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PROFESSIONAL VERSUS ORDINARY NEGLIGENCE


1. ISSUE

In California, is a slip, trip, fall, or other premises liability injury case at a doctor's office or hospital governed under MICRA as professional negligence or as ordinary negligence?

The answer to this question can have an effect on whether or not expert witness testimony is required, which experts will be utilized if any, the amount of general damages (pain and suffering) recoverable, and the statute of limitations deadline period in which to file a lawsuit. 

The precise boundary between professional negligence (medical malpractice) and premises liability (ordinary negligence) is currently unsettled.  But courts have given guidance.


2. BASIC RULE

The basic rule appears to be that if the medical facility does not provide a safe environment for its admitted patient, then professional negligence governed by MICRA applies, not ordinary negligence.  But, per more recent case law, if the injury producing incident is solely caused by negligent maintenance of the equipment that failed, then ordinary negligence applies and not professional negligence.


3.  HYPOTHETICAL FACTUAL EXAMPLES

Doctor's Office:

If the fall by a patient occurred in the doctor's office waiting room, then ordinary negligence related laws would probably apply.

But if a patient slipped and fell due to a wet floor, MICRA (professional negligence with its special rules and recovery limitations) would likely apply.

Hospital:

An admitted hospital patient injured at the hospital would likely fall under MICRA even if they, for example, slipped on a wet floor caused by a janitor.

A non-patient visitor under the same circumstances above would be governed by ordinary premises negligence principles and remedies.


4. CASE LAW

Professional Malpractice is not limited to "classic" or "garden variety" medical malpractice actions.  "...MICRA's reference to actions based on 'professional negligence' is not strictly limited to classic sponge-in-the-patient medical malpractice actions." [Bell v. Sharp Cabrillo Hosp. (1989) 212 CA3d 1034, 1050].

In Murillo v. Good Samaritan Hospital (1979) 99 Cal. App. 3d 50, the court held an action for a hospital's negligence in leaving the bed rails lowered during the night while plaintiff was asleep and drugged was one for professional negligence governed by the statute of limitations set forth in Code of Civil Procedure section 340.5.

The court in Murillo noted the professional duty of a hospital "is primarily 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." (Murillo v. Good Samaritan Hospital, supra, 99 Cal. App. 3d at pp. 56-57.)

The court further expounded on the meaning of the same definition of professional negligence we have here as follows: "[T]he 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." (Id. at p. 57.). 

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." Civil Code Section 3333.1(c)(2) and 3333.2(c)(2).

See also Taylor v. U.S. (9th Cir. 1987) 821 F.2d 1428, 1432, echoing the Murillo standard and holding the hospital "had a professional duty to prevent Taylor'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."

In Bellamy v. Appellate Department (1996) 50 Cal.App.4th 797, the patient plaintiff fell off an X-ray table that was not secured. The Court of Appeal held that “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. We do not see any need for such confusion or any indication the Legislature intended MICRA’s applicability to depend on such fine distinctions.” (Bellamy v. Appellate Department (1996) 50 Cal.App.4th at p. 808).

In Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal. 4th 992, plaintiff was placed on a gurney with the side railing lowered. After being injured from a fall, plaintiff sued the hospital for general negligence and premises liability. The California Supreme Court, the Justices there found the Appellate Court erred in perceiving a conceptual distinction between “ordinary” and “professional” negligence.  The alleged negligence there consisted of one act, the failure to raise a guard rail on the gurney.    The Supreme Court held that a plaintiff cannot, on the same facts, state causes of action for ordinary negligence as well as professional negligence, as a defendant has only one duty that can be measured by one standard of care under any given circumstances. ( Id. at p. 1001.).  "[A] hospital's 'business is caring for ill persons, and its conduct must be in accordance with that of a person of ordinary prudence under the circumstances, a vital part of those circumstances being the illness of the patient and incidents thereof.' [Citations], italics added." (Id. at p. 998.).

Williams v. Superior Court (1994) 30 Cal. App. 4th 318, 325-327.  Williams agreed with Murillo (discussed above) "that it 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." (30 Cal. App. 4th at p. 327).

Ordinary Negligence Claim Allowed: Johnson v. Chui (2011) 199 Cal.App.4th 775: Plaintiff Johnson brought a complaint against Dr. Chiu for medical malpractice and negligent maintenance of the laser machine that malfunctioned during a skin treatment, causing her injury. Plaintiff alleged medical malpractice following a series of laser treatments.  Plaintiff alleged that the laser machine emitted “a loud booming sound” that impacted her right ear resulting in hearing loss and vertigo. She also alleged that her injuries were caused by Dr. Chiu’s negligent examination, care and treatment. The court held that the Flowers case (discussed above), does not prevent Johnson from proceeding on her negligent maintenance cause of action because it was factually separate and distinct from a related medical malpractice (doctor's negligence) cause of action.

Ordinary Negligence Claim Allowed: Flores v. Presbyterian Intercommunity Hospital (2013)  _____ Cal.App.4th _____ :

“Nonetheless, the instant fact situation is easily distinguished from the five California cases discussed above, arising out of patient falls from beds or gurneys. All those cases involve injury to a patient resulting from the failure to properly secure or supervise the patient while on a hospital bed or gurney. In Gin, although the siderails were raised, a confused patient who was not properly medicated and was unsupervised, fell while attempting to climb out at the foot of the bed. (Gin, supra, 249 Cal.App.2d at p. 779.) In Gopaul, a patient fell after being left unattended on a gurney, to which she had not been strapped. (Gopaul, supra, 39 Cal.App.3d at p. at p. 1004.) In Murillo, the bedrails were left down during the night and the patient fell out of bed. (Murillo, supra, 99 Cal.App.3d at pp. 53, 56.) In Flowers, the nurse raised only the far side railing of the gurney and the patient fell off the gurney. (Flowers, supra, 8 Cal.4th at p.995.) Finally, in Bellamy, the patient fell after being left unattended on a rolling X ray table which had not been secured. (Bellamy, supra, 50 Cal.App.4th at p.799.)

Here, in contrast, as alleged in the complaint, the patient was injured “when the bed rail collapsed causing plaintiff to fall to the ground injuring her left knee and elbow.” (Italics added.) Thus, Flores does not allege the Hospital was negligent in failing to elevate the bed rails or in otherwise failing to supervise or secure her.  Rather, Flores alleges she was injured by an equipment failure , i.e., a collapsed bed rail. The alleged negligence is the Hospital‟s failure “to use reasonable care in maintaining [its] premises and fail[ing] to make a reasonable inspection of the equipment and premises, which were open to Plaintiff and the public, and fail[ing] to take reasonable precautions to discover and make safe a dangerous condition on the premises.”

Related Article: Conflicting Appellate Decisions

Disclaimer: The information provided in this article is informational, only. The subject matter and applicable law is evolving and/or constant state of change.  This advice is based on California law.  No legal advice is given and no attorney/client or other relationship is established or intended.  The information provided is from general sources, and I cannot represent, guarantee or warrant that the information contained in this website is accurate, current, or is appropriate for the usage of any reader. It is recommend that readers of this information consult with their own counsel prior to relying on any information on this website.

This article was created in 2012 and updated in March of 2013.


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