Opinion
B230179
08-17-2011
YOLANDA LIMON, Plaintiff and Appellant, v. COLLEGE HOSPITAL, INC., et. al., Defendants and Respondents.
Law Offices of Linda M. Battram and Linda M. Battram for Plaintiff and Appellant. Madory, Zell, Pleiss & McGrath and Larry T. Pleiss for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. VC055126)
APPEAL from a judgment of the Superior Court of Los Angeles County, Yvonne T. Sanchez, Judge. Affirmed.
Law Offices of Linda M. Battram and Linda M. Battram for Plaintiff and Appellant.
Madory, Zell, Pleiss & McGrath and Larry T. Pleiss for Defendant and Respondent.
Respondents College Hospital, Inc., and College Hospital Cerritos (collectively College Hospital) are a 24-hour acute psychiatric hospital. On September 17, 2008, appellant Yolanda Limon was taken to College Hospital on an involuntary hold. While there she was sexually assaulted by a male patient that night. In November 2009, appellant filed a negligence claim against College Hospital. College Hospital moved for summary judgment on the ground that the action was barred by the one-year statute of limitations for professional negligence by a health care provider, pursuant to Code of Civil Procedure section 340.5 of the Medical Injury Compensation Reform Act (MICRA). The trial court granted the motion. On appeal, appellant argues that her allegations constitute ordinary negligence, not professional negligence, and therefore her action is not subject to section 340.5. She also argues the court abused its discretion in denying her request for leave to amend her complaint to allege delayed discovery of her injury. Finally, she contends the court erred in failing to rule on her evidentiary objections and in sustaining College Hospital's evidentiary objections. We do not agree and affirm.
All statutory references are to the Code of Civil Procedure, unless otherwise indicated.
FACTUAL AND PROCEDURAL SUMMARY
Appellant was diagnosed with bipolar disorder. On September 17, 2008, she suffered an episode and was taken by law enforcement officers to College Hospital on an involuntary hold, pursuant to Welfare and Institutions Code section 5150. Appellant was administered medication and went to her room to sleep. Later that evening, a male patient broke into appellant's room and sexually assaulted her while she was in bed. Due to her medications, appellant was semi-conscious and could not defend herself. She alleged that she did not realize what happened until she discussed the matter with her roommate the next morning. Appellant informed the staff and law enforcement was contacted. The offending patient was questioned the next day, confessed, and was arrested. He stated that a nurse entered appellant's room to check her vital signs while he was assaulting her and that the nurse did not notice him in appellant's bed.
Welfare and Institutions Code section 5150 provides: "When any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, member of the attending staff, as defined by regulation, of an evaluation facility designated by the county, designated members of a mobile crisis team . . . or other professional person designated by the county may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by the State Department of Mental Health as a facility for 72-hour treatment and evaluation."
Appellant was transported to Long Beach Community Hospital to undergo a rape examination. She returned to College Hospital after the examination and was discharged on September 20, 2008.
On April 1, 2009, appellant, through her attorney, served College Hospital a notice of intent to pursue a professional negligence action, pursuant to section 364. On November 25, 2009, she filed suit against College Hospital, several related entities, and five fictitiously named employees for professional negligence, negligence, negligent hiring, and negligent supervision. Appellant alleged that as a licensed health care provider, College Hospital had a professional duty to "provide reasonable protection from harm to [her] . . . and this duty extended to safeguarding her from dangers due to mental incapacity . . . ." which rendered her incapable of protecting herself She further alleged that College Hospital negligently monitored the offending patient, that the fictitiously named nurse was negligent in not noticing appellant's attacker and intervening, and that College Hospital negligently employed and supervised said nurse.
Appellant brought suit against College Hospital Inc., College Hospital Cerritos, College Health Group, Inc., College Health IPA, Inc., and College Health Enterprises, Inc. In May 2010, she filed partial dismissals as to the latter three defendants.
College Hospital filed an answer in January 2010, denying the allegations and asserting affirmative defenses to all the causes of action, including the section 340.5 one-year statute of limitations for professional negligence actions against health care providers. On May 21, 2010, appellant dismissed her professional negligence claim without prejudice.
On July 8, 2010, College Hospital moved for summary judgment, on the ground that appellant's remaining causes of action were barred by the statute of limitations. In her opposition to the motion for summary judgment, appellant argued that her claim had nothing to do with professional negligence, but rather "arises from a special relationship duty owed to her while she was asleep in a state of vulnerability and medicated, to prevent her foreseeable harm."
