Duarte v. Chino Community Hosp.

• Citation: 85 Cal.Rptr.2d 521,72 Cal.App.4th 849
• Decision Date: 03 June 1999
• Docket Number: No. E020473,E020473
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 4302, 1999 Daily Journal D.A.R. 5407 Heriberto DUARTE Sr., et al., Plaintiffs and Appellants, v. CHINO COMMUNITY HOSPITAL, et al., Defendants and Respondents.

Page 521

85 Cal.Rptr.2d 521

72 Cal.App.4th 849, 99 Cal. Daily Op. Serv. 4302,

1999 Daily Journal D.A.R. 5407

Heriberto DUARTE Sr., et al., Plaintiffs and Appellants, v. CHINO COMMUNITY HOSPITAL, et al., Defendants and Respondents.

No. E020473.

Court of Appeal, Fourth District, Division 2, California.

June 3, 1999.

Review Denied Sept. 1, 1999.

Certified for Partial Publication. ^*

Friestad & Giles and Deborah Giles, San Diego, for Plaintiffs and Appellants.

McNeil, Susson & Parrett, James R. Parrett and Edward A. Stumpp, Santa Ana, for Defendant and Respondent Chino Community Hospital.

Dummit, Faber & Briegleb, Christopher J. Faber and Scott R. Diamond, Los Angeles, for Defendant and Respondent Honzen Ou, M.D.

O P I N I O N

McKINSTER, Acting P.J.

The plaintiffs, the surviving family members of a woman who died from severe head injuries suffered in an automobile accident, sued the woman's attending physician and hospital for damages for an allegedly negligent failure to either comply with the family's request to terminate use of a respirator or to transfer the woman to a health care provider who would comply. The plaintiffs appeal from a defense verdict. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Martha Duarte ("Mrs.Duarte") suffered a broken neck in an automotive accident on June 3, 1991. She was taken to the emergency room of Chino Community Hospital. When she was admitted, she was comatose and was placed on a respirator.

After reviewing the results of an EEG and a CAT scan, the neurologist on the case, Dr. Virabantha, told the family on June 4 that Mrs. Duarte could not recover the ability to think and function as a human being. On June 8, Dr. Virabantha opined that Mrs. Duarte was in a persistent vegetative state as the result of damage to her brain stem and the trauma to her spinal cord. Those injuries were irreparable, according to the consulting neurosurgeon. By June 10, Mrs. Duarte's arms and legs were paralyzed. At that time, Dr. Virabantha felt that she had no chance of recovery.

The family--Mrs. Duarte's husband and six adult children--was advised of her prognosis within the first few days of the hospitalization. The Duartes decided that the respirator should be removed, because that is what Mrs. Duarte would have wanted. That decision was based on prior statements Mrs. Duarte had made to family members. At the time of the accident, Mrs. Duarte was employed as a housekeeper in a hospital, cleaning patients' rooms. She told her family members that she would never want to be like some of the patients she had seen there, who were just lying connected to a machine, and that if she were in that position, they should just "let her go" rather than use a respirator to keep her alive.

On June 12, a member of the Duarte family told Dr. Virabantha that they wanted Mrs. Duarte removed from the respirator. At some time before that date, one of the family members had informed the nurses of that same request.

On June 13, Dr. Honzen Ou, the treating physician, asked one of Mrs. Duarte's sons to consent to a tracheotomy and a gastrostomy to prepare her for transfer to a long-term care facility. The son refused, and said that he wanted the respirator removed. Dr. Ou said that he would not authorize the removal of the respirator unless Mrs. Duarte became brain dead or the Duartes obtained a court order.

The Duartes retained an attorney. Their attorney's negotiations with counsel for the hospital resulted in a proposed written agreement between the Duartes, the hospital, and Dr. Ou by which the family would release the health care providers from any liability and the health care providers would agree to withdraw life-prolonging treatments. The Duartes signed the agreement on June 20, but Dr. Ou refused to sign it. The hospital informed the Duartes of Ou's refusal about June 27 or 28.

Faced with that refusal, the Duartes' attorney began to prepare a petition for a court order. On July 1, the hospital called the attorney and informed her that Mrs. Duarte was dying. On July 3, Dr. Virabantha determined that Mrs. Duarte was brain dead.

The Duartes sued, inter alia, Dr. Ou and the hospital. Their second amended complaint asserts a variety of claims for damages and declaratory relief, but the only claims presented to the jury were ones for damages on theories of professional negligence and negligent and intentional infliction of emotional distress. The trial court refused to give three special jury instructions requested by the Duartes. By a special verdict, the jury found that neither defendant had been negligent and that Dr. Ou had not engaged in the outrageous conduct required to establish liability for damages for intentional infliction of emotional distress. Accordingly, judgment was entered in favor of the defendants.

