Case Number: BC624957 Hearing Date: May 17, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

On June 23, 2016, Plaintiff Shawn Evelyn (“Plaintiff”) filed this action against Defendant Southern California Healthcare System, Inc. dba Southern California Hospital at Hollywood (erroneously sued as Alta Hospitals System, LLC) (“Defendant”) for negligence relating to injuries sustained on July 7, 2014 when she was working as a nurse at one of Defendant’s hospitals. Defendant moves for summary judgment on grounds this action is barred by the statute of limitations and Plaintiff cannot prove the elements of negligence.

II. FACTUAL BACKGROUND

Nursing registries provide staffing to hospitals on an as needed basis. Nurses and registry nurses at Southern California Hospital at Hollywood (“SCHH”) hold the same title, perform the same job function, and obtain their patient assignments from the charge nurse in the same way. (Undisputed Material Fact “UMF” No. 7.) On July 7, 2014, Plaintiff, a registry nurse, received a call from her employer, Secure Nursing, Inc. (“Secure Nursing”), about an opening at SCHH for a shift. (UMF No. 9.) Plaintiff asked if it would be a cardiac floor. Secure Nursing confirmed it would be a cardiac floor and SCHH needed a telemetry nurse. (UMF No. 10.) Plaintiff agreed to take the shift. When she arrived at the nurse staffing office, they told her to go to a particular floor and check-in with the charge nurse for her specific assignment. (UMF Nos. 11, 12.) Plaintiff met with the house supervisor that morning, who supervised the charge nurse. Plaintiff was aware she could go to him if she had any issues that day. (UMF No. 13.)

Plaintiff presented to the charge nurse to obtain her shift assignment and took a report from the night shift nurses. (UMF No. 14.) Plaintiff was uncertain whether she was on the correct floor because it did not appear to be a telemetry floor. Based on Plaintiff’s observations, she believed the floor was a psychiatric floor. (UMF No. 15.) Plaintiff was told one patient in particular, who seemed to Plaintiff to also have some psychiatric issues, was a cardiac telemetry patient (“the Patient”). He needed a telemetry unit, which Plaintiff was told she needed to obtain from another floor. (UMF No. 16.) The Patient appeared to have a security guard monitoring him and a lap-buddy, or soft restraint, used to keep him in his chair. (UMF Nos. 17, 19.) The Patient’s doctor had allegedly ordered a guard to be with the Patient one-to-one at all times. (UMF No. 5.) Plaintiff was told the Patient kept trying to run into the room of two female patients to repeatedly flush the toilet. Plaintiff thought the Patient appeared to have obsessive compulsive disorder. (UMF No. 18.) Despite these observations, Plaintiff decided to carry out her shift. (UMF No. 20.)

Plaintiff completed her medication rounds for her patients, and the Patient allowed Plaintiff to give him medications. (UMF No. 21.) The charge nurse was also helping Plaintiff monitor the Patient. She asked Plaintiff to check his medications to see what could be provided on an as-needed basis to help him calm down, such as Ativan. (UMF No. 22.) Plaintiff obtained and administered some medication to help calm him down on an as-needed basis. (UMF No. 23.) At some point, Plaintiff wheeled the Patient to his room to be changed. The security guard helped Plaintiff bring the Patient back out into the hallway where he had been sitting previously. (UMF No. 24.) There were also two other security guards on the floor helping to monitor patients in the hallway near the nursing station. (UMF No. 25.)

Between 3:00 p.m. and 4:00 p.m., Plaintiff was talking to the charge nurse at the nurse’s station. (UMF No. 26.) The charge nurse’s attention was diverted, she made some exclamation, and then she started running. Plaintiff turned around to see why the charge nurse was running and saw her running toward the Patient, who was quickly moving toward the room of the two female patients. (UMF No. 27.) Plaintiff followed the charge nurse. The charge nurse first came into contact with the Patient in or about the doorway of the room with the female patients, and she called out for someone to help them. (UMF No. 28.) In Plaintiff’s attempt to pull the Patient out of the room, the Patient latched onto Plaintiff’s hand and grabbed her thumb. (UMF No. 29.)

After approximately one hour, Plaintiff told the charge nurse that her hand was still hurting. The charge nurse told her to go downstairs to talk to the house supervisor, which she did. (UMF No. 31.) Plaintiff also called Secure Nursing to tell them what had happened. Plaintiff spent the remainder of the shift sitting at the nursing station resting her hand and attending to her patients if needed. (UMF No. 32.)

III. LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV. EVIDENTIARY OBJECTIONS

Defendant’s objections to Plaintiff’s evidence were not material to the disposition of this Motion. (Code Civ. Proc., § 437c, subd. (q).)

