Case Name: Chesbrough v. American Medical Response Ambulance Service, Inc.
Case No.: 17-CV-315288

Defendant American Medical Response West (erroneously sued herein as “American Medical Response Ambulance Service, Inc.”) (“Defendant” or “AMR”) demurs to the first amended complaint (“FAC”) filed by plaintiff Grayson Chesbrough (“Plaintiff”).

This is an action for negligence. According to the allegations of the FAC, on August 4, 2017, Plaintiff began suffering from a psychotic episode which caused his family to call the police. (FAC, ¶ 9.) The Pacific Grove Police (“PGPD”) responded, as did AMR, and Plaintiff was placed on an involuntary psychiatric hold pursuant to Welfare and Institutions Code section 5150 (“5150”). (Id., ¶ 10.) Plaintiff was then placed on a gurney to transport him to a medical facility. (Id., ¶ 11.) Plaintiff resisted flexing his extremities and PGPD and AMR placed soft restraints on Plaintiff to “prevent him from coming off” the gurney. (Id.) AMR then transported Plaintiff to Community Hospital of Monterey Peninsula (“CHOMP”). (Id., ¶ 12.) While at CHOMP, it was determined that Plaintiff needed hospitalization and would require transportation to San Jose Behavioral Health Hospital (“SJBH”). (Id.)

The following day, August 5, 2017, AMR undertook to transport Plaintiff from CHOMP to SJBH due to his delusional and aggressive behavior. (FAC, ¶ 13.) Plaintiff was still under a 5150 during that time. (Id.) The attendants within the AMR ambulance failed to provide Plaintiff with proper care, including, but not limited to, failing to properly maintain, manage, control, and/or restrain Plaintiff. (Id., ¶ 16.) Because of these failures, Plaintiff was allowed or otherwise able to exit the ambulance while it was traveling approximately 55 mph down the highway. (Id.) Though Plaintiff was not hit by any other vehicles, he was injured after striking and rolling several times on the ground. (Id.)

Based on the foregoing, on October 31, 2017, Plaintiff filed the FAC asserting the following causes of action: (1) medical negligence; and (2) general negligence. On November 16, 2016, AMR filed the instant demurrer to the FAC and each of the claims asserted therein on the ground of failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) Plaintiff opposes the motion.

As a preliminary matter, AMR’s request for judicial notice of Cindy Williams’ paramedic license and Corey Drivon’s EMT license is GRANTED. (Evid. Code, § 452, subds. (c) and (h); see also Arroyo v. Plosay (2014) 225 Cal.App.4th 279, 296 [court took judicial notice of hospital license issued by the Department of Public Health, which qualified as an “official act”].)

Plaintiff’s request for judicial notice of the materials filed in Weiner, et al. v. Mollicon, et al., Case No, 2012-0550614, in the Superior Court of California, County of Orange, and the decision of the appellate court in Hackman, et al. v. American Medical Response, et al,. (2004) 2004 WL 823206, is DENIED. Judicial notice is “always confined to those matters which are relevant to the issue at hand.” (Gbur v, Cohen (1979) 93 Cal.App.3d 296, 301.) The decisions of a different trial court are completely immaterial to the disposition of the motion currently before this court. As for the unpublished decision issued in Hackman, California Rules of Court, rule 8.115(a) (“Rule 8.115”), prohibits courts and parties from relying on opinions not certified for publication or ordered published, except as specified by Rule 8.115(b). Hackman has not been certified for publication or ordered published for the purposes of the foregoing rule, and neither of the exceptions set forth in Rule 8.115(b) are implicated. The Court will therefore not take judicial notice of the opinion and Plaintiff is admonished for attempting to utilize judicial notice to get around the prohibitions contained in Rule 8.115.

Turning to the substance of the motion currently before the Court, AMR asserts the following arguments in support of its contention that neither of the claims asserted against it in the FAC can be maintained: (1) AMR did not owe Plaintiff a duty to prevent him from escaping from the ambulance; (2) AMR and its employees are immune from liability for civil damages unless their actions constitute gross negligence; (3) the second cause of action for ordinary negligence fails because any negligence on the part of AMR or its employees would constitute “professional negligence”; (4) the second cause of action fails because AMR is immune from liability for negligent training; and (5) the second cause of action fails because it is duplicative of the first cause of action.

