th Cir.1993) 996 F.2d 708 [applying same analysis to determine whether arbitration of EMTALA is required under the Maryland Malpractice Act].) 6 This analysis is appropriate even though there are differences between medical malpractice actions and suits under EMTALA.  (Power, supra, 42 F.3d 851, 868.)   The reason is that the analysis “effectuates Congress's direction that courts should look to state law to determine what damages are available in an EMTALA action.”  (Id. at p. 864.)

Under state law, the MICRA cap applies if the underlying conduct is “based on professional negligence.”  (Civ.Code, § 3333.2.) Appellant urges us to adopt a narrow interpretation of that term.   She argues that since her EMTALA claim is not grounded on negligence, it cannot be based on “professional negligence.”   She cites Noble v. Superior Court (1987) 191 Cal.App.3d 1189, 237 Cal.Rptr. 38;  Waters v. Bourhis, supra, 40 Cal.3d 424, 220 Cal.Rptr. 666, 709 P.2d 469;  Flores v. Natividad Medical Center (1987) 192 Cal.App.3d 1106, 238 Cal.Rptr. 24;  and Baker v. Sadick (1984) 162 Cal.App.3d 618, 208 Cal.Rptr. 676, to support her argument.

We first address the scope of “professional negligence” as defined by the MICRA statutes, and then consider whether the reach of “professional negligence” extends to appellant's EMTALA claim.

A

Our Supreme Court has given a broad reading to the term “professional negligence” as used in MICRA.   In Hedlund v. Superior Court, supra, 34 Cal.3d 695, 703, 194 Cal.Rptr. 805, 669 P.2d 41, the court applied it to situations beyond “injury or wrongful death.”   In that case, the court held that “professional negligence” includes the failure of a psychotherapist to warn third persons that a patient poses a serious danger.  (Ibid.) The court reasoned that in deciding whether the warning should be given, “therapists must exercise the ‘ “reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of [the profession].” ’ ”  (Ibid., citing Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 438, 131 Cal.Rptr. 14, 551 P.2d 334.)   Thus, “[t]he diagnosis and appropriate steps necessary to protect the victim are not separate or severable, but together constitute the duty giving rise to the cause of action.”  (34 Cal.3d at p. 704, 194 Cal.Rptr. 805, 669 P.2d 41.)   In other words, the duty to warn is “inextricably interwoven” into the therapist's professional responsibilities.  (Ibid.) Although the specific provision at issue in Hedlund was the statute of limitations for personal injury against a health care provider, the court noted that actions based on the failure to warn were subject to the other MICRA restrictions including the limitations of damages for non-economic loss.  (Id. at p. 704, 194 Cal.Rptr. 805, 669 P.2d 41.)

The Supreme Court reiterated this broad interpretation of “professional negligence” in Waters v. Bourhis, supra, 40 Cal.3d 424, 432-433, 220 Cal.Rptr. 666, 709 P.2d 469:  “MICRA's reference to actions based on ‘professional negligence’ is not strictly limited to classic sponge-in-the-patient medical malpractice actions, ․” In Waters, the court held that MICRA provisions apply even if the alleged violation is within a restriction imposed by the licensing agency.  (Id. at pp. 435-436, 220 Cal.Rptr. 666, 709 P.2d 469.)   Thus, MICRA provisions are implicated when a health care provider acts contrary to professional standards or engages in unprofessional conduct.  (Ibid.)

Citing Hedlund v. Superior Court, supra, 34 Cal.3d 695, 194 Cal.Rptr. 805, 669 P.2d 41 and Waters v. Bourhis, supra, 40 Cal.3d 424, 220 Cal.Rptr. 666, 709 P.2d 469, the Supreme Court in Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 191, 192, 10 Cal.Rptr.2d 208, 832 P.2d 924, pointed out that MICRA is not limited to negligent acts or omissions.   The court stated:  “We recognize that in the medical malpractice context, there may be considerable overlap of intentional and negligent causes of action.   Because acts supporting a negligence cause of action might also support a cause of action for an intentional tort, we have not limited application of MICRA provisions to causes of action that are based solely on a ‘negligent act or omission’ as provided in these statutes.”  (3 Cal.4th at p. 192, 10 Cal.Rptr.2d 208, 832 P.2d 924.)

