FEISTER v. ST FRANCIS HOSPITAL

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

Keiko Sano FEISTER, et al., Petitioners, v. SUPERIOR COURT of the State of California for the County of San Francisco, Respondent, ST. FRANCIS HOSPITAL, et al., Real Parties in Interest.

No. A050733.

Decided: October 30, 1991

Paul D. Gutierrez and Vincent A. Ruiz, Guiterrez & Associates, San Francisco, for petitioners. Lawrence A. Bennett, David H. Bremer, Bennett & Rowland;  James L. Dillon, Michael J. Fitzsimmons, O'Connor, Cohn, Dillon & Barr, Law Corp., San Francisco;  and Mark G. Bonino and Daniel R. Kirwan, Ropers, Majeski, Kohn, Bentley, Wagner & Kane, Redwood City, for real parties in interest.

This court has previously denied this petition for writ of mandate without opinion.   The matter has since been remanded to us by our Supreme Court with directions to vacate our order denying the petition and issue an alternative writ to be heard before this court when the proceeding is ordered on calendar.   At issue is the application of Code of Civil Procedure section 425.13 to this action.   Petitioners, relying on Bommareddy v. Superior Court (1990) 222 Cal.App.3d 1017, 272 Cal.Rptr. 246, contend “[t]he standards created by the enactment of CCP Section 425.13 ․ are applicable only to motions for leave to allege punitive damages in the context of professional negligence claims”;  they urge error by the respondent court in applying section 425.13 standards to their motion to amend to allow punitive damage claims in the complaint's intentional tort causes of action.   Because we respectfully disagree with the Bommareddy decision and find clear legislative intent that section 425.13 is applicable to an action concurrently alleging professional negligence and intentional tort arising out of professional negligence, we deny petitioners' writ of mandate.

PROCEDURAL BACKGROUND

Petitioners Keiko Sano Feister and her husband, Norman Feister, brought this action against St. Francis Hospital and Seaver T. Page, M.D., an internist who treated Keiko for about 13 years.   A summary of the allegations of their first amended complaint is set forth in the statement of facts section of this opinion.

Petitioners filed a motion for leave to amend their first amended complaint to allege entitlement to punitive damages in Keiko's fourth cause of action for intentional infliction of emotional distress and sixth cause of action for breach of the duty of good faith and fair dealing.   The motion stated it was brought under section 425.13.1  At the hearing on the motion, the court stated its determination that section 425.13 applied to this action and petitioners were required to bring such a motion if they wished to allege a right to punitive damages.   The court denied petitioners' motion on March 1, 1990.   Petitioners then filed a petition for writ of mandate in this court which was denied.   The Supreme Court denied review of that decision.

On August 8, 1990, the Fifth Appellate District filed its opinion in Bommareddy v. Superior Court, supra.   On August 23, 1990, petitioners filed another petition for writ of mandate with this court based upon the decision in Bommareddy.   Petitioners contended “The standards created by the enactment of [Code of Civil Procedure] Section 425.13, however, are applicable only to motions for leave to allege punitive damages in the context of professional negligence claims․   Because [Code of Civil Procedure] Section 425.13 is applicable only to claims arising from professional negligence and not to intentional torts, the Respondent [trial court] could not properly base the denial of the Petitioners' motion on the requirements of that statute.”  (Emphasis in original.)   This division again denied the petition, without opinion.   The Supreme Court granted review and remanded the matter to this division with directions to issue an alternative writ, schedule the matter for formal argument and decide the matter.

STATEMENT OF FACTS

While petitioners' motion to amend the first amended complaint to set forth entitlement to punitive damages was directed to the fourth and sixth causes of action only, it is necessary to the understanding of our disposition that the essential allegations of each cause of action be summarized.   We do so accordingly.

