Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 465185
McGuiness, P.J.
Dylan Monroe, a minor, by and through his guardian ad litem, and Dave Monroe (together, appellants) appeal from a summary judgment entered in their medical malpractice action against San Mateo Medical Center, County of San Mateo and Mina Bak, M.D., (together, respondents). They contend (1) the trial court erred in ruling that respondents were immune from liability; and (2) there are triable issues of material fact as to whether the care and treatment respondents provided fell below the medical standard of care. We reject the contentions and affirm the judgment.
Kelly Shimokusu, M.D., who was named as a defendant, was voluntarily dismissed with prejudice by appellants and is not a party to this appeal. We also note that the California Hospital Association and California Psychiatric Association have filed a friend of the court brief in support of respondents.
Factual and Procedural Background
The facts are taken from the parties’ separate statements of undisputed facts and are not disputed unless otherwise stated.
On June 23, 2006, at approximately 7:15 p.m., Katherine Farley was brought to the emergency room of the San Mateo Medical Center (Medical Center) in an intoxicated state and voicing suicidal thoughts. The emergency physician, Kelly Shimokusu, M.D., examined Farley and ordered a complete workup. The only positive laboratory finding was a very high blood alcohol level, indicating acute alcohol toxicity. Shimokusu noted that Farley was “sometimes tearful, but otherwise appeared to be in no acute distress.” Farley was observed in the emergency room and received intravenous fluids with multivitamins. At approximately 12:20 a.m. on June 24, 2006, Shimokusu determined that Farley should be admitted to the psychiatric ward under Welfare and Institutions Code section 5150. Farley was “assessed by the nursing staff on the psychiatric unit; her vital signs were taken [and] her physical systems were reviewed; her mental status [was] assessed [and] [she] was searched per protocol to be sure she would not be able to harm herself; she was oriented to her room, given information about her rights as a patient, and fully assessed for her risk of self-harm.”
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Mina Bak, M.D., an employee of the Medical Center and the psychiatrist directly responsible for Farley’s treatment, assessed Farley, reviewed the testing and treatment Farley had received in the emergency room, interviewed her, and reviewed her past medical and psychiatric history. Bak noted Farley’s past suicide attempts, previous treatment for depression, and a longstanding history of alcohol abuse, with a recent 8.5-month period of sobriety and intermittent treatment for alcohol abuse. Bak evaluated Farley’s family and social history, living situation, and vital signs and laboratory test results. Bak determined Farley should be closely observed overnight, be given Ativan as needed for signs or symptoms of alcohol withdrawal, and reevaluated when the acute alcohol intoxication had resolved. Farley was monitored overnight with periodic checks of at least once every 30 minutes, without incident. She slept well.
Bak evaluated Farley again on the morning of June 24, 2006. Farley awakened “still feeling depressed [and] making statements of despair, but denied active suicidal thinking or any specific plan.” Bak saw Farley again “mid-day.” Farley reported feeling “lousy” but “again denied active suicidal ideation.” Farley “appeared to have chronic passive suicidal ideation, as [she] described having thoughts of harming herself ‘every day of my life, ’ but [stated, ] ‘I would never do anything because I’m too chicken.’ ” Farley also stated she would never harm herself because she has a young son, and expressed a desire to go home. Bak continued to observe Farley, and at some point in the day Farley “appeared improved.” Farley had eaten breakfast and lunch, and although she had initially refused to discuss substance abuse treatment, “as the day progressed, [she] expressed interest in exploring substance abuse programs, and was more optimistic about her prospects for recovery.” Bak felt she had established a good rapport with Farley. Farley agreed not to harm herself, to follow up with substance abuse providers, and to return to the emergency room or seek other assistance if she felt suicidal again. Because she “subjectively believed that [Farley] was not a danger to herself, ” Bak “discharged [Farley] home with referrals for follow-up with her regular medical care provider, and local substance abuse providers.” At approximately 2:30 p.m., a registered nurse gave discharge instructions to Farley. Bak’s final orders stated, “Discharge to self care with her friend... and referrals to substance recovery programs and [A]ccess referral.” The final disposition stated, “[Farley] has had several evaluations and has consistently denied active suicide ideation.... Advised to [follow up at] willow clinic for [follow up and] mental health. Emphasized substance recovery [and] residential [treatment].” Farley was discharged at 2:40 p.m. on June 24, 2006.
There was a dispute as to the time of day on June 24, 2006, that Farley “appeared improved.”