Central Pathology discusses the MICRA provisions in the context of Code of Civil Procedure section 425.13.   That provision was enacted after MICRA and establishes a screening mechanism for cases where a plaintiff wishes to seek punitive damages from a health care provider.   It provides in part that “[i]n any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed.”  (Emphasis added.)

The court concluded that “professional negligence” as used in MICRA extends beyond negligent acts and omissions, and that the Legislature intended to apply the broad definition in Code of Civil Procedure section 425.13.   (Central Pathology Service Medical Clinic, Inc. v. Superior Court, supra, 3 Cal.4th at p. 187, 10 Cal.Rptr.2d 208, 832 P.2d 924.)  “ ‘Arising out of’ ” refers to something that originates, grows, or flows from the event;  the Legislature did not intend to distinguish “ ‘arising out of’ ” professional negligence as used in Code of Civil Procedure 425.13 from “ ‘based upon’ ” professional negligence as used in the MICRA statutes.  (Id. at p. 187, 10 Cal.Rptr.2d 208, 832 P.2d 924, fn. 3;  see also Mueller v. Saint Joseph Medical Center (1997) 58 Cal.App.4th 1531, 1535, 68 Cal.Rptr.2d 668 [“No principled theory has been articulated on which such an elusive distinction between ‘arising out of’ and ‘based on’ could be justified.”].)

The court concluded that “an 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 v. Superior Court, supra, 3 Cal.4th at pp. 191, 192, 10 Cal.Rptr.2d 208, 832 P.2d 924, italics added.)

 The Central Pathology definition of “professional negligence” as extending beyond the negligent acts themselves is incompatible with appellant's narrow interpretation of that term as applying only to negligence claims.   Nor are we persuaded that other California cases relied on by appellant compel a conclusion that “professional negligence” refers only to an action alleging negligence.

In Noble v. Superior Court, supra, 191 Cal.App.3d 1189, 237 Cal.Rptr. 38, the court held the tolling provision in Code of Civil Procedure section 364 for actions based upon “professional negligence” applies only to causes of action in which the plaintiff alleges the elements of a negligence cause of action.  (Id. at p. 1192, 237 Cal.Rptr. 38.)   According to the Noble court, “ ‘negligent’ and ‘negligence’ were carefully chosen to apply only to causes of action based upon negligence.”  (Ibid.) Although the Central Pathology court did not explicitly disapprove of Noble, its broad interpretation of “professional negligence” undermines the continued validity of this portion of the opinion.

Waters v. Bourhis, supra, 40 Cal.3d 424, 436, 437, 220 Cal.Rptr. 666, 709 P.2d 469, involved allegations that a psychiatrist directed a patient to observe him masturbate and compelled her to submit to sexual intercourse.   The ensuing lawsuit included both MICRA and non-MICRA causes of action.   Based on the factual allegations, the plaintiff asserted claims for negligence, conscious disregard of the best interest of the patient, and intentional or reckless infliction of emotional distress.  (Id. at p. 429, 220 Cal.Rptr. 666, 709 P.2d 469.)   Without specifying which claims constituted non-MICRA claims, the court held that the attorney's fee limit provisions (Bus. & Prof.Code, § 6146) did not apply because non-MICRA claims were included in the action.  (Id. at pp. 436, 437, 220 Cal.Rptr. 666, 709 P.2d 469.)   Although the opinion includes language suggesting that an intentional tort theory is a non-MICRA claim, the court explicitly declined to consider whether MICRA provisions should be construed to include intentional torts.  (Id. at p. 435, fn. 11, and p. 436, 220 Cal.Rptr. 666, 709 P.2d 469;  see also Arentz, Defining “Professional Negligence” After Central Pathology Service Medical Clinic, Inc. v. Superior Court:  Should California's Medical Injury Compensation Reform Act Cover Intentional Torts?  (1994) 30 Cal. Western L.Rev. 221, 240, 255-257 [arguing that MICRA should extend to intentional torts committed for a therapeutic purpose].)

