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PROFESSIONAL VERSUS ORDINARY NEGLIGENCE
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?
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.
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
If the fall by a patient
occurred in the doctor's
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.
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
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." [
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
court in Murillo noted the professional duty of a hospital "is
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
Hospital, supra, 99 Cal. App. 3d at pp. 56-57.)
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.
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.
Williams v. Superior Court (1994) 30
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.
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
This article was created in 2012 and updated in March of 2013.
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