Opinion
As Modified on Denial of Rehearing March 23, 1993.
Review Granted May 20, 1993.
Review Dismissed and Cause Remanded to Court of Appeal Jan. 13, 1994.
Previously published at 13 Cal.App.4th 1492, 18 Cal.App.4th 1698
Alan Jule Schultz, Beverly Hills, and Arthur E. Schwimmer, Los Angeles, for plaintiff and appellant.
Shield & Smith, Douglas Fee, Hornberger & Criswell, Los Angeles, Freeburg, Judy, Macchiagodena & Nettels, and Richard B. Castle, Pasadena, for defendant and appellant.
EPSTEIN, Associate Justice.
This case involves a severely disabled appellant who, while under respondent's care in its nursing home, was raped and became pregnant, and had a medical abortion. Her case went to the jury on a negligence theory. The trial court ruled that the evidence developed at trial did not justify submitting the issue of punitive damages to the jury. After the jury returned a verdict for general damages in excess of the limitations imposed by the Medical Injury Compensation Reform Act (MICRA), Civil Code section 3333.2, subdivision (b), the court reduced damages to the statutory ceiling. The court then granted respondent's motion for judgment notwithstanding the verdict on the basis that the evidence did not support a finding of negligence, causation, or damages.
Appellant, through her guardian, appeals the judgment on the grounds that the trial court erred in its punitive damages and MICRA rulings; she also appeals from the judgment notwithstanding the verdict. Respondent has filed a cross-appeal, arguing that if MICRA does not apply to this case, the verdict was excessive.
We conclude that the trial court ruled correctly on the punitive damages issue but erred in its ruling on the application of MICRA and in its order granting judgment notwithstanding the verdict. Because of these errors, the court did not reach the merits of respondent's new trial motion based on lack of evidence to support the amount of damages awarded and on the theory that the verdict was the product of improper argument. We shall reverse the judgment and remand the case to the trial court with directions to rule on the new trial motion, and for further proceedings consistent with the views expressed in this opinion.
FACTUAL AND PROCEDURAL SUMMARY
The appellant, Andrea N. (whom we refer to as Ms. N.), appeared in the underlying litigation and this appeal through her guardian, Eliane Rose. Mrs. Rose is her grandmother. In 1968, when Ms. N. was 18 years old, she suffered a serious automobile accident. Approximately two years later her mother and grandmother placed her in Laurelwood Convalescent Hospital on Victory Boulevard in North Hollywood. Laurelwood is a licensed skilled nursing facility operated by respondent. She remained at Laurelwood at all times relevant to this case. In 1982, Mrs. Rose discovered that Ms. N. was pregnant. Ms. N. underwent an abortion and sterilization.
Ms. N., her mother Lillian La Verdi, and her grandmother Mrs. Rose brought suit claiming general, compensatory, and punitive damages. They named as defendants Western Medical Enterprises, ARA Living Centers, and Laurelwood Convalescent Hospital, all of whom were ultimately determined At trial, evidence was presented about Ms. N.'s condition and care, the discovery of her pregnancy, and security and other conditions at Laurelwood. Respondent presented evidence concerning conditions at Laurelwood and standards of security in the skilled nursing facility industry.
The case was submitted to the jury solely on the negligence cause of action, which sought only general damages. By that time Ms. N. was the only plaintiff, Mrs. La Verdi having died prior to trial. The jury returned a verdict of $7.5 million in favor of appellant, and answered in the negative a special interrogatory which asked whether the finding was "based on your determination that the rape of Andrea [N.] was committed by an employee of Laurelwood Convalescent Hospital."
Appellant's causes of action originally included negligence, breach of contract, fraud, and intentional and negligent infliction of emotional distress. The fraud cause of action was disposed of by motion for nonsuit after the close of evidence; other causes of action were eliminated by demurrer prior to trial. There is no issue on appeal relating to the disposition of these causes of action.
Following the verdict, the court ruled that the action was subject to the provisions of Civil Code section 3333.2, limiting recovery of noneconomic damages to $250,000, and reduced the verdict accordingly. The court then granted Laurelwood's motion for judgment notwithstanding the verdict and vacated and set aside the judgment.
1. Evidence relating to appellant's condition and care.
As a result of the 1968 accident, Ms. N. was bedridden and unable to eat, speak, or control her bowels or bladder. She was fed intravenously through a stomach tube. She was partially paralyzed on the left side of her body, and was unable to turn herself over or summon help. Her right arm was in a restraint to prevent her from disturbing her feeding tube.
Mrs. Rose, who visited appellant twice a day, testified that appellant responded to certain demands. When asked to "give me your hand," Ms. N. would raise her hand and reach out to her grandmother and her attendants. She would smile when her grandmother stroked her hair or spoke to her, and she was aware of pain and discomfort and hunger and would communicate that awareness by yelling. She also was aware of regular feeding times, and would yell if her food was late. Although she did not recognize Mrs. Rose as her grandmother, she was aware of her presence and seemed to know her from her repeated visits. Mrs. Rose testified that appellant was "quite aware of anything other than the routine treatment," although she also testified that most of the time Ms. N. was unaware of her surroundings.
Early in 1982, and against Mrs. Rose's expressed wishes, Ms. N. was transferred from a room near a nurses' station to one remote from any station, along a less-travelled hall. The two other patients in the new room were not very alert. Also against Mrs. Rose's expressed wishes, male attendants were assigned to appellant. She had no male visitors.
The jury saw photographs and a video tape of appellant taken by an investigator working on her behalf. The video tape was narrated in the courtroom by Mrs. Rose.