Appellants disputed this fact as to “subjectively believed” on the ground that it was based solely on Bak’s declaration. They also disputed this fact as to “discharged... with referrals” on the ground the referrals were “deficient and incomplete.”
Bak testified at her deposition that “Access... provides a broad range of psychiatric services” such as “medication treatment as well as other psychiatric treatment like counseling and individual therapy” “on an outpatient basis.”
On June 26, 2006, at approximately 6:00 p.m., Farley committed suicide by ingesting a combination of alcohol and medication.
On August 13, 2007, Farley’s husband Dave Monroe and their minor son Dylan Monroe, filed a complaint alleging in their first cause of action for medical malpractice that respondents failed to take note of Farley’s medical chart and history “so as to know the seriousness of her condition and the danger she posed to herself” and failed to “take the necessary action to observe, supervise, treat and medicate Farley based upon observations that they had documented in connection with the threat Farley posed to herself.” In their second cause of action for a violation of Health and Safety Code section 1317, subdivision (a), appellants alleged that respondents “did not give necessary care or treatment to Farley during a psychiatric emergency medical condition, ” released her early “while she was still experiencing a psychiatric emergency medical condition, ” and did not give her “necessary disposition instructions for treatment or evaluation at time of release while experiencing a psychiatric emergency medical condition.” In their third cause of action for a violation of Health and Safety Code section 1317, subdivision (b), appellants alleged that respondents released Farley early “due to the inability of Farley to pay for medical services, ” “due to [her] insurance status, ” and due to “the state of [her] economic status.” Appellants alleged that as a result of the medical malpractice and violation of the Health and Safety Code sections, Farley “was improperly diagnosed, improperly treated, and improperly discharged thereby causing the injuries which she died from.”
Farley’s sister Jennifer Pacella acted as Dylan Monroe’s guardian ad litem.
Respondents filed an answer to the complaint on September 24, 2007, alleging numerous affirmative defenses including an allegation that they were immune from liability under various statutes. On May 6, 2008, respondents filed a motion for summary judgment on the ground they were immune from liability. The trial court granted the motion on August 1, 2008. On August 5, 2008, appellants moved for reconsideration on the ground that there was new evidence that had previously been unavailable. The trial court granted the motion for reconsideration but reaffirmed its order granting summary judgment.
Discussion
Standard
Under Code of Civil Procedure section 437c, subdivision (c), summary judgment is proper where the papers submitted establish that no triable issues of material fact exist and the moving party is entitled to judgment as a matter of law. “On appeal, the reviewing court exercises its independent judgment, deciding whether the moving party established undisputed facts that negate the opposing party’s claim or state a complete defense.” (Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 487; see also Regents of University of California v. Superior Court (1999) 20 Cal.4th 509, 531.)
Immunity
The Lanterman-Petris-Short Act (the Act), sections 5000 et seq., governs the involuntary treatment of mentally disordered persons. (Conservatorship of Susan T. (1994) 8 Cal.4th 1005, 1008.) Under the Act, a person may be detained for up to 72 hours for evaluation and treatment if there is “probable cause to believe that the person is, as a result of mental disorder, a danger to others, or to himself or herself, or gravely disabled.” (§ 5150.) Because one of the purposes of the Act is to put an end to “inappropriate, indefinite and involuntary commitment of mentally disordered persons and others[, the] 72-hour involuntary placement for evaluation can be terminated and a detained person can be earlier released. The [A]ct thus assures a person properly detained the opportunity for early release.” (Michael E.L. v. County of San Diego (1986) 183 Cal.App.3d 515, 530.) The Legislature recognized that an early release of involuntarily committed persons “posed possible risks of harm to others.” (Bragg v. Valdez (2003) 111 Cal.App.4th 421, 430; Ford v. Norton (2001) 89 Cal.App.4th 974, 979.) Nevertheless, it determined that “the goal of ending indefinite confinements outweighed the early release potential for harm.” (Bragg v. Valdez, supra, 111 Cal.App.4th at p. 430.)