The Duartes responded with a motion for a partial judgment notwithstanding the verdict. That motion was denied. They appeal both from the adverse judgment and from the post-judgment order.

CONTENTIONS

The Duartes do not challenge the adverse judgment on their claims for intentional infliction of emotional distress. However, they contend that the trial court prejudicially erred by refusing to give their proposed special jury instructions nos. 4, 7 and 8, each of which concerned the claims for damages due to negligence. In addition, they contend that the defendants' refusal to comply with the Duartes' request to remove the respirator was negligence as a matter of law, and therefore the trial court erred by denying their motion for a partial judgment notwithstanding the verdict on the negligence claims.

DISCUSSION

A. BECAUSE PHYSICIANS ARE STATUTORILY IMMUNE FROM LIABILITY FOR DAMAGES FOR REFUSING TO WITHDRAW LIFE-iSUSTAINING MEDICAL CARE, AND BECAUSE DAMAGES WERE THE ONLY REMEDY SOUGHT BY THE PLAINTIFFS, THE TRIAL COURT PROPERLY REFUSED TO INSTRUCT THE JURY CONCERNING A PHYSICIAN'S DUTY OF CARE WHEN PRESENTED WITH A REQUEST TO WITHDRAW THAT MEDICAL CARE.

The trial court refused the Duartes' request that the jury be instructed in the terms of their special jury instruction no. 4:

"If a patient has been diagnosed as being in an irreversible coma and/or a persistent vegetative state, it is the duty of a physician presented with a request to withdraw life-sustaining procedures from that patient to determine if the patient has any reasonable possibility of recovery.

"If the patient does not have a reasonable possibility of recovery, it is the duty of the physician to act according to his patient's wishes. If the patient lacks decision-making ability, it is the duty of the physician to act according to the patient's wishes as expressed by the appropriate decision-makers.

"A failure to fulfill such duty is negligence."

Although the parties disagree over whether that proposed instruction is a correct statement of California law, we need not decide that issue. The only relief sought by the Duartes was damages. Therefore, even assuming that the proposed instruction is correct, that legal principle is relevant to this action only if damages are recoverable for injuries suffered as the result of a breach of the duty described by that instruction. As we shall explain, our Legislature has decided that a physician has no civil liability for refusing to withdraw life-sustaining services. Given that statutory immunity from liability for damages, the trial court did not err by refusing to give that instruction.

Division 4.5 of the Probate Code (§ 4000, et seq.) governs powers of attorney. ¹ Part 4 of that division, starting with section 4600, specifically governs durable powers of attorney for health care. In general, it authorizes a principal to appoint an attorney-in-fact to make health care decisions on behalf of the principal. (§ 4650.) "Health care decisions" include the decision to discontinue health care (§ 4612), even if that care is necessary to keep the principal alive (§ 4703, subd. (a)).

Although the attorney-in-fact under a durable power of attorney for health care has the power to instruct a physician or other health care provider to discontinue health care services necessary to sustain the life of the principal, the Legislature has specifically decided that the provider is not answerable in damages for failing to comply with that instruction: "Notwithstanding the health care decision of the attorney-in-fact designated by a durable power of attorney for health care, the health care provider is not subject to criminal prosecution, civil liability, or professional disciplinary action for failing to withdraw health care necessary to keep the principal alive." (§ 4750, subd. (c). ²)

The Duartes argue that the immunity provided by section 4750 is not available in this circumstance for several reasons. We find none of them persuasive.

1. The Immunity Is Not Limited to Refusals to Comply with Instructions from An Attorney-in-Fact.

First, the Duartes argue that the scope of the immunity is limited to refusals by a health care provider to comply with instructions given under the specific circumstances mentioned in the statute, i.e., by an attorney-in-fact designated in a durable power of attorney for health care. It does not apply here, they contend, because Mrs. Duarte had not prepared a durable power of attorney for health care, and thus the family's instruction to withdraw the life-sustaining services of the respirator was not given by an attorney-in-fact.

We decline to place such a restrictive construction on the scope of the statutory immunity. If an attorney-in-fact has been appointed through a durable power of attorney for health care executed in accordance with the statutory requirements, the authority of that agent to instruct a physician in accordance with the principal's wishes is as clear and strong as possible absent judicial ratification. The statutes regulate the appointment process in significant detail, including: the written disclosures which must be made to the...