In her first cause of action for “Professional Negligence” Keiko alleges:  that at various times during the period 1976 to 1986 Keiko presented herself to defendant Page complaining of episodes of rectal bleeding;  in August 1986 Keiko complained to Page of severe rectal bleeding;  Page performed a digital rectal examination and noted what he characterized as a “thrombosed internal hemorrhoid or cryptitis”;  an occult blood test was positive;  Keiko reminded Page of her family's history of cancer and her fear of cancer;  Page ordered Keiko to undergo a barium enema test;  Page neglected to conduct an instrument examination of Keiko's rectum to determine the presence of cancer, a deviation from the standard of care under the circumstances;  Keiko again complained to Page of severe rectal bleeding in April 1987;  on April 20, 1987, she entered St. Francis Hospital and was diagnosed as having rectal cancer requiring immediate and substantial surgery from which Page told her she would have only a 50 percent chance of surviving;  as a consequence of Page's failure to properly and adequately diagnose Keiko's condition, she underwent extensive rectal surgery, experienced post surgical complications and was required to undergo a colostomy;  that defendant's negligent diagnosis, treatment and care of Keiko proximately resulted in injury and damage to Keiko.

The second cause of action for “Negligent Infliction of Emotional Distress” directed against defendant Page only incorporates the allegations of the first cause of action and alleges Page's negligence caused Keiko severe emotional distress.

The third cause of action for negligent infliction of emotional distress alleges Keiko was admitted to St. Francis Hospital and the hospital and Page undertook to treat her.   While in the hospital, Keiko learned for the first time she had cancer and had only a 50 percent chance of surviving rectal surgery.   This information made her frightened, nervous and anxious, making her highly susceptible to mental suffering.   Page and the hospital were aware of this susceptibility.   The day before she was scheduled for surgery, Page and the hospital told her surgery would not be performed at the hospital and that neither defendant would continue to treat her.   She was abandoned by defendants and ejected from the hospital with no arrangements made for her surgery elsewhere.   The acts of these defendants breached their contracts with Keiko, breached their duties arising from their relationship with her and breached their duties arising from the standard of care in the community.   As a result of these acts of Page and the hospital, Keiko suffered severe emotional distress.

Keiko's fourth cause of action for intentional infliction of emotional distress incorporates the allegations of her second and third causes of action for negligent infliction of emotional distress by Page and the hospital.   This cause of action alleges the actions of these defendants were intentional and done with malice, oppression and with a reckless and wanton disregard of the consequences to plaintiff.

The fifth cause of action was brought by Norman Feister for loss of consortium.

Keiko's sixth cause of action against Page and the hospital alleges breach of the duty of good faith and fair dealing.   This cause of action incorporates the allegations of the first cause of action for professional negligence against Page and the allegation of the third cause of action against Page and the hospital for negligent infliction of emotional distress.   Keiko alleges Page and the hospital entered into contracts with her;  that Page breached his duty of good faith and fair dealing by refusing to employ instruments and procedures to ensure Keiko was receiving the degree of care required by her contract;  that both defendants breached the duty of good faith and fair dealing by abandoning their duty of care to Keiko and denying her the benefits of her contracts.   These acts were intentional, done with fraud, oppression and malice and were done with reckless and wanton disregard of the consequences to Keiko.

DISCUSSION

Petitioners assert this court should issue a writ of mandate commanding the trial court to grant petitioners leave to amend their complaint to plead punitive damages because the court's denial of the motion was based upon an improper application of section 425.13 to this action.   They argue the enactment of section 425.13 did not change California's long standing public policy of liberally allowing amendments to pleadings.   They further contend that based on the decision in Bommareddy, section 425.13 applies only to actions arising from professional negligence and does not apply to intentional tort causes of action.2

 Real parties in interest Page and St. Francis Hospital first argue this petition must be denied as untimely since it was filed more that 60 days after the entry of the trial court's order denying the motion to amend and is barred by the doctrine of laches.   They rely on the holdings in Popelka, Allard, McCowan & Jones v. Superior Court (1980) 107 Cal.App.3d 496, 499, 165 Cal.Rptr. 748, and Krueger v. Superior Court (1979) 89 Cal.App.3d 934, 152 Cal.Rptr. 870, which hold the court has discretion to deny a petition filed more than 60 days after the filing of the challenged ruling and should do so unless “extraordinary circumstances” are shown for the delay.   We disagree with real parties' argument.   This is not a situation of delay.   Petitioners filed a timely petition after the court denied the motion.   That petition was denied.   After the Bommareddy opinion was filed, petitioners filed another petition based upon that decision.   The Bommareddy opinion was filed on August 8, 1990;  this petition was filed on August 23, 1990, 13 days after the opinion was filed.   We conclude the petition was timely.