“Also, realizing that evaluation and treatment of mentally disordered persons is inherently uncertain and cannot reliably predict future conduct, the Legislature exempted specified persons from civil or criminal liability” following a patient’s release. (Bragg v. Valdez, supra, 111 Cal.App.4th at p. 430.) The exemption, found in section 5154, provides that various persons, including “the psychiatrist directly responsible for the person’s treatment, ” “shall not be held civilly or criminally liable for any action by a person released at the end of the end of the 72 hours.” (§ 5154, subd. (b).) “[T]o advance the goal of ending indefinite commitments, ” the Act also exempts these persons from early release so long as “the provisions of Section 5152 have been met.” (Ford v. Norton, supra, 89 Cal.App.4th at p. 980; § 5154, subd. (a).)
Section 5152 provides: “(a) Each person admitted to a facility for 72-hour treatment and evaluation... shall receive an evaluation as soon as possible after he or she is admitted and shall receive whatever treatment and care his or her condition requires for the full period that he or she is held. The person shall be released before 72 hours have elapsed only if the psychiatrist directly responsible for the person’s treatment believes, as a result of the psychiatrist’s personal observations, that the person no longer requires evaluation or treatment.... [¶] (b) Any person who has been detained for evaluation and treatment shall be released, referred for further care and treatment on a voluntary basis, or certified for intensive treatment, or a conservator or temporary conservator shall be appointed pursuant to this part as required. [¶] (c) A person designated by the mental health facility shall give to any person who has been detained at that facility for evaluation and treatment and who is receiving medication as a result of his or her mental illness, as soon as possible after detention, written and oral information about the probable effects and possible side effects of the medication....” (Emphasis added.) Only the conditions of early release set forth in the emphasized second sentence above need be met for the early release immunity under section 5154, subdivision (a), to apply. (Coburn v. Sievert (2005) 133 Cal.App.4th 1483, 1498, 1501-1502 (Coburn) [adopted the defendant-psychiatrist’s position that “only the conditions set forth in the second sentence of subdivision (a) of section 5152 [a]re relevant to the availability of the immunity”]; see also Bragg v. Valdez, supra, 111 Cal.App.4th at p. 433 [“the immunity applies as long as the psychiatrist, based upon his own personal observations, believes the person is no longer a danger”].)
In Coburn, Dwight Sievert, M.D., the psychiatrist directly responsible for the treatment of Edward Coburn, released Coburn early from an involuntary 72-hour hold. (Id. at p. 1488.) The day after his early release, Coburn had a violent outburst on an airplane with his father that resulted in criminal prosecution, civil lawsuits, property damage, and further confinement and treatment of Coburn. (Id. at p. 1489.) Coburn and his father sued Sievert for damages arising from the acts Coburn committed on the airplane, and the “ ‘only theories being pursued [we]re based on negligent diagnosis, treatment, staffing, medication, release, and failure to confine.’ ” (Id. at pp. 1488, 1490, fn. 3.) The trial court granted summary judgment in favor of Sievert on the ground that he was immune from liability under section 5154, subdivision (a), because he met the conditions for early release set forth in section 5152, i.e., he was the treating psychiatrist who authorized the early release because he believed, based on his personal observations, that Coburn no longer required evaluation or treatment. (Id. at p. 1488; see also p. 1504 [the psychiatrist’s belief that the patient no longer requires evaluation or treatment need not be objectively reasonable].)
On appeal, Coburn argued that the requirement under section 5154, subdivision (a), that “the provisions of Section 5152” be met means that all of the provisions in section 5152, and not just the matters explicitly relating to early release, must be met for the immunity to apply. (Coburn, supra, 133 Cal.App.4th at p. 1497.) He argued Sievert was not entitled to immunity because he did not meet the requirement in the first sentence of section 5152, subdivision (a), “that the patient receive the evaluation, ... care and treatment his condition requires while confined.” (Coburn, supra, at p. 1498.) Sievert argued “that the other sentences in subdivision (a) of section 5152 as well as the entirety of subdivisions (b) and (c) were not ‘provisions of Section 5152.’ ” (Coburn, supra, at p. 1498.) The Court of Appeal agreed with Sievert, stating that the legislative history revealed a latent ambiguity as to the term “the provisions of section 5152.” (Id. at pp. 1500, 1501-1502.) Noting that a psychiatrist who releases a patient at the end of a 72-hour hold is unqualifiedly immune from liability under section 5154, subdivision (b), the court stated, “[a] statutory construction that creates immunities of such different scope based on whether the release was early or at the end of the detention period is suspect because the balance of the competing interests struck in one situation is so different from the balance struck in the other situation, and the difference itself appears to undercut rather than further the purposes of the... Act.” (Coburn, supra, 133 Cal.App.4th at p. 1501.) The court stated, “To promote consistency between the availability of immunity provided for early release and the immunity provided for release at the end of a holding period, and bearing in mind that one of the stated purposes of the... Act is to ‘end the inappropriate, indefinite, and involuntary commitment of mentally disordered persons’ (§ 5001, subd. (a)), we conclude the additional conditions imposed by the qualification ‘if the provisions of Section 5152 have been met’ must be construed to mean only those conditions relating to early release.” (Coburn, supra, 133 Cal.App.4th at p. 1501.)
