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Harb v. City of Bakersfield

California Court of Appeals, Fifth District

January 23, 2015

MOHAMAD HARB et al., Plaintiffs and Appellants,
v.
CITY OF BAKERSFIELD et al., Defendants and Respondents.

APPEAL from judgment of the Superior Court of Kern County No. CV265887. Eric Bradshaw, Judge.

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[Copyrighted Material Omitted]

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COUNSEL

Law Offices of Young & Nichols, Steve W. Nichols, Thomas A. Brill; The Ehrlich Law Firm and Jeffrey Isaac Ehrlich for Plaintiffs and Appellants.

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Marderosian, Cercone & Cohen, Michael G. Marderosian and Heather S. Cohen for Defendants and Respondents City of Bakersfield, Bakersfield Police Department and Claudia Payne.

Borton Petrini, James J. Braze; Jones & Dyer, Gregory F. Dyer and Scott H. Cavanaugh for Defendants and Respondents Hall Ambulance Service, Inc., and Brian Dumont.

OPINION

Franson, J.

Mohamad Harb, M.D. was driving home from his shift at Kern Medical Center’s neonatal intensive care unit when he suffered a stroke and drove his car onto a sidewalk. The police officer who arrived at the scene did not call an ambulance immediately because she deduced from Dr. Harb’s vomiting, slurred speech and disorientation that he was intoxicated and, after a struggle, placed him in handcuffs. The first ambulance that arrived on the scene left without Dr. Harb. Later, a second ambulance took Dr. Harb to a hospital where he received treatment and survived, but the brain damage he suffered rendered him unable to care for himself.

Harb and his wife sued the City of Bakersfield (City), the responding officer, the ambulance company, and the paramedic who drove the first ambulance. They alleged defendants’ delay in getting Harb medical treatment made the consequences of his stroke much worse. The case was tried to a jury, which returned a defense verdict. Plaintiffs appealed, contending the jury instructions contained two errors.

First, plaintiffs argue a police immunity instruction (an officer is not liable if exercising due care) should not have been given because it used confusing language and, moreover, was unnecessary in a negligence case. We agree. While the immunity instruction was a correct statement of the law in the abstract, it was unnecessary because plaintiffs were already required to prove the police officer acted negligently. Also, the instruction’s use of the phrase “exercising due care” without defining it, and without explaining how the due care standard related to the reasonable care standard in the negligence instructions, created an ambiguity. Based on the record before us, there was a reasonable likelihood the police immunity instruction misled the jurors because it is unlikely the jurors would have understood there was no immunity for a police officer who acted negligently.

Second, plaintiffs contend the jury should not have been instructed on comparative negligence because Harb’s alleged negligent failure to manage

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his high blood pressure occurred before the accident and defendants’ interaction with him. Plaintiffs contend any preaccident negligence by Harb was irrelevant because (1) a tortfeasor takes the plaintiff as she finds him and (2) plaintiffs were not seeking to recover damages caused by the stroke, only damages resulting from the delay in treatment caused by defendants. Whether a plaintiff’s preaccident negligence is a type of comparative fault under California law appears to be a question of first impression. We conclude that, where a plaintiff is seeking damages only for the aggravation or enhancement of an injury or condition, California will follow the majority view that a plaintiff’s preaccident conduct cannot constitute comparative negligence when that conduct merely triggers the occasion for aid or medical attention. As a result, defendants who render aid or medical attention cannot reduce their liability for the harm resulting from their tortious acts and omissions by attributing fault to the plaintiff for causing the injury or condition in the first place.

Under the facts of this case, the jury should not have been instructed on comparative negligence and defendants should not have been allowed to argue Harb’s neglect of his high blood pressure was comparative negligence that rendered him responsible for all of the harm suffered.

We also conclude the errors in the instructions were prejudicial.

Therefore, the judgment is reversed and the matter remanded for a new trial.

FACTS

On November 24, 2007, Harb completed a 12-hour shift at Kern Medical Center’s neonatal intensive care unit. While driving home, Harb suffered a hemorrhagic stroke. A defense expert described the event as “an intracerebral hemorrhage into the substance of his brain.”[1]

As a result of the hemorrhage, Harb drove his car over a curb and halfway onto the sidewalk. The impact with the curb twisted the right front wheel, bent the tire rims and caused the right front tire to go flat. A sales manager at a nearby used car dealership phoned 911 and reported the accident.

At 6:55 p.m., the 911 operators dispatched Bakersfield Police Officer Claudia Payne to the scene, advising her of a noninjury collision that

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involved a “possible driving-under-the-influence driver.” At 6:58 p.m., Officer Payne arrived at the scene by herself. Near the time Officer Payne arrived, Harb vomited, but she did not see it. Two other officers arrived about a minute later.

Officer Payne first spoke with the sales manager who had made the 911 call. The sales manager told her that Harb had exited the vehicle, urinated on the sidewalk, returned to the vehicle and appeared to be attempting to leave. The sales manager had spoken with Harb to delay him until the police arrived.

