Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. CV 081579
Haerle, J.
I. INTRODUCTION
Appellant, a former patient at the respondent’s medical facility, slipped and fell when exiting that facility after a knee operation performed on him there in October 2006. In a complaint filed in April 2008, he alleged negligence by the respondent in supplying him with crutches and not a wheelchair for his exit from its building. After a motion for summary judgment was filed and heard by the trial court, that motion was granted on the ground that appellant had not filed his action within the one-year period required by Code of Civil Procedure section 340.5, the statue of limitations governing actions brought for “professional negligence.” Appellant appeals, claiming that the applicable period of limitations is two years under section 335.1, the section governing personal injuries resulting from ordinary negligence. We disagree and hence affirm the trial court’s judgment.
All further statutory references are to the Code of Civil Procedure.
II. FACTUAL AND PROCEDURAL BACKGROUND
As confirmed by both parties’ briefs to this court, the essential facts are undisputed. On October 20, 2006, appellant, then a 49-year-old man, had surgery performed on his left knee at appellant’s clinic in Greenbrae, Marin County. The surgery was a “bursectomy of the prepateller bursar of his left knee” and was performed by Dr. Michael Stock, M.D., an orthopedic surgeon at respondent’s facility, a facility duly licensed by the Department of Health Services of the State of California. After the surgery, the staff of the respondent clinic provided appellant with a set of crutches, demonstrated to him how to use them, and then watched him briefly as he used them, telling him he was “doing fine.” As he conceded in his deposition taken during the pre-summary judgment discovery process, appellant did not request being provided a wheelchair to exit the clinic. While using the crutches to exit, appellant fell and injured his knee, subsequently apparently suffering substantial additional pain and medical care. In his deposition, he conceded that he did not recall either slipping or tripping on anything on the floor of the clinic, nor did he contend that respondent’s premises were not maintained in a safe condition. His sole contention regarding respondent’s alleged negligence was its failure to provide him with a wheelchair for his exit from the building.
Appellant did not file his complaint against respondent until over 17 months after his fall on their premises, i.e., on April 1, 2008.
After some discovery was undertaken, on November 21, 2008, respondent moved for summary judgment on the basis that appellant’s action was barred the statute of limitations, i.e., as noted above, section 340.5. The motion was opposed by appellant and then argued in front of the superior court on February 23, 2009. The motion was granted the same day and judgment in favor of respondent filed the following month.
Appellant filed a timely notice of appeal.
III. DISCUSSION
The obvious starting point is section 340.5, enacted as presently worded in 1975 as a part of the Medical Injury Compensation Reform Act (MICRA) adopted by the Legislature in that year. As pertinent here, 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.... [¶] For purposes of this section:... [¶] (2) ‘Professional negligence’ means 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.)
Regarding the legislative background and rationale of MICRA, see, e.g., Smith v. Ben Bennett, Inc. (2005) 133 Cal.App.4th 1507, 1514.
Appellant concedes that respondent is, indeed, a “health care provider, ” but contends that the negligence involved here, i.e., providing appellant with crutches and not a wheelchair after his operation, was not “professional negligence” as that term is defined in paragraph (2) of the statute. In so arguing, he and his counsel rely principally upon a case decided before the 1975 enactment of the current version of section 340.5, Gopaul v. Herrick Memorial Hosp. (1974) 38 Cal.App.3d 1002 (Gopaul).
In Gopaul, a hospital patient fell off an unattended gurney-to which she had not been strapped-while waiting for her x-rays to be developed. Over a year later, a doctor told her that the persistent pain she had been feeling in her lower back probably derived from that fall. Thus, 15 months after the fall from the gurney, she sued the hospital and alleged that its negligence was based on “professional malpractice.” (Gopaul, supra, 38 Cal.App.3dat p. 1005.) At that point of time, the limitations period for an “ordinary negligence” action was one year from the commission of the negligent act, but “decisional law” had modified that rule in the case of alleged medical malpractice “to provide that the statute does not commence running until the plaintiff has discovered, or through the use of reasonable diligence should have discovered, the tortious injury.” (Ibid.) The appellate court rejected the plaintiff and appellant’s attempt to apply that rule in this case, holding that “professional malpractice” means that such “must have occurred in the ‘performance of professional or fiduciary duties.’ ” (Id. at p. 1006.) Such was not the case when, the court held, the tortious act was failure to strap the plaintiff-patient to the gurney as the need for such “while she was ill and unattended would have been obvious to all. The situation required no professional ‘skill, prudence and diligence.’ It simply called for the exercise of ordinary care.” (Id. at p. 1007.) On that basis, the court affirmed the trial court’s judgment of nonsuit, a judgment based on the running of the-then one-year statute of limitations. (Id. at pp. 1007-1008.)
