Canister v. Emergency Ambulance Service

• Decision Date: 22 February 2008
• Docket Number: No. B190318.,B190318.
• Citation: 160 Cal.App.4th 388,72 Cal.Rptr.3d 792
• Court: California Court of Appeals Court of Appeals
• Parties: Randy D. CANISTER, Plaintiff and Appellant, v. EMERGENCY AMBULANCE SERVICE, Defendant and Respondent.

72 Cal.Rptr.3d 792

160 Cal.App.4th 388

Randy D. CANISTER, Plaintiff and Appellant, v. EMERGENCY AMBULANCE SERVICE, Defendant and Respondent.

No. B190318.

Court of Appeal, Second District, Division 8.

February 22, 2008.

Randy D. Canister, in pro. per.

Law Office of Ted W. Pelletier and Ted W. Pelletier, for Plaintiff and Appellant.

Dummit, Briegleb, Boyce & Buchholz, Adam R. James, Darren W. Dummit and Craig Dummit, Los Angeles, for Defendant and Respondent.

FLIER, J.

Randy D. Canister appeals from a defense judgment entered after a jury found the defendant ambulance company not negligent in the accident resulting in appellant's injury. This action raises the issue whether emergency medical technicians (EMT's) are health care providers protected by the Medical Injury Compensation Reform Act (MICRA; Civ.Code, §§ 3333.1, 3333.2; Code Civ. Proc, §§ 340.5, 364, 667.7, 1295; Bus. & Prof. Code, § 6146) and whether negligence in operating an ambulance qualifies as professional negligence. Appellant contends the trial court erred in ruling the action subject to MICRA, allowing prejudicial evidence of collateral payments to be repeatedly admitted before the jury. We hold that EMT's are health care providers and negligence in operating an ambulance qualifies as professional negligence when the EMT is rendering services that are identified with human health and for which he or she is licensed.

FACTS AND PROCEDURAL HISTORY

The basic facts, developed during a pretrial motion for summary adjudication or, in the alternative, in limine brought by respondent Emergency Ambulance Services, Inc. (EAS), are not in dispute. Appellant, a police officer with the Los Angeles Police Department, was accompanying an arrestee in the back of an EAS ambulance when it hit a curb, injuring appellant. The ambulance was being driven by an employee of EAS while another EAS employee attended to the arrestee in the rear of the ambulance. Each employee was a licensed EMT-I (see Health & Saf.Code, §§ 1797.80, 1797.160) and acting in the course and scope of employment. Appellant was not wearing a seatbelt when he was injured. He alleged the ambulance was being driven negligently and neither employee had informed him that seatbelts were available in the rear of the ambulance.

On the foregoing stipulated facts, the court ruled before trial that appellant's action was subject to the provisions of MICRA.¹ The trial court denied appellant's motion for reconsideration of this issue, and the case proceeded to trial. Based on its pretrial ruling, the court permitted EAS to introduce evidence of payment of appellant's medical expenses and lost earnings by a collateral source under Civil Code section 3333.1.

At trial, the parties introduced conflicting evidence regarding whether appellant was aware or should have been aware of the availability of seatbelts in the rear of the ambulance and whether the EMT's were negligent in operating the ambulance. Appellant contended the ambulance was negligently driven and both driver and attendant should have informed him of the availability of the seatbelts.

EAS presented evidence that seatbelts were available in the rear of the ambulance and there was sufficient lighting to see them if appellant had looked. Witnesses told the jury the accident happened when a car crossed into the ambulance's line of travel, forcing the ambulance to swerve to avoid hitting it. An accident reconstruction expert for EAS testified the ambulance driver's actions were appropriate given the circumstances. EAS also introduced a written statement, which appellant provided to the police department just after the crash, which stated that appellant had not worn a seat belt as a "tactical" decision.²

Appellant's partner, who was following the ambulance in their patrol car, testified the car "never crossed over" the line into the ambulance's lane and merely got "too close" to the dividing line. Appellant also produced evidence that the ambulance driver was at the end of a 24-hour shift. On his own behalf, appellant testified his custom and practice was "to always wear your seat belt," and he looked for a seat belt in the ambulance but "didn't see one." He also disavowed his written statement to the police department, saying he had not slept or eaten for almost 24 hours, was in pain and had taken medication when he gave the statement.

After deliberating one hour, the jury found in a special verdict that EAS was not negligent. Appellant timely appealed from the resulting judgment.