2. Evidence relating to the rape and its discovery.
Late in 1982, Mrs. Rose noticed several things out of the ordinary in Ms. N.'s condition. She had "a sort of new restlessness and she whimpered a lot and cried more," and she missed two consecutive menstrual periods. Laurelwood personnel did not normally chart appellant's menstrual periods and had not noticed the change. Nurses informed Mrs. Rose that Ms. N. had started vomiting in the mornings, and that there were occasions when her feeding tube had come out during the night. Ms. N. was incapable of removing the tube herself. Mrs. Rose insisted that Ms. N.'s physician perform a pregnancy test. That Mrs. Rose testified that Ms. N. would know if she was raped or attacked in any way, because she was immediately aware of any unfamiliar gesture or voice. Mrs. Rose expressed her belief that her granddaughter was sedated at the time of the rape, since that was the only explanation for her failure to have alerted "the entire building" with her cries.
Mrs. Rose also testified that staff members told her that several male employees had disappeared after appellant's pregnancy was discovered. Glen Bennett, administrator of Laurelwood in 1982, testified that there was no unusual personnel activity in the form of employees leaving their jobs after the discovery of appellant's pregnancy.
Doris Lasater, a licensed vocational nurse who was director of staff development at Laurelwood in 1982, testified that after the pregnancy was discovered she advised Mr. Bennett to call the police and the Health Department immediately, but that he did not make a report to the Health Department until a week later, and did not call the police at all. Mrs. Lasater testified that Mr. Bennett told her that he decided not to call police in order to safeguard the reputation of the facility, which he thought would be ruined if an employee was found to be implicated or involved.
Mr. Bennett testified that he made his report to the Health Department within 24 hours of discovering the pregnancy, and that he did not call the police because Ms. N. was already three months pregnant when the pregnancy was discovered, and because, due to the shock of discovering that a patient was pregnant, he did not think of what had occurred as a rape. He conducted his own investigation by questioning employees, and was "pretty certain" that no employee had participated in the events. He acknowledged, however, that it was possible that there were patients in the facility with the ability to rape appellant.
When appellant was returned to Laurelwood after the abortion and sterilization, Mrs. Rose again demanded that she be placed in a room close to the nurses' station and that no male attendants be assigned to her. This time Laurelwood acceded to those demands.
Mrs. Rose testified that she kept her granddaughter at Laurelwood after the rape because she believed that Laurelwood would have a heightened sense of responsibility toward her and in the future would accede to Mrs. Rose's wishes on such things as room placement and male attendants, while another facility might not do so.
3. Evidence relating to security at Laurelwood.
Laurelwood was located in a one-story building. Sliding glass doors led from the interior of the building to a courtyard. Although some doors at Laurelwood were on an alarm system, these doors were neither locked nor on the alarm system. A fire ladder ran from an exterior wall to the roof, giving access to the courtyard.
The room appellant occupied in 1982 had sliding glass doors which were not on the alarm system. Mr. Bennett and others testified that the locks on these doors worked poorly, if at all, although Mr. Bennett also testified that he was not concerned with the state of the locks because the doors could be secured by placing a board in the slider track. Mrs. Rose testified that the boards were not used during the day, and Mrs. Lasater testified that the boards were not available in all the rooms.
Jose Mazareigo, maintenance supervisor at Laurelwood, was in charge of all maintenance and repair at the facility in 1982. He testified that all patient rooms with sliding glass doors were equipped with the boards which, when placed in the track, made it impossible to open the door, and that approximately once a month, in the course of performing his duties, he observed that those boards were in place. He also testified that the locks on the sliding glass doors in patient rooms were always in working condition.
There were sliding glass doors in Ms. N.'s room which led to a walkway or alley Laurelwood had no security guards and no sign-in procedure for visitors. Its policy was to lock all exterior doors at 8 p.m., but Mrs. Lasater and Genevieve Olson, the supervising nurse at Laurelwood for the 3 p.m. to 11:30 p.m. shift at the relevant times, testified that this was not always done. These witnesses also testified that the exterior door from the laundry room could not be locked; the alarm was not set at night, so that the building could be entered without tripping the alarm; some of the exterior doors were poorly aligned and in poor condition, so that they could easily have been opened from the outside; the facility's parking lot was not well lit; and the double doors leading to the parking lot were tied closed with a sheet at night. Mrs. Lasater testified that some of the nurses had complained to her, to director of nursing Laura Rogansin, and to Glen Bennett about the alarm system.
Mr. Mazareigo testified that throughout his tenure all the exterior doors had working locks; that no door was broken; and that the parking lot was well lit. Both Mr. Mazareigo and Mr. Bennett testified that they never had received a complaint about a broken alarm system, and with only minor exceptions, had received no complaints about broken locks on doors. They testified that throughout their employment at Laurelwood they periodically entered the facility at night, and that on those occasions the alarm worked.
Mrs. Lasater testified that Mr. Bennett had told her that he received a bonus if he spent less than the allocated budget amount for facility repairs. Mr. Bennett denied receiving a bonus on that basis.
Olivia Truhlar, a consultant to long term care operators, testified on behalf of Laurelwood that it was not the standard in the industry to have sign-in procedures for visitors, security personnel, or video cameras or monitors, and that the primary purpose of alarms in facilities like Laurelwood is to alert the nurses if a patient leaves the building. She also testified that it was not an industry standard to alarm sliding glass doors such as the ones in the Laurelwood patient rooms, because patients would not think of them as exit doors. On cross-examination, she testified that doors which did not lock or were poorly aligned or were tied closed with a sheet would not be in accord with industry standards.
4. Supervision of male patients.
Mrs. Rose testified that she had observed a one-legged male patient in a wheelchair stop at appellant's room. She instructed the nursing staff to keep him out of the room, and he "never bothered us again." Both Mrs. Olson and Mrs. Lasater testified that on more than one occasion they saw a patient named Johnny, a one-legged man in a wheelchair, fondle female patients. Mrs. Olson saw him fondle Ms. N. at least once. Mrs. Lasater and Mrs. Olson informed Laura Rogansin and Glen Bennett about the incidents, but neither Ms. Rogansin nor Mr. Bennett showed an interest in the complaints, and neither took any action with respect to them. Mrs. Lasater testified that she had heard complaints about similar incidents from patients and staff members. She also testified that the patient named Johnny was ambulatory.