AMR first maintains that California law does not recognize a duty owed to an escaping medical transport patient by the responding medical technicians or paramedics. As a general matter, the existence of a duty of care between the defendant and the plaintiff for the former to conform to a standard of care to protect the latter is a necessary element of a claim for negligence. (See e.g., Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673.) “The existence of a duty of care is a question of law to be determined by the court alone. This is because legal duties are … merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done.” (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434.) “Examining whether a legal duty exists and whether a particular defendant was negligent is not a coterminous exercise. Fulfilling the court’s responsibility to determine if a legal duty exists necessarily requires consideration and balancing of sometimes competing public policies which may be irrelevant to the factual determination of whether the challenged conduct fell below the prevailing standard of care.” (Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 265.)

In asserting that it did not owe a duty of care to Plaintiff to prevent him from escaping from the ambulance, AMR chiefly relies on the case of Hernandez v. KWPH Enterprises (2004) 116 Cal.App.4th 170, which it characterizes as so holding. In Hernandez, a husband filed an action for negligence against an ambulance service arising out of the death of his mentally disturbed wife, who was struck by a car when she ran away from the ambulance after it had taken her to the hospital at her request.

In affirming the trial court’s order granting the ambulance service’s motion for summary judgment, the Hernandez court concluded that no special relationship existed that created a duty of care to the decedent, and public policy did not support the recognition of a duty. In reaching this conclusion, the court reasoned that the plaintiff had failed to establish the existence of a special relationship, with none of the authorities he cited supporting the proposition that because the ambulance service undertook to transport the decedent to the hospital at her request, it could be held to have undertaken also to protect her from own suicidal, reckless or irrational conduct. Touching briefly on the factors utilized to determine the existence of a duty as set forth in the oft-quoted Rowland v. Christian (1968) 69 Cal.2d 108, the court further noted that the causal connection between the ambulance attendants’ conduct and the decedent’s death was attenuated and remote, with the latter “dashing away” as soon as the ambulance reached the hospital and the doors were opened, and being struck after walking a distance away and attempting to cross the highway for a second time. Finally, the court opined that recognizing a duty in the circumstances before it would have negative public policy implications, including subjecting emergency service providers to a “Hobson’s choice” of liability for violating that duty or liability for wrongful detention. (Hernandez, 116 Cal.App.4th 170, 181.)

Upon review, the Court is not persuaded that Hernandez stands for the broad proposition argued by AMR no duty is owed by responding medical technicians like it to escaping medical transport patients like Plaintiff. There are marked, critical distinctions between the facts of Hernandez and the facts in the instant case. First of all, and most importantly, Plaintiff was not voluntarily being transported to the hospital and thus did not retain the option of terminating the transport at any point like the decedent did in Hernandez. (See Hernandez, supra, 116 Cal.App.4th at 173.) Per the allegations of the FAC, he was under a 5150 hold and thus involuntarily detained. Consequently, AMR did not face the same potential “Hobson’s choice” that the ambulance attendants in Hernandez did because they were legally permitted to detain Plaintiff, whom they were transferring to a facility for further psychiatric care. Thus, finding a duty in the circumstances at bar would not have the same public policy implications.

Second, the Hernandez plaintiff’s wife emerged from the ambulance after it had arrived at the hospital and the doors had been opened; the vehicle was not moving at the time she ran away, and she was injured after running some distance and attempting some time later to cross the highway a second time. Here, in contrast, Plaintiff is alleged to have exited the ambulance while it was in motion, and while he was being transferred to another facility for further psychiatric care due to his delusional and aggressive behavior; he was purportedly injured immediately thereafter. (FAC, ¶ 13.)

Given the foregoing factual distinctions, the holding of Hernandez is not controlling here. Instead, whether a duty of care was owed by AMR to Plaintiff is dependent on an evaluation of the considerations which generally go into the formulation of such a duty, including: “the foreseeability of harm to the plaintiff, the degree of certainty the plaintiff suffered injury, the closeness of the connection of the plaintiff’s injury and the defendant’s conduct, the moral blame attached to the defendant’s conduct and policy of preventing future harm, the extent of the burden which would be placed on the defendant, the consequences to the community of imposing the duty, cost and prevalence of insurance for the risk involved. (Ballad v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6.) Upon review, the Court includes that based on the facts as pleaded here, a duty of care was owed to Plaintiff by AMR.

When it comes to the issue of foreseeability, the question before the Court is not whether the particular injury was reasonably foreseeable in light of the defendant’s particular conduct, but rather whether the type of negligent conduct at issue is sufficiently likely to result in the type of harm experienced to justify the imposition of liability. (Ballard, supra, 41 Cal.3d at 573, fn. 6.) Here, Plaintiff alleges that AMR attendants failed to properly restrain him, an individual being held under a 5150 psychiatric hold who displayed delusions and aggression, while the ambulance was in motion. It is reasonably foreseeable that such conduct would result in injury to either the patient himself or to the attendants based on the patient being able to freely move about the ambulance and even exit it while it is moving.

