Coe v. Superior Court, A048198

• Decision Date: 09 May 1990
• Docket Number: No. A048198,A048198
• Court: California Court of Appeals Court of Appeals
• Parties: John COE, Petitioner, v. The SUPERIOR COURT of the City and County of San Francisco, Respondent; IRWIN MEMORIAL BLOOD BANK, Real Party in Interest; Mary PINEDO et al., Petitioners, v. The SUPERIOR COURT of the City and County of San Francisco, Respondent; IRWIN MEMORIAL BLOOD BANK, Real Party in Interest.

Page 368

269 Cal.Rptr. 368

220 Cal.App.3d 48

John COE, Petitioner, v. The SUPERIOR COURT of the City and County of San Francisco, Respondent;

IRWIN MEMORIAL BLOOD BANK, Real Party in Interest;

Mary PINEDO et al., Petitioners, v. The SUPERIOR COURT of the City and County of San Francisco, Respondent;

IRWIN MEMORIAL BLOOD BANK, Real Party in Interest.

No. A048198.

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

May 9, 1990.

Review Denied July 25, 1990.

Robert U. Bokelman, Anglia S. Benjamin, Cartwright, Slobodin, Bokelman, Borowsky, Wartnick, Moore & Harris, Fred G. Meis, Sarah Jane Burgess, Meis & Waite, San Francisco, for petitioners.

No appearance for respondent.

Duncan Barr, Lisa T. Ungerer, O'Connor, Cohn, Dillon & Barr, San Francisco, Charles Bond, Stephanie Y. Gandolfi, Law Offices of Charles Bond, Berkeley, for real party in interest.

David E. Willett, Hassard, Bonnington, Rogers & Huber, San Francisco, S. Thomas Todd, Horvitz & Levy, Encino, for amici curiae on behalf of real party in interest.

PERLEY, Associate Justice.

In this complex litigation we issued an alternative writ to inquire whether the Medical Injury Compensation Reform Act (MICRA) applies to Irwin Memorial Blood Bank. We agree with respondent court that it does and, accordingly, deny the petition and discharge our alternative writ.

Petitioners are plaintiffs in two actions against Irwin Memorial Blood Bank (Irwin), real party in interest herein. The actions come within the Complex Blood Bank Litigation which includes "all litigation currently pending and hereafter filed in the San Francisco Superior Court involving actions for damages for injury, wrongful death, and/or loss of consortium, allegedly arising out of the receipt and transfusion of AIDS tainted blood, or blood plasma, wherein it is alleged that Irwin Memorial Blood Bank is liable for said damages ..." (See § 19, Cal.Standards Jud.Admin.)

On September 1, 1989, plaintiffs in the Complex Blood Bank Litigation moved for General Order No. 2 on the issue of whether MICRA limitations are applicable to Irwin. On November 1, 1989, respondent court found that Irwin is a "health care provider" as defined by MICRA and that, thus, the limitations of that legislation are applicable to Irwin. We issued our alternative writ to review this issue of first impression.

In 1975, the Legislature enacted MICRA which, among other things, revised a number of legal rules applicable to professional negligence actions against health care providers. (See MICRA, Stats.1975, Second Ex.Sess. 1975-1976, chs. 1, 2, pp. 3949-4007.) The legislative definition used uniformly in all relevant sections reads as follows:

" 'Health care provider' means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. 'Health care provider' includes the legal representatives of a health care provider." (Bus. & Prof.Code, § 6146, subd. (c)(2); Civ.Code, §§ 3333.1, subd. (c)(1); 3333.2, subd. (c)(1); Code Civ.Proc., §§ 340.5, subd. (1); 364, subd. (f)(1); 667.7, subd. (e)(3); 1295, subd. (g)(1).)