V. DISCUSSION

As framed by her complaint, Plaintiff alleges Defendant negligently, carelessly, recklessly, and unlawfully owned, managed, maintained, controlled, and inspected the premises of SCHH and improperly assigned her to the psychiatric floor even though she was a cardiac nurse. (Complaint, ¶ 14.) In responses to Defendant’s written discovery, Plaintiff asserted that Defendant’s employees did not properly restrain the Patient, who was supposed to be restrained to a chair. Plaintiff also contends Defendant’s employees failed to properly supervise the Patient as the Patient’s doctor had ordered a guard to be with the patient one-to-one at all times. Due to Defendant’s negligent, the Patient got free from his restraints, which allowed him to assault Plaintiff. (UMF No. 5.)

Defendant argues this action should be governed by the one-year statute of limitations applicable to injury arising out of professional negligence under Code of Civil Procedure section 340.5, rather than the two-year statute of limitations applicable to injury arising out of general negligence under Code of Civil Procedure section 335.1. In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person. (Code Civ. Proc., § 340.5.) Defendant contends the alleged negligent acts of improperly assigning Plaintiff to the psychiatric floor, failing to properly supervise the Patient with a one-to-one guard, and not properly restraining the Patient were committed in the rendering of professional services.

Plaintiff argues: (1) Defendant’s interpretation of MICRA defeats its legislative purpose where, for example, a slip and fall formerly classified as ordinary negligence would then become professional negligence when occurring within a hospital; (2) the application of MICRA and the cases relied on by Defendant are inapplicable because in those cases the plaintiffs were patients and not an employee like Plaintiff here; and (3) even if Section 340.5 applies, Defendant has not shown when Plaintiff knew of the negligent cause of her injury.

“‘Professional negligence’ means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital.” (Code Civ. Proc., § 340.5, subd. (2).) The relevant test for whether an act of negligence constitutes professional negligence is not the degree of skill required, but whether the negligence occurred in the rendering of services for which a provider is licensed. (Canister v. Emergency Ambulance Service, Inc. (2008) 160 Cal.App.4th 368, 404.) “[W]hen a cause of action is asserted against a health care provider on a legal theory other than medical negligence, the courts must determine whether it is nevertheless based on the ‘professional negligence’ of the health care provider so as to trigger MICRA.” (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 353; Ananda Church of Self-Realization v. Massachusetts Bay Insurance Company (2002) 95 Cal.App.4th 1273, 1281 [“a court is not bound by the captions or labels of a cause of action in a pleading. The nature and character of a pleading is to be determined from the facts alleged, not the name given by the pleader to the cause of action”].)

Plaintiff’s contention that if MICRA applies here then every ordinary negligent act in a hospital will be converted to professional negligence is not correct. Courts distinguish between negligent acts occurring in hospitals but not as part of the rendering of a patient’s diagnosis or treatment (which may give rise to a general negligence claim) and those acts that are part of the rendering of professional services (which can be the basis for a professional negligence claim). For example, in Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, the California Supreme Court explained, “Even those parts of a hospital dedicated primarily to patient care typically contain numerous items of furniture and equipment—tables, televisions, toilets, and so on—that are provided primarily for the comfort and convenience of patients and visitors, but generally play no part in the patient’s medical diagnosis or treatment,” and professional negligence does not include “negligence in the maintenance of equipment and premises that are merely convenient for, or incidental to, the provision of medical care to a patient.” (Id. at pp. 88-89.) (See also Bellamy v. Appellate Department (1996) 50 Cal.App.4th 797, 803 [noting “[h]ypothetical examples of ordinary negligence . . . such as injury to a patient from a collapsing chair in a doctor’s office or injury to a client from his attorney’s negligent driving en route to the courthouse”].)

Here, the injury allegedly occurred because Plaintiff was improperly assigned to a psychiatric floor and the Patient was not properly restrained and guarded. California law recognizes a right to expect that medical professionals “will realize when a patient poses a serious danger to another and, if that potential victim is identifiable, will act reasonably to protect the victim. The diagnosis and the appropriate steps necessary to protect the victim are not separate or severable, but together constitute the duty giving rise to the cause of action,” which falls under “professional negligence.” (Hedlund v. Superior Court (1983) 34 Cal.3d 695, 704.) Here, the alleged failure to provide adequate one-to-one security supervision and restrain the Patient after being specifically ordered by the physician, constitutes negligence in rendering professional services of assessing the dangerousness posed by the Patient and taking precautionary measures. The decision to assign Plaintiff, a medical professional, to work on a particular floor of the hospital was also indisputably part of rendering professional services.

Next, Plaintiff’s non-patient status does not mean her claims cannot fall under medical negligence and does not preclude application of MICRA limitations. By its terms, medical negligence is not limited only to patients receiving treatment. (See CACI 400.) The legislative purpose of MICRA to reduce health care costs by reducing judgments against health care providers rendering professional services would be frustrated if MICRA restrictions applied to actions by patients but not to actions by third parties injured as a result of the professional negligence. (Hedlund, 34 Cal.3d at p. 704.) Thus, a third party victim’s claim of negligence for a medical professional’s failure to take appropriate cautionary steps concerning a patient with psychological problems falls within section 340.5. (Id. at p. 703.)

