Phillips v. Desert Hosp. Dist.

• Citation: 243 Cal.Rptr. 196,197 Cal.App.3d 922
• Decision Date: 14 January 1988
• Docket Number: No. E001815,E001815
• Court: California Court of Appeals
• Parties: Previously published at 197 Cal.App.3d 922, 210 Cal.App.3d 1060 197 Cal.App.3d 922, 210 Cal.App.3d 1060 Paula E. PHILLIPS, et al., Plaintiffs and Appellants, v. DESERT HOSPITAL DISTRICT, Defendant and Respondent.

Page 196

243 Cal.Rptr. 196

Previously published at 197 Cal.App.3d 922, 210 Cal.App.3d 1060

197 Cal.App.3d 922, 210 Cal.App.3d 1060

Paula E. PHILLIPS, et al., Plaintiffs and Appellants, v. DESERT HOSPITAL DISTRICT, Defendant and Respondent.

No. E001815.

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

Jan. 14, 1988.

Review Granted April 6, 1988.

Tanzer, Rosato & Samuels, Ellen Kamon, Beverly Hills, Haines, Russ, McMurry & Craig J. de Recat, Los Angeles, and Cary S. Samuels, Beverly Hills, for plaintiffs and appellants.

Thompson & Colegate, Riverside, Merrill & Neiswender, Redlands, Horvitz, Levy & Amerian, David M. Axelrad, David S. Ettinger, Grant Marylander and Michelle L. Stern, Encino, for defendant and respondent Desert Hosp. Dist.

OPINION ON REHEARING AFTER TRANSFER FROM SUPREME COURT

HEWS, Associate Justice.

Plaintiff Paula E. Phillips was admitted to Desert Hospital District, a state hospital district, for mammary dysplasia. On September 12, 1983, a bilateral mastectomy and reconstructive surgery were performed. Phillips and her husband (plaintiffs) claim: "Subsequent to the surgery, which was apparently unsuccessful, [plaintiff Paula Phillips'] condition deteriorated resulting in gangrenous tissue. [Plaintiff Paula Phillips] was nevertheless released from [defendant] Hospital in serious and dangerous condition." ¹

On April 6, 1984, plaintiffs' attorney sent the following letter to Desert Hospital:

"Re: Intention to Commence Action

"Paula E. Phillips and Richard A. Phillips

"Date of Incident: September 12, 1983

"To Whom It May Concern:

"This letter will serve to advise you that this office intends to commence an action against Desert Hospital on behalf of Paula E. and her husband Richard A. Phillips.

This action arises out of apparent Health Care Provider Negligence (Medical Malpractice) resulting from the diagnosis, care, treatment, operation and related services rendered to Paula E. Phillips on or about September 12, 1983 at Desert Hospital, Palm Springs, California, and the subsequent complications, treatment, damages, and emotional distress resulting therefrom. Mr. Phillips will claim damages for loss of consortium and for his mental and emotional suffering resulting from the damages and disfigurement to his wife." (Original emphasis.)

Defendant Hospital did not respond to plaintiffs' letter and on July 27, 1984, plaintiffs filed a complaint. At that time, plaintiffs were unaware defendant Hospital was a public entity. ² Defendant Hospital demurred, asserting plaintiffs had failed to comply with Government Code section 900 et seq. ³ Specifically, defendant Hospital asserted plaintiffs had failed to comply with the 100-day claim presentation requirement of the Tort Claims Act. Plaintiffs did not petition for late claim relief under section 911.4 from the 100-day claim filing requirement even though it is clear plaintiffs were unaware of the public entity status of defendant Hospital until the demurrer to the complaint was filed by Hospital.

On September 26, 1984, plaintiffs filed a first amended complaint, alleging: (1) They had "complied with the provisions of Government Code § 900, et seq." and (2) defendant Hospital "is estopped from asserting a defense pursuant to Government Code § 900, et seq." In regard to the second allegation, plaintiffs state their April 6, 1984, letter gave defendant Hospital notice of plaintiffs' claim, defendant Hospital failed to comply with section 7530, and defendant Hospital attempted to conceal its public agency status.

Defendant Hospital again demurred on the ground the complaint did not state facts sufficient to constitute a cause of action. ⁴ The trial court sustained the demurrer without leave to amend. The court held plaintiffs failed to meet the requirements of the Tort Claims Act. Plaintiffs now contend the trial court abused its discretion in sustaining the demurrer without granting leave to amend, and appeal from the January 15, 1985, order of dismissal.

