Ma v. City and County of San Franciso

• Citation: 95 Cal.App.4th 488,115 Cal.Rptr.2d 544
• Decision Date: 23 January 2002
• Docket Number: No. A092105.,A092105.
• Parties: Yong Shao MA et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent.
• Court: California Court of Appeals

115 Cal.Rptr.2d 544

95 Cal.App.4th 488

Yong Shao MA et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent.

No. A092105.

Court of Appeal, First District, Division 2.

January 23, 2002.

Rehearing Denied February 11, 2002.

Review Denied May 15, 2002.^*

Baughman & Wang, David E. Russo, San Francisco, for Appellants.

Louise H. Renne, San Francisco City Attorney, Joanne Hoeper, Chief Trial Deputy, Ellen M. Forman, Chief Appellate Attorney, Cheryl Adams, Deputy City Attorney, for Respondent.

RUVOLO, J.

I. Introduction

Appellants Yong Shao Ma (Ma) and Pui Kay Chan (Chan) appeal from a summary judgment entered in favor of respondent City and County of San Francisco (CCSF). Ma and Chan are the surviving husband and father, respectively, of Angelique Chan (Ms. Chan), who died from an acute asthma attack on the evening of August 27, 1998. Some time before her death, a call was made to CCSF's 911 medical emergency service, reporting that Ms. Chan was complaining of severe physical distress. In their subsequent civil action for damages, Ma and Chan claimed that CCSF owed a tort duty to callers utilizing its 911 emergency service. They alleged further that this duty was breached both because the 911 dispatcher/calltaker¹ on duty that evening was untrained in the emergency response protocols established by CCSF, and that the dispatcher was negligent in failing to respond to the emergency call in compliance with these protocols.

In its motion for summary judgment, CCSF contended that it owed no tort duty of care to Ms. Chan or, alternatively, that if a duty was owed, the so-called "discretionary immunity" provided at Government Code section 820.2 applied to bar the claim. The trial court agreed with CCSF on both grounds, and entered judgment accordingly.

We reverse, concluding that a duty of care was owed, not with regard to the design or structure of the 911 medical emergency service, but as to the manner in which the 911 emergency service procedures were implemented. We reach this conclusion after examining the circumstances of this case under the traditional multi-pronged tort duty analysis delineated in Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (Rowland.)

Having found a duty, we reject the argument that the 911 dispatcher's duty was limited to providing services in a manner not grossly negligent or in bad faith under Health and Safety Code section 1799.107. After examining the legislative history, we conclude the qualified immunity provided by this statute does not extend to 911 dispatchers. Thus, the tort duty owed is that of ordinary due care.

Lastly, we conclude that the discretionary immunity afforded by Government Code section 820.2, while applicable to the design and content of the 911 emergency medical service, does not immunize CCSF from the manner in which that program is administered by 911 dispatchers.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. CCSF's Criteria-Based Dispatch System

CCSF operates its 911 emergency medical service (EMS) through the Department of Public Health. This department is tasked with overseeing "pre-hospital medical care" for citizens and visitors to San Francisco. Since approximately 1997, the medical director of the EMS department has been Dr. John Brown. Dr. Brown's responsibility as medical director is to administer the policies that govern the dayto-day operations of the EMS, certify emergency medical technicians (EMTs), teach paramedic and EMT courses, and research and develop new or updated policies for the EMS.

Beginning in 1995, CCSF established a task force to investigate different existing standardized EMS dispatching systems to determine which might be most appropriate for use in San Francisco. By the time Dr. Brown joined the department, the task force was looking at two protocols. One was called medical priority dispatching, which was developed in Salt Lake City, and the other was criteria-based dispatching (CBD), which was being used extensively in the State of Washington. Dr. Brown concluded that CBD was best for San Francisco because San Francisco's EMS had combined its fire and paramedic dispatching. This combination brought together dispatchers who were originally trained as firefighters with those who had previous training as paramedics. CBD allows dispatching to be based on a set of uniform criteria rather than based on the answers to a series of questions that had to be asked of each caller, regardless of whether some of the questions were relevant.