On October 6, 2010, appellant lodged the transcript of her March 31, 2010 deposition. In it, she testified that she reported the assault to a nurse the morning after it occurred, and that she considered filing a lawsuit "right after" the assault occurred.
The trial court heard oral argument on the motion for summary judgment on October 6, 2010. In light of the dismissal of the professional negligence cause of action, appellant's counsel asked for a leave to amend the pleadings to "separate out and give the facts that are particular to the ordinary negligence causes of action," and to allege delayed discovery. The court issued a written order denying appellant's request for leave to amend and entered summary judgment for College Hospital. This timely appeal followed.
DISCUSSION
I
We review the ruling on a motion for summary judgment de novo (Reliance Nat. Indemnity Co. v. General Star Indemnity Co. (1999) 72 Cal.App.4th 1063, 1074), viewing the evidence and inferences in the light most favorable to the opposing party. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In a summary judgment motion, the burden of production is on the moving party to make a prima facie showing there is no triable issue of material fact and that the party is entitled to judgment as a matter of law. (Id. at p. 850.) If the moving party does so, the burden shifts to the opposing party to produce "substantial responsive evidence" showing some triable issue of material fact. (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 158.) If the opposing party is unable to do that, the moving party is entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780-781.)
A defendant seeking summary judgment meets its burden of proof by showing that the plaintiff cannot establish at least one element of the cause of action. (Code Civ. Proc., § 437c, subd. (o)(2).) It need only negate theories of liability as alleged in the complaint and need not refute liability on theoretical possibilities not included in the pleadings. (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1254.) "'"The [papers] filed in response to a defendant's motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings." [Citation.]'" (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.) The moving party must meet its burden by producing "affidavits, declarations, admissions," or other competent evidence. (Code Civ. Proc., § 437c, subd. (b)(1); see also College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 720 [neither party may rely on its own pleadings as evidence to support or oppose a motion for summary judgment].)
Here, the trial court granted College Hospital's motion for summary judgment on the ground that appellant's negligence actions were barred by the statute of limitations for professional negligence claims against health care providers. Appellant argues that she is challenging the security provided by College Hospital and not the standard of medical care she was provided. Thus, the act of negligence at issue here does not constitute professional negligence, and therefore is subject to the standard two-year statute of limitations for negligence actions, not section 340.5. We disagree.
MICRA, enacted in 1975, was a response to a "'major health care crisis in [the state] attributable to skyrocketing malpractice premium costs and resulting in a potential breakdown of the health delivery system. . . .'" (Hathaway v. Baldwin Park Community Hospital (1986) 186 Cal.App.3d 1247, 1250, quoting Stats. 1975, Second Ex.Sess. 1975-1976, ch. 2, § 12.5, p. 4007.) It is a "sweeping statute that enacted, amended, or repealed several sections of the Business and Professions Code, the Civil Code, the Code of Civil Procedure, and the Insurance Code" (id. at p. 1250), with the purpose of reducing the premiums for medical malpractice insurance by placing limits on the availability and extent of recovery in medical malpractice litigation. (See Chosak v. Alameda County Medical Center (2007) 153 Cal.App.4th 549, 561.) This includes a "'sharply reduced statute of limitations for [medical] malpractice plaintiffs.'" (Roberts v. County of Los Angeles (2009) 175 Cal.App.4th 474, 481.) Accordingly, section 340.5 provides: "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." Section 340.5, subparagraph (2) defines professional negligence 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."
The relevant test for whether an act of negligence constitutes professional negligence is not the degree of skill required, but whether the negligence occurred in the rendering of services for which a provider is licensed. (Canister v. Emergency Ambulance System, Inc. (2008) 160 Cal.App.4th 388, 404 [negligent operation of ambulance constitutes professional negligence on part of EMT; transportation of patient within scope of EMT services].) "'[W]hen a cause of action is asserted against a health care provider on a legal theory other than medical malpractice, the courts must determine whether it is nevertheless based on the "professional negligence" of the health care provider so as to trigger MIRCA.'" (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 353)
Hedlund v. Superior Court (1983) 34 Cal.3d 695, is informative on how to determine whether an act of negligence is within the scope of services for which the health care provider is licensed. In that case, plaintiff was physically attacked by a patient of defendant psychologists. Plaintiff sued the defendants for professional negligence, alleging that the patient had informed them of his intent to attack plaintiff and that defendants breached their duty to her by failing to properly diagnose the patient's violent condition and warn plaintiff of the danger. (Id. at p. 700.) Defendants demurred, arguing that the alleged breach of duty constituted ordinary, not professional negligence. (Id. at p. 699.) The trial court denied the demurrer, and defendants petitioned for a writ of mandate to vacate the court's decision. (Ibid.)