In Williams v. Superior Court (1994) 30 Cal.App.4th 318, a phlebotomist non-employee of the defendant rehabilitation facility was injured while she attempted to draw blood from a patient with known violent tendencies. The plaintiff sued the facility for premises liability, negligent infliction of emotional distress, intentional infliction of emotional distress, loss of consortium, and failure to warn. (Id. at p. 322.) The facility moved to strike the punitive damages claim because the plaintiff had not complied with Code of Civil Procedure section 425.13, which requires that 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 the complaint unless the court enters an order allowing it. (Ibid.) The plaintiff argued section 425.13 did not apply because she alleged no facts of professional negligence and no health care provider services were rendered to her by the defendant. (Id. at p. 323.) The defendant argued the injury to the plaintiff arose in the course of the facility’s rendering professional services to the patient. (Ibid.) The appellate court concluded the injury arose out of the defendant’s rendering of professional services to the patient, and the plaintiff’s non-patient status did not preclude application of section 425.13. (Id. at pp. 323-324.)

Similarly, here, Plaintiff’s non-patient status does not preclude the application of MICRA. Non-patients and third-parties, such as survivors or spouses, who allege medical malpractice are subject to MICRA limitations even where they personally received no medical treatment. (See, e.g., Yates v. Pollock (1987) 194 Cal.App.3d 195, 199 [limit on noneconomic damages applied to patient’s survivors in wrongful death action]; Atkins v. Strayhorn (1990) 223 Cal.App.3d 1380, 1394-1396 [limit on noneconomic damages applied to spouse’s claim for loss of consortium]; Bell v. Sharp Cabrillo Hospital (1989) 212 Cal.App.3d 1034, 1048-1052 [limit on noneconomic damages applied to patient’s survivor in claim hospital breached its duty of care in selecting and reviewing staff physician competency.) That such plaintiffs are still subject to MICRA limitations shows that non-patient status is not dispositive.

Third, Plaintiff’s argument that Defendant did not establish when the statute of limitations began to run is not well-taken. A plaintiff in a medical malpractice action must satisfy the requirements of both the one-year and three-year limitations periods. (Brown v. Bleiberg (1982) 32 Cal.3d 426, 436-437.) The injury commences both the three-year and one-year limitations periods (Larcher v. Wanless (1976) 18 Cal.3d 646, 658), but the one-year limitations period does not begin to run until the plaintiff discovers both his or her injury and its negligent cause (Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1189). The “injury” is not necessarily the ultimate harm suffered, but instead occurs at “the point at which ‘appreciable harm’ is first manifested.” (Brown, supra, 32 Cal.3d at p. 437, fn. 8; Drexler, supra, 4 Cal.App.5th at p. 1190 [“The word ‘injury’ in section 340.5 ‘refers to the damaging effect of the alleged wrongful act and not the act itself’”].) “Once the damaging effect of the alleged wrongful act is apparent, the statute is activated.” Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 762.

“A plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discovered through investigation of sources open to her.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110.) “Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.” (Ibid.) “‘The question of when there has been a belated discovery of the cause of action, especially in malpractice cases, is essentially a question of fact,’ and ‘it is only where reasonable minds can draw but one conclusion from the evidence that the question becomes a matter of matter of law.’ [Citation.]” (Drexler, supra, 4 Cal.App.5th at p. 1189.)

The injury or manifestation of harm and the negligent cause were apparent on July 7, 2014. It is undisputed the Patient latched onto Plaintiff’s hand and grabbed her thumb, and Plaintiff’s hand hurt within one hour after the incident and throughout the remainder of her shift. Plaintiff reported the incident to both the SCHH supervisor and to her employer, Secure Nursing. (UMF Nos. 29, 31, 32.) It is also undisputed that she recognized when she first arrived and reported to her assigned floor that she appeared to be on the psychiatric floor, even though she was a cardiac telemetry nurse. (UMF Nos. 15, 16.) She also knew that the Patient seemed to have some psychiatric issues, was to be guarded and restrained, and was taking medication to calm down. (UMF Nos. 16, 18, 19, 22.) She knew he kept trying to run into the room of the two female patients to flush the toilet. (UMF No. 18.) Thus, Plaintiff was aware of both the injury and its alleged negligent cause—i.e., Defendant assigning her to the psychiatric floor when she was a cardiac telemetry nurse, not properly restraining the Patient, and failing to properly supervise the Patient, resulting in the Patient grabbing her hands and thumb causing injury—on the date of the incident. Plaintiff presents no evidence or argument that she discovered the negligent cause of her injury at some later date.

The Court finds reasonable minds could reach only one conclusion that Plaintiff knew of or suspected Defendant’s negligence had caused her injury on the date of the incident. Because the incident and injury giving rise to this action occurred on July 7, 2014, and this action was filed on June 23, 2016, it is barred by the one-year statute of limitations. As the Court finds this action is barred by the statute of limitations, it need not address the remaining arguments.

VI. CONCLUSION

In light of the foregoing, the Motion for summary judgment is GRANTED.

Moving party to give notice.