BENJAMIN v. COUNTY OF LAKE (1991)

This appeal is from a ruling that a county cannot be held liable in tort for failing to provide health benefits to indigents as required by Welfare and Institutions Code sections 17000 et seq.

Procedural Background

Matthew Benjamin and Charlie Wilkerson filed complaints against Lake County alleging that each was a medically indigent adult (MIA) entitled to health care provided by the county.   Each further alleged that Lake County had denied him treatment for dental pain, decay and infection resulting in injury.   Each sought damages from Lake County on the theory that the county had breached a mandatory duty to provide dental care.   The actions were consolidated for trial, which was then bifurcated so that liability could be determined before damages.   The court ruled for the county on the liability phase of the trial.

I.

Lake County's Duty to Provide Medical Care to Medically Indigent Adults

The court in Cooke v. Superior Court (1989) 213 Cal.App.3d 401, 411, 261 Cal.Rptr. 706, summed up the development of the duty of California counties to provide medical services to MIAs:

“Before 1983, Medi–Cal covered medically indigent persons ․ who were unable to meet the cost of health care.  (Former [Welf. & Inst.Code ¹ §§ 14005 and 14051, Stats.1966, Second Ex.Sess. 1965, ch. 4, § 2, pp. 105, 110;  former § 14005.1 et seq.;   Stats.1971, ch. 577, §§ 5–23, pp. 1109–1115.)   Even though the Medi–Cal program helped counties meet their obligations under section 17000, the program did not supplant the counties' section 17000 duties.  (Madera Community Hospital v. County of Madera (1984) 155 Cal.App.3d 136, 151, 201 Cal.Rptr. 768.)

“Effective January 1, 1983, the Legislature eliminated medically indigent adults from the Medi–Cal program and began transferring funds to counties for consolidation with county health services.  (Stats.1982, ch. 1594, § 86, p. 6357.)   County health services are governed by section 16700 et seq.   To assist small counties in this endeavor, the Legislature created the CMSP [County Medical Services Program], under which small counties could contract with the state Department of Health Services to provide medical care.  (§ 16709.)”

The Legislature expressly intended “to provide counties with as much flexibility as possible in organizing county health services to serve the population being transferred [from the Medi–Cal program to the counties.]”   (Stats.1982, ch. 1594, § 86, p. 6357.)   This intent is reflected in the statutes governing the counties' operation of the programs.   Thus, section 17000 states no more than a basic and broad obligation:  “Every county and every city and county shall relieve and support all incompetent, poor, indigent persons, and those incapacitated by age, disease, or accident, lawfully resident therein, when such persons are not supported and relieved by their relatives or friends, by their own means, or by state hospitals or other state or private institutions.”   Further, section 17001 provides that the counties themselves have the responsibility for developing “standards of aid and care for the indigent and dependent poor of the county.”

Lake County elected to administer the programs through contracts with health care providers (§ 16717) and established its standards of aid and care by adopting state-developed CMSP standards.   As relevant here, those standards included the furnishing of dental care only if it was “medically necessary”;  i.e., dental care would be provided for “reduction of oral and maxillofacial fractures and dislocations and treatment of dental alveolar abscesses, including adjunctive procedures when provided by a qualified oral surgeon” on an emergency basis.   This standard was reflected in Lake County's contracts with health care providers, although the contracts also specified that “Services of dentists, podiatrists, and optometrists” were not to be provided.   Later, and after learning that Benjamin and Wilkerson had been refused dental treatment, Lake County's health director wrote a letter to “clarify” the existing contract with the health care provider.   Subsequent contracts, following a resolution by Lake County's board of supervisors, provided that the health care provider “shall provide acute dental services in the event of conditions such as hemorrhage, infections, trauma or pain.   Acute dental services is limited to:  examinations, x-rays, antibiotics or analgesic prescription and administration, anesthesia, and treatment of the above conditions.   The term ‘acute dental services' is synonymous with the term ‘medically indicated/necessary dental services.’ ”

II.

Failure of Lake County to Provide Benjamin and Wilkerson with Dental Care

Benjamin testified that he visited Lake County's MIA clinic in January 1986, complaining of tooth pain.   He was given penicillin and Tylenol with codeine, but was refused any dental treatment.   He returned in December 1986, again complaining of tooth pain.   He again was given pain medication and antibiotics but was refused any dental treatment.   In January 1987, Benjamin had a tooth extracted by a private dentist who billed Benjamin's mother.   By now other teeth were hurting and he had no way to pay for further extractions or care.   Benjamin continued to seek dental care with the MIA clinics, but was refused any care through February 1987, at which point he filed a suit against the county.

