Andrea N. v. Laurelwood Convalescent Hosp.

• Decision Date: 03 March 1993
• Docket Number: No. B047221,B047221
• Citation: 13 Cal.App.4th 1492,16 Cal.Rptr.2d 894
• Parties: Previously published at 13 Cal.App.4th 1492, 18 Cal.App.4th 1698 13 Cal.App.4th 1492, 18 Cal.App.4th 1698 ANDREA N., an Incompetent Person, etc., Plaintiff and Appellant, v. LAURELWOOD CONVALESCENT HOSPITAL, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 894

16 Cal.Rptr.2d 894

Previously published at 13 Cal.App.4th 1492, 18 Cal.App.4th 1698

13 Cal.App.4th 1492, 18 Cal.App.4th 1698

ANDREA N., an Incompetent Person, etc., Plaintiff and Appellant, v. LAURELWOOD CONVALESCENT HOSPITAL, Defendant and Appellant.

No. B047221.

Court of Appeal, Second District, Division 4, California.

March 3, 1993.

As Modified on Denial of Rehearing March 23, 1993.

Review Granted May 20, 1993.

Review Dismissed and Cause Remanded to Court of Appeal Jan. 13, 1994.

Alan Jule Schultz, Beverly Hills, and Arthur E. Schwimmer, Los Angeles, for plaintiff and appellant.

Shield & Smith, Douglas Fee, Hornberger & Criswell, Los Angeles, Freeburg, Judy, Macchiagodena & Nettels, and Richard B. Castle, Pasadena, for defendant and appellant.

EPSTEIN, Associate Justice.

This case involves a severely disabled appellant who, while under respondent's care in its nursing home, was raped and became pregnant, and had a medical abortion. Her case went to the jury on a negligence theory. The trial court ruled that the evidence developed at trial did not justify submitting the issue of punitive damages to the jury. After the jury returned a verdict for general damages in excess of the limitations imposed by the Medical Injury Compensation Reform Act (MICRA), Civil Code section 3333.2, subdivision (b), the court reduced damages to the statutory ceiling. The court then granted respondent's motion for judgment notwithstanding the verdict on the basis that the evidence did not support a finding of negligence, causation, or damages.

Appellant, through her guardian, appeals the judgment on the grounds that the trial court erred in its punitive damages and MICRA rulings; she also appeals from the judgment notwithstanding the verdict. Respondent has filed a cross-appeal, arguing that if MICRA does not apply to this case, the verdict was excessive.

We conclude that the trial court ruled correctly on the punitive damages issue but erred in its ruling on the application of MICRA and in its order granting judgment notwithstanding the verdict. Because of these errors, the court did not reach the merits of respondent's new trial motion based on lack of evidence to support the amount of damages awarded and on the theory that the verdict was the product of improper argument. We shall reverse the judgment and remand the case to the trial court with directions to rule on the new trial motion, and for further proceedings consistent with the views expressed in this opinion.

FACTUAL AND PROCEDURAL SUMMARY

The appellant, Andrea N. (whom we refer to as Ms. N.), appeared in the underlying litigation and this appeal through her guardian, Eliane Rose. Mrs. Rose is her grandmother. In 1968, when Ms. N. was 18 years old, she suffered a serious automobile accident. Approximately two years later her mother and grandmother placed her in Laurelwood Convalescent Hospital on Victory Boulevard in North Hollywood. Laurelwood is a licensed skilled nursing facility operated by respondent. She remained at Laurelwood at all times relevant to this case. In 1982, Mrs. Rose discovered that Ms. N. was pregnant. Ms. N. underwent an abortion and sterilization.

Ms. N., her mother Lillian La Verdi, and her grandmother Mrs. Rose brought suit claiming general, compensatory, and punitive damages. They named as defendants Western Medical Enterprises, ARA Living Centers, and Laurelwood Convalescent Hospital, all of whom were ultimately determined At trial, evidence was presented about Ms. N.'s condition and care, the discovery of her pregnancy, and security and other conditions at Laurelwood. Respondent presented evidence concerning conditions at Laurelwood and standards of security in the skilled nursing facility industry.

to be a single corporate entity ("Laurelwood"). Laurelwood also is the cross-appellant in this appeal.

The case was submitted to the jury solely on the negligence cause of action, which sought only general damages. By that time Ms. N. was the only plaintiff, Mrs. La Verdi having died prior to trial. ¹ The jury returned a verdict of $7.5 million in favor of appellant, and answered in the negative a special interrogatory which asked whether the finding was "based on your determination that the rape of Andrea [N.] was committed by an employee of Laurelwood Convalescent Hospital."

