IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento
March 28, 2011
DENNIS HANEY, PLAINTIFF AND APPELLANT,
ESKATON PROPERTIES, INC., DEFENDANT AND RESPONDENT.
Super. Ct. No. 34200800005159CUPOGDS
The opinion of the court was delivered by: Hull ,j.
Haney v. Eskaton Properties CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following the death of his mother, Doris Hilton, plaintiff brought this action against defendant Eskaton Properties, Inc., the operator of a long term care facility where Hilton lived the last three months of her life, asserting elder abuse, wrongful death, and survivor claims. The trial court sustained defendant's demurrer to the elder abuse and survivor claims without leave to amend and granted defendant's motion for summary judgment on the wrongful death claim. Plaintiff appeals the ensuing judgment for defendant. We conclude the trial court properly granted summary judgment on the wrongful death claim but erred in sustaining the demurrer to the elder abuse and survivor claims. We therefore reverse the judgment.
Facts and Proceedings
Because this matter involves both an order sustaining demurrers and an order granting summary judgment, we accept as true all material allegations of the complaint (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 8, fn. 3; Shoemaker v. Myers (1990) 52 Cal.3d 1, 7) and view the evidence presented on the summary judgment motion in the light most favorable to plaintiff (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107).
Defendant is in the business of providing long term care as a 24-hour health care facility. Plaintiff is the sole surviving heir and successor of Doris Hilton.
On or about August 11, 2006, Hilton was admitted to defendant's facility in Fair Oaks, California. She was 78 years old. Hilton remained at the facility until November 26, 2006, when she was transferred to a Kaiser hospital, where she died on November 28.
Plaintiff brought this action against defendant on March 5, 2008. The first cause of action for elder abuse alleged defendant breached its duty to provide Hilton with care, comfort and safety by, among other things, failing to follow, implement and adhere to physician orders, failing to monitor Hilton's condition, and failing to maintain accurate records on her condition. Defendant demurred to the first cause of action, and the trial court sustained the demurrer with leave to amend.
Plaintiff filed a first amended complaint, and defendant again demurred to the first cause of action for elder abuse. The trial court sustained the demurrer with leave to amend.
Plaintiff filed a second amended complaint containing three causes of action. In the first elder abuse claim, plaintiff again alleged breach of duty to provide care, comfort and safety, but this time with more specificity. In the second cause of action, plaintiff alleged wrongful death as a result of defendant's actions. The third cause of action alleged a survivor claim on behalf of Hilton.
Defendant demurred to the first and third causes of action, and the trial court sustained the demurrers, this time without leave to amend. Defendant then moved for summary judgment on the sole remaining claim for wrongful death. The trial court granted the motion, both on the basis of the statute of limitations and on undisputed evidence that defendant acted within the applicable standard of care. The court thereafter entered judgment for defendant.
Further facts shall be provided in connection with plaintiff's contentions on appeal.
I Elder Abuse and Survivor Claims
The first cause of action of the second amended complaint is untitled. However, it purports to state a claim under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) (Elder Abuse Act or Act). (Further undesignated section references are to the Welfare and Institutions Code.) The third cause of action, titled "SURVIVAL ACTION," repeats all prior allegations and further alleges plaintiff is the successor in interest of Doris Hilton. Hence, this claim has no viability independent of the first two and stands or falls on the strength of those claims.
The Elder Abuse Act is intended "to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect." (Delaney v. Baker (1999) 20 Cal.4th 23, 33 (Delaney).) The original focus of the Act was on reporting abuse and neglect. (Ibid.) However, later amendments shifted the focus to private, civil enforcement. (Ibid.)
Under the Elder Abuse Act, "heightened remedies are available to plaintiffs who successfully sue for dependent adult abuse. Where it is proven by clear and convincing evidence that a defendant is liable for neglect or physical abuse, and the plaintiff proves that the defendant acted with recklessness, oppression, fraud, or malice, a court shall award attorney fees and costs. Additionally, a decedent's survivors can recover damages for the decedent's pain and suffering." (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 88 (Sababin).)
Abuse of an elder or a dependent adult is defined under the Act as "[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering" (§ 15610.07, subd. (a)) or "[t]he deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering" (id., at subd. (b)). "Neglect includes the failure to assist in personal hygiene, or in the provision of food, clothing, or shelter; the failure to provide medical care for physical and mental health needs; the failure to protect from health and safety hazards; and the failure to prevent malnutrition or dehydration. (§ 15610.57.) Physical abuse means, inter alia, assault, battery, prolonged deprivation of food or water, unreasonable physical restraint, or sexual assault. (§ 15610.63.)" (Sababin, supra, 144 Cal.App.4th at p. 88.)