Respondent counters that, with the addition of paragraph (2) of the 1975 version of section 340.5, the ruling in Gopaul no longer applies, citing among several other cases so holding, Murillo v. Good Samaritan Hospital (1979) 99 Cal.App.3d 50, 56-58 (Murillo). In that case, the plaintiff-also a hospital patient-fell out of the hospital bed because, she claimed, the hospital staff had “negligently and recklessly left the rails of the hospital bed down, allowing plaintiff to fall out of bed.” (Id. at p. 52.) She sued, but the trial court granted the defendant hospital summary judgment on the basis that the (then) one-year statute of limitations for ordinary negligence had run. The appellate court reversed; in so doing, it rejected the hospital’s claim that the Gopaul decision articulated the principles applicable to such actions, stating: “Gopaul was decided under the law existing before enactment of Code of Civil Procedure section 340.5. Whether the case was correctly decided under that law we need not decide. We do conclude, however, that the result reached in Gopaul is incompatible with the definition of professional negligence found in section 340.5. Under that definition, the 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. When a seriously ill person is left unattended and unrestrained on a bed or gurney, the negligent act is a breach of the hospital’s duty as a hospital to provide appropriate care and a safe environment for its patients.” (Id. at p. 57.)
Several subsequent appellate decisions have agreed with the holding of Murillo regarding the meaning of the term “professional negligence.” One of the most important of these is Hedlund v. Superior Court (1983) 34 Cal.3d 695, 700-704 (Hedlund), in which our Supreme Court denied a petition for a writ of mandate brought by two psychologists seeking to overturn a trial court’s overruling of their demurrer to a complaint brought against them by a former woman patient who alleged that they had failed to warn her of the intent of another of their patients (a man with, apparently, a personal relationship with the plaintiff) to “commit serious bodily injury upon her.” She alleged, and the trial court had apparently found, that such constituted “professional negligence” under section 340.5 and hence was governed by the period of limitations provided therein. Our Supreme Court agreed, holding: “Tarasoff [v. Regents of the University of California (1976) 17 Cal.3d 425] recognizes a right to expect that a licensed psychotherapist will realize when a patient poses a serious danger to another and, if that potential victim is identifiable, will act reasonably to protect the victim. The diagnosis and the appropriate steps necessary to protect the victim are not separate or severable, but together constitute the duty giving rise to the cause of action. [¶] Our conclusion that the term ‘professional negligence’ encompasses a failure to warn third persons is consistent with and furthers the legislative purpose in adopting M.I.C.R.A.” (Hedlund at p. 704.)
In Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, the court addressed the issue of whether there is or can be separate and distinct causes of action for “ordinary” and “professional” negligence. In holding that there are not, the court declined to resolve the conflict between Gopaul and Murrillo-because the case before it did not involve statute of limitation issues-but added that “to the extent either decision may be inconsistent with the analysis herein, it is disapproved.” (Id. at p. 1002, fn. 6.)
Our Supreme Court has also made clear, albeit in another context, that “[u]nder the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110; see also Garabet v. Superior Court (2007) 151 Cal.App.4th 1538, 1545.) Clearly, here appellant “suspected” wrongdoing by respondent on the day he was operated on and fell while still on respondent’s premises and using the crutches supplied by it.
Subsequent to Murillo and Hedlund, other appellate courts have been consistently given a broad interpretation to the term “professional negligence” as used in section 340.5 and in other provisions of MICRA. Thus, in Williams v. Superior Court (1994) 30 Cal.App.4th 318, 327 (Williams), the appellate court cited Murillo in holding 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.” In that case, the alleged negligence of the defendant health care was its negligence in failing to warn a nonemployee who was drawing blood from one of its patients of his violent tendencies. (Id. at p. 321.)
Similarly, in Bellamy v. Appellate Department (1996) 50 Cal.App.4th 797 (Bellamy), the appellate court applied the principles articulated in the Murillo decision in a case where an allegedly unattended plaintiff fell off “ ‘a rolling X-ray table onto her head.’ ” (Id. at p. 799.) Although urged to treat the case as one involving “ordinary negligence” and thus apply the Gopaul court’s rationale, the appellate court declined to do so. It held: “The rationale advanced by the hospital is that expressed in Gopaul, that is, if the need for restraint is ‘obvious to all, ’ the failure to restrain is ordinary negligence. [Citation.] We agree with Murillo that this standard is incompatible with the subsequently enacted statutory definition of professional negligence, which focuses on whether the negligence occurs in the rendering of professional services, rather than whether a high or low level of skill is required. [Citation.] The Gopaul standard also appears impracticable. For example, the need to remove foreign objects, such as sponges, clamps, and surgical instruments, from a patient’s body during an operation should be ‘obvious to all, ’ but the surgeon’s negligent failure to do so is unquestionably professional, not ordinary, negligence. [Citation.] [¶] The hospital also argues that in adopting MICRA the Legislature intended the term ‘professional negligence’ to have the same meaning given it in antecedent case law (including Gopaul), which the hospital claims was restricted to ‘a breach of the duty to provide professional skill, procedure and diligence.’ We disagree. [¶] Gopaul relied on a dictionary definition of ‘malpractice’ as being ‘ “any professional misconduct or any unreasonable lack of skill in the performance of professional or fiduciary duties.” ’ [Citation.] Shortly after that decision the Legislature codified a statutory definition of ‘professional negligence’ which differs considerably from that in Gopaul. The statutory definition does not refer to ‘professional misconduct’ or ‘unreasonable lack of skill.’ Instead, it includes any ‘negligent act or omission to act... in the rendering of professional services’ by a licensed health care provider, if the services are within the scope of the provider’s license. (§ 340.5, subd. (2).)... [¶] 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 at pp. 806-808; see also, to the same effect as Murillo and Bellamy, Bell v. Sharp Cabrillo Hospital (1989) 212 Cal.App.3d 1034, 1050 (Bell); Johnson v. Superior Court (2002) 101 Cal.App.4th 869, 884 [negligence in interviewing and approving sperm bank donor constitutes “professional negligence”] (Johnson); Canister v. Emergency Ambulance Service, Inc. (2008) 160 Cal.App.4th 388, 404-408 [negligent operation of an ambulance constitutes “professional negligence”] (Canister).)