Relying on Waters, the court in Flores v. Natividad Medical Center, supra, 192 Cal.App.3d 1106, 238 Cal.Rptr. 24, held that the state's failure to summon medical aid pursuant to Government Code section 845.6 was a non-MICRA cause of action and was not subject to MICRA's limitation on damages.7  (Id. at p. 1110, 238 Cal.Rptr. 24.)   The court also noted that the state was not a health care provider, as it would have to be in order to trigger the MICRA statutes.  (Id. at p. 1116, 238 Cal.Rptr. 24.)   To the extent the Flores decision holds that an allegation of failure to summon care is a non-MICRA cause of action because it is not based on “professional negligence,” it is inconsistent with Central Pathology, which was decided five years later.   It is difficult to understand how summoning aid when it is needed is not a part of a health care provider's professional duties.

In Baker v. Sadick, supra, 162 Cal.App.3d 618, 625, 208 Cal.Rptr. 676, the plaintiff alleged fraudulent inducement to submit to surgery, falsification of records, and negligence.   An arbitration panel awarded plaintiff $275,000 in compensatory damages and $300,000 in punitive damages.   The trial court reduced the compensatory damages to $250,000 pursuant to Civil Code section 3333.2 and found the arbitrators did not have authority to award punitive damages.  (Id. at p. 622, 208 Cal.Rptr. 676.)   On appeal, the plaintiff did not question the trial court's reduction of compensatory damages but argued the arbitrators were empowered to award punitive damages.   The reviewing court held the MICRA cap did not apply to punitive damages.   (Id. at pp. 626-627, 208 Cal.Rptr. 676.)   The Baker court pointed out that the plaintiff's claims included intentional torts in addition to negligence and held that the arbitrators were authorized to award punitive damages.  (Id. at p. 627, 208 Cal.Rptr. 676.)   Contrary to appellant's assertion, the court did not suggest that the Civil Code section 3333.2 limitation on non-economic compensatory damages applies only to negligence causes of action.

B

Because “professional negligence” is not limited to causes of action alleging a breach of a standard of care, the next question is whether the reach of “professional negligence” covers appellant's claim brought under EMTALA.   The procedural posture of this case requires us to accept the jury's factual finding that County violated EMTALA and to consider only the application of MICRA to the EMTALA claim.   Because appellant does not question the trial court's nonsuit of her failure to screen claim, our review is limited to her failure to stabilize claim.

 The challenged conduct in this case is the hospital's failure to stabilize Mychelle Barris's emergency medical condition prior to transferring her to another hospital.   Mychelle Barris suffered from sepsis.   The reason she was not stabilized is that Dr. Dang did not diagnose the sepsis, and therefore, did not administer antibiotics necessary to stabilize her.   We conclude that, under these circumstances, the failure to stabilize claim was “based on professional negligence.”

“[A] hospital's ‘business is caring for ill persons, ․’ ” (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 998, 35 Cal.Rptr.2d 685, 884 P.2d 142, quoting Rice v. California Lutheran Hospital (1945) 27 Cal.2d 296, 302, 163 P.2d 860.)   Stabilizing a patient is “inextricably woven” with a hospital's professional duty to care for sick persons.  (See Hedlund v. Superior Court, supra, 34 Cal.3d 695, 194 Cal.Rptr. 805, 669 P.2d 41;  see also Bell v. Sharp Cabrillo Hospital (1989) 212 Cal.App.3d 1034, 1051, 260 Cal.Rptr. 886 [hospital's inadequate selection and review of professional staff constitutes professional negligence].)   It also is directly related to the manner in which professional services are rendered.  (See Central Pathology Service Medical Clinic, Inc. v. Superior Court, supra, 3 Cal.4th 181, 10 Cal.Rptr.2d 208, 832 P.2d 924.)   We conclude that in this case appellant's EMTALA claim is subject to the MICRA cap on damages even though it is not based on a breach of the standard of care (i.e., on negligence).  (See Power, supra, 42 F.3d at p. 863.) 8