By the end of 1997 all of the ambulance providers had signed memoranda of understanding agreeing to use CBD. Implementation of CBD began in early 1998, with a target implementation date of May 1998 for everyone using the new system to be trained in CBD. For the most part, Dr. Brown believed this target was met. Normal training for non-medically trained personnel was three days long, although those with prior paramedic training went through an eight-hour course. There were a few people who were assigned to the dispatch center just before the CBD implementation date who needed "catch up courses." Dr. Brown was unaware of any introductory training in CBD being given to paramedics in 1998. Departmental policy required that all dispatchers and calltakers receive their full training in CBD, plus continuing education and compliance with quality improvement requirements. Dr. Brown knew of no exceptions to this training prerequisite. [The CBD system included adoption of written CBD guidelines (the guidelines).

EMS policy required that, not only would all dispatchers be trained in the system, but also that they would use CBD guidelines or protocols in their dispatching duties. This was true regardless of whether the person was assigned the role of calltaker or dispatcher.

One of the features of CBD is that it standardizes responses based on complaints regardless of the actual cause of the physical symptom. For example, a complaint of shock initiates a standard dispatch response regardless of whether the shock condition is caused by trauma or a bad infection. The "Introduction of Criteria[-]Based Dispatch" publication cautions dispatchers to determine first from callers if any Code 3 criteria are present.² The presence of any single Code 3 criterion requires that level of response. This system allows a response to be made immediately based on the patient complaint, and eliminates delay inherent in other dispatching systems, which require answers to a series of questions before a dispatch response is made. Dr. Brown explained that this is the "default" principle and it applies to circumstances where the dispatcher is unsure of the patient's true condition, or if the dispatcher does not have enough information to determine what else might be occurring with the patient. If one criterion is present, the dispatcher is to send a Code 3 response. "[W]hen in doubt, better to send faster than slower."

Of significance to the case before us, the CBD guidelines specifically address how EMS is to respond to 911 complaints of shortness of breath, or inability to breathe. The guidelines have a separate section for various complaints including one for "Breathing Difficulties." Under "Critical factors that should have Code 3 assistance," the guidelines state in part: "Persons who are short of breath or cannot talk in full sentences because of respiratory distress have a significant impairment and should have CODE 3 evaluation." Under "Criteria Definitions," the guidelines provide: "CODE 3 Breathing difficulty: Subjective self-report of uncomfortable breathing pattern. [¶] Short of breath (SOB): Subjective self-report of uncomfortable breathing pattern or patient is unable to speak full sentences and/or has a breathing pattern suggestive of uncomfortable or impaired breathing. [¶] CODE 2 Hurts to breathe: Patient reports pain with deep inspiration and no pain when NOT breathing. NO other CODE 3 criteria present." (Original underscoring.)

B. Telephone Call Requesting Emergency Medical Services³

On the evening of August 27, 1998, Mr. Ma and his spouse, Angelique Chan, were having dinner and playing cards at a friend's home located on Fifth Avenue between Geary Boulevard and California Street in San Francisco. Ms. Chan suffered from asthma and sometimes had difficulty breathing. After dinner that evening, Ms. Chan complained she was not feeling well and was having difficulty breathing. Mr. Ma responded by taking her to a nearby Kaiser facility, which had an entrance along Fifth Avenue. The Kaiser facility is referred to as the French Campus. As Mr. Ma was apparently unaware, the French Campus does not provide emergency medical services.

As the two entered the building, Ms. Chan was holding her chest and making sounds indicating she was having a hard time breathing. Mr. Ma recalls his wife yelling out "help, help" to one of two security guards inside the building. She was unable to continue through the second of two automatic doors into the interior of the facility. Mr. Ma then saw one of the guards use the telephone to call someone. His wife continued to have an extremely hard time breathing and her color began to change to a paler, grayish color. Mr. Ma then began to yell "help" to the guards. Mr. Ma predominantly spoke Cantonese and Mandarin Chinese; he knew only a "little bit" of English.

Shortly thereafter, one of the security guards came over to the couple and asked Ms. Chan to come to the phone. Mr. Ma became very upset because his wife was not able to say anything at that point. He then picked up the phone and said "help." He heard a female voice on the line but was unable to understand what was being said. No one tried to translate what the person on the phone was saying.

After returning to his wife, several other people came to their aid, one of whom "applied pressure" on Ms. Chan's chest. This made her feel better and helped her regain...