 Real parties in interest also argue petitioners cannot assert the trial court erred in applying section 425.13 to their motion to amend since the motion was brought under that section and their argument is barred by the doctrine of invited error.   They also maintain petitioners cannot raise the Bommareddy argument on appeal because it was not raised before the trial court.   The arguments raised by Bommareddy are legal arguments not factual ones and can be raised for the first time on appeal.   We shall not apply the doctrine of invited error to a change in the law which occurred after the proceedings in the trial court.   Petitioners are entitled to rely on post hearing decisions that support their position.

Finally, real parties in interest argue Bommareddy was incorrectly decided or is distinguishable from this action.   We have concluded we must respectfully disagree with the Bommareddy court.

 The portion of section 425.13 which must be construed is the first sentence of subdivision (a) which reads:  “In 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.”

In Bommareddy, plaintiff Williams alleged Bommareddy performed a cataract extraction operation on her right eye but she had given her consent only for tear duct surgery to her left eye.   Based upon these facts, Williams alleged a first cause of action for battery in which she included a claim for punitive damages and a second cause of action for negligence based on the fact the doctor operated on the right eye instead of the left eye.   Bommareddy filed a motion to strike the punitive damage claim which the trial court denied.   He then filed a petition for writ of mandate in the Fifth Appellate District asserting:  the term professional negligence as used in section 425.13 includes any action arising out of a health care provider's alleged professional negligence;  since punitive damages are never available in negligence causes of action, section 425.13 would be meaningless if it did not include intentional torts;  and legislative history and public policy support the doctor's interpretation of the section.

The Bommareddy court denied the petition reasoning as follows:  battery is a distinct intentional tort which significantly differs from the tort of negligence (Cobbs v. Grant (1972) 8 Cal.3d 229, 239, 104 Cal.Rptr. 505, 502 P.2d 1);  limiting the term professional negligence to exclude intentional torts does not make section 425.13 meaningless since there is no bright line distinction between negligence and intentional torts, such as where a plaintiff alleges conscious disregard of probable dangerous consequences (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895, 157 Cal.Rptr. 693, 598 P.2d 854);  and the legislative history of section 425.13 supports the definition of professional negligence as 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․”  (Bommareddy v. Superior Court, supra, 222 Cal.App.3d at p. 1023, 272 Cal.Rptr. 246.)   The court held “ ‘Professional negligence’ as used in Code of Civil Procedure section 425.13 is a term of art that does not include intentional torts, such as battery, even when occurring during the provision of medical services.”   (Id. at p. 1024, 272 Cal.Rptr. 246.)

 In determining the meaning of a statute, we turn first to the words of the statute themselves.  “We begin with the fundamental rule that a court ‘should ascertain the intent of the Legislature so as to effectuate the purpose of the law.’  [Citation.]   In determining such intent ‘[t]he court turns first to the words themselves for the answer.’  [Citation.]   We are required to give effect to statutes ‘according to the usual, ordinary import of the language employed in framing them.’ ”  (Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224.)

Section 425.13 as originally enacted in 1987 as part of the Brown–Lockyer Civil Liability Reform Act of 1987 (Stats.1987, ch. 1498, Sen. Bill No. 241) was extremely broad.   The section began, “No claim for punitive damages against a health care provider 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․”   This statute literally meant no plaintiff could claim punitive damages against a health care provider without complying with section 425.13 even if the action was for such as fraud or defamation and had nothing to do with the provider's medical practice.

The section was amended in 1988 to correct this error.3  The amendment added the words now in dispute:  “In any action for damages arising out of the professional negligence of a health care provider․”   The Legislature stated this amendment was not a change in the meaning of the statute but a clarification of existing law.  (Stats.1988, ch. 1205, § 6.)  The key word in the phrase added to the beginning of the section by the 1988 amendment is “action.”   We read the words to mean section 425.13 was drafted to prevent the pleading of punitive damages without first complying with the section in any action relating to professional negligence, including derivative causes of action for intentional infliction of emotional distress and breach of the implied covenant of good faith and fair dealing which arise out of the rendering of professional services which gave rise to the medical malpractice cause of action in the first instance.   Petitioners advocate a meaning that would limit the section to specific causes of action for professional negligence only, regardless of the remaining causes of action included in the complaint.   Their interpretation would require us to construe the word “action” to mean “cause of action.”   As interpreted by petitioners the section would read:  “In any [cause of] action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in [that cause of action], unless the court enters an order allowing an amended pleading․”   This is contrary to the plain words used in the section.