To obtain the remedies available under the Elder Abuse Act, a plaintiff must prove culpability beyond mere negligence. He or she must demonstrate by clear and convincing evidence that the defendant is guilty of recklessness, oppression, fraud, or malice. (Delaney, supra, 20 Cal.4th at p. 31.) Recklessness refers "to a subjective state of culpability greater than simple negligence, which has been described as a 'deliberate disregard' of the 'high degree of probability' that an injury will occur." (Ibid.) Oppression, fraud and malice "involve 'intentional,' 'willful,' or 'conscious' wrongdoing of a 'despicable' or 'injurious' nature." (Ibid.) Conduct giving rise to the enhanced remedies available under the Elder Abuse Act is "essentially equivalent to conduct that would support recovery of punitive damages." (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 789 (Covenant Care).)
The Elder Abuse Act does not encompass liability for professional negligence. Section 15657.2 provides that "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." In particular, "MICRA, the Medical Injury Compensation Reform Act of 1975, refers to several statutes that restrict or place conditions upon causes of action and remedies directed at 'health care providers' for 'professional negligence.' (See Code Civ. Proc., § 364 [requiring 90-day notice prior to bringing lawsuit]; id., § 667.7 [permitting periodic payment of any judgment against the provider]; id., § 1295 [requiring a certain type of notice for providers' mandatory arbitration provisions]; Bus. & Prof. Code, § 6146 [providing caps on attorney contingency fees]; Civ. Code, § 3333.1 [making admissible evidence of workers' compensation or disability payments]; and id., § 3333.2 [providing a $250,000 cap on non-economic damages].)" (Delaney, supra, 20 Cal.4th at pp. 28-29, fn. 2.)
Thus, while "[i]t is true that statutory elder abuse includes 'neglect as defined in Section 15610.57' [citation], which in turn includes negligent failure of an elder custodian 'to provide medical care for [the elder's] physical and mental health needs' [citation]," such neglect "covers an area of misconduct distinct from 'professional negligence.' As used in the Act, neglect refers not to the substandard performance of medical services but, rather, to the 'failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.' [Citation.] Thus, the statutory definition of 'neglect' speaks not of the undertaking of medical services, but of the failure to provide medical care." (Covenant Care, supra, 32 Cal.4th at p. 783.) In other words, while negligently providing health care is not covered by the Elder Abuse Act, doing so recklessly, oppressively, fraudulently or maliciously is.
In his opposition to defendant's demurrers, plaintiff argued the complaint seeks relief from defendant in defendant's role as a health care facility, not as a health care provider. Plaintiff argued there is no allegation in the complaint that defendant's conduct "fell below the standard of care for a medical or healthcare practitioner." According to plaintiff, "the function of the healthcare provider is distinct from that of an elder custodian, and the fact that some healthcare institutions, such as nursing homes, perform custodial functions and provide professional medical care does not mean that the functions of the two are the same."
In its order sustaining defendant's demurrers, the trial court agreed the first cause of action is not couched in terms of professional negligence but nevertheless concluded it does not state a claim for elder abuse. The court explained: "Plaintiff is correct that he pleads neglect, not professional negligence. In other words, 'it speaks not of the undertaking of medical services, but of the failure to provide medical care.' [Citation.] Once again, however, the court agrees with defendant that the allegations regarding defendant's alleged neglect sounds in negligence, not the higher standard of elder abuse."
In other words, according to the trial court, the first cause of action alleges no greater culpability than negligence. Furthermore, the negligence alleged is not that of a medical professional providing substandard care but of a care custodian failing to provide any care. As we shall explain, we disagree with both conclusions.
Plaintiff contends the trial court erred in concluding the first cause of action fails to allege the higher level of culpability required for elder abuse. He argues the complaint alleges specific instances of neglect that violate a number of nursing home regulations. It further alleges those acts of neglect were "intentional and/or in reckless disregard for the probability that severe injury and/or suffering would result from their failure to carefully adhere to their duties" and that defendant "knew, or should have known, that there was a probability that disease, injury, or death would result from their failure to adhere to their duties."
Defendant counters that the individual acts of neglect alleged by plaintiff, such as failure to follow, implement and adhere to physician's orders, failure to monitor Hilton's condition and report meaningful changes, and failure to react to emergent conditions, are alleged in conclusory fashion, relate to the undertaking of medical care rather than custodial care, and "simply do not rise to the level of egregious elder abuse."