Both Mr. Bennett and Ms. Rogansin testified that neither Mrs. Olson nor Mrs. Lasater ever had complained about a patient being molested.
DISCUSSION
I
The motion for judgment notwithstanding the verdict was brought on the ground that there was no substantial evidence that appellant had suffered damages. In its ruling, the court found that there was no substantial evidence of negligence, proximate cause, or damage.
"In passing upon the propriety of a judgment notwithstanding the verdict, appellate courts view the evidence in the light most favorable to the party who obtained the verdict and against the party to whom the judgment notwithstanding the verdict was awarded. [Citations.] In other words, we apply the substantial evidence test to the The elements of negligence include a duty to use due care, breach of that duty, a proximate causal connection between the breach and the injury, and resulting damages. (Onciano v. Golden Palace Restaurant, Inc. (1990) 219 Cal.App.3d 385, 394, 268 Cal.Rptr. 96.) No issue has been raised with respect to duty of care, and in its motion below Laurelwood did not contest the sufficiency of the evidence on negligence. To the contrary, it acknowledged that "the evidence could concededly be viewed as supporting a finding of defendant's negligence," and in oral argument on the motion, Laurelwood's counsel conceded "there is evidence that would support a finding of negligence." We agree, and conclude that, taking the evidence in the light most favorable to appellant, there was substantial evidence to support each of the elements of negligence.
On the question of breach of duty, appellant presented evidence that the facility's alarm system did not work; that not all exterior doors were properly secured; that there was access to the interior of the building by way of the roof and the unlocked courtyard doors; that the sliding glass doors in appellant's room were poorly secured, and led to an ungated walkway that led to the street; that the administration knew that a male patient previously had molested appellant and other female patients; and that no action was taken on the discovery that appellant's feeding tube had been disturbed during the night, an indication that someone had been present in the room. Those acts and omissions are sufficient to constitute a breach of Laurelwood's duty to appellant.
Respondent argues, and the trial court stated as one of the grounds for its finding of lack of substantial evidence, that appellant presented no evidence of violation of any safety law or regulation, and no evidence that Laurelwood had failed to meet industry standards. As we have seen, Laurelwood's compliance with industry standards was disputed, at least with respect to the method of securing the sliding glass doors. In any event, the absence of evidence of violation of law or industry standards does not compel a finding that there was no negligence. (Leonard v. Watsonville Community Hosp. (1956) 47 Cal.2d 509, 519-520, 305 P.2d 36; 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, §§ 754, 756, pp. 94-96.) The trial court also cited the lack of evidence of employees with a history of violent crime or sexual assault, of strangers on the premises, or of the past conduct of the nursing home regarding rapes or abuse. In light of the substantial evidence that was presented, the lack of evidence on those points does not undermine the jury's conclusion that respondent failed to exercise the degree of care due to Ms. N. as a patient.
There also was substantial evidence of proximate causation. The jury was correctly instructed that appellant had the burden of proving that negligent conduct was a legal cause of the injury, and that "legal cause" meant a cause which is a substantial factor in bringing about the injury. (See BAJI No. 3.76; Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1 Cal.Rptr.2d 913, 819 P.2d 872.) The evidence showed that appellant was raped while in Laurelwood's care. She had no male friends or relatives who visited her. There is no possibility of consensual sexual activity, and no suggestion in the record that anyone other than Laurelwood could control who had access to her. Both supervision and security were Laurelwood's responsibility, and Laurelwood's negligence was conceded. It can hardly be disputed that the lack of supervision and security was a substantial factor in enabling the rape to take place.
Both in the trial court and on appeal, Laurelwood argues that Ms. N.'s impairments were such that "this unfortunate plaintiff was simply unaware of what happened to her" and therefore did not and could not suffer damages from the rape or rapes, the resulting pregnancy, or the surgery. As evidence, Laurelwood cites Ms. N.'s paralysis, her inability to speak or to The extent of Ms. N.'s limitation of cognitive ability is a matter of conjecture, and the suggestion that her paralysis, inability to speak, and her lack of bodily control rendered her incapable of suffering is without foundation. Even if sedated when the rape or rapes occurred, Ms. N. was not spared the pain and discomfort that that act or acts brought about. Quite obviously, the fact that Ms. N. could not talk does not mean that she could not or did not suffer pain and discomfort. There is ample evidence that Ms. N. was capable of experiencing, and did experience, such suffering.
Mrs. Rose testified that her granddaughter was aware of any changes in her routine, and of pain, discomfort, and hunger. She responded to a touch or tone of voice she recognized with a smile. She manifested her awareness of the rape or rapes and pregnancy with "a sort of new restlessness" and by crying.
In ruling that there was no substantial evidence that Ms. N. had suffered damages, the trial court cited the absence of medical evidence of her physical or mental condition or sensory perceptions. Respondent makes the same argument here. However, lay testimony such as that of Mrs. Rose, which relates observations of a sufferer's involuntary declarations and expressions of pain, provides a basis for a finding of pain and suffering. Moreover, "[t]he absence of medical testimony cannot of itself serve to foreclose recovery for pain and suffering; expert testimony is not a prerequisite to the framing of a question for the jury on this issue." (Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 895-896, 103 Cal.Rptr. 856, 500 P.2d 880.)