Following the verdict, the court ruled that the action was subject to the provisions of Civil Code section 3333.2, limiting recovery of noneconomic damages to $250,000, and reduced the verdict accordingly. The court then granted Laurelwood's motion for judgment notwithstanding the verdict and vacated and set aside the judgment.

1. Evidence relating to appellant's condition and care.

As a result of the 1968 accident, Ms. N. was bedridden and unable to eat, speak, or control her bowels or bladder. She was fed intravenously through a stomach tube. She was partially paralyzed on the left side of her body, and was unable to turn herself over or summon help. Her right arm was in a restraint to prevent her from disturbing her feeding tube.

Mrs. Rose, who visited appellant twice a day, testified that appellant responded to certain demands. When asked to "give me your hand," Ms. N. would raise her hand and reach out to her grandmother and her attendants. She would smile when her grandmother stroked her hair or spoke to her, and she was aware of pain and discomfort and hunger and would communicate that awareness by yelling. She also was aware of regular feeding times, and would yell if her food was late. Although she did not recognize Mrs. Rose as her grandmother, she was aware of her presence and seemed to know her from her repeated visits. Mrs. Rose testified that appellant was "quite aware of anything other than the routine treatment," although she also testified that most of the time Ms. N. was unaware of her surroundings.

Early in 1982, and against Mrs. Rose's expressed wishes, Ms. N. was transferred from a room near a nurses' station to one remote from any station, along a less-travelled hall. The two other patients in the new room were not very alert. Also against Mrs. Rose's expressed wishes, male attendants were assigned to appellant. She had no male visitors.

The jury saw photographs and a video tape of appellant taken by an investigator working on her behalf. The video tape was narrated in the courtroom by Mrs. Rose.

2. Evidence relating to the rape and its discovery.

Late in 1982, Mrs. Rose noticed several things out of the ordinary in Ms. N.'s condition. She had "a sort of new restlessness and she whimpered a lot and cried more," and she missed two consecutive menstrual periods. Laurelwood personnel did not normally chart appellant's menstrual periods and had not noticed the change. Nurses informed Mrs. Rose that Ms. N. had started vomiting in the mornings, and that there were occasions when her feeding tube had come out during the night. Ms. N. was incapable of removing the tube herself. Mrs. Rose insisted that Ms. N.'s physician perform a pregnancy test. That Mrs. Rose testified that Ms. N. would know if she was raped or attacked in any way, because she was immediately aware of any unfamiliar gesture or voice. Mrs. Rose expressed her belief that her granddaughter was sedated at the time of the rape, since that was the only explanation for her failure to have alerted "the entire building" with her cries.

was done, and the pregnancy was confirmed.

Mrs. Rose also testified that staff members told her that several male employees had disappeared after appellant's pregnancy was discovered. Glen Bennett, administrator of Laurelwood in 1982, testified that there was no unusual personnel activity in the form of employees leaving their jobs after the discovery of appellant's pregnancy.

Doris Lasater, a licensed vocational nurse who was director of staff development at Laurelwood in 1982, testified that after the pregnancy was discovered she advised Mr. Bennett to call the police and the Health Department immediately, but that he did not make a report to the Health Department until a week later, and did not call the police at all. Mrs. Lasater testified that Mr. Bennett told her that he decided not to call police in order to safeguard the reputation of the facility, which he thought would be ruined if an employee was found to be implicated or involved.

Mr. Bennett testified that he made his report to the Health Department within 24 hours of discovering the pregnancy, and that he did not call the police because Ms. N. was already three months pregnant when the pregnancy was discovered, and because, due to the shock of discovering that a patient was pregnant, he did not think of what had occurred as a rape. He conducted his own investigation by questioning employees, and was "pretty certain" that no employee had participated in the events. He acknowledged, however, that it was possible that there were patients in the facility with the ability to rape appellant.

When appellant was returned to Laurelwood after the abortion and sterilization, Mrs. Rose again demanded that she be placed in a room close to the nurses' station and that no male attendants be assigned to her. This time Laurelwood acceded to those demands.

Mrs. Rose testified that she kept her granddaughter at Laurelwood after the rape because she believed that Laurelwood would have a heightened sense of responsibility toward her and in the future would accede to Mrs. Rose's wishes on such things as room placement and male attendants, while another facility might not do so.

3. Evidence relating to security at Laurelwood.

Laurelwood was located in a one-story building. Sliding glass doors led from the interior of the building to a courtyard. Although some doors at Laurelwood were on an alarm system, these doors were neither locked nor on the alarm system. A fire ladder ran from an exterior wall to the roof, giving access to the courtyard.

The room appellant occupied in 1982 had...