As we shall explain in the next section, the parties' arguments as to whether the complaint's allegations relate to medical or custodial care are beside the point. Whether the conduct alleged amounts to medical care or custodial care, the question remains whether that conduct rises to the level of culpability required by the Elder Abuse Act.
As for defendant's argument that the individual acts of neglect are alleged in a conclusory fashion, we disagree. A complaint must state "the facts constituting the cause of action, in ordinary and concise language." (Code Civ. Proc., § 425.10, subd. (a).) Although the general rule requires statutory causes of action to be pleaded with particularity (Covenant Care, supra, 32 Cal.4th at p. 790), the plaintiff need only set forth the essential facts of the case with reasonable precision and particularity sufficient to acquaint the defendant with the nature of the claim (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245). "The particularity required in pleading facts depends on the extent to which the defendant in fairness needs detailed information that can be conveniently provided by the plaintiff; less particularity is required where the defendant may be assumed to have knowledge of the facts equal to that possessed by the plaintiff." (Jackson v. Pasadena City School Dist. (1963) 59 Cal.2d 876, 879.)
In paragraph 8 of the complaint, plaintiff sets forth various regulatory requirements for health care facilities. In paragraph 9, plaintiff alleges defendant violated those regulations. In particular, plaintiff alleges defendant intentionally failed to:
"a.) Follow, implement and adhere to physician's orders by failing to give Doris Hilton antibiotics that had been prescribed for the treatment of a kidney infection that Defendants knew she was suffering from, in deliberate indifference to her worsening physical condition and her obvious signs of physical and mental distress and decline.
"b.) Monitor Doris Hilton's condition and report meaningful changes therein and in particular, or deliberately failed to document her physical condition as required to monitor emergent and/or worsening conditions and in particular a diagnosed kidney infection for which Defendants had stopped providing Doris Hilton prescribed medication and for which the proper record keeping would have provided the information necessary for her evaluation by licensed practitioners and which records were required for her care.
"c.) Note and properly react to emergent conditions and to timely transfer Doris Hilton to an acute care facility or otherwise appropriately act when conditions so warrant it. Defendants, or through deliberate indifference [sic], failed to summon or arrange for proper medical treatment of Doris Hilton's kidney infection, failed to follow through with and implement her treating doctor's orders and waited until it was too late to transfer her to a hospital for medical treatment.
"d.) Maintain accurate records of Doris Hilton's condition and activity as described above.
"e.) Treat Doris Hilton as an individual with respect, without abuse by failing to properly care for her urgent physical and mental conditions by administering prescribed medications despite her obvious suffering and physical and mental decline, by failing to properly safeguard her personal possessions such that Defendants lost Doris Hilton's dentures that she required for eating and then compounded the problem by failing, with deliberate indifference to their duty to do so, to assist her in eating or provide her with proper nutrition.
"g.) [sic] Properly and accurately administer medication by failing to give her prescribed medication to Doris Hilton as described above."
It is readily clear from the foregoing that plaintiff does not merely allege "in a conclusory fashion" that defendant breached its various duties, as defendant asserts. Plaintiff does not allege simply that defendant failed to follow, implement and adhere to physician orders. Plaintiff alleges defendant did so "by failing to give Doris Hilton antibiotics that had been prescribed for the treatment of a kidney infection that Defendants knew she was suffering from, in deliberate indifference to her worsening physical condition and her obvious signs of physical and mental distress and decline." Likewise, plaintiff does not allege simply that defendant failed to note and properly react to emergent conditions and timely transfer Hilton to an acute care facility. He alleges defendant "failed to summon or arrange for proper medical treatment of Doris Hilton's kidney infection, failed to follow through with and implement her treating doctor's orders and waited until it was too late to transfer her to a hospital for medical treatment."
Defendant contends the alleged conduct nevertheless does not rise to the level of elder abuse. In support of this contention, defendant cites a number of cases where the court found the conduct of the health care provider sufficiently grievous to amount to elder abuse. For example, in Delaney, supra, 20 Cal.4th 23, 88-year-old Rose Wallien was admitted to the defendant's facility after fracturing her ankle and died less than four months later. At the time of her death, Wallien had stage III and stage IV bedsores on her ankles, feet and buttocks, and there was evidence that she was frequently left lying in her own urine and feces for extended periods. The evidence also showed numerous violations of monitoring and recordkeeping regulations. (Id. at p. 27.) The state high court indicated there was substantial evidence to support the jury's determination that the defendant neglected Wallien and that its conduct was reckless. (Id. at p. 41.)