The trial court also gave as a reason for its ruling, and respondent urges, that appellant did not present evidence of medical bills regarding the pregnancy or abortion or other remedial or future costs of treatment, "actuarial testimony regarding the projected costs of care" for appellant in the future, or evidence that an award of money would improve her life in any way. It is true that no damages for medical costs or increased costs of care were claimed at trial. Apparently the expenses of care and maintenance have been and are being compensated from another source. Damages were claimed for the pain and suffering associated with the rape or rapes, the pregnancy, and the subsequent surgery. Those damages are recoverable whether or not there are damages for the cost of care. "The absence of medical bills or medical testimony will not foreclose a recovery for pain and suffering." (Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 413, 196 Cal.Rptr. 117.)
The rape or rapes, the pregnancy, and the surgery constituted major changes in appellant's condition and routine that were unquestionably accompanied by pain and discomfort. We cannot know exactly how these events were experienced by Ms. N., but we cannot assume as a matter of law that her limitations insulated her from suffering. To the contrary, Ms. N.'s paralysis, her inability to resist her attacker, to fully comprehend what was occurring throughout her ordeal, or to communicate what had happened to her, may well have increased the discomfort she experienced.
Ms. N.'s previous condition deprived her of the ability to articulate her pain, but we reject the suggestion that those who are legally responsible for causing that pain cannot be held liable. To hold otherwise would make those most in need of protection the most likely to be victimized with impunity. That is not the law.
II
As we have seen, appellant's theory at trial was that Laurelwood failed to adequately provide for her safety, and that the attack or attacks against her, and the suffering that resulted, were proximately caused by that omission. We now address whether the failure to provide security in this case constitutes "professional negligence" As with any question of statutory interpretation, we begin with the words of the statute itself. (Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified School Dist. (1978) 21 Cal.3d 650, 658, 147 Cal.Rptr. 359, 580 P.2d 1155.) Our object is to ascertain the intent of the Legislature, and in doing that we look to the statutory language according to its usual, ordinary import, construing it "in context, keeping in mind the statutory purpose," and giving consideration to the consequences from a particular interpretation. "Both the legislative history of the statute and the wider historical circumstances of its enactment may be considered in ascertaining the legislative intent." (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387, 241 Cal.Rptr. 67, 743 P.2d 1323; Walnut Creek Manor v. Fair Employment & Housing Com. (1991) 54 Cal.3d 245, 268, 284 Cal.Rptr. 718, 814 P.2d 704.)
Civil Code section 3333.2 is the MICRA provision that governs this case. We have set it out in full. This statute limits the noneconomic loss element of damages against a health care provider for "professional negligence" to $250,000. The key term "professional negligence" is defined in the statute itself. (Section 3333.2, subd. (c)(2).)
Civil Code section 3333.2 provides:
The term "professional negligence" was already on the statute books and had been construed by the courts when the MICRA statute was enacted in 1975. At that time, Code of Civil Procedure section 340.5 (itself the codification of a common law rule) provided a special limitation period for actions for "professional negligence, or for rendering professional services without consent, or for error or omission in such person's practice, ..." The limitation period for this species of tort was four years from the date of injury or one year from the date the plaintiff discovers, or should have discovered, the injury, "whichever first occurs." A tolling provision covered the period during which the provider failed to disclose the act, error or omission upon which the action is based. (Stats.1970, ch. 360, § 1.)
One of the MICRA provisions amended section 340.5 to its present form.
The meaning of "professional negligence" in the rendering of professional services under the common law rule was construed in Gopaul v. Herrick Memorial Hosp. (1974) 38 Cal.App.3d 1002, 113 Cal.Rptr. 811. Gopaul was published a year before MICRA was enacted, and we may assume that the Legislature was familiar with its holding and rationale. (See Estate of McDill (1975) 14 Cal.3d 831, 839, 122 Cal.Rptr. 754, 537 P.2d 874; Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 186, 10 Cal.Rptr.2d 208, 832 P.2d 924.)
In Gopaul, the plaintiff fell off a gurney while unstrapped and unattended, after having x-rays taken at a hospital. (38 Cal.App.3d 1002, 113 Cal.Rptr. 811.) The hospital conceded for purpose of appellate review that the fall was proximately caused by negligence of its technician, and that the The court began its review with the observation that professional malpractice must occur in the " 'performance of professional or fiduciary duties' " to be actionable as such. "It follows that not every tortious injury inflicted upon one's client or patient or fiducial beneficiary amounts to such malpractice. No reasonable person would suggest that 'professional malpractice' was the cause of injury to a patient from a collapsing chair in a doctor's office, or to a client from his attorney's negligent driving en route to the court house, or to a hospital patient from a chandelier falling onto his bed. Such injuries would, no doubt, have proximately resulted from 'ordinary negligence,' but they would not be brought about from 'professional malpractice.' " (38 Cal.App.3d at p. 1006, 113 Cal.Rptr. 811.)
Based on Neel, the principal authority on the postponed discovery doctrine in professional negligence cases, the court concluded that "[i]t will be seen that 'professional malpractice' was not involved in the defendant hospital's tortious conduct, and that the reasons for the extended statute of limitations for such malpractice are wholly inapplicable here. The need to strap plaintiff to the gurney while she was ill and unattended would have been obvious to all. The situation required no professional 'skill, prudence and diligence.' It simply called for the exercise of ordinary care." (38 Cal.App.3d at p. 1007, 113 Cal.Rptr. 811.) The court affirmed the judgment of nonsuit. (38 Cal.App.3d at p. 1008, 113 Cal.Rptr. 811.)
After the events that gave rise to the litigation in Gopaul had occurred, but before the case was decided on appeal, Code of Civil Procedure section 340.5 was enacted. That statute codified the common law rule, as expressed in Neel and other cases, with respect to what constitutes "professional negligence" under the delayed discovery principle.
This was the state of the law when MICRA was enacted. The phrasing of the statute in its treatment of "professional negligence" and "professional services" fairly reflects the common law dichotomy between professional and ordinary negligence. The essence of the distinction was and is that it is not any negligence by a health care provider that gives rise to the special rules (for extending the statute of limitations, or for limiting and conditioning the recovery of damages), but only negligence in the application of "professional 'skill, prudence and diligence.' " If the failure of hospital personnel to strap an unattended patient onto a gurney is ordinary rather than professional negligence, certainly the failure to safeguard a patient from a criminal assault is ordinary, not professional negligence.