The legislative history on which the court relied included a staff analysis that stated that the bill immunizing the treating psychiatrist “ ‘[c]larifies conditions for freedom from liability when release is before the end of the detention period, to the psychiatrist directly responsible for the person’s treatment, only if the psychiatrist making the final decision believes, as a result of his or her personal observations, that the person no longer requires evaluation or treatment[.]’ ” (Coburn, supra, 133 Cal.App.4th at p. 1500.) The court stated it was “unlikely that a staff analysis would omit conditions upon which the availability of the immunity depends when it purports to state how the bill clarifies those conditions.” (Ibid.) The court also noted that the legislative analysis of a bill that extended the immunity to psychologists provides that the bill “ ‘[p]rohibits psychologists from being held civilly or criminally liable for any action by a person released before the end of a 72-hour... hold, if the provisions of law relating to the early release of the person have been met.’ ” (Id. at p. 1500, fn. 8.)
Here, appellants contend that respondents are not entitled to immunity because they did not meet the requirement set forth in section 5152, subdivision (b), that “[a]ny person who has been detained for evaluation and treatment shall be released, referred for further care and treatment on a voluntary basis, or certified for intensive treatment, or a conservator or temporary conservator shall be appointed pursuant to this part as required.” (Emphasis added.) Relying on section 5008, subdivision (d), which states in part, “Referral shall be considered complete when the agency or individual to whom the person has been referred accepts responsibility for providing the necessary services, ” appellants argue that Bak, who referred Farley to various agencies, did not “complete” the referrals because she did not ensure the agencies “accept[ed] responsibility for providing the necessary services.”
Appellants’ argument fails because the undisputed facts show that Bak discharged Farley early because she believed, based on her personal observations, that Farley no longer required evaluation or treatment. These facts alone immunize respondents from liability for any acts committed by Farley after her release. (Coburn, supra, 133 Cal.App.4th at p. 1501 [the immunity applies so long as the conditions set forth in the second sentence of section 5152, subdivision (a), are met]; see also § 5113 [the immunity under section 5154 applies to “the facility providing treatment”].) Thus, it is immaterial whether respondents met the requirements of section 5152, subdivision (b), relating to referrals. Although, as noted, appellants alleged in their complaint that respondents released Farley early for improper reasons, i.e., “due to the inability of Farley to pay for medical services, ” “due to [her] insurance status, ” and due to “the state of [her] economic status, ” they do not assert on appeal, and there is nothing in the evidence referenced in the separate statements suggesting, that Bak granted early release for any such improper reasons. Further, although appellants suggest that Bak could not have reasonably believed Farley was ready to be discharged, Bak’s belief did not have to be objectively reasonable for the immunity to apply. (Coburn, supra, 133 Cal.App.4th at p. 1504.)
Relying on their expert’s conclusion that Bak’s treatment of Farley was “inappropriate and was not within the standard of care, ” appellants state, “Dr. Bak, in only her second year of psychiatric training, was not sufficiently experienced to make her subjective belief concerning discharge sustainable.”
In any event, even assuming compliance with section 5152, subdivision (b), is required for the immunity to apply, we would conclude respondents complied with the section and are therefore entitled to immunity. Although appellants complain that Bak did not “complete” her referral, there is nothing in section 5152, subdivision (b), that requires a treating psychiatrist to “complete” a referral; rather, the section merely lists all of the appropriate dispositions for persons who have been involuntarily detained, one of which is to “refer[]” the patient for “further care and treatment on a voluntary basis.” Section 5008, subdivision (d), defines a “complete” referral as one in which the agency has accepted responsibility for providing necessary services, but it also defines the term “referral, ” more generally, as the “referral of persons by each agency or facility providing intensive treatment or evaluation services to other agencies or individuals. The purpose of referral shall be to provide for continuity of care, and may include, but need not be limited to, informing the person of available services, making appointments on the person’s behalf, discussing the person’s problem with the agency or individual to which the person has been referred, appraising the outcome of referrals, and arranging for personal escort and transportation when necessary.” (Emphasis added.) Here, Bak “referred” Farley by “informing [her] of available services.”