Officer Payne then spoke with Harb, saw a wet spot on his medical scrubs directly below his chin, noted he was disoriented and asked for his car keys. Harb refused her request and attempted to place the key in the ignition. Officer Payne opened the driver’s door and, holding Harb by the arm, brought him around the back of the car to the curb. Officer Payne did not detect the odor of alcohol on Harb’s breath and did not notice any redness or watering in his eyes.

Officer Payne directed Harb to sit on the curb behind his car and then sat down with him. A struggle developed when Officer Payne attempted to handcuff him. When Officers Galland and Arms arrived at the scene, Officer Galland saw the struggle and he and Officer Arms ran to assist Officer Payne in cuffing Harb’s hands behind his back. It took all three officers to get the handcuffs on Harb. Officer Galland testified that he was not aware of Harb hitting his head during the struggle, but at some point noticed a small bump on the right side of Harb’s head.

At 7:10 p.m., Officer Payne called for an ambulance. Four minutes later, Brian Dumont, a paramedic and employee of Hall Ambulance Service, Inc., arrived at the scene in an ambulance with Darcy Smith, an emergency medical technician (EMT), and Lori Thomas, a trainee.

Paramedic Dumont checked Harb’s condition by testing his blood glucose and taking his blood pressure. Harb’s blood glucose was within the normal range and his blood pressure was slightly high, which Dumont did not consider unusual under the circumstances. Dumont asked Harb questions and received responses that were confused. Consequently, Dumont described Harb as having an “[a]ltered level of consciousness.” Dumont also performed a Glasgow Coma Scale[2] test and gave Harb a score of 14 out of 15 possible points, deducting one point for Harb’s speech.

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Paramedic Dumont testified he saw the police conduct two alcohol breath tests on Harb at the scene and both tests results were 0.00. After the first test, a male officer said, “The machine must be wrong.” After the second test, one of the officers said that Harb was probably on drugs.

Exactly what happened after Paramedic Dumont completed his assessment of Harb is the subject of conflicting testimony. The police officers testified that Paramedic Dumont told them that “[t]here is nothing medically wrong with this guy” and then packed up his gear, rolled the gurney back into the ambulance, closed the doors and left.

In contrast, Paramedic Dumont testified he told the officers that the ambulance crew would be transporting Harb to Kern Medical Center, a male officer asked why, and Dumont told him it was because Harb needed to go to the hospital. Dumont testified he informed the officers that Harb was not drunk and he did not find anything to indicate Harb was on drugs; he then told the officers that Harb needed to be transported right away. Dumont testified that (1) Officer Payne told him that the police would transport Harb, (2) he asked Officer Payne if she was taking Harb to jail or to the hospital to be evaluated, and (3) Officer Payne told him that she would take Harb to the hospital.

At 7:24 p.m., the first ambulance left the scene without Harb.

About 7:27 p.m., Detective Blaine Smith and Officer David Cox arrived at the scene. They were assigned to DUI's (driving under the influence) and Officer Payne had phoned Detective Smith to ask for assistance. Detective Smith spoke with Harb, trying to assess his condition. After doing his assessment, Detective Smith told the other officers, “He’s got some medical issues going on, and we need to get him in an ambulance. He needs to go to the hospital.”

Around the time Detective Smith arrived, Meghan Coffey, a registered nurse from Kern Medical Center who had worked with Harb that day, drove by the accident scene. She saw a man sitting on the curb with his hands handcuffed behind his back, his right shoe off, and vomit on his face and down his shirt. She recognized the man as Harb and stopped her car. She told a police officer that Harb had been working at the hospital all day and that she thought something was wrong. She spoke with Harb and asked the police how he had gotten a gash on his forehead. A female officer told Nurse Coffey that it had happened when they were putting him in handcuffs and he was trying to fight them. Nurse Coffey told the officers that something was wrong

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with Harb, he needed to get to a hospital and they should call an ambulance. At Nurse Coffey’s request, the police removed Harb’s handcuffs.

About 7:30 p.m., a registered nurse at the neonatal intensive care unit phoned Harb’s cell phone to report on the blood oxygen level of a baby that was not doing well. A male police officer answered Harb’s cell phone, informed the nurse that Harb was there and acting strangely, and asked her if Harb could be drunk. The nurse told the officer that Harb was on call and was not drunk. The nurse also told the officer that she believed Harb had had a stroke a few years ago. The officer relayed that information to the other officers.

At 7:31 p.m., the police called for a second ambulance, which arrived in seven minutes.

Detective Smith, who had been told an ambulance had come and gone, was upset when the second ambulance arrived because he thought they were the same ambulance crew. He yelled at them, “Hey, you guys should have never left.” Someone told Detective Smith it was not the same crew.

Nurse Coffey testified that when the driver of the second ambulance asked why the first unit left, Officer Payne said, “It’s on me. I sent them away. He’s going with us.” Officer Payne testified that she said, “That’s on me.” But, she denied saying that she had sent them away.

Officer Galland testified that by the time the second ambulance arrived, Harb’s condition looked worse because he was paler, the right side of his face was starting to droop, and he was drooling a little. Harb had walked normally when he was walked back from his car to the curb, but he was shuffling and dragging his right side when he was taken to the second ambulance.

