United Western Medical Centers v. Superior Court

• Decision Date: 02 February 1996
• Docket Number: Nos. G018548,G018004,s. G018548
• Citation: 42 Cal.App.4th 500,49 Cal.Rptr.2d 682
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 829, 96 Daily Journal D.A.R. 1324 UNITED WESTERN MEDICAL CENTERS et al., Petitioners, v. The SUPERIOR COURT of Orange County, Respondent; MICHELLE H., Real Party In Interest.

Page 682

49 Cal.Rptr.2d 682

42 Cal.App.4th 500, 96 Cal. Daily Op. Serv. 829,

96 Daily Journal D.A.R. 1324

UNITED WESTERN MEDICAL CENTERS et al., Petitioners, v. The SUPERIOR COURT of Orange County, Respondent MICHELLE H., Real Party In Interest.

Nos. G018548, G018004.

Court of Appeal, Fourth District, Division 3, California.

Feb. 2, 1996.

As Modified Feb. 26, 1996.

Horvitz & Levy, David S. Ettinger, Julie L. Woods, Encino, Veatch, Carlson, Grogan & Nelson, Donna Evans, Harrington, Foxx, Dubrow & Canter and Edward R. Leonard, Los Angeles, for Petitioners.

No appearance for Respondent.

Gregory M. Lloyd, Irvine, for Real Party in Interest.

RYLAARSDAM, Associate Justice.

Plaintiff claimed two members of a hospital's staff sexually assaulted her. She filed a complaint for assault and battery and professional negligence against the hospital and its owner. The complaint sought punitive damages. Each defendant moved to strike the punitive damage claim, asserting plaintiff failed to comply with CODE OF CIVIL PROCEDURE SECTION 425.13¹. The trial court denied the motions, ruling section 425.13 inapplicable. The defendants petitioned for writs of mandate or prohibition which we consolidated. We issued an alternative writ and now grant the petition directing the superior court to set aside its orders denying petitioners' motions to strike that portion of plaintiff's complaint praying for punitive damages and to enter a new order granting the motions. The petition challenging the trial court's overruling of the demurrer is denied.

STATEMENT OF FACTS

Real party was a patient at Western Medical Center-Bartlett (Western) which is owned by United Western Medical Centers (United). Real party alleges that on August 1, 1994, while she was recovering from traumatic brain stem injury, she was sexually assaulted by Jorge Diaz, a hospital employee. As a result, she became pregnant and underwent a therapeutic abortion. Real party also alleges she was sexually assaulted by a second employee, Mauricio Garcia; she did not plead the date of this assault. She filed a first amended complaint asserting causes of action for assault and battery, intentional infliction of emotional distress, and gross negligence. She also sought punitive damages from all defendants.

United and Western each filed a motion to strike, alleging real party had not complied with section 425.13 by first filing a motion for leave to file an amended complaint seeking punitive damages against a health care provider before asserting such a claim. United

also generally demurred, claiming the second cause of action for assault by employee Garcia was barred by the statute of limitations since it did not allege the date of the event. The court denied the motions and overruled United's demurrer. United and Western filed petitions for writs of mandate and/or prohibition. We consolidated the petitions and issued an alternative writ.

DISCUSSION

1. Do the Provisions of Section 425.13 Apply to the Claims Against the Hospital and its Owner?

United and Western (collectively hospital) moved to strike the punitive damage claims on grounds real party had not complied with the provisions of section 425.13. Real party argued the statute does not apply, relying on dictum in Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 10 Cal.Rptr.2d 208, 832 P.2d 924, to the effect claims for sexual battery fall outside the scope of the statute. In denying the motion, the trial court held the allegations of real party's complaint did not pertain to "professional services." We disagree.

Section 425.13, subdivision (a) (section 425.13(a)) regulates the pleading of a punitive damage claim against a health care provider and provides in part: "In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint ... unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed." As the California Supreme Court explained in Central Pathology, a plaintiff must make an evidentiary showing of a "substantial probability" of prevailing on a punitive damage claim before such a claim may be included in the pleading. (Central Pathology Service Medical Clinic, Inc. v. Superior Court, supra, 3 Cal.4th at pp. 189-190, 10 Cal.Rptr.2d 208, 832 P.2d 924.) The Legislature created this "pretrial hearing mechanism" to protect health care providers from spurious punitive damage claims. (Ibid.)

In Central Pathology, a patient sued a physician and a laboratory alleging they failed to notify her she was developing cancer when a pap smear revealed the presence of abnormal cells. The complaint alleged the laboratory fraudulently failed to notify her she should be retested and the physician had denied using the laboratory in an effort to cover up the malpractice. Plaintiff moved to amend the complaint to assert a claim for punitive damages in her fraud cause of action, arguing section 425.13 did not apply to intentional torts.

The California Supreme Court disagreed, holding the fraud count was "directly related to the manner in which defendants provided professional services. The claim emanates from the manner in which defendants performed and communicated the results of medical tests, a matter that is an ordinary and usual part of medical professional services. It is therefore governed by section 425.13(a)." (Central Pathology Service Medical Clinic, Inc. v. Superior Court, supra, 3 Cal.4th at pp. 192-193, 10 Cal.Rptr.2d 208, 832 P.2d 924.) "Identifying a cause of action as an 'intentional tort' as opposed to 'negligence' does not remove the claim from the requirements of section 425.13(a)." (Id. at p. 192, 10 Cal.Rptr.2d 208, 832 P.2d 924.) Instead, the trial court should examine the "allegations that identify the nature and cause of a plaintiff's injury ... to determine whether each is directly related to the manner in which professional services were provided." (Ibid.)

Real party alleged causes of action for assault and battery against hospital based on the contention it employed the alleged assaulters. Plaintiffs must do more than merely rely on the unsubstantiated allegations in their complaints before they may proceed with a punitive damage claim against a health care provider. (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 720, fn. 7, 34 Cal.Rptr.2d 898, 882 P.2d 894.) The causes of action for intentional infliction of emotional distress and gross negligence are expressly based on hospital's alleged failure to "supervise and protect and safeguard" real party. Real party alleges employees Diaz and Garcia acted "within the course and "The professional duty of a hospital ... is primarily to provide a safe environment within which diagnosis, treatment, and recovery can be carried out. Thus if an unsafe condition of the hospital's premises causes injury to a patient ... there is a breach of the hospital's duty qua hospital." (Emphasis omitted.) (Murillo v. Good Samaritan Hospital (1979) 99 Cal.App.3d 50, 56-57, 160 Cal.Rptr. 33.) Here, real party's only relationship with hospital was as a patient. Since the claim against hospital arises out of its alleged failure to adequately protect real party, she must abide by section 425.13 before she may pursue a punitive damage claim against United or Western.

scope of their employment" and with hospital's "consent, permission and knowledge," when they sexually harassed real party and hospital's conduct allowed for these employees to sexually harass real party. It is therefore hospital's failure to provide the very medical care it undertook to provide to real party which is the crux of real party's allegation.

Real party relies on dictum in Central Pathology: "[A] cause of action against a health care provider for battery predicated on treatment exceeding or different from that to which a plaintiff consented is governed by section 425.13 because the injury arose out of the manner in which professional services are provided. By contrast, a cause of action against a health care provider for sexual battery would not, in most instances, fall within the statute because the defendant's conduct would not be directly related...