The appellate court affirmed the denial, holding that the alleged breach of duty fell within the scope of professional negligence as defined by section 340.5. (Hedlund v. Superior Court, supra, 34 Cal.3d at p. 701.) The court noted that a failure to warn a third person is professional negligence only if it was an omission to act "'in the rendering of professional services . . . provided that such services are within the scope of services for which the provider is licensed . . . .'" (Ibid., quoting § 340.5, subpar. (2).) The court then discussed the practice of psychology and psychotherapy, defined by section 2903 of the Business and Professions Code as: '"[R]endering or offering to render . . . any psychological service involving the application of psychological principles, methods, and procedures of understanding, predicting, and influencing behavior, such as the principles pertaining to learning, perception, motivation, emotions, and interpersonal relationships; and the methods and procedures of interviewing, counseling, psychotherapy, behavior modification, and hypnosis. . . . [¶] The application of such principles and methods includes, but is not restricted to: diagnosis, prevention, treatment, and amelioration of psychological problems and emotional and mental disorders of individuals and groups.'" (Hedlund v. Superior Court, supra, 34 Cal.3d at pp. 701-702.)
Defendants argued that while the duty to recognize dangerousness in a patient arises in their administering of professional psychology services, the duty to warn a third person of the dangerousness does not involve the rendering of professional services. Thus, defendants contended that professional negligence "involves only acts in the course of diagnosis or treatment resulting in injury to the patient. An injury to a third person resulting from a failure to warn is 'ordinary negligence' governed by section 340." (Hedlund v. Superior Court, supra, 34 Cal.3d at p. 702.) The court rejected the argument, finding that "[d]iagnosis of 'psychological problems and emotional and mental disorders' is a professional service for which a psychologist is licensed, and a negligent failure in this regard is therefore 'professional negligence.' . . . This diagnosis and prediction is an essential element of a cause of action for failure to warn . . . [t]he decision to warn and the manner in which the warning is given may also involve professional judgment." (Id. at p. 703.) Thus, the court held that the "warning aspect of this duty . . . is inextricably interwoven with the diagnostic function." (Id. at p. 703.)
Here, Health and Safety Code section 1250.2, subdivision (a) defines a "[p]sychiatric health facility" as "'a health facility, licensed by the State of Department of Mental Health, that provides 24-hour inpatient care for mentally disordered, incompetent, or other persons . . . . This care shall include, but not be limited to, the following basic services: psychiatry, clinical psychology, psychiatric nursing, social work, rehabilitation, drug administration, and appropriate food services for those persons whose physical health needs can be met in an affiliated hospital or in outpatient settings." As stated above, the practice of psychology involves the "diagnosis, prevention, treatment, and amelioration of psychological problems and emotional and mental disorders of individuals and groups." (Bus. & Prof. Code, § 2903.) Acute psychiatric hospitals such as College Hospital admit patients who generally are, as a result of a mental disorder, a danger to themselves or to others. (See Welf. & Inst. Code, § 5150.) Thus, just as the duty to warn a third party of a patient's dangerousness is interwoven with a psychologist's professional duty to properly diagnose the patient's condition, here, College Hospital's duty to ensure the physical safety of psychiatric patients from themselves and each other cannot be extricated from its professional duty to properly diagnose and treat the patients' mental disorders. If anything, College Hospital's duty to ensure the safety of its own patients is even more closely tied to its services as a psychiatric facility housing, in close quarters, patients who have already been identified as safety risks.
Appellant's April 2009 notice of intent to sue acknowledges College Hospital's unique position to protect its patients from each other. It stated: "Only the College Hospital directors and management had the ability to protect their vulnerable patients from the heightened libidos associated with certain types of mental illnesses which lead to this foreseeable rape and battery."