The remaining factors also weigh in favor of finding a duty in these circumstances. If Plaintiff indeed was not sufficiently restrained by AMR, the connection between that failure and the injuries he suffered upon exiting the ambulance is quite close. Further, considering that an ambulance crew in this situation was tasked with ensuring the safe transport of a mentally ill individual who has been involuntarily detained on a 5150 hold and through their own conduct allegedly failed to do so, moral blame attaching to AMR would not be unjustifiable. Finally, finding that a duty of care exists in this context would not only prevent future harm, but would not place an onerous burden on similarly situated defendants. Where law enforcement has already found cause to detain an individual without their consent under section 5150 of the Welfare and Institutions Code, i.e., that the individual “is a danger to others, or to himself or herself, or gravely disabled,” and the ambulance is tasked with transporting such an individual, properly retraining that person so that they do not harm themselves or others during that transport is part and parcel of the services being provided by the ambulance. Imposing such a duty is not only beneficial to the patient and the attendants so that none of them is injured, but also to the public at large, who may be subject to harm if the individual is able to escape the ambulance. Thus, the Court rejects AMR’s contention that Plaintiff cannot maintain his claims for negligence because it did not owe him a duty of care.

AMR next argues that it and its employees are immune from liability for civil damages pursuant to Health and Safety Code sections 1799.106 (“Section 1799.106) and 1799.108 (“Section 1799.108”) unless their actions constitute gross negligence, and Plaintiff has not alleged such conduct in the FAC.

Section 1799.106 provides that in order to encourage the provision of emergency medical services by “firefighters, police officers … EMT-I, EMT-II, EMT-P …”, such individuals are immune from civil liability predicated on “emergency medical services” rendered by them “at the scene of an emergency or during an emergency air or ground ambulance transport” unless the acts or omissions committed by them were performed “in a grossly negligent manner or omissions not performed in good faith.” (Health & Saf. Code, § 1799.106, subd. (a).) Section 1799.108, in turn, provides that “[a]ny person who has a certificate issued pursuant to this division from a certifying agency to provide prehospital emergency field care treatment at the scene of an emergency, as defined in Section 1799.102, shall be liable for civil damages only for acts or omissions performed in a grossly negligent manner or acts or omissions not performed in good faith.” (Health & Saf. Code, § 1799.108.) Per the materials submitted in AMR’s request for judicial notice, the attendants involved in this action both possessed the aforementioned certificates.

There are significant qualifiers to the foregoing immunity, outside of excluding conduct that is grossly negligent. Critically, the immunity proscribed by Section 1799.106 is limited to the provision of “emergency medical services,” which is defined as “the services utilized in responding to a medical emergency” (see Health & Saf. Code, § 1797.72), and “emergency” is defined as “a condition or situation in which an individual has a need for immediate medical attention, or where the potential for such need is perceived by emergency medical personnel or a public safety agency.” (Id., § 1797.70.)

Based on what is currently pleaded in the FAC, the Court cannot say for certain that the care and services provided by AMR to Plaintiff at the time he was injured qualify as “emergency medical services.” Indeed, based on the allegations of the FAC, the Court is more inclined to say that the circumstances under which AMR allegedly rendered care to Plaintiff did not qualify as such. AMR insists that it was rendering emergency medical services to Plaintiff at the time he was injured, but whether or not this was actually the case is a factual issue not suitable for resolution on demurrer.

Even assuming, for the sake of argument, that AMR was rendering services which fell within the ambit of Sections 1799.106 and 1799.108, Plaintiff has alleged that AMR’s conduct amounted to gross negligence, which is defined as “the lack of even scant care or an extreme departure from the ordinary standard of conduct.” (Sanchez v. Kern Emergency Medical Transportation Corporation (2017) 8 Cal.App.5th 146, 153.) This conduct eliminates AMR’s ability to rely on the immunity proscribed by Sections 1799.106 and 1799.108. AMR argues that Plaintiff has not and cannot plead facts sufficient to state a claim for gross negligence, but whether or not AMR’s conduct towards Plaintiff in light of the circumstances of the case fell so far below the applicable standard of care so as to qualify as “gross” is also a factual question that cannot be resolved at this juncture. While some courts have decided whether the conduct pleaded in a complaint qualified as “gross negligence” based solely on the pleadings (see, e.g., Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1185-1186), in those cases the facts pleaded permitted those courts to decide as a matter of law that the alleged wrongful conduct did not qualify as grossly negligent. Here, there is simply not enough known about the circumstances of Plaintiff’s transportation to arrive at a similar conclusion. Consequently, the immunity provided by the aforementioned code sections does not provide a basis upon which to sustain AMR’s demurrer.