This construction of the statute is fully congruent with its purposes, which were to contain the problems of " 'skyrocketing malpractice premium costs ... resulting in a potential breakdown of the health delivery system, ...' " (American Bank & Trust Co. v. Community Hospital (1984) 36 Cal.3d 359, 372, fn. 11, 204 Cal.Rptr. 671, 683 P.2d 670.) The statement of purpose quoted by the court in American
The legislative history and purposes of MICRA were thoroughly reviewed by our Supreme Court in the American Bank & Trust Co. case in which the court upheld the periodic payment provision of the statute (Code Civ.Proc., § 667.7) against constitutional challenge. The court summarized the purposes of the MICRA statute in the following terms:
"The reason the Legislature limited the application of section 667.7--and, indeed, MICRA in general--to the medical malpractice field was, of course, because it was responding to an insurance 'crisis' that had arisen in a particular area. The problem which was the immediate impetus to the enactment of MICRA arose when the insurance companies which issue virtually all of the medical malpractice insurance policies in California determined that the costs of affording such coverage were so high that they would no longer continue to provide such coverage as they had in the past. Some of the insurers withdrew from the medical malpractice field entirely, while others raised the premiums which they charged to doctors and hospitals to what were frequently referred to as 'skyrocketing' rates. As a consequence, many doctors decided either to stop providing medical care with respect to certain high risk procedures or treatment, to terminate their practice in this state altogether, or to 'go bare,' i.e., to practice without malpractice insurance. The result was that in parts of the state medical care was not fully available, and patients who were treated by uninsured doctors faced the prospect of obtaining only unenforceable judgments if they should suffer serious injury as a result of malpractice.
"Many factors have been tendered to explain why these problems arose in the medical malpractice field--the changing doctor-patient relationship, a rapid 'liberalization' of tort doctrine in medical malpractice cases, a uniquely small number of insureds over which to spread premiums, imprudent investments on the part of medical malpractice insurers, and others. [Citation.] Plaintiff--and supporting amici--challenge the factual accuracy of some of these explanations and invite us to determine the 'true' cause of the medical malpractice insurance problems that preceded MICRA and even to second-guess the Legislature as to whether a 'crisis' actually existed. It is not the judiciary's function, however, to reweigh the 'legislative facts' underlying a legislative enactment. [Citation....] Whatever the reasons for the medical malpractice insurance problems, it is clear that the Legislature--which thoroughly investigated this matter through numerous hearings, audits and the like--could rationally conclude from the information before it that the high insurance costs in this particular area posed special problems with respect to the continued availability of adequate insurance coverage and adequate medical care and could fashion remedies--directed to the medical malpractice context--to meet these problems." (36 Cal.3d at pp. 371-372, 204 Cal.Rptr. 671, 683 P.2d 670, fn. omitted.)
These purposes are consistent with a construction that limits "professional negligence" to the application of professional judgment. They do not support a construction that would extend the MICRA limitation to any kind of negligence by a health care provider that results in injury to a patient. As we have seen, this is the distinction the court drew in Gopaul. Under that distinction, premises liability is outside the professional judgment side of In Bell v. Sharp Cabrillo Hospital (1989) 212 Cal.App.3d 1034, 260 Cal.Rptr. 886, the issue was whether a hospital's alleged negligence in appointing and reviewing its professional staff was within MICRA. The Supreme Court recently had held that psychotherapists failure to warn a potential victim of the dangerous proclivities of a patient was professional negligence within the limitations provision of Code of Civil Procedure section 340.5, rather than Code of Civil Procedure section 340, subdivision 3, the general one-year statute for personal injury. (Hedlund v. Superior Court (1983) 34 Cal.3d 695, 703, 194 Cal.Rptr. 805, 669 P.2d 41.) Following the lead of that decision, the Bell court concluded that "the competent selection and review of medical staff is precisely the type of professional service a hospital is licensed and expected to provide, for it is in the business of providing medical care to patients and protecting them from an unreasonable risk of harm while receiving medical treatment. Employing the terminology in Hedlund, the competent performance of this responsibility is 'inextricably interwoven' with delivering competent quality medical care to hospital patients." (212 Cal.App.3d at pp. 1050-1051, 260 Cal.Rptr. 886.)
The issue of what constitutes professional negligence was considered in the context of the duty of attorneys in Wasmann v. Seidenberg (1988) 202 Cal.App.3d 752, 248 Cal.Rptr. 744. In that case, the attorney for the wife in a marriage dissolution action had received a deed from the husband's attorney conveying certain real property to the wife, but with instructions not to record it until certain payments had been arranged. The wife allegedly had obtained the deed and recorded it without satisfying the preconditions. The appellate court concluded these allegations were sufficient to state a cause of action against the lawyer for general negligence, but not for professional negligence.
The negligence allegations, the court said, "are not the stuff of which legal malpractice claims are made. An attorney's failure to prevent a client's unauthorized seizure and recordation of a document held in escrow is not negligent lawyering: 'The situation required no professional "skill, prudence and diligence." It simply called for the exercise of ordinary care.' (Gopaul v. Herrick Memorial Hosp. (1974) 38 Cal.App.3d 1002, 1007 [113 Cal.Rptr. 811]....)" (202 Cal.App.3d at p. 757, 248 Cal.Rptr. 744.)