Furthermore, legislative intent supports our reading of the section.   The comment of the Senate Committee on Judiciary states the amendment limits the section “to lawsuits involving allegations of a health practitioner's ‘professional negligence.’ ”  (See fn. 3, supra;  emphasis added.)   It does not say the section is limited to causes of action involving allegations of professional negligence.

“In construing legislative intent, it is fundamental that a statute should not be interpreted in a manner that would lead to absurd results.”   (People v. Morris, (1988) 46 Cal.3d 1, 15, 249 Cal.Rptr. 119, 756 P.2d 843.)   If we were to accept petitioners' reading of the section, in an action arising out of the providing of professional medical services a plaintiff could plead a cause of action such as intentional infliction of emotional distress thus allowing a claim for punitive damages so that every plaintiff could make an “end run” around section 425.13.   If petitioners' position were adopted, the hearing requirements of section 425.13 would never be utilized.   All a plaintiff would have to do is file a complaint with one cause of action sounding in medical malpractice and a second cause of action alleging some kind of intentional misconduct which would serve as a basis for punitive damage.   Plaintiffs would then take the position that they seek punitive damages only in connection with the intentional tort so they may bypass the requirements of section 425.13 because they are not seeking punitive damages for a cause of action sounding in “professional negligence of a health care provider.”

This appears to us to be an absurd result in that it would be a wholesale abandonment of the requirements of section 425.13 as well as the underlying philosophy in the enactment of that section.   It seems clear to us the Legislature intended to erect a framework whereby in an action in which the gravamen of the complaint arises from alleged medical malpractice, the trial courts would conduct a hearing where evidence by affidavits would be considered and a substantial probability of prevailing shown before a trial court allowed an amendment adding a claim for punitive damages to the complaint.  Section 425.13 refers specifically to section 3294 of the Civil Code concerning the requisite level of proof of oppression, fraud or malice required before punitive damages may be awarded.

It is significant that the key provisions of the Medical Injury Compensation Reform Act of 1975 (MICRA), Civil Code sections 3333.1 (concerning the collateral source rule) and 3333.2 (concerning limitation on noneconomic loss), arise “․ in an action for personal injury against a health care provider based upon professional negligence․”  (Emphasis added.)   It was not accidental that the Legislature in enacting section 425.13 abandoned the restrictive “based upon” language of MICRA in favor of the more inclusive term “․ arising out of professional negligence․”  (Emphasis added.)   The case of Hays v. Bank of America (1945) 71 Cal.App.2d 301, 306, 162 P.2d 679, is instructive.   There the court was required to interpret a limitation provision of former Probate Code section 707 requiring “ ‘all claims arising upon contract’ ” be filed with the estate administrator.   The court stated:  “Section 707 of the Probate Code does not limit the necessity of filing claims to those which are specifically and wholly covered by contract.   It applies to ‘all claims arising upon contract.’   The word ‘arise’ is defined to mean ‘Spring, originate, flow, issue, emanate, proceed, stem.’  (Webster's Dictionary of Synonyms, p. 70.)”  (See also Hartford Accident & Indem. Co. v. Civil Service Employees Ins. Co. (1973) 33 Cal.App.3d 26, 32, 108 Cal.Rptr. 737:  “The phrase ‘arising out of’ is equated with origination, growth or flow from the event.  [Citations.]”)   By utilizing the expansive language “In any action for damages arising out of professional negligence․” the Legislature accomplished their expressed intention to provide relief from unsubstantiated claims for punitive damages in actions alleging professional negligence of those acting in the capacity of health care provider.  (See fn. 3, infra.)