Moreover, section 5152, subdivision (b), provides that a psychiatrist may simply “release[]” the patient. Here, Bak not only released Farley but provided her with referrals to Access and other agencies. She therefore fulfilled the requirement set forth in section 5152, subdivision (b), that she release or refer the patient. If, as appellants argue, referrals must be “completed” once they are made, a treating psychiatrist would be immune from liability for simply releasing a patient without providing any referrals but would be exposed to liability for referring the patient to agencies without “completing” the referrals. Thus, under appellants’ statutory construction, a psychiatrist who believes a patient would benefit from being “inform[ed]... of available services” (but where the psychiatrist does not believe a “completed” referral is needed before the patient is released) would have a disincentive for providing the referral because it would expose the psychiatrist to greater liability than if he or she were to simply “release” the patient. We will not interpret these statutes in ways that are inconsistent with the intent of the legislature to “guarantee and protect public safety, ” to “provide individualized treatment, ” to “encourage the full use of all existing agencies, ” and to “protect mentally disordered persons and developmentally disabled persons from criminal acts.” (§ 5001, subdivisions (a), (c), (e), (f), (g).) The trial court correctly ruled that respondents were entitled to immunity under sections 5154, subdivision (a), and 5113.
Triable issue of fact
Appellants contend the trial court erred in granting summary judgment because there were triable issues of material fact “concerning the negligence of [respondents] committed during [Farley’s] hospitalization.” It appears their argument is that Bak’s treatment of Farley fell below the medical standard of care, which resulted in Farley’s suicide, which was “foreseeable” and “preventable.” Appellants’ argument fails because under sections 5154, subdivision (a), 5152, subdivision (a), and 5113, respondents are immune from liability for “any action by a person released before the end of 72 hours.”
Appellants assert, “Under the Coburn case, if the care and treatment rendered to... Farley was below the standard of care, immunity does not attach.” Coburn, however, does not stand for that proposition. In Coburn, the court questioned whether immunity under section 5154 would protect a psychiatrist for “injuries that, while they may occur after an early release, are caused by negligent treatment during the detention rather than by actions of the person released.” (Coburn, supra, 133 Cal.App.4th at p. 1502.) It examined two hypothetical situations, one in which a psychiatrist prescribes a medication that causes the patient to suffer a heart attack while driving, which in turn results in injury to the patient and an innocent bystander, and another in which a psychiatrist sexually assaults a detained patient which causes the patient to commit suicide after being granted an early release. (Id. at pp. 1502-1503.) “While... suspect[ing] that application of section 5154 to support immunity in these hypothetical situations might give the legislation unintended scope, ” Coburn concluded, “we mention [the hypothetical situations] here largely to limit the scope of this opinion to the facts that are presented. Plaintiffs suggest no facts that would support a conclusion that Sievert engaged in any conduct or treatment of Coburn that itself caused Coburn’s subsequent actions. Rather, all of plaintiffs’ facts show nothing more than a failure to diagnose, a failure to treat, and a release that was negligent because of those failures. We therefore need explore no further this subject, which of course includes complicated questions of legal causation. Plaintiffs appear to have correctly conceded, in listing the facts alleged by Sievert with which they did and did not agree, that this case involves liability for injuries arising out of the actions of Coburn.” (Id. at p. 1503.)
Here, appellants have presented a declaration by their expert who opined that Bak lacked experience, was not appropriately supervised, failed to assess Farley and formulate a “prudent suicide prevention plan, ” and failed to treat Farley’s “patently extreme alcohol toxicity.” As in Coburn, these facts, as well as the undisputed facts, “show nothing more than a failure to diagnose, a failure to treat, and a release that was negligent because of those failures, ” and do not present any triable issues of material fact. (Coburn, supra, 133 Cal.App.4th at p. 1503.)
Respondents contend they are also immune from liability under the Government Code, and that the trial court erred in granting appellants’ motion for reconsideration. In light of our conclusion affirming the trial court’s determination that respondents are immune from liability under sections 5154, subdivision (a), and 5113, we need not, and will not, discuss respondents’ additional contentions.
Disposition
The judgment is affirmed. Respondents shall recover their costs on appeal.
We concur: Pollak, J., Jenkins, J.