In Mack v. Soung (2000) 80 Cal.App.4th 966, Girtha Mack resided at Covenant Care Nursing and Rehabilitation Center where she was attended by Dr. Lian Soung. While at Covenant, Mack was left in a bedpan for 13 consecutive hours and developed an untreatable stage III bedsore. Covenant and Dr. Soung concealed the condition until forced by an ombudsman to reveal it. Dr. Soung also opposed hospitalization for Mack until her condition worsened, at which time he abruptly abandoned Mack as a patient. (Id. at p. 969.) Mack's survivors filed suit against Dr. Soung for elder abuse and intentional infliction of emotional distress. Dr. Soung demurred to the elder abuse claim, and the trial court sustained the demurrer without leave to amend. (Id. at p. 970.)
On appeal to this court, we reversed. Regarding Dr. Soung's argument that the complaint alleged professional negligence rather than elder abuse, we explained: "We have no trouble concluding that a doctor who conceals the existence of a serious bedsore on a nursing home patient under his care, opposes her hospitalization where circumstances indicate it is medically necessary, and abandons the patient in her dying hour of need commits neglect within the meaning of the [Elder Abuse] Act. Further, if it can be proved by clear and convincing evidence that such acts were committed with recklessness, oppression, fraud, or malice, the heightened remedies of section 15657 will apply." (Mack v. Soung, supra, 80 Cal.App.4th at p. 973.)
In each of the foregoing cases, the court indicated the issue of whether the conduct rose to the level of elder abuse, i.e., whether the conduct was reckless, oppressive, fraudulent or malicious, was for the trier of fact.
Defendant also relies on Covenant Care, supra, 32 Cal.4th 771. There, the plaintiffs alleged the defendant left their father, Juan Inclan, in his bed, unattended and unassisted, for long periods of time and failed to provide him with assistance in feeding and hydration, thereby causing Inclan to become malnourished and to lose much of his body weight. (Id. at p. 778.) As Inclan deteriorated, he showed signs of starvation, dehydration, neglect and abuse, but the defendant deliberately failed to report his condition to the proper authorities and misrepresented his condition to the plaintiffs. (Ibid.) When Inclan reached a point of needing immediate medical intervention, he was not transferred to an acute care facility but instead was sent to a 24-hour care setting, where he languished and deteriorated further. (Ibid.)
The issue in Covenant Care was not whether the foregoing conduct rose to the level of elder abuse but whether the plaintiffs were restricted by the procedures outlined in Code of Civil Procedure section 425.13 in seeking punitive damages. The court concluded that section does not apply to an elder abuse claim. (Covenant Care, supra, 32 Cal.4th at p. 790.) The case provides no assistance here.
Another case addressing the level of conduct sufficient for a claim of elder abuse is Sababin. Arlene Renteria was diagnosed with Huntington's chorea, a disease that subjected her to the risk of skin deterioration. (Sababin, supra, 144 Cal.App.4th at pp. 83-84.) She had aphasia and dysphagia and was dependent on others for nutrition and hydration. (Id. at p. 85.) On June 16, 2000, Renteria was transferred to Covina Rehabilitation Center (Covina). Her care plan required Covina employees to monitor her skin daily for redness and breakdown and report any skin problems to a physician for a treatment order. (Id. at p. 85.) In February 2003, Renteria developed diarrhea and, when her condition did not improve, she was transferred to a hospital. When admitted to the hospital, Renteria had lacerations on her toes and feet, had poor skin condition on her buttocks, a pustule on her left hand and reddened skin on her sacral area. Covina had no documentation of these conditions, nor had a physician been notified for a treatment order. (Id. at p. 85.) Renteria died two months later. (Id. at p. 84.)
Renteria's survivors brought this action against Covina for, among other things, elder abuse. (Sababin, supra, 144 Cal.App.4th at p. 84.) Covina moved for summary adjudication of the elder abuse claim, and the trial court granted the motion. The court concluded the evidence showed nothing more than ordinary negligence. (Id. at p. 87.)