STANDARD OF REVIEW

We review any issues of statutory construction de novo. (Schaefer's Ambulance Service v. County of San Bernardino (1998) 68 Cal.App.4th 581, 586, 80 Cal.Rptr.2d 385.) When the evidence is not in conflict, we are presented with a question of law and are not bound by the findings of the trial court. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799, 35 Cal.Rptr.2d 418, 883 P.2d 960.) In reviewing any other issues, we apply the substantial evidence standard of review. We look at the evidence in support of the successful party, disregarding any contrary showing, and we resolve all conflicts in favor of the respondent, indulging in all legitimate and reasonable inferences to uphold the verdict if possible. (Schaefer's Ambulance Service v. County of San Bernardino, supra, 68 Cal.App.4th at p. 586, 80 Cal.Rptr.2d 385.) When two or more inferences can reasonably be deduced from the facts, we do not substitute our deductions for those of the finder of fact. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874, 197 Cal.Rptr. 925.) We must affirm if substantial evidence supports the trier of fact's determination, even if other substantial evidence would have supported a different result. (Id. at p. 874,197 Cal.Rptr. 925.)

DISCUSSION

Appellant contends the court erred in ruling his action subject to MICRA limitations, specifically Civil Code section 3333.1.³ Appellant argues that the court's ruling allowed EAS to inject prejudicial collateral payment evidence into the trial, denying appellant a fair assessment of liability by the jury. We disagree.

1. EMT's Are Health Care Providers

On appeal, appellant initially asserts EMT's are not "health care providers" under MICRA.⁴ Preliminarily, we note that appellant never raised an objection in the trial court to the application of MICRA on the basis that EMT's are not "health care providers" as defined in the MICRA statutes.

In opposing EAS's motion for summary adjudication or, alternatively, in limine regarding MICRA's application, appellant argued only that alleged negligence in operating an ambulance was not "professional negligence" because operation of an ambulance is not conduct for which EMT's are licensed. The trial court therefore did not have an opportunity to rule upon whether EMT's are health care providers under MICRA.

Appellant attributes this omission to a claimed "numerical sleight of hand" by EAS in "misciting" the Health and Safety Code and "misleading" appellant and the trial court as to the governing statutory provisions, first in a motion to strike portions of appellant's statement of damages for not adhering to MICRA damage limitations and then in moving for summary adjudication or in limine seeking an order that MICRA provisions apply to this action. Appellant states that EAS first informed the trial court, correctly, that MCRA applies to persons licensed under any section in "Chapter 2.5 (commencing with Section 1440) of Division 2 (commencing with section 1200) of the Health and Safety Code." (Underscoring omitted.) However, appellant contends, EAS then "claimed that EMT's are covered by MICRA because they are `licensed pursuant to Health and Safety Code Section 1797.170[,] which is contained within Division 2.5 of the Health and Safety Code,'" i.e., EAS purportedly cited "[n]ot the MICRA-covered Chapter 2.5 of Division 2 (§§ 1440-1498), but Division 2.5 (§§ 1797-1799.207), a fully distinct Division not part of Division 2."⁵ (Underscoring omitted.) Appellant contends neither he nor the trial court noticed EAS's "clever miscitation" and therefore neither questioned whether EMT's are covered "health care providers" under MICRA.

Notwithstanding appellant's speculations regarding EAS's motivation, we decline to attribute improper motives to EAS, which accurately quoted the statutes. Had appellant disagreed with EAS's interpretation or misapplication of accurately quoted statutes, it was incumbent upon appellant to raise the issue before the trial court. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1, 151 Cal.Rptr. 837, 588 P.2d 1261; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502, 102 Cal.Rptr.2d 196.) It is unfair for a party not to object to an error of which the party is or should be aware, "`thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.' [Citation.]" (Porter v. Golden Eagle Ins. Co. (1996) 43 Cal.App.4th 1282, 1291, 51 Cal. Rptr.2d 338.)

A. Whether EMT's Are Health Care Providers Is an Issue of Law

However, we have discretion to consider a new theory on appeal when, as here, it involves a pure question of the application of law to undisputed facts. (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316-1317, 88 Cal.Rptr.2d 758; Yeap v. Leake (1997) 60 Cal.App.4th 591, 599, fn. 6, 70 Cal.Rptr.2d 680.) We may in any event decide a case on any legal theory, regardless of whether it is urged by counsel in the appellate brief. (Yeap v. Leake, supra, at p. 599, fn. 6, 70 Cal.Rptr.2d 680; Banco Do Brasil, S.A v. Latian, Inc. (1991) 234 Cal.App.3d 973, 999, fn. 41, 285 Cal.Rptr. 870.) In the present case, both parties have had the opportunity to address the issue on the merits and we therefore have discretion to decide the issue.

B. EMT's Are Licensed Health Care Providers

1. Statutory Background of EMT Licensing

When the MICRA provisions were enacted in 1975, they...