Delaney v. Baker

• Decision Date: 04 March 1999
• Docket Number: No. S067060,S067060
• Citation: 20 Cal.4th 23,82 Cal.Rptr.2d 610,971 P.2d 986
• Court: California Supreme Court
• Parties: , 971 P.2d 986, 99 Cal. Daily Op. Serv. 1637, 1999 Daily Journal D.A.R. 2085 Kay DELANEY, Plaintiff and Respondent, v. Calvin BAKER, Sr., et al., Defendant and Appellant

Page 610

82 Cal.Rptr.2d 610

20 Cal.4th 23, 971 P.2d 986, 99 Cal. Daily Op. Serv. 1637,

1999 Daily Journal D.A.R. 2085

Kay DELANEY, Plaintiff and Respondent, v. Calvin BAKER, Sr., et al., Defendant and Appellant.

No. S067060.

Supreme Court of California

March 4, 1999.

Klauschie & Shannon, Law Offices of Klauschie & Elie, Thomas J. Kristof; Farmer & Murphy, George E. Murphy and Frank J. Torrano, Rancho Cordova, for Defendants and Appellants.

Thelen Reid & Priest, Curtis A. Cole and Matthew S. Levinson, Los Angeles, for California Medical Association, California Dental Association and California Healthcare Association as Amici Curiae on behalf of Defendants and Appellants.

Fred J. Hiestand, Sacramento, for the Association for California Tort Reform as Amicus Curiae on behalf of Defendants and Appellants.

Foley & Lardner, J. Mark Waxman, Washington, District of Columbia, Mark E. Reagan, San Francisco, and Kenneth L. Burgess for California Association of Health Facilities as Amicus Curiae on behalf of Defendants and Appellants

Hanson, Bridgett, Marcus, Vlahos & Rudy, Paul A. Gordon, Robert L. Rusky and James A. Napoli, San Francisco, for the California Association of Homes and Services for the Aging as Amicus Curiae on behalf of Defendants and Appellants.

Sanford I. Horowitz, Sonoma; Leslie Ann Clement, Sacramento; and Richard M. Pearl, San Francisco, for Plaintiff and Respondent.

Silvio Nardoni, Glendale; Peter G. Lomhoff, Oakland; Houck & Balisok, Russell S. Balisok and Steven C. Wilheim, Glendale, for California Advocates for Nursing Home Reform, Inc., as Amicus Curiae on behalf of Plaintiff and Respondent.

Bet Tzedek Legal Services, Eric M. Carlson; Kaye, Scholer, Fierman, Hays & Handler, Carole E. Handler and Rhonda R. Trotter, Los Angeles, for American Association of Retired Persons and National Citizens' Coalition for Nursing Home Reform, Inc., as Amici Curiae on behalf of Plaintiff and Respondent.

Gwilliam, Ivary, Chiosso, Cavalli & Brewer, Eric H. Ivary, Oakland, and James A.N. Smith for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and Respondent.

MOSK, J.

This case is concerned with the relationship between two parts of the Elder Abuse and Dependent Adults Civil Protection Act, WELFARE AND INSTITUTIONS CODE SECTION 15600¹ et seq. (hereinafter the Elder Abuse Act). Section 15657 provides in part that "Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse ..., neglect ..., or fiduciary abuse ... [of an elderly or dependent adult], and that the defendant has been guilty of recklessness, oppression, fraud, or malice in the commission of this abuse, in addition to all other remedies otherwise provided by law: (a) The court shall award to the plaintiff reasonable attorney's fees and costs .... (b) The limitations imposed by section 377.34 of the Code of Civil Procedure [forbidding a decedent plaintiff's estate from obtaining pain and suffering damages] shall not apply. However, the damages recovered shall not exceed the damages permitted to be recovered pursuant to subdivision (b) of Section 3333.2 of the Civil Code [limiting recovery of noneconomic losses to $250,000]." Section 15657.2, on the other hand, states in full: "Notwithstanding this article, a cause of action for injury against a health care provider, as defined in section 340.5 of the Code of Civil Procedure, based on the health care provider's alleged professional negligence, shall be governed by those laws which specifically apply to those professional negligence causes of action."

The question presented by this case is whether a health care provider which engages in the "reckless neglect" of an elder adult within the meaning of section 15657 will be subject to section 15657's heightened remedies, or if section 15657.2 forbids the application of section 15657 under these circumstances. The defendants, a nursing home and two of its owners, argue for the latter position, claiming that the term "based on ... professional negligence" used in section 15657.2 includes such reckless neglect. The Court of Appeal decided against defendants for reasons explained below. We conclude that the Court of Appeal was correct, but for reasons different from those articulated in its opinion.