Wilkerson testified that he visited Lake County's MIA clinics in October 1986, complaining of tooth pain and was told that the clinics would not treat him.   He returned in December 1986, and possibly some time thereafter.   After that he filed a lawsuit against the county.²

Lake County, through county counsel, became aware of Benjamin's action on February 3, 1987.   Just prior to filing the complaint, Benjamin's attorney met with county counsel and explained the basis for the lawsuit to him.   County counsel apparently contacted the appropriate persons who shortly thereafter authorized the desired treatment for both Benjamin and Wilkerson.   Lake County's health administrator testified, essentially, that the required treatment was in fact “medically necessary” and thus fell within the ambit of treatment provided by Lake County.   The administrator authorized the treatment sought by Benjamin and Wilkerson and wrote the letter clarifying the kind of treatment the clinics were authorized to give.

Benjamin and Wilkerson, as noted, ultimately received the care they needed.   There is little question, however, but that the delay in treatment caused their conditions to worsen and caused them pain.   The instant action sought damages for that delay.

III.

The Trial Court Correctly Determined that Section 17000 May not Form the Basis for Tort Damages

Government Code section 815 states the general rule that “A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.”   Benjamin and Wilkerson, however, argue that their actions fall within the exception to section 815 carved out by section 815.6:  “Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”  “Government Code section 815.6 contains a three-pronged test for determining whether liability may be imposed on a public entity:  (1) an enactment must impose a mandatory, not discretionary, duty [citation];  (2) the enactment must intend to protect against the kind of risk of injury suffered by the party asserting section 815.6 as a basis for liability [citations];  and (3) breach of the mandatory duty must be a proximate cause of the injury suffered.”  (State of California v. Superior Court (1984) 150 Cal.App.3d 848, 854, 197 Cal.Rptr. 914.)

The trial court concluded that Benjamin and Wilkerson had met the first and third prongs of this test, but determined that they could not meet the second prong.   We agree that the second prong cannot have been met in that section 17000 does not establish a duty of care.   We also find, however, that the first prong of the test cannot be met.³

A. The First Prong:  The Existence of a Mandatory Duty

 The Law Revision Commission Comment to Government Code section 815.6 recites:  “This section declares the familiar rule, applicable to both public entities and private persons, that failure to comply with applicable statutory or regulatory standards is negligence unless reasonable diligence has been exercised in an effort to comply with those standards.”   Accordingly, the first step in deciding if liability can be imposed under that section is to determine exactly what “statutory or regulatory” standard is at issue.

Benjamin and Wilkerson do not point to any such standard;  rather they argue simply that Lake County had a “mandatory duty” to provide them with dental care.   This duty is claimed to arise from Welfare and Institutions Code sections 17000 and 10000.   The latter section provides, as relevant here, “The purpose of this division is to provide for protection, care, and assistance to the people of the state in need thereof, and to promote the welfare and happiness of all of the people of the state by providing appropriate aid and services to all of its needy and distressed.   It is the legislative intent that aid shall be administered and services provided promptly and humanely, ․” (Cooke v. Superior Court, supra) (a mandamus action, decided several years after Benjamin and Wilkerson were denied care) found that the requirement of section 10000 that aid and services to MIAs be “provided promptly and humanely,” read together with section 17000, requires counties to provide treatment for infection and chronic pain.   The court concluded that such treatment includes such dental care as is necessary to remedy pain and infection.  (213 Cal.App.3d at p. 413–415, 261 Cal.Rptr. 706.) ⁴

These authorities, however, establish no more than that MIAs are entitled to treatment for pain and infection.   They define the ultimate right of the patient, but mandate no specific acts by a county.   Lake County is not a health care provider.   Its duty, and thus its potential liability, arises from its obligation to ensure that the health care provider treats persons such as Benjamin and Wilkerson.   Accordingly, in order to meet the “mandatory duty” prong of Government Code section 815.6, Benjamin and Wilkerson would have to show that Lake County failed to comply with applicable statutory or regulatory mandate in adopting its own health care standards, and/or in imposing those standards on the health care provider.⁵  In other words, Lake County's duty was to determine the range of treatment to be provided.

There is no specific statutory mandate that counties adopt standards providing dental care or, indeed, any particular care at all.  Welfare and Institutions Code section 17001 mandates only that the counties themselves shall adopt standards, giving them broad discretion to determine what those standards will be.   It is no argument that section 10000 requires those standards to provide for humane aid and treatment.   Governmental liability cannot be predicated on the failure to adopt regulatory standards or upon the adoption of inadequate or incorrect standards.   Indeed, Government Code section 818.2 specifically provides:  “A public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.”   The Law Revision Commission Comment to the section states, “This section would be unnecessary except for a possible implication that might arise from Section 815.6, which imposes liability upon public entities for failure to exercise reasonable diligence to comply with a mandatory duty imposed by an enactment.   This section recognizes that the wisdom of legislative or quasi-legislative action, and the discretion of law enforcement officers in carrying out their duties, should not be subject to review in tort suits for damages if political responsibility for these decisions is to be retained.”  “[A]cts within the area of legislative or administrative discretion have long enjoyed the shelter of immunity from tort liability;  mere ministerial and ‘operational’ acts, but not ‘basic policy decisions,’ have led to governmental tort liability.”  (HFH, Ltd. v. Superior Court (1975) 15 Cal.3d 508, 519, 125 Cal.Rptr. 365, 542 P.2d 237.)   It follows that although Lake County has a mandatory duty to adopt standards which provide for humane care, the discretion inherent in the process of developing and adopting these standards immunizes it from any claim for damages resulting from its actions.