The Court of Appeal reversed. The appellate court indicated the evidence showed Covina's employees failed to follow Renteria's care plan by failing to check her skin condition on a daily basis and failing to notify a physician of any problems that arise. (Sababin, supra, 144 Cal.App.4th at p. 90.) This created an issue of fact as to whether the employees' conduct was neglect within the meaning of section 15610.57. Moreover, the court concluded, "when the evidence and inferences are liberally construed," "there is a triable issue as to whether Covina's employees acted with recklessness, oppression or malice." (Sababin, at p. 90.) According to the court: "A trier of fact could find that when a care facility's employees ignore a care plan and fail to check the skin condition of a resident with Huntington's chorea, such conduct shows deliberate disregard of the high degree of probability that she will suffer injury." (Ibid.)
In the present matter, the complaint alleges defendants failed to follow a physician's orders by not giving Hilton prescribed antibiotics for a known urinary tract infection (UTI), failed to monitor Hilton's condition and report meaningful changes to her physician, failed to document Hilton's condition as necessary for proper evaluation by licensed practitioners, failed to note and properly react to emergent conditions, failed to arrange for proper medical treatment of Hilton's UTI, and failed to assist Hilton with eating after she lost her dentures. Plaintiff further alleges the foregoing acts were "intentional and/or in reckless disregard for the probability that severe injury and/or suffering would result from their failure to carefully adhere to their duties" and that defendant "knew, or should have known, that there was a probability that disease, injury, or death would result from their failure to adhere to their duties." Finally, the complaint alleges: "The conduct of defendants was outrageous. Doris Hilton was forced to endure great pain, mental anguish, humiliation, feelings of helplessness and desperation due to their acts and omissions of deliberate indifference. She was neglected and without care or attention, without assistance in feeding or toileting, and was left without medication for a diagnosed urinary infection until she became confused and incoherent. During this time, her cries of pain and for assistance prompted no response from defendants, who had allocated knowingly inadequate resources to provide proper staffing to care for Doris Hilton. Accordingly, defendants were unwilling and/or unable to react to Doris Hilton's complaints or follow orders for therapeutic action from her attending physician so that her condition worsened until her death . . . ."
When reviewing a judgment dismissing a complaint after a successful demurrer, we assume the complaint's properly pleaded or implied factual allegations are true, and we give the complaint a reasonable interpretation, reading it in context. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140-141.) We treat as true not only the complaint's material factual allegations, but also facts which may be implied or inferred from those expressly alleged. (Id. at p. 141.)
None of the cases cited by the parties involve a situation where the court concluded the alleged conduct was insufficient to amount to elder abuse. Hence, they provide no guidance on the outer reach of the Act. Nevertheless, like the Court of Appeal in Sababin, we find the allegations of the complaint here sufficient to withstand demurrer. Construed liberally, the complaint alleges, among other things, that defendant failed to adhere to a physician's orders to administer antibiotics for a known UTI and failed to monitor, document and react appropriately to Hilton's worsening condition. In addition, "her cries of pain and for assistance prompted no response from defendant, who had allocated knowingly inadequate resources to provide proper staffing." Although not expressly alleged, it may be inferred from this that Hilton did in fact cry out in pain and for assistance but received no response. We conclude plaintiff should be given an opportunity to try and prove, by clear and convincing evidence, that such conduct amounted to recklessness, oppression, fraud or malice.
Having so concluded, we likewise conclude the trial court erred in sustaining defendant's demurrer to the third cause of action, the survivor claim. To the extent plaintiff is able to establish a claim for elder abuse, he would be entitled to recover for the pain and suffering endured by Hilton. (See Sababin, supra, 144 Cal.App.4th at p. 88.)
II The Wrongful Death Claim
The trial court granted defendant's motion for summary judgment on plaintiff's wrongful death claim. The court gave two alternate bases for its ruling: (1) the claim is one against a health care provider and plaintiff failed to file his complaint within one year of discovering the injury, as required by Code of Civil Procedure section 340.5; and (2) defendant presented uncontradicted expert testimony that it met the applicable standard of care.
Plaintiff contends the trial court applied an incorrect standard in ruling on defendant's motion for summary judgment. Plaintiff argues the trial court applied a standard of care applicable to professional negligence claims, whereas his claim is based on "the failure of the defendant to meet the applicable standard of care of a skilled nursing facility." Plaintiff argues the proper standard of care is that specified in the California regulations for skilled nursing facilities. (Cal. Code of Regs., tit. 22; see Norman v. Life Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233, 1244.) Plaintiff "disagrees with the trial court that the failure to order a test that had already been determined should be performed would fall under the guise of a failure of professional judgment rather than custodial neglect." According to plaintiff, "[t]here is a distinction between deciding on what medical test should be performed and failing to obtain a test when it has already been decided that the test should be performed."