I. Factual and Procedural Background

On April 15, 1993, Rose Wallien, the 88-year-old mother of plaintiff Kay Delaney, fell and fractured her right ankle. Unable to care for Ms. Wallien while her ankle healed, plaintiff looked for a skilled nursing facility that could provide the care her mother needed during that time. Plaintiff selected Meadowood, and Ms. Wallien entered the facility on April 20, 1993. Less than four months later, on August 9, 1993, Ms. Wallien died while still a resident at Meadowood. At the time of her death, Ms. Wallien had stage III and stage IV pressure ulcers (commonly known as bedsores on her ankles, feet, and buttocks. A stage IV bedsore means that her tissue has been eaten away down to the bone.

There was evidence introduced that she was frequently left lying in her own urine and feces for extended periods of time. The neglect was apparently the result, in part, of rapid turnover of nursing staff, staffing shortages, and the inadequate training of employees. The evidence also showed numerous violations of medical monitoring and recordkeeping regulations that prevented necessary information from being transmitted to Wallien's personal physician on a timely basis. The neglect occurred despite plaintiff's persistent complaints to nursing staff, administration, and finally, to a nursing home ombudsman. The facility had been cited for patient neglect by the Department of Health Services (see Health & Saf.Code, § 1424) shortly before Ms. Wallien's admission. After her death, the facility was given a class "A" citation, which is only levied when inadequate care creates "substantial probability that death or serious physical harm would result" to nursing home residents (id., subd. (c)), and the facility was fined $7,500.

Plaintiff brought this action against Meadowood and the two individuals (Calvin Baker, Sr., and Calvin Baker, Jr.) who served as administrators during portions of the time Ms. Wallien resided at the facility. The case was tried to a jury on theories of negligence, willful misconduct, neglect of an elder as defined by the Elder Abuse Act and wrongful death. On the statutory neglect of an elder theory, the jury was instructed that "[t]he essential elements of such a claim are: [p] 1. That Mrs. Wallien was 65 years of age or older; [p] 2. Defendant is liable for neglect as defined, and that [p] 3. Defendant has been guilty of recklessness, oppression, or malice in the commission of this neglect." The jury instructions defined neglect by reciting the definition of that term in the Elder Abuse Act. (See former § 15610.57.)

The jury found for plaintiff on her negligence and neglect of an elder claims. It found that defendants had not, by clear and convincing evidence, been guilty of "oppression" or "malice" but that they had been "reckless" in their conduct. The jury determined that the damage sustained by Rose Wallien for pain, suffering, inconvenience, physical impairment or disfigurement was $150,000. The jury awarded $15,000 in damages for the past cost of medical and hospital care and treatment resulting from defendants' negligence. The jury attributed 2 percent of the damage to Ms. Wallien's contributory negligence, 79 percent to defendants' negligence and 19 percent to the negligence of Dr. Jennings, who was no longer a defendant. Plaintiff moved for her attorney fees and costs pursuant to section 15657. The court granted the motion and awarded plaintiff $185,723.50 in attorney fees and $32,291.24 in costs. For reasons discussed below, the Court of Appeal affirmed the trial court's judgment. We granted review because of the importance of resolving the question of the relationship between sections 15657 and 15657.2.

II. Discussion

Three distinct positions have been proposed regarding the relationship between sections 15657 and 15657.2. The Court of Appeal's approach, and to some extent plaintiff's, was and is to find that although there may be considerable overlap between actions "based on professional negligence" as set forth in section 15657.2 and the actions specified in section 15657, section 15657 is not thereby limited because section 15657.2 requires only that causes of action based on professional negligence be governed by laws that specifically apply to professional negligence actions, in particular the package of legislation referred to as the MICRA, ² and the statutes that are limited by section 15657 do not "specifically apply" to professional negligence actions. Rather, section 15657 affects two generally applicable statutes. The two statutes are Code of Civil Procedure section 377.34, precluding pain and suffering damages for the estates of deceased victims, and Civil Code section 1021, providing that, absent a statute, the apportionment of attorney's fees is to be left to the agreement of the parties. Therefore, a cause of action may be both "based on ... professional negligence" within the meaning of section 15657.2 and be for "reckless neglect" within the meaning of section 15657.

We conclude that this interpretation is not viable. As an initial matter, we note that it is not the only plausible reading of the language of section 15657.2 and particularly of the phrase "specifically appl[icable]." The word "specifically" is not necessarily intended to convey the opposite of "generally," but, when read in context, can be taken to mean simply that the law applying to professional negligence alone governs professional negligence causes of action, and that section 15657 is not intended to alter this law.

This reading of section 15657.2 is based in part on the recognition that the MICRA statutes specifically applicable to...