At 7:44 p.m., the second ambulance left the scene to take Harb to the hospital.

At 7:58 p.m., the ambulance arrived at Kern Medical Center and Harb was taken to a trauma room. Harb was first seen by a physician at 8:04 p.m. The emergency room doctor testified that Harb looked like somebody who was having an acute stroke. At 8:29 p.m., Harb was checked in for his first CT scan, which showed an extensive bleed-that is, a large amount of blood in the brain. After the CT scan, Harb’s condition deteriorated. He stopped speaking English and tried to climb off the gurney. The CT scan showed bruising around the blood pooling in his brain. The bruising caused swelling, which shifted the midline of the brain and compressed the brain. Around 9:00

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p.m., Harb was given labetalol, a hypertension medication, intravenously. Further medication was given and a second CT scan was taken around 10:30 p.m.

At 10:50 p.m., almost four hours after the 911 call, Harb was taken into an operating room for surgery.

Harb survived the surgery and was moved to a convalescent facility. A certified nurse assistant now provides care to Harb on a daily basis. The care includes bathing him, dressing him, brushing his teeth, combing his hair, and pushing him around in a wheelchair. Harb is able to feed himself, but if any food needs to be cut the certified nurse assistant cuts it for him. He wears diapers and needs help to get from the wheelchair to the commode.

PROCEEDINGS

In December 2008, plaintiffs filed a complaint against City, Hall Ambulance, Officer Payne and Paramedic Dumont (collectively, defendants). In their fourth amended complaint, the operative pleading, plaintiffs alleged that City, Officer Payne, Hall Ambulance and Paramedic Dumont did not transport Harb to the hospital quickly enough after his stroke.

The jury trial began in November 2012. The emergency room doctor who treated Harb testified that he had discussed with plaintiffs’ attorney the competing theories as to whether the delay in getting Harb to the hospital affected the amount of brain damage Harb suffered. The doctor stated his opinion was that the delay was adverse, but his opinion would not be as valuable as the neurosurgeon’s.

A neurosurgeon retained by plaintiffs, Cary David Alberstone, M.D., testified that if Harb had received blood pressure medication earlier, it would have stopped the bleeding earlier, reduced the size of the hematoma, [3] and reduced the ultimate neurological deficits. He stated that if Harb had received the medication given at 9:00 p.m. before he deteriorated at 8:45 p.m., the degree of damage caused by the bleed would have been lessened.

In contrast, the neurosurgeon retained by City, Thomas Hoyt, M.D., testified that the bleeding inside Harb’s brain stopped after two heartbeats because the blood vessel clotted off and the back pressure from the blood clot slowed and stopped the bleeding. He stated the blood clot addressed during Harb’s surgery occurred before defendants were involved with Harb.

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Dr. Hoyt also testified that there were only two possible outcomes for Harb at the time the hemorrhage occurred-death or the condition Harb was in at the time of trial.

On December 11, 2012, the jury was instructed on the law by the trial court and heard closing arguments from counsel. Counsel representing City asserted Harb was contributorily negligent based on the evidence about his failure to take blood pressure medication. Counsel for City argued “Harb gambled with his own life. . . He owns all of the responsibility here as to what happened.” He also argued the “outcome was determined at the time [Harb] suffered that stroke that night.”

During their deliberations, the jury asked to hear the testimony of Paramedic Dumont again and, as a result, the court reporter read that testimony to the jury. At around 3:00 p.m. on December 12, 2012, the jury reached a verdict.

The first question in the special verdict form asked whether Officer Payne and City were negligent. The jury answered, “No.” The third question in the special verdict form asked whether Paramedic Dumont and Hall Ambulance were grossly negligent. The jury answered, “No.” In accordance with the instructions in the special verdict form, the jury did not answer any other questions.

On December 13, 2012, a judgment on special verdict was filed. It stated plaintiffs would take nothing by way of their complaint against defendants.

Plaintiffs filed a motion for new trial that asserted the trial court erred in allowing defendants to pursue the theory that Harb’s own negligence was a cause of the stroke and thus contributed to his injuries. Plaintiffs argued that any prestroke negligence by Harb was irrelevant because plaintiffs were seeking damages only for the additional injuries Harb suffered as a result of the delay in treatment, not for any injuries suffered in the stroke itself. The motion also asserted the trial court erred in giving a jury instruction on police immunity that tracked the text of Government Code section 820.4.[4]

Plaintiffs supported their motion for new trial by submitting declarations from four jurors. The trial court struck one declaration in its entirety and the paragraphs in the other three declarations that described what “the jury collectively believed.…” The court did not strike the paragraph in each of the three declarations that stated (1) the jurors discussed the jury instruction

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stating a police officer is not liable for his act or omission, exercising due care, in the execution or enforcement of any law and (2) “I verbally agreed that this instruction did not permit us to find negligence on the part of defendants [Officer] Payne and the City of Bakersfield.”

In February 2013, the trial court issued a minute order denying plaintiffs’ motion for new trial.

Plaintiffs appealed from the ...


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