In reaching this conclusion, we have examined the allegations underlying appellant's EMTALA claim rather than relying on technical pleading distinctions between an action for negligence and an EMTALA suit based on “strict liability.”   Our analysis is consistent with the approach taken in Central Pathology of identifying “the nature and cause of a plaintiff's injury ․ to determine whether each is directly related to the manner in which professional services were provided.”  (3 Cal.4th at p. 192, 10 Cal.Rptr.2d 208, 832 P.2d 924.)   A focus limited to the technical pleadings would allow a plaintiff to control the applicability of the MICRA statutes through pleadings.  “Focusing on theory of pleading alone eviscerates the statutes involved, for it leaves applicability of these statutes wholly in the hands of the pleader ․ [and] any plaintiff can easily ‘plead around’ the limitations of the statute merely by changing the characterization of the tort alleged.”   (Mueller v. Saint Joseph Medical Center, supra, 58 Cal.App.4th 1531, 1536, 68 Cal.Rptr.2d 668 [interpreting the Elder Abuse Act (Welf. & Inst.Code, § 15600 et seq.) ].)

The legislative history of section 1395dd(d)(2)(A) supports our conclusion.   Congress was aware of the concern in many states that “excessive damage awards were fueling a medical malpractice ‘crisis[.]’ ”  (Power, supra, 42 F.3d at p. 862.)   It explicitly limited the damages available for personal injury to those available under the law of the state where the hospital is located.  (42 U.S.C. § 1395dd(d)(2)(A).)   The purpose of this provision was to preserve state-enacted damage caps in medical malpractice actions.  (Power, supra, 42 F.3d 851, 862;  see Comment (1995) 29 Ga.L.Rev. 1171, 1202 [“Holding [in Power ] state damage caps applicable to EMTALA actions was the best way for the court to effectuate the goals of both state damage caps and EMTALA.”].)

Appellant and an amicus, Consumer Attorneys of California, urge us to follow two recent federal trial court decisions holding that MICRA does not apply to EMTALA actions.  (Jackson v. East Bay Hospital (N.D.Cal.1997) 980 F.Supp. 1341;  Burrows v. Redbud Community Hospital District (N.D.Cal.1997) No. C-96-4345 SI.) These decisions are, of course, based on the federal court's construction of MICRA, a California statute.   They therefore are persuasive but not controlling authority on this issue.   We decline to follow them because we do not find the reasoning in Jackson persuasive, and the Burrows court relied entirely on Jackson.   We also note that neither decision is final, and only one is to be published in the Federal Supplement.

Although EMTALA is a cause of action separate from medical malpractice, Congress explicitly conditioned damages available in a private cause of action for a violation of EMTALA to damages available for personal injury under the law of the state in which the hospital is located.   Consequently, a court must look to state law to determine whether state medical malpractice caps apply to EMTALA claims.   As we have explained, the applicable California law in this case, the MICRA cap, applies to the underlying conduct challenged in the particular circumstances of this case, and therefore applies to the EMTALA claim.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   Mychelle's father is not a party to this appeal.

2.   Damages were for the loss of love, companionship, comfort, affection, society, solace, or moral support.   Appellant's counsel argued to the jury for an award in the seven figure range.

3.   County cross-appeals on the ground that the evidence does not support a judgment based on an EMTALA violation.   County asks, however, that we disregard its cross-appeal in the event we find the MICRA cap does apply to the EMTALA claim.   Based on this request, we do not consider the cross-appeal.

4.   Although originally there was an split of authority among federal courts as to whether EMTALA applied to all individuals or only to indigent patients, courts have resolved that division in favor of applying EMTALA to all individuals.  (See Power,supra, 42 F.3d 851, 857;  see also Comment, The Emergency Medical Treatment & Active Labor Act;  Denial of Emergency Medical Care Because of Improper Economic Motives (1992) 67 Notre Dame L.Rev. 1121[arguing that an EMTALA cause of action should apply only in cases where emergency care is denied because of economic motives].)