This is consistent with the general rule that "'[t]he 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], . . . there is a breach of the hospital's duty qua hospital.'" (United Western Medical Centers v. Superior Court (1996) 42 Cal.App.4th 500, 504.) This is especially the case with psychiatric hospitals managing and caring for people diagnosed with mental conditions rendering them a possible danger to themselves and others. Thus, College Hospital's professional duty to ensure the safety of its patients from themselves and each other encompasses all of appellant's negligence causes of action, including College Hospital's negligent hiring and supervising of the nurse who allegedly failed to witness and intervene in the assault. (See id. at pp. 504-505 [hospital's negligent failure to protect plaintiff who was sexually assault by hospital's employees falls within MICRA for purposes of punitive damages pleading].)
The court correctly applied section 340.5 by finding that appellant filed the present action more than a year after she discovered the injury. "For purposes of the statute [of limitations on professional negligence claims], 'the word "injury" signifies both the negligent cause and the damaging effect of the alleged wrongful act and not the act itself. [Citation.]' [Citation.] There must be some manifestation of appreciable harm." (Garabet v. Superior Court (2007) 151 Cal.App.4th 1538, 1545.) The record clearly demonstrates that appellant realized she had been assaulted the day after the assault occurred. She testified at her deposition that due to her heavy medication on the night of the assault, she woke up the next morning believing the assault might have been a dream. That morning her roommate told her what happened and apologized for not intervening because she believed it was consensual. Appellant then realized she had been sexually assaulted. She reported the incident to a nurse, was taken to another hospital for a rape examination, and telephoned her husband informing him that she had been raped. Appellant's deposition is corroborated by her statement to the police on September 18, 2008 that she realized she had been sexually assaulted the morning after it occurred. Appellant did not file suit until November 25, 2009, more than a year after she discovered the injury. The action, therefore, is time-barred.
II
Appellant argues the court abused its discretion in denying her request for leave to amend her pleading. We do not agree.
At the summary judgment hearing, appellant's counsel sought leave to amend the pleadings to allege facts giving rise to ordinary negligence and delayed discovery. As to the delayed discovery allegation, appellant's counsel argued that when appellant met with her in March of 2008, appellant was still unsure whether the rape had occurred. Appellant only came to that realization when counsel obtained the police report and showed appellant the male patient's admission of guilt.
The trial court issued a written order denying appellant's request for a leave to amend and granting College Hospital's motion for summary judgment. The court held that "[a]side from the procedural defect of not following the requirements of either [section] 473 or the applicable California Rule[s] of Court, the [c]ourt finds, based on the evidence presented, that [appellant] will be unable to successfully amend. In her opposition, [appellant] testified that she considered filing a lawsuit 'right away, right after [the incident] happened.' . . . There is no factual basis to grant [appellant's] request to amend the pleading to allege that she did not know of the injury or its negligent cause."
Under section 472, a plaintiff may only amend the pleadings as a matter of right before an answer or demurrer is filed, or after demurrer and before trial of the issue of law raised in the demurrer. After that point, the pleading can only be amended by obtaining permission of the court. (§ 472; see also Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612-613.) To do so, the plaintiff is required to file a noticed motion for leave to amend. (See Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 770-771; see also § 473, subd. (a)(1) ["The court may . . . in its discretion, after notice to the adverse party, allow . . . an amendment to any pleading . . . ."].) A plaintiff seeking to create a triable issue based on a matter not raised by the pleadings must seek leave to amend the complaint before the hearing on the motion for summary judgment is heard. (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1265.) We review the trial court's decision to deny leave to amend for abuse of discretion. (Levy v. Skywalker Sound, supra, 108 Cal.App.4th at pp. 770-771.)
Here, appellant first requested leave to amend at the hearing on the motion for summary judgment, not before, and did so at oral argument, and not through a noticed motion. Thus, the court did not abuse its discretion in finding appellant's request procedurally defective. (Levy v. Skywalker Sound, supra, 108 Cal.App.4th at pp. 770-771.) In any event, she cannot prevail on the merits. As we have discussed, the record amply supports the court's finding that appellant could not amend its pleading to allege delayed discovery. Thus, "we do not see how appellant could have been prejudiced by the rejection of the proposed amendment." (Record v. Reason (1999) 73 Cal.App.4th 472, 487.)
III
Finally, appellant argues the court erred in failing to rule on her evidentiary objections and in sustaining College Hospital's evidentiary objections.
As none of the evidence in question bears on her statute of limitations and leave to amend arguments, we do not review the court's evidentiary rulings.
DISPOSITION
The judgment is affirmed. Respondents to have their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
EPSTEIN, P. J.
We concur:
WILLHITE, J.
SUZUKAWA, J.