Hedlund, Williams, Bellamy, Bell and Canister are all cited and discussed in respondent’s brief to us. Rather remarkably, none of them, including Johnson, are either cited or discussed in appellant’s briefs.
We have no difficulty in concluding, as did the trial court here, that the holdings in Murillo, Bellamy, and the similar decisions just cited are applicable here. Our principal basis for so concluding was well-summarized in the most recent of the cases cited above, Canister. There, the defendant was a licensed ambulance company in which a police officer, who was accompanying an “arrestee” in one of its ambulances, was injured when that ambulance hit a curb. Although the case did not involve any statute of limitations issue, it did involve whether any and all of the MICRA statutes applied to ambulance companies and their employees. Citing many of the cases discussed above, our colleagues in a division of the Second District had no difficulty in concluding that the MICRA statutes applied, i.e., that the case dealt with “professional negligence.” In so holding, the court stated: “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.’ [Citations to statutes, including section 340.5.] The relevant test is not the degree of skill required, but whether the negligence occurred in the rendering of services for which a provider is licensed. [Citations.] Although the act of operating an ambulance may be performed by someone having no special knowledge, skill or care as a member of the medical profession, this does not mean the employees here in question were not acting as health care providers in transporting the patient to a medical facility.... [¶] Moreover, we disagree with appellant’s further claim that ‘professional negligence’ does not encompass operation of an ambulance, whether as a driver or as an attendant. As previously noted, courts have broadly construed ‘professional negligence’ to mean negligence occurring during the rendering of services for which the health care provider is licensed. [Citations.]” (Canister, supra, 160 Cal.App.4th at pp. 404, 406.)
In another relatively recent case, the court made the same point in one sentence: “[T]he test is not the degree of skill required, but whether negligence occurred in rendering services for which a provider is licensed.” (Johnson, supra, 101 Cal.App.4th at p. 884.)
As already noted, appellant does not discuss almost any of the relevant authority except Gopaul and Murillo, arguing (1) that the former states the applicable standard while the latter does not, but (2) contending, alternatively, that even if the rule articulated in Murillo is applicable “the question is when the tort occurred. If it occurred during the administration of professional services, it is professional negligence without regard to whether professional skill was involved. If it occurred before or after the administration of professional services, it is ordinary negligence.” (Emphasis in original.) Thus, appellant continues: “The tort here happened after plaintiff had been discharged from defendant’s professional care, after the professional services were finished, when plaintiff was trying to get to his car.” (Emphasis in original.)
This argument fails. Appellant fell while still in respondent’s facility, specifically in its lobby, after taking just a few steps to and through a door that was “straight from the bed” where he had been, and within a few feet from where he had, while being watched by respondent’s nurses, started using the crutches. Under any rational interpretation of medical malpractice law, appellant clearly had not been, as he contends, “discharged from defendant’s professional care.” But even if there was some sort of formal or informal permission given by respondent’s nurses for him to leave the premises, the fact that they had provided crutches to him rather than a wheelchair is clearly, under the multitude of cases “broadly constru[ing]” section 340.5 and its companion MICRA statutes, a matter of “professional negligence.” (See Canister, supra, 160 Cal.App.4th at p. 406.)
Put another way, if negligent operation of an ambulance injuring a non-patient travelling therein (see Canister), leaving the rails of a hospital bed unraised so as to allow a patient to fall from the bed (see Murillo), failing to warn a nonemployee of possible violent tendencies of a patient (see Williams), or leaving a patient unattended on an X-ray table (Bellamy), all constitute “professional negligence” under section 340.5 or another of the MICRA statutes, clearly so, too, does the alleged negligence of respondent’s staff in supplying appellant with crutches rather than a wheelchair.
IV. DISPOSITION
The judgment is affirmed.
We concur: Kline, P.J., Lambden, J.