Next, AMR argues that Plaintiff’s second cause of action for ordinary negligence fails because any negligence on its part would constitute “professional negligence” only. In making this argument, AMR maintains that it and its crew qualify as “health care providers” under the Medical Injury Compensation Reform Act (“MICRA”), which applies in actions against health care providers based on professional negligence. (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 354.) In his opposition, Plaintiff does not dispute that AMR qualifies as a “health care provider” under MICRA, but insists, persuasively, that the distinction between “ordinary” negligence and “professional” negligence is not relevant here.

With regard to negligence, generally, because the applicable standard of care is dependent on the specific circumstances of each action, “the amount of care deemed reasonable in any particular case will vary, while at the same time the standard of conduct itself remains constant, i.e., due care commensurate with the risk posed by the conduct taking into consideration all relevant circumstances.” (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997-998.) With respect to professionals, “their specialized education and training do not serve to impose an increased duty of care, but rather are considered additional ‘circumstances’ relevant to an overall assessment of what constitutes ‘ordinary prudence’ in a particular situation.” (Id.) “Since the standard of care remains constant in terms of ‘ordinary prudence,’ it is clear that denominating a cause of action as one for ‘professional negligence’ does not transmute its underlying care.” (Id. at 998.) It also does not distinguish a claim separate and independent from some other form of negligence, because denominating a claim as “professional negligence” simply “serves to establish that basis by which ‘ordinary prudence’ will be calculated and the defendant’s conduct evaluated.” (Id.) Any distinction between “ordinary” and “professional” negligence is relevant only when the Legislature has statutorily modified or otherwise conditioned some aspect of an action for professional negligence “not directly related to the elements of negligence itself,” including, for example, the statute of limitations. (Id.)

MICRA contains numerous provision effecting substantial changes in negligence actions against health providers, including a limitation on noneconomic damages (Civ. Code, § 3333.2), the elimination of the collateral source rule (Civ. Code, § 3333.1) and a lengthier statute of limitations (Code Civ. Proc, § 340.5). It does not, however, effect the underlying elements of the claim. Here, because there does not appear to be any statute of limitations issue (Plaintiff’s claims would be timely even under the one-year limitations period proscribed for “ordinary” negligence (see Code Civ. Proc., § 340)), there is no distinction between asserting a claim for “professional” negligence or “ordinary” negligence against AMR. Regardless of how the negligence claim against AMR is denominated in this action, ultimately only a single standard of care is applicable. Thus, AMR’s assertion that Plaintiff’s second cause of action for ordinary negligence fails because he can only assert a claim for professional negligence is without merit because any distinctions between these two claims is not relevant here. The same underlying elements of negligence are present in both claims. Accordingly, AMR’s argument is without merit.

AMR next insists that the second cause of action fails because it is statutorily immune from liability for negligent training pursuant to Health and Safety Code section 1799.100. Even if this is true, however, the second cause of action is not predicated solely on AMR’s alleged failure to supervise, train or instruct its crew. It is also based on allegations that AMR negligently hired the attendants who undertook to transport Plaintiff from CHOMP to SJBH. (FAC, ¶ 28(a).) Because a demurrer does not lie to only part of a cause of action (see PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682), this argument does not provide a basis upon which to sustain the motion to the second cause of action.

AMR lastly contends that the second cause of action fails because it is duplicative of the first. Relying on Diaz v. Carcamo (2011) 51 Cal.4th 1148, AMR maintains that a plaintiff may not prosecute a negligent hiring claim against the employer, as Plaintiff does here, when the employee was acting in the course of scope of his employment at the time of the alleged tortious conduct. Diaz, however, was decided on summary judgment, and in that case, a person injury action, the court held that the employer’s offer to admit vicarious liability for any negligence of its employees required the trial court to withhold the plaintiff motorist’s negligent hiring and retention claims from the jury because the former rendered the latter irrelevant. This is because vicarious liability and negligent entrustment are alternative theories under which to impose the same liability on the employer as might be imposed upon the employee. (See Diaz, 51 Cal.4th at 1155, citing Armenta v. Churchill (1954) 42 Cal.2d 448, 457.) Once liability has been admitted by the employer, then the other claims based on theories of negligent hiring, entrustment or retention become superfluous. (Id. at 1160.) Here, in contrast, the action is only at the pleading stage, and AMR has not offered to admit vicarious liability for its employees’ alleged conduct. Thus, AMR’s argument is unavailing.

As all of AMR’s arguments in support of its motion fail for the reasons articulated above, AMR’s demurrer to the FAC and each of the two causes of action asserted therein on the ground of failure to state facts sufficient to constitute a cause of action is OVERRULED.