5.   The MICRA provision at issue in this case is Civil Code section 3333.2, which limits non-economic losses to $250,000.   Other provisions of MICRA limit attorney contingency fees (Bus. & Prof.Code, § 6146);  allow a defendant to introduce evidence of compensation received from collateral sources (Civ.Code, § 3333.1);  require notice to file an action (Code Civ. Proc., §§ 364, 365);  allow periodic payment of damage awards (Code Civ. Proc., § 667.7);  regulate contracts for arbitration (Code Civ. Proc., § 1295);  and establish a statute of limitations (Code Civ. Proc., § 340.5).

6.   In Power, the court held the Virginia medical malpractice cap applied to an EMTALA claim for failure to provide an appropriate screening because the EMTALA claim fell within the ambit of medical malpractice under the Virginia statute.   As quoted in Power, the Virginia statute provided:  “ ‘[I]n any verdict returned against a health care provider in an action for malpractice ․ which is tried by a jury ․ the total amount recoverable for any injury to, or death of, a patient shall not exceed one million dollars.’  Va.Code Ann. § 8.01-581.15. ‘Malpractice’ is defined in the statute as ‘any tort based on health care or professional services rendered, or which should have been rendered, by a health care provider, to a patient.’  Va.Code Ann. § 8.01-581.1 (Michie Supp.1993).”  (42 F.3d at p. 861.)The Power court declined to follow the reasoning employed in opinions considering the Indiana damage cap and Virginia damage cap.  (See Reidv.Indianapolis Osteopathic Medical Hospital,supra, 709 F.Supp. 853, 855 [holding that the Indiana damage cap on medical malpractice actions applies to EMTALA claims];  Leev.Alleghany Regional Hospital Corp. (W.D.Va.1991) 778 F.Supp. 900 [holding that Virginia medical malpractice caps apply to EMTALA claims].)   In Cooperv.Gulf Breeze (N.D.Fla.1993) 839 F.Supp. 1538, 1542, the court held that the Florida malpractice cap does not apply to claims brought under EMTALA.   The Cooper court relied on reasoning in the district court case Powerv.Arlington Hospital (E.D.Va.1992) 800 F.Supp. 1384, which the Fourth Circuit reversed in Power,supra, 42 F.3d 851, 868.There has been considerable law review comment about application of state malpractice caps to causes of action brought under EMTALA.   We cite some of the comment, but attempt no critique or discussion of the many views:  Furrow, An Overview and Analysis of the Impact of the Emergency Medical Treatment and Active Labor Act (1995) 16 J. Legal Med. 325, 343-348 [reviewing Power ];  Comment, The Effect of State Medical Malpractice Caps on Damages Awarded Under the Emergency Medical Treatment and Active Labor Act (42 U.S.C. § 1395DD) (1994) 42 Clev. St. L.Rev. 171 [written before the Fourth Circuit's decision in Power and arguing that a cause of action under EMTALA is mutually exclusive from state medical malpractice caps];  Comment, Power v. Arlington Hospital Association:  Extending Cobra's Striking Distance While Weakening the Power of Its Venom (1995) 29 Ga.L.Rev. 1171, 1201-1203 [arguing that the decision in Power was the best way to effectuate the goals of both state damage caps and EMTALA].

7.   Government Code section 845.6 provides in part:  “Neither a public entity nor a public employee is liable for injury proximately caused by the failure of the employee to furnish or obtain medical care for a prisoner in his custody;  but, except as otherwise provided by Sections 855.8 and 856, a public employee, and the public entity where the employee is acting within the scope of his employment, is liable if the employee knows or has reason to know that the prisoner is in need of immediate medical care and he fails to take reasonable action to summon such medical care․”

8.   We need not and do not address respondent's contention that any claim under EMTALA is based on “professional negligence.”

EPSTEIN, Acting Presiding Justice.

HASTINGS and BARON, JJ., concur.