Irwin holds licenses under both division 2 of the Business and Professions Code and division 2 of the Health and Safety Code. Under the Business and Professions Code, Irwin is licensed as a clinical laboratory. Petitioners contend that Irwin's activities which gave rise to the allegations of professional negligence are not those within the scope of services for which it is licensed as a clinical laboratory and therefore its licensure under division 2 of the Business and Professions Code is irrelevant. ¹ Rather petitioners take the position that the activities which have given rise to the allegations of professional negligence are within the scope of Irwin's licenses under division 2 of the Health and Safety Code. Petitioners point out that the definition of "health care provider" under MICRA does not include any organization licensed under division 2 of the Health and Safety Code but only "any clinic, health dispensary, or health facility" licensed under that division. Petitioners contend that Irwin is neither a "clinic," a "health dispensary," nor a "health facility." Therefore its licensure under division 2 of the Health and Safety Code does not make Irwin a "health care provider" within MICRA.

The terms "clinic" and "health facility" are defined in division 2 of the Health and Safety Code. This division, entitled "Licensing Provisions," defines clinics in section 1200 et seq. and health facility in section 1250. It is undisputed that Irwin does not fall within these definitions. There is no definition of "health dispensary" in the Health and Safety Code nor was there a definition of the term in 1975 when the provisions of MICRA were enacted. However, petitioners point out that in 1975, chapter 1 of division 2 was entitled "Clinics and Dispensaries" and that MICRA's definition of "health care provider" has not been amended since its passage. Petitioners would look to the definitions in chapter 1 of division 2 as it read in 1975 to determine the Legislature's intention in using the term "health dispensary." Since "health dispensary" was not separately defined, and since the term "dispensary" was used within the definition of "clinic," petitioners would confine the term "health dispensary" to institutions falling within chapter 1 of division 2 as it read in 1975. ² Since blood banks were not licensed in chapter 1 and since blood banks cannot reasonably be considered to fall within the definition of clinics, petitioners reason that the Legislature did not intend to include blood banks as a health care provider under its licenses pursuant to the Health and Safety Code.

Respondent court was not persuaded by the above reasoning but concluded: "The inclusion of the entirety of division 2 of the Health & Safety Code seems to be coterminous with the actions of the Legislature in dealing with the medical malpractice problem. The commentators indicate that the legislative intent was to take a comprehensive approach to resolve the problem, and a 'health dispensary' logically includes the operations of a blood bank."

We are of the opinion that respondent court's expansive view is consonant with the legislative history of MICRA and are persuaded by Irwin's interpretation of that history. The Legislature's original definition of "health care provider" in the first draft of MICRA dated May 19, 1975, specified blood banks by name. As the statute was amended, the Legislature abandoned efforts to list health providers by name in favor of listing by licenses. For example, an amendment (dated June 11, 1975) to MICRA attempted to list with specificity the providers affected by a limitation on contingency fees, i.e., "physician and surgeon, dentist, registered nurse, dispensing optician, optometrist, registered physical therapist, podiatrist, licensed psychologist, osteopath, chiropractor, clinical laboratory bioanalyst, clinical laboratory technologist...." Ultimately, the Legislature abandoned the list concept and adopted the definition of "health care provider" by reference to the code divisions covering the licensing of the various providers. As Irwin points out, the reference to the divisions of the codes not only simplified the statutory reference but also provided for the evolution of health care professions and organizations. New categories of providers could be automatically covered by MICRA simply by regulating them within the same statutory scheme as other health care providers. ³

"Health dispensary" was never defined within division 2 of the Health and Safety Code. Reference to "dispensary" within the title of division 2 in 1975 or within the definition of "clinic" is not a definition of "health dispenary. " Petitioners' analysis of the definition of health care provider would erase any distinction between aa "clinic" and a "health dispensary" and would render the latter reference surplusage.

As the Supreme Court stated in J.R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 36-37, 160 Cal.Rptr. 710, 603 P.2d 1306: "A cardinal rule of construction is that ... a construction making some words surplusage is to be avoided. [Citation.] ... If possible,...