In Central Pathology Service Medical Clinic, Inc. v. Superior Court, supra, 3 Cal.4th 181, 10 Cal.Rptr.2d 208, 832 P.2d 924, the court construed language in another statute, the Brown-Lockyer Civil Liabilities Reform Act, enacted in 1987. (Stats.1987, ch. 1498, §§ 1-7, pp. 5777-5782.) Code of Civil Procedure section 425.13, a provision of that law, created a judicial review mechanism as prerequisite to a suit seeking punitive damages " 'arising out of the professional negligence of a health care provider....' " The term " 'professional negligence,' " while not defined in the enacting statute, was held to have the same meaning as in MICRA. (3 Cal.4th at p. 187, 10 Cal.Rptr.2d 208, 832 P.2d 924.) In light of the language and history of Code of Civil Procedure section 425.13, "arising out of" was construed to include intentional tort theories against health care providers based on a claimed breach of their professional duties. (3 Cal.4th at p. 192, 10 Cal.Rptr.2d 208, 832 P.2d 924.)
None of these authorities apply MICRA beyond the limits of a breach of "professional" duties as defined in Gopaul: the application of professional (as distinguished from ordinary) skill, prudence and diligence with respect to a patient. (38 Cal.App.3d at p. 1008, 113 Cal.Rptr. 811.)
One California case goes beyond this limitation: Murillo v. Good Samaritan Hospital (1979) 99 Cal.App.3d 50, 160 Cal.Rptr. 33 (per curiam ). Understandably, it is the authority Laurelwood urges us to follow.
The factual setting in Murillo bears a striking similarity to the facts in Gopaul. Both were suits by a plaintiff against a hospital based on the negligence of hospital personnel in failing to secure a patient to a device on which the patient was reclining, The only material distinction between the cases is that Gopaul arose before, and Murillo after, enactment of Code of Civil Procedure section 340.5. Murillo suggests a distinction of Gopaul on this basis. (99 Cal.App.3d at p. 57, 160 Cal.Rptr. 33.) We find this distinction immaterial because Code of Civil Procedure section 340.5 is a codification of the common law rule delaying the running of the statute of limitations in professional negligence cases based upon delayed discovery. The only difference is that the statute places an absolute outer limit on the delay, while the common law rule did not.
Murillo agreed with the first two of the three Gopaul examples of the kind of health care provider tort that does not fall within the ambit of professional negligence (falling out of a collapsing chair in a doctor's office; negligent driving by an attorney on the way to the courthouse), but had difficulty with the third (hospital patient injured by chandelier falling onto bed). (99 Cal.App.3d at p. 56, 160 Cal.Rptr. 33.) The court reasoned that the "professional duty" of a hospital is "to provide a safe environment within which diagnosis, treatment, and recovery can be carried out. Thus if an unsafe condition of the hospital's premises causes injury to a patient, as a result of the hospital's negligence, there is a breach of the hospital's duty qua hospital." (Id. at pp. 56-57, 160 Cal.Rptr. 33.) The court concluded that the result reached in Gopaul is incompatible with the definition of professional negligence in Code of Civil Procedure section 340.5, under which "the test is not whether the situation calls for a high or a low level of skill, or whether a high or low level of skill was actually employed, but rather the test is whether the negligent act occurred in the rendering of services for which the health care provider is licensed." (Murillo v. Good Samaritan Hospital, supra, 99 Cal.App.3d at p. 57, 160 Cal.Rptr. 33.)
Murillo was followed in Taylor v. U.S. (9th Cir.1987) 821 F.2d 1428, 1430, 1431. That case involved a suit against a veterans' hospital operated by the federal government. The applicable statute (28 U.S.C., § 2674) limited government liability to that of a private health care provider under the law of the state in which the accident arose, in this case the California MICRA law. The court held that under MICRA as construed in Murillo, the statutory limitations applied to a patient who suffered brain damage as a result of a ventilator attached to his face becoming disconnected, regardless of whether this was caused by a physician or a custodian. (821 F.2d at p. 1432.) We need not and do not decide whether that is a correct application of MICRA, but we note that the principal basis of the decision was the Murillo case, rather than a review of the language, background or purposes of MICRA.
Murillo thus construes the professional negligence provision of MICRA to be coterminous with any injury to a patient caused by a hospital's negligence with respect to anything the hospital may do within the ambit of its license--which is to say anything it does in running a hospital.
We believe this to be altogether too broad a reading of the statute for several reasons.
First, it fails to take into account the body of law preceding MICRA (of which Gopaul is but one example) that restricts "professional negligence" to a breach of the duty to provide professional skill, procedure and diligence, and it ignores the inference that the Legislature intended the same term to have the same meaning in MICRA, absent an indication in the statutory language or its history to the contrary. (Estate of McDill, supra, 14 Cal.3d at p. 839, 122 Cal.Rptr. 754, 537 P.2d 874.) No Second, the expansive reading of the statute urged by Laurelwood would obliterate the distinction between ordinary negligence, such as the duty to maintain safe premises, and the duty not to commit medical malpractice or other breach of professional negligence. Under that position, if a patient and a visitor were walking together down a hospital corridor and both slipped on the same pool of liquid or debris which the hospital custodial staff negligently had failed to clear away, the patient would be subject to the limitations of MICRA (but would have the advantage of the extended limitation period of Code of Civil Procedure section 340.5), but the visitor would not, even though the hospital's negligence was exactly the same.
In fact, if Laurelwood's position were adopted, it would be difficult if not impossible to draw any reasoned line between professional negligence and any negligence insofar as patients are concerned.
That takes us to the third and most fundamental deficiency in the construction Laurelwood would have us adopt. It would simply read the modifying word "professional" out of the statute, because the statute would have the same meaning without it. That would do obvious violence to the statute, and would violate fundamental rules based upon the principle of separation of powers, that restrict courts in construing the meaning of statutes. We are not at liberty to disregard a restrictive term the Legislature has chosen to include in a statute--in the case of Civil Code section 3333.2, not once, but twice: in subdivision (a), the basic provision referring to "professional negligence," and in subdivision (c), where the term is defined as the rendering of professional services. The modified term appears not only in this section, but in five others as well (Code Civ.Proc., §§ 364, subd. (f)(2), 667.7, subd. (e)(4), 1295, subd. (g)(2), Bus. & Prof.Code, § 6146, subd. (c)(3), and Civ.Code, § 3333.1, subd. (c)(2); see Central Pathology Service Medical Clinic, Inc. v. Superior Court, supra, 3 Cal.4th at p. 187, 10 Cal.Rptr.2d 208, 832 P.2d 924.)