Moreover, good reason exists for applying section 425.13 to a medical malpractice action, such as Bommareddy, where a battery cause of action seeking punitive damages is pled in conjunction with a professional negligence cause of action and each arises from the same professional service transaction.   Not every unconsented surgery, though nominally a battery, will afford a punitive damage remedy.   Even a calamitous mistake, such as operating on the wrong patient or surgically extracting the wrong organ, will not justify exemplary damages unless clear and convincing evidence establishes a culpable state of mind.

 Civil Code section 3294 permits recovery of damages for the sake of example and punishment only in those instances where clear and convincing evidence proves oppression, fraud or malice.   The definitions 4 supplied by the statute speak in terms of intending to injure, or despicable conduct with willful and conscious disregard of rights.5

Approving the observation of the Court of Appeal in G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 122 Cal.Rptr. 218, that a “conscious disregard of the safety of others may constitute malice within the meaning of section 3294 ․” our Supreme Court concluded:  “In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he wilfully and deliberately failed to avoid these consequences.”  (Taylor v. Superior Court, supra, 24 Cal.3d at pp. 895–896, 157 Cal.Rptr. 693, 598 P.2d 854.)  (Emphasis added.)  Taylor also acknowledged, with apparent approval, the Searle court's rejection of suggestions in earlier cases that “mere reckless disregard or misconduct would be sufficient to sustain an award of punitive damages, because,” the Searle court explained, “The central spirit of the exemplary damage statute, the demand for evil motive is violated by an award found upon recklessness alone. ”  (Taylor, supra, at p. 895, 157 Cal.Rptr. 693, 598 P.2d 854.)

Thus, in our judgment it is beyond dispute that human error standing by itself, without attendant circumstances demonstrating animus malus, will not support damages for the sake of example or punishment.   It being the purpose of section 425.13 to require judicial scrutiny of a punitive damage claim to preliminarily determine whether there exists a substantial probability that plaintiff will prevail, we find it anomalous that Bommareddy would thwart this legislative intent merely because the punitive claim appears under the label of a “battery.”

DISPOSITION

Our prior order denying the petition for writ of mandate is vacated in accordance with the directions of the Supreme Court.   The alternative writ is discharged;  the petition for writ of mandate is denied.

FOOTNOTES

1.   Section 425.13, subdivision (a) provides:“In 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.   The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.   The court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed within two years after the complaint or initial pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier.”

2.   Petitioners raise no challenge to the propriety of respondent's ruling based on the pleadings, evidence and argument supporting and opposing the motion to amend.

3.   The comment of the Senate Committee on Judiciary found in the third reading of Senate Bill No. 1420 provides:“Code of Civil Procedure section 425.13 was enacted last year as part of SB 241 (Lockyer).   This bill is intended to correct an oversight.   As written, Section 4215.13 [sic ] could apply to any lawsuit against any health care provider․   Arguably, this could include lawsuits unrelated to the practitioner's practice, such as defamation, fraud, and intentional torts.“The author asserts that the intention of SB 241 was to provide protection to health care practitioners in their capacity as practitioners.   Specifically, relief was sought from unsubstantiated claims of punitive damages in actions alleging professional negligence.   There was no intent to protect practitioners in any other capacity.   This bill limits the application of Section 4215.13 [sic ] to lawsuits involving allegations of a health practitioner's ‘professional negligence.’ ”  (Bommareddy v. Superior Court, supra, 222 Cal.App.3d at pp. 1022–1023, 272 Cal.Rptr. 246, emphasis added.)

4.   As relevant section 3294 reads:  “(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.“․“(c) As used in this section, the following definitions shall apply:“(1) ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.“(2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.“(3) ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”

5.   The Brown–Lockyer Civil Liability Reform Act, concurrently with enactment of section 425.13, amended Civil Code section 3294 to include, inter alia, the words “despicable conduct” and “willful” within the definitions of malice and oppression and imposed a “clear and convincing” evidentiary standard as a prerequisite to recovery of punitive damages.  (Stats.1987, ch. 1498, pp. 5777–5782.)   The obvious intent of these enactments was generally to impose statutory limitations on the recovery of punitive damages and specifically to provide health care providers with a measure of protection against the coercive effect of meritless punitive damage claims.

BENSON, Associate Justice.

KLINE, P.J., and PETERSON, J., concur.

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