B. The Second Prong:  Section 17000 as Intending to Protect Against the Kind of Risk of Injury Suffered by Benjamin and Wilkerson

 There is no question but that Benjamin and Wilkerson are beneficiaries of the duty imposed by Welfare and Institutions sections 10000 and 17000.   It does not follow, however, that Lake County owed Benjamin and Wilkerson a duty of care under those sections.   It will be recalled that Government Code section 815.6 authorizes governmental liability for governmental negligence.   As noted by the court in Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 819, 131 Cal.Rptr. 854, “liability is the rule, and immunity the exception, only when there is negligence.”   And, “[a]ccording to the familiar California formula, the allegations requisite to a cause of action for negligence are (1) facts showing a duty of care in the defendant, (2) negligence constituting a breach of the duty, and (3) injury to the plaintiff as a proximate result.”  (Id. at p. 820, 131 Cal.Rptr. 854.)   Whether or not a duty of care will be recognized depends upon a number of factors reflecting public policy issues.  “Inherent in this simple description [of “duty”] are various and sometimes delicate policy judgments.   The social utility of the activity out of which the injury arises, compared with the risks involved in its conduct;  the kind of person with whom the actor is dealing;  the workability of a rule of care, especially in terms of the parties' relative ability to adopt practical means of preventing injury;  the relative ability of the parties to bear the financial burden of injury and the availability of means by which the loss may be shifted or spread;  the body of statutes and judicial precedents which color the parties' relationship;  the prophylactic effect of a rule of liability;  in the case of a public agency defendant, the extent of its powers, the role imposed upon it by law and the limitations imposed upon it by budget;  and finally, the moral imperatives which judges share with their fellow citizens—such are the factors which play a role in the determination of duty.”  (Raymond v. Paradise Unified School Dist. (1963) 218 Cal.App.2d 1, 8, 31 Cal.Rptr. 847;  and see, also, Peter W. v. San Francisco Unified Sch. Dist., supra, 60 Cal.App.3d at pp. 819–824, 131 Cal.Rptr. 854;  and Smith v. Alameda County Social Services Agency (1979) 90 Cal.App.3d 929, 935–936, 153 Cal.Rptr. 712.)

A consideration of these and similar factors leaves little doubt but that no duty of care to MIAs, such as Benjamin and Wilkerson should be implied into Welfare and Institutions section 17000 et seq.   It is significant that persons denied health care are not left unprotected.   They have recourse to an administrative, and ultimately judicial review process by which they may secure authorized care.   Indeed, Benjamin and Wilkerson availed themselves of that process.   The counties are given very little guidance in developing standards of care.   Accordingly, it is difficult to establish a workable rule of care, a difficulty which greatly increases the possibility that counties could be exposed to excessive liability through the exercise of judicial hindsight.   The counties operate under budgetary restraints;  the potential for section 17000 liability would have an adverse effect on other county programs and services.   Accordingly, we, like the trial court, find no basis for a cause of action for damages under section 17000.

The judgment is affirmed.

I concur in the result only.

FOOTNOTES

1.   Unless otherwise indicated, all statutory references are to California's Welfare and Institutions Code.

2.   These actions are not part of the appellate record.

3.   As to the third prong, the trial court found on the evidence that “plaintiffs established by the evidence that failure to provide timely humane dental care proximately caused pain and infection.   There was insufficient evidence presented to prove that the failure to provide timely humane dental care was the proximate cause of tooth loss.”

4.   It is more than arguable that the standards in place at the time Benjamin and Wilkerson sought treatment provided for dental treatment for pain and infection and thus fully complied with section 10000.   The trial court, however, did not consider that question and we will not consider it here.

5.   Benjamin and Wilkerson argue that liability should be predicated on the failure of the MIA clinic to treat them in accordance with Lake County's standards.   Liability in that situation, however, would not be based on the failure of the county to perform a mandatory duty, but on the failure of the health care provider to follow the mandate of the county.   We note, however, that the tortious acts of an independent contractor, such as the health care provider in the present case appears to be, ordinarily will not be imputed to the hiring public entity.  (See Van Alystyne, Cal. Government Tort Liability Practice (Cont.Ed. Bar 1980) pp. 60–61.)

STEIN, Associate Justice.

DOSSEE, J., concurs.