Although left unsaid, we may surmise the point of plaintiff's arguments is that the trial court erred in applying the one-year statute of limitations applicable to actions against health care providers for professional negligence. Also left unsaid, plaintiff apparently contends as well that, because this is not a professional negligence claim, the trial court erred in concluding expert testimony is necessary to prove a breach of the applicable duty of care. However, as we shall explain, these contentions are based on an overly restrictive view of what constitutes professional negligence by a health care provider.
Code of Civil Procedure section 340.5 reads: "In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. . . ." It is undisputed defendant is a "health care provider" within the meaning of the foregoing. "Professional negligence" is defined 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 . . . ." (Code Civ. Proc., § 340.5, subd. (2).)
"Generally 'negligence' is the failure '"to exercise the care a person of ordinary prudence would exercise under the circumstances."' [Citation.] 'Professional negligence' is one type of negligence, to which general negligence principles apply. 'With respect to professionals, their specialized education and training do not serve to impose an increased duty of care but rather are considered additional "circumstances" relevant to an overall assessment of what constitutes "ordinary prudence" in a particular situation. Thus, the standard for professionals is articulated in terms of exercising "the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing . . . ."' [Citation.]" (Delaney, supra, 20 Cal.4th at p. 31.)
In Bellamy v. Appellate Department (1996) 50 Cal.App.4th 797, the Court of Appeal considered whether injuries sustained by the plaintiff when she fell off a rolling X-ray table that had been left unsecured and unattended amounted to ordinary or professional negligence for purposes of the applicable statute of limitations. The court concluded it was the latter, explaining: "That the alleged negligent omission was simply the failure to set a brake on the rolling X-ray table or the failure to hold the table in place, neither of which requires any particular skill, training, experience or exercise of professional judgment, does not affect our decision. We presume that during the course of administering an examination or therapy like that which Bellamy underwent, an X-ray technician may perform a variety of tasks, such as assisting the patient onto the table, manipulating the table into one or more desired positions, instructing the patient to move from one position to another, activating the X-ray machine, removing the photographic plates, assisting the patient from the table, etc. Some of those tasks may require a high degree of skill and judgment, but others do not. Each, however, is an integral part of the professional service being rendered. Trying to categorize each individual act or omission, all of which may occur within a space of a few minutes, into 'ordinary' or 'professional' would add confusion in determining what legal procedures apply if the patient seeks damages for injuries suffered at some point during the course of the examination or therapy." (Id. at p. 808.)
In Canister v. Emergency Ambulance Service, Inc. (2008) 160 Cal.App.4th 388, the defendant was a licensed ambulance service and the plaintiff was a police officer who was injured when the ambulance in which he was accompanying an arrestee hit a curb. The question presented was whether any of the MICRA statutes applied to this situation, which turned on whether the case was one for professional or ordinary negligence. The court found the matter involved professional negligence, explaining: "The MICRA statutes define '"professional negligence"' as that negligence that occurs while the health care provider is providing services that are 'within the scope of services for which the provider is licensed.' [Citations.] The relevant test is not the degree of skill required, but whether the negligence occurred in the rendering of services for which a provider is licensed. [Citations.] Although the act of operating an ambulance may be performed by someone having no special knowledge, skill or care as a member of the medical profession, this does not mean the employees here in question were not acting as health care providers in transporting the patient to a medical facility." (Id. at p. 404.)
In the present matter, while the failure to conduct a test that had previously been ordered by a physician or the failure to administer medication previously prescribed by a physician may or may not require any particular medical skills, these acts are nevertheless integral parts of the health care provided to Hilton by defendant. Those acts cannot be artificially segregated from other discrete acts performed by defendant that required more extensive medical training. We conclude the trial court correctly ruled plaintiff's wrongful death claim is one for professional negligence and is subject to the one-year statute of limitations in Code of Civil Procedure section 340.5. And because it is undisputed plaintiff failed to bring this action within one year of discovering the injury, the trial court properly concluded defendant is entitled to summary judgment on the wrongful death claim.
Given our resolution of the statute of limitations issue, we are not called upon to decide whether the trial court was correct in deciding the applicable standard of care that applies to this matter.
The judgment is reversed. The matter is remanded to the trial court with directions to vacate its orders sustaining defendant's demurrers to the first and third causes of action of the second amended complaint and granting summary judgment and to enter a new order overruling the demurrers and granting summary adjudication on plaintiff's wrongful death claim. The parties shall bear their own costs on appeal.
We concur: NICHOLSON, Acting P.J. MAURO ,J.
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