We are strengthened in our conclusion by a review of reported decisions from other states having laws, similar to MICRA, that make special, restrictive provisions for suits against a health care provider based upon professional malpractice.
It has been reported that by 1976, 43 states and 2 territories had adopted such laws, that some 300 statutes of this kind were adopted between 1975 and 1980. (See Bell, Legislative Intrusion Into the Common Law of Medical Malpractice: Thoughts About the Deterrent Effect of Tort Liability (1984) 35 Syracuse L.Rev. 939, 943; see also cases collected in American Bank & Trust Co. v. Community Hospital, supra, 36 Cal.3d at p. 370, fn. 10, 204 Cal.Rptr. 671, 683 P.2d 670.)
Most, but not all, of these cases have construed medical or professional malpractice laws to distinguish between negligence in the rendering of professional services, and general premises liability.
Winona Memorial Foundation v. Lomax (Ind.App.1984) 465 N.E.2d 731 involved a slip and fall by a hospital patient. The Indiana Medical Malpractice Act conditioned the bringing of "malpractice" actions against a health care provider upon a prefiling review by a medical review panel, which was authorized to express an opinion on whether the defendants acted or failed to act within the appropriate standard of care. The plaintiff in Winona filed her action against the hospital without presubmission to a review panel, and the question before the court was whether her suit was a "medical malpractice" action for which such review was required. The court held that it was not. It recounted the legislative history and objectives of the Indiana statute which, like the California law, were aimed at making medical malpractice insurance more available.
The court pointed out that there had been no showing that general liability coverage had been impacted by the insurance crisis. "Thus, the conditions that were the impetus for the Legislature's enactment of the Medical Malpractice Act had nothing to do with the sort of liability any health care provider--whether a hospital or a private The Florida courts, reviewing a similar law, draw a similar distinction. In Zobac v. Southeastern Hospital Dist., etc. (Fla.App.1980) 382 So.2d 829, a hospital patient fell and was injured when he turned out the bathroom light before returning to his hospital bed. The court held his lawsuit was not within the Florida statute. Using a dictionary definition of "malpractice," the court concluded that the term means " 'a dereliction from professional duty or a failure of professional skill or learning that results in injury, loss or damage.' It does not include janitorial negligence, for example, or a breach of duty in maintaining the hospital grounds generally required of possessors of land." (Id. at pp. 830, 831, fn. omitted.)
In Reaux v. Our Lady of Lourdes Hosp. (La.App.1986) 492 So.2d 233, 234, plaintiff alleged his relative had been the victim of assault, battery and rape while a patient at defendant's hospital, and that she had died as a result of the attack. The theory of the lawsuit was that the hospital had failed to provide proper monitoring, care and security to the patient while she was in its care. The Louisiana court construed the state statute, similar to the laws in Indiana and Florida, not to cover the negligence asserted. The court reasoned that the alleged omissions were not based on a failure to provide professional services. (See also Brodie v. Gardner Pierce Nursing & Rest Home (Mass.App.1980) 9 Mass.App. 639, 403 N.E.2d 1184, 1185 [slip and fall in nursing home not within malpractice statute; court refused to adopt "bright line" rule that all use of health care provider's premises by patient is covered by medical malpractice law; slip and fall in hospital stairway involved in this case was not]; Borrillo v. Beekman Downtown Hosp. (1989) 146 A.D.2d 734, 537 N.Y.S.2d 219 [assault by one patient on another not covered, as gravaman of lawsuit was failure to use reasonable care to safeguard patient, not diagnosis, treatment or failure to follow a physician's instruction]; Nichols v. Wilson (1983) 296 Md. 154, 460 A.2d 57, 61 [damages suffered by patient from assault and battery by physician not covered, as "it is only those claims for damages where there has been a violation of the health care provider's professional duty to exercise care which are within the Act"]; cases collected in Annotation (1991) 89 A.L.R.4th 887.)
The injuries suffered by Ms. N. in this case, according to her theory which the jury credited, were caused by respondent's failure to take adequate measures for her safety. Whatever else might be said of that kind of breach, it does not constitute professional negligence within the MICRA statute. It follows that the trial court erred in ruling otherwise.
III
Appellant's complaint included a claim for punitive damages as part of the fraud cause of action. Laurelwood's motion for nonsuit on the fraud cause of action was granted at the close of evidence. Appellant then moved to amend her complaint by adding the punitive damages claim to the only cause of action remaining in the case, that for negligence. The court denied the motion, ruling that she had not The parties argue whether the trial court properly applied Code of Civil Procedure section 425.13. That statute provides that a court order is required for filing a claim for punitive damages in an action arising out of the professional negligence of a health care provider. A court order also is required before a complaint may be amended at trial to assert a claim for punitive damages.
Under section 425.13, a court may allow a claim for punitive damages in a professional negligence suit only if the plaintiff establishes that there is a "substantial probability" of prevailing on the claim, pursuant to section 3294 of the Civil Code. To recover punitive damages, a plaintiff must prove "by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, ..." (Civ.Code, § 3294 subd. (a).)
Although "professional negligence" is not defined in section 425.13, the definition of that term in the MICRA legislation is applicable. (Central Pathology Service Medical Clinic, Inc. v. Superior Court, supra, 3 Cal.4th at p. 187, 10 Cal.Rptr.2d 208, 832 P.2d 924.) As we have seen, under that definition, this case does not arise out of professional negligence by a health care provider. The trial court apparently was of the opinion that the procedural requirements of Code of Civil Procedure section 425.13 were not satisfied. But whether those provisions apply or not, the principal issue was, and is, whether appellant introduced evidence sufficient to establish a substantial probability that a jury would find, by clear and convincing evidence, that Laurelwood was guilty of oppression, fraud, or malice.
Appellant argues that the evidence established malice, defined in the Civil Code as "despicable conduct which is carried on ... with a willful and conscious disregard of the rights or safety of others." (Civ.Code, § 3294, subd. (c)(1).)
" 'The phrase conscious disregard is something used to describe the highly culpable state of mind which justifies an exemplary award.' [Citation.] The term is 'an appropriate description of the animus malus which may justify an exemplary damage award when nondeliberate injury is alleged.' [Citations.]" (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 328, 5 Cal.Rptr.2d 594, italics in original.) Similarly, the term "despicable," added to the statutory definition of malice in 1987, is defined in Webster's Third New International Dictionary (1986) as "1. deserving to be despised: meriting hatred, scorn, or loathing." BAJI No. 14.71 (1989 pocket pt.) uses much the same terms. Nothing in the proof of Laurelwood's conduct rises to the level of conduct "meriting hatred, scorn, or loathing," a "highly culpable state of mind," or animus malus to justify punitive damages.
Laurelwood was negligent in not securing the building and in failing to keep Ms. N. away from persons who might harm her without being discovered. But negligence, even gross negligence, is not sufficient to justify an award of punitive damages. (Jackson v. Johnson (1992) 5 Cal.App.4th 1350, 1354, 7 Cal.Rptr.2d 482; Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894, 99 Cal.Rptr. 706.)
The lack of evidence of prior rapes or other assaults at Laurelwood, at similar facilities, or in the neighborhood, is relevant. If such events had occurred and knowledge of their occurrence was chargeable to Laurelwood, an inference of notice of the "probable dangerous consequences" of the lack of security might be drawn. But there is no evidence of such events in this case, much less that Laurelwood knew that such events had occurred.
Nor does the testimony that Laurelwood administrators knew that a male wheelchair patient had fondled female patients suffice to attach liability for punitive damages on Laurelwood. Mrs. Rose testified Appellant also cites to testimony that facility administrator Glen Bennett had a personal profit motive for failing to keep Laurelwood in good repair, and that he failed to call the police after the rape or rapes were discovered. The evidence of Mr. Bennett's personal profit motive, consisting of a single disputed hearsay statement, can hardly be considered clear and convincing evidence of despicable conduct by respondent, and any lack of investigation took place after the fact and has little if any bearing on the motive behind Laurelwood's negligence. Appellant's evidence simply was not sufficient under Civil Code section 3294 to warrant instructions on punitive damages.
IV
We turn, finally, to the cross-appeal challenging the $7.5 million verdict for general damages. In argument to the trial court on its motion for a new trial, and in argument here, Laurelwood has claimed that the verdict is the product of passion and prejudice brought about by "misbehavior of [appellant's] counsel in pleading a punitive damages argument to the jury without cessation, coupled with the lack of substantial evidence, ..."
The trial court summarized the argument by Ms. N.'s trial counsel in the following terms:
"Plaintiff's counsel was instructed by the court and knew before closing argument that punitive damages were not to be presented to the jury. Plaintiff's counsel knew before arguing to the jury that the only cause of action was one for negligence and that the relief was to be only in regard to negligence. Plaintiff's counsel knew that if a jury verdict was to be in his favor, it would have to be on the elements of pain and suffering, because that was the only element of damage and the only element of damage to be presented to the jury. Plaintiff's counsel blatantly ignored the rulings of the court and argued otherwise." This statement was followed by specific and detailed quotations by the trial court of improper argument as reflected in the reporter's transcript. We need not set out the examples quoted by the court in addressing the new trial motion, or others cited by Laurelwood. It is sufficient to say that the trial court's characterization of the argument is supported by the record.
The problem is that the trial court did not rule on the motion for new trial. The reason that it did not is that it considered the issue moot in light of its other rulings that MICRA applied to limit Ms. N.'s damages and, more fundamentally, that she could not be compensated in damages at all. As we have discussed, these rulings are erroneous, and the new trial issues are not moot.
Those issues must be resolved by the trial court in the first instance. Thus, even though the court sustained objections to argument by Ms. N.'s attorney on several occasions, and gave the standard instruction that the jury was not to assess damages on the basis of punishing or making an example of cross-appellant (BAJI No. 14.61), we do not know whether the trial court considered the instructions sufficient to overcome any prejudice brought about by the improper argument. The court simply did not express itself on that issue. We also do not know whether the trial court would have considered a trial order conditioned on a remittitur under Code of Civil Procedure section 657 to be appropriate. (See Teitel v. First Los Angeles Bank (1991) 231 Cal.App.3d 1593, 1605, 282 Cal.Rptr. 916.)
We therefore remand the case to the trial court so that it may fully rule on the issues relating to the verdict that were presented in the new trial motion.
DISPOSITION
The judgment notwithstanding the verdict is reversed, and the case is remanded to the trial court with directions to hear and decide the motion for new trial, and for further proceedings consistent with the ARLEIGH M. WOODS, P.J., and TAYLOR, J., Assigned, concur.
Assigned by the Chairperson of the Judicial Council.
"(a) In any action for injury against a health care provider based on professional negligence, the injured plaintiff shall be entitled to recover noneconomic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement and other nonpecuniary damages. [p] (b) In no action shall the amount of damages for noneconomic losses exceed two hundred fifty thousand dollars ($250,000). [p] (c) For the purposes of this section: [p ] (1) 'Health care provider' means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. 'Health care provider' includes the legal representatives of a health care provider; [p] (2) 'Professional negligence' means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital."