Government Liability Update

Whether Mother's Knowledge of Baby's Death and Request for Autopsy Established Accrual of Medical Malpractice Claim Is Issue of Fact

In Kernan v. Regents of the University of California, ordered published September 20, 2022, the First District Court of Appeal, Division 4 reversed summary judgment for the defendant Regents.  On November 4, 2016, the plaintiff went to the defendants' hospital for a procedure to rotate her healthy fetus to a head-first position.  There was no indication of any problem.  Later that night, after discharge, the plaintiff could not feel any fetal movement.  The next day, she returned to the hospital.  Doctors informed her that day that there was no fetal heartbeat, and she had suffered an interuterine fetal demise.  They told the plaintiff they could not determine the etiology of the death, and that nothing in the literature indicated an association between the procedure performed and fetal demise.  Per medical records, the plaintiff debated that day whether to have an autopsy performed. Her doctors explained that autopsies are often unsuccessful in establishing the underlying cause of the fetal death, although they can provide peace of mind.  The plaintiff denied discussing an autopsy that day.  That day, the doctors induced labor.  The plaintiff delivered a stillborn baby on November 7, 2016.  A doctor told the plaintiff an initial examination of the delivered baby, placenta, and did not show indicators as to why the baby died.  At some point after the delivery, the plaintiff ordered an autopsy.  A doctor met with the mother on July 10, 2017 to discuss the autopsy results.  The doctor told the plaintiff her case had been discussed during a mortality and morbidity conference at the hospital, but the doctor refused to answer the plaintiff's questions about what was said.  The plaintiff states that during this meeting, she first suspected medical negligence caused the death.  She served notice of intention to sue on November 6, 2017, and filed suit on February 2, 2018.  The trial court granted summary judgment on the ground that the lawsuit was filed outside the one-year statute of limitations under Code of Civil Procedure section 340.5.

The appellate court ruled that the date of accrual of the medical malpractice action was an issue of fact.  The statute of limitations began running when the plaintiff suspected or should have suspected that her injury was caused by wrongdoing.  Based on the notice of intent she served, which extended the statute of limitations 90 days, the plaintiff's action was timely if accrual was on or after November 6, 2016.  The defendants contended that the cause of action accrued on November 5, 2016, when the plaintiff learned of the fetus's death and records indicated she discussed an autopsy.  The evidence did not establish without dispute that the plaintiff subjectively suspected negligence that day.  The records state that the plaintiff was interested in an autopsy but was undecided.  The plaintiff herself denied discussing an autopsy that day.  Further, in light of the doctors' discussion with the plaintiff, a reasonable trier of fact could conclude the plaintiff discussed an autopsy to seek closure and obtain information, not because she subjectively suspected wrongdoing.  Further, the plaintiff remained under the doctors' care until she delivered the fetus on November 7.  A fact trier could conclude that the plaintiff had not lost trust in her doctors at that point.  On the objective prong, reasonable minds could differ on whether the events of November 5 the plaintiff should have suspected the defendants' wrongdoing on November 5, given that the doctors did not suspect wrongdoing, and the autopsy report corroborates the plaintiff's understanding that fetuses sometimes die in utero for unknown reasons.

"Watchful Waiting" Treatment of Prisoner's Medical Problem That Was Worsening Violates Clearly Established Law

In Stewart v. Aranas, published May 4, 2022, the 9th circuit affirmed the district court's denial of qualified immunity to prison officials in a prisoner's lawsuit under 42 U.S.C. section 1983.  According to the summary of facts in the majority opinion, the prisoner complained to prison staff of severe pain when urinating and difficulties in urination.  Staff examined him, gave him generic medication, and sent him on his way.  Over the next three years, the prisoner's urethra, testicles, and abdominal areas grew inflamed.  The prisoner continued to complain to prison staff.  They did not change their treatment.  The prisoner was transferred to another facility in an eight-hour ride.  The staff at the new facility initiated emergency medical care.  A catheterization drained fourteen pounds of fluid from the prisoner's bladder and unrinary system.  He underwent prostate surgery.  He claims long-term kidney disease, erectile dysfunction, urine build up, and pain.  He sued the prison officials alleging deliberate indifference to serious medical needs.  The officials appealed denial of qualified immunity on the second prong of the immunity--the law was clearly established.

The 9th Circuit agreed that the district court properly denied qualified immunity on the second prong.  The prison officials claimed that no clearly established law barred their "wait and see" treatment plan for the prisoner's enlarged prostate.  But case law establishes that denying, delaying, or intentionally interfering with medical treatment can violated the constitution.  At some point, "wait and see" becomes deny and delay.  The prisoner's condition sharply deteriorated, yet prison officials never deviated from their "wait and see" treatment plan.  A delay in treatment can violated the constitution if it results in injury.  Further, it is clearly established that prison officials violate the constitution when they persist in a treatment known to be ineffective.

A concurring judge agreed that a reasonable prison official with awareness of a factual predicate like the one set forth in the majority opinion would have violated clearly established rights by a treatment plan of "watchful waiting."  But the judge opined the records showed a different factual predicate than the one set forth in the opinion.  Since the defendants appealed only denial of qualified immunity on the second prong, the first prong--whether the plaintiff's constitutional rights were actually violated--was not an issue on appeal.

 

County Immune from Liability to Hospital under Knox-Keene Act

In County of Santa Clara v. Superior Court (Doctors Medical Center of Modesto), published April 26, 2022, the Sixth District Court of Appeal issued a writ directing a trial court to sustain the petitioner county's demurrer to the real party hospitals' complaint.  The county operates a health care plan licensed under the Knox-Keene Health Care Service Plan Act, Health & Safety Code section 1340 et seq.  The hospitals provided emergency services to members of the county's healthcare plan.  The hospitals submitted claims to the county for over $144,000, the amount the hospital alleges is the reasonable value of the services provided.  The county reimbursed the hospital approximately $28,500.  The hospitals sued the county for reimbursement.  It asserted tort and implied-in-law causes of action.  The trial court sustained the demurrer without leave to amend as to the tort causes of action, and granted leave to amend the breach of implied contract cause of action.  In the operative complaint, the hospital asserted a single cause of action alleging implied-in-fact and implied-in-law contracts with the county.  The trial court overruled the demurrer to the complaint, ruling that the hospitals stated facts sufficient to constitute a cause of action for quantum meruit or implied-in-fact contract.

The appellate court ruled that the trial court erred.  The implied-in-law contract/quantum meruit claim is barred by Government Code section 815, which immunizes public entities from liability on common law theories.  Case law establishes that section 815 bars quantum meruit actions against public entities.  The appellate court rejected the hospitals' argument that the Knox-Keene Act imposed a mandatory duty upon the county that gave rise to a cause of action under Government Code section 815.6.  Section 815.6's application requires that the enactment be obligatory, requiring that a particular action be taken or not taken; and that if the public entity or officer is under an obligation to function, that the function itself not involve the exercise of discretion.  While Health & Safety Code section 1371.4(b) imposes a duty on the county to reimburse the hospitals, the statute calls for reimbursement of the "reasonable and customary value" of the services performed.  The statute therefore gives the county discretion in the amount of reimbursement to pay.  The section therefore does not create a purely mandatory duty, and does not authorize the hospitals' implied-in-law contract cause of action.  No other statute authorizes the hospitals' action for damages.  The complaint also alleges an implied-in-fact contract.  Because Government Code section 815 does not affect liability based on contract, it does not preclude an action for breach of an implied-in-fact contract.  But the single cause of action is ultimately based on alleged breach of a noncontractual duty--the county's alleged obligation under county ordinances and the Knox-Keene Act to pay for the care and treatment the hospitals rendered.  Because the suit is based on alleged breach of statutory duty rather than alleged breach of promise, its nature is tortious and the county is immune from suit under section 815.  Because the hospitals failed to show how they could amend the complaint to save the action, they were not entitled to leave to amend.

 

 

Jail Medical Personnel Not Entitled to Qualified Immunity for Allegedly Providing Inadequate Care to Inmate Displaying Serious Cardiac Symptoms

In Russell v. Lumitap, published April 13, 2022, the 9th Circuit Court of Appeals affirmed in part and reversed in part an order denying summary judgment to medical providers at a county jail.  The decedent prisoner came to prison medical providers complaining of vomiting, chest pain, and anxiety.  The first nurse who saw him gave him Pepto-Bismol and referred him for a mental health screening.  The second nurse, who saw him at the mental health intake center, gave him a dose of nitroglycerin.  The decedent’s pain increased.  The nurse called the on-call doctor, who ordered the decedent be given Motrin and be screened for mental illness.  The doctor never examined the decedent in person.  The decedent received a mental health screening and was returned to jail.  The inmate then returned to the jail medical clinic complaining of more severe pain.  She knew that per policy, if nitroglycerin did not relieve the patient’s symptoms, the patient should be hospitalized.  She called the nurse at the mental health intake center, who told her of the doctor’s orders.  The nurse administered Motrin and the decedent remained for observation.  The patient consulted with another nurse, who instructed him on relaxation and gave him a heat balm.  Eventually, the nurse observed the decedent in extreme distress.  She called paramedics.  The decedent was transferred to a hospital where he died.  He had suffered an aortic dissection.  The decedent’s parents sued the various medical personnel under 42 U.S.C. section 1983, alleging deliberate indifference.  The defendants moved for summary judgment based on qualified immunity.  The district court denied the motion, finding genuine issues of material fact.

The 9th Circuit affirmed as to all but one nurse.  At the time of the decedent’s death, a deliberate-indifference claim under the 14th Amendment were decided on the same standard as 8th Amendment claims, requiring a showing of deliberate indifference.  Later, the Supreme Court held that a plaintiff alleging a 14th Amendment violation need not show subjective deliberate indifference; only that the force used was objectively unreasonable.  The 9th Circuit then applied this rule to 14th Amendment claims, requiring that the plaintiff show that the defendant made an intentional decision putting the plaintiff at substantial risk of serious harm, and then did not take reasonableavailable measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious.  The court applies this objective standard to determine whether the defendants violated clearly-established law, even where the incident occurred before the change in the law.  The standard can be met where the care rendered is so inadequate to the circumstances known to the medical staff as to amount to deliberate indifference.  At the time of decedent’s death, the 9th Circuit had found deliberate indifference where nurses and a doctor had prescribed palliative treatment in response to serious symptoms, or providing life-saving measures to an inmate in obvious need.  Further, other circuits had applied the standard to obvious symptoms of heart attack, such as those the decedent displayed here.  Under this standard, a jury could find that all of the medical personnel—except for the nurse who called the doctor, and followed his orders (entitling her to qualified immunity)—violated clearly established law by having access to information that the decedent had a substantial risk of serious injury, and providing constitutionally inadequate treatment.

Local Government Health Order Complies with Substantive Due Process if It Has a Rational Basis

In County of Los Angeles Department of Public Health v. Superior Court (California Restaurant Assoc.), published March 1, 2021, the Second District Court of Appeal, Division 4 issued a peremptory writ of mandate directing a trial court to vacate an order