Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara No. 1230673, Zel Canter, Judge
(Retired Judge of the Santa Barbara Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Brenneman, Juarez & Adam LLP, Richard C. Brenneman, Alison E. Brenneman for Plaintiff and Appellant.
William K. Gamble Law Firm, William K. Gamble for Defendant and Respondent.
PERREN, J.
Appellant Karen M. Dominguez (Dominguez) is an operating room technician. She was injured when a patient fell on her. She sued respondent Cameron Eugene Lindberg, M.D. (Dr. Lindberg) alleging that he caused the patient to fall when he negligently unstrapped her from a surgical platform following surgery. She appeals from the order granting Dr. Lindberg's motion for judgment on the pleadings contending that the trial court erred when it applied the one-year statute of limitations applicable to professional negligence of a health care provider. (Code Civ. Proc., § 340.5.) She contends that the action was for general negligence subject to the two-year statute of limitations. (§ 335.1.) We affirm.
All statutory references are to the Code of Civil Procedure unless otherwise stated.
Section 335.1 provides a statute of limitations of two years for "[a]n action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another."
FACTUAL AND PROCEDURAL HISTORY
Dominguez was employed as an operating room technician at Lompoc Health Care District Hospital. She sustained neck and back injuries on January 18, 2005, when Dr. Lindberg unstrapped a patient from a surgical table causing the patient to fall on her.
Dominguez filed a complaint on October 5, 2006, containing a single cause of action for general negligence. The complaint alleges that on the date of injury Dr. Lindberg performed surgery to repair the broken hip of a patient. Dr. Lindberg positioned the patient on her side on an elevated surgical fracture table to allow him access to the hip area. This position required that the patient be tied to the table. After surgery was completed, Dominquez was cleaning the patient's body as part of her normal duties. She was in a position below the patient's body. While she was in this position, Dr. Lindberg, without warning, untied the patient causing her to fall on Dominguez. As a result, Dominguez sustained injuries to her neck and shoulder, causing pain and suffering, permanent disability, increased medical expenses, lost wages, and a diminished earning capacity.
Dr. Lindberg filed a motion for judgment on the pleadings asserting the action was barred by the one-year statute of limitations in section 340.5. The trial court agreed and dismissed the action. On appeal, Dominguez asserts her complaint is not time-barred because the two-year statute of limitations in section 335.1 applies and her action was filed within two years of the date of injury.
DISCUSSION
We review a judgment on the pleadings de novo. (Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 166.) All allegations in the complaint and matters upon which judicial notice may be taken are assumed to be true. (Connerly v. Schwarzenegger (2007) 146 Cal.App.4th 739, 746.) The determination of the statute of limitations applicable to a cause of action is a question of law we review independently. (McLeod v. Vista Unified School Dist. (2008) 158 Cal.App.4th 1156, 1164.)
Section 340.5 was enacted as part of the Medical Injury Compensation Reform Act (MICRA). (See Preferred Risk Mutual Ins. Co. v. Reiswig (1999) 21 Cal.4th 208, 214-215.) It states in part: "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."
The statute defines "health care provider" as "any person licensed or certified pursuant to [licensing statutes for health care providers]; and any clinic, health dispensary, or health facility, licensed pursuant to [licensing statutes for health care facilities]." (§ 340.5, subd. (1).) There is no dispute that Dr. Lindberg is a health care provider.
"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, 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." (§ 340.5, subd. (2).)
Dominguez asserts that the facts in her complaint do not come within section 340.5 for two reasons: (1) Section 340.5 applies only in actions between an injured patient and a health care provider, and (2) her complaint is not based on alleged professional negligence because untying a patient from an operating table is not a professional service rendered by a physician.
In construing section 340.5, we do not write on a blank slate. Several cases have interpreted section 340.5 and other related MICRA statutes. These cases have considered the arguments made by Dominguez and have rejected them.
Dominquez's first contention, that section 340.5 does not apply to a non-patient, was considered and rejected by our Supreme Court in Hedlund v. Superior Court (1983) 34 Cal.3d 695. In that case, the court held that section 340.5 applied where a woman sued two psychologists after she had been shot by the psychologists' patient. In reaching its decision, the court found the legislative purpose of MICRA, to reduce health care costs by reducing judgments against health care providers rendering professional services, would be frustrated if MICRA provisions applied to actions by patients but not to actions by third parties injured as a result of professional negligence. (Id. at p. 704.)
In Williams v. Superior Court (1994) 30 Cal.App.4th 318, a non-employee member of a hospital staff contracted HIV when a patient attacked her while she was drawing blood from him, causing her to stick her finger with the contaminated needle. She sought punitive damages against the hospital alleging it knew of the patient's violent tendencies and failed to warn her about him. Under section 425.13, a party cannot seek punitive damages against a health care provider without first obtaining a court order. Plaintiff argued the statute did not apply because she was not being provided services by the hospital. The hospital argued section 425.13 was applicable because plaintiff's claims arose out if its functions, duties, and responsibilities as a hospital and the application of section 425.13 is not affected by her status as a non-patient. The court agreed with the hospital, noting that "[i]n several instances MICRA limitations have been applied in actions brought by parties other than the patient" and MICRA limitations apply "to any foreseeable injured party, including patients, business invitees, staff members or visitors, provided the injuries alleged arose out of professional negligence." (Id. at pp. 323-324; see also Palmer v. Superior Court (2002) 103 Cal.App.4th 953, 964; Atkins v. Strayhorn (1990) 223 Cal.App.3d 1380, 1394-1396.)
Section 425.13, subdivision (a) states in part: "In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code."
Dominguez argues the cases construing section 425.13 do not apply here because the language in that statute is different than the language in section 340.5. Section 425.13 states it is applicable to cases "arising out of" professional negligence, while section 340.5 applies to actions "based upon" professional negligence. The argument is without merit. In Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 191-192, our Supreme Court construed the definition of "arising out of" in section 425.13, subdivision (a). The court reviewed the legislative history of MICRA and concluded that its purpose would only be served by construing "arising out of" as including any action for an injury that is directly related to the rendition of professional services by a health care provider acting in his capacity as such. The court also said: "We note that MICRA statutes generally apply to actions 'based upon' professional negligence. [Citations.] We agree with amici curiae California Medical Association et al. that committee reports before the Legislature at the time it was considering amending section 425.13 indicate the Legislature did not intend to distinguish the terms 'based upon' and 'arising out of.'" (Id. at p. 188, fn. 3.)
Dominquez's second contention, that when Dr. Lindberg unstrapped the patient he was not providing professional services, also is contrary to relevant case law. She relies on Gopaul v. Herrick Memorial Hosp. (1974) 38 Cal.App.3d 1002. Dominguez's reliance is misplaced. Every court which has considered the issue has declined to follow Gopaul. Courts have broadly construed "professional negligence" to mean negligence occurring during the rendering of services for which the health care provider is licensed. For example, in Williams v. Superior Court, supra, 30 Cal.App.4th 318, the court declined to follow Gopaul and concluded that the case was incompatible with the definition of "professional negligence" in MICRA. "'Under that definition, the test is not whether the situation calls for a high or 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.'" (Williams, at p. 327.) The Williams court concluded: "[I]t is not the degree of skill required but whether the injuries arose out of the rendering of professional services that determines whether professional as opposed to ordinary negligence applies." (Ibid.; see also Bellamy v. Appellate Department (1996) 50 Cal.App.4th 797, 803 [Gopaul was decided before the enactment of MICRA and involved a substantially different definition of "professional negligence" than that in MICRA]; and see Taylor v. U.S. (9th Cir. 1987) 821 F.2d 1428, 1432 [hospital had professional duty to prevent plaintiff's husband from becoming separated from his ventilator, "regardless of whether separation was caused by the ill-considered decision of a physician or the accidental bump of a janitor's broom"].)
Dominguez's contentions have been thoroughly analyzed and rejected in prior cases. These cases establish that the procedural limitations in MICRA, including section 340.5, apply whether or not a cause of action is entitled "ordinary" rather than "professional" negligence; whether or not the party injured is a patient; and whether or not the injury arises from conduct requiring professional judgment or skill.
The judgment is affirmed. Respondent shall recover costs.
We concur: GILBERT, P.J., YEGAN, J.