In an opinion filed May 15, 1987, we affirmed the trial court's judgment of dismissal and held that plaintiffs' "Intention to Commence Action" letter of April 6, 1984, did not constitute a claim under section 905 and that defendant Hospital was not required to respond to the letter to comply with sections 910.8 and 911.3 in order to avoid waiver of its defense. ⁵ The

                California Supreme Court granted review and then transferred the case to us "for reconsideration in light of Foster v. McFadden (1973) 30 Cal.App.3d 943, 106 Cal.Rptr. 685 and Government Code sections 910.8, 911, and 911.3."   We have undertaken such reconsideration, and, because of the substantial factual and legal differences between Foster and the case here (see section II, infra ), we have concluded that Foster has no legal application to our case.  Accordingly, we shall stand on the original opinion
                

I STANDARD OF REVIEW

Blank v. Kirwan (1985) 39 Cal.3d 311, 216 Cal.Rptr. 718, 703 P.2d 58, sets forth the appropriate standards for reviewing the sufficiency of a complaint against a demurrer. " 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.' [Citations.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]" ( Id., at p. 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

Furthermore, as observed in Glaire v. La Lanne-Paris Health Spa, Inc. (1974) 12 Cal.3d 915, 918, 117 Cal.Rptr. 541, 528 P.2d 357: "[W]e bear in mind our well established policy of liberality in reviewing a demurrer sustained without leave to amend: 'The allegations of the complaint must be liberally construed with a view to attaining substantial justice among the parties.' [Citations.]"

II

COMPLIANCE WITH SECTION 900 ET SEQ.

Section 911.2 requires that all claims against public entities be filed within 100 days after the cause of action accrues. "Compliance with the claims statutes is mandatory [citation]; and failure to file a claim is fatal to the cause of action." (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454, 115 Cal.Rptr. 797, 525 P.2d 701.)

Plaintiffs contend they have alleged sufficient facts to reveal: (1) The cause of action accrued within 100 days of plaintiffs' letter and (2) plaintiffs' letter constitutes a "claim." Plaintiffs, therefore, contend the demurrer should not have been sustained.

Plaintiffs' first amended complaint merely alleges "Plaintiffs' cause of action accrued after September 14, 1983." Plaintiffs do not specifically state when the cause accrued. Plaintiffs' opening brief supplements their complaint:

"In the within case [plaintiffs] were unaware of their potential causes of action until subsequent medical opinion informed them of same. Furthermore, [defendant] Hospital concealed its negligence from [plaintiffs].... [p] Therefore, [plaintiffs'] causes of action against [defendant] Hospital could not have accrued until [plaintiffs'] subsequent medical providers informed them of the existence of such causes. Thereafter, [plaintiffs] notified [defendant] Hospital immediately of their claims. Such filings were well within the 100 days prescribed by 911.2." (Emphasis added.)

As provided in Gonzales v. City of San Diego (1982) 130 Cal.App.3d 882, 890, 182 Cal.Rptr. 73, for a complaint to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity. (See also, Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.2d 814, 819, 142 P.2d 37.) Such was not done in the present case. Plaintiffs did not allege when they discovered defendant Hospital's negligence or how defendant Hospital concealed its negligence. Even, however, were we to remand the cause and allow plaintiffs to plead defendant Hospital intentionally concealed its negligence and allow plaintiffs to state when they discovered defendant Hospital's negligence (see Donabedian v. Manzer (1986) 187 Cal.App.3d 1021, 1028, 232 Cal.Rptr. 325, where concealment was actually alleged in the complaint), plaintiffs would still have to show they filed a claim.

Plaintiffs contend their letter mailed to "Desert Hospital" on April 6, 1984, satisfies the "claim" requirement of sections 905, 911.2, and 945.4. We disagree.

In 1975, the Legislature enacted the Medical Injury Compensation Reform Act (MICRA). As part of MICRA, Code of Civil Procedure section 364 was added as an additional procedural pitfall in the path of plaintiffs in medical malpractice actions. This section requires a patient to give a health care provider at least 90 days' notice prior to commencement of an action based upon professional negligence. The notice shall notify defendant of the claim and the type of loss sustained, including with specificity the nature of the injury suffered.

The Legislature did not amend section 905 or 910 to eliminate the requirement of filing a claim against a public entity when the claim is based on professional medical negligence. It is, therefore, incumbent upon a plaintiff to give notice of intention to sue and to file a claim under the Tort Claims Act prior to filing a complaint against a public entity for such negligence.

Section 910 sets forth the information to be contained in a claim. ⁶ As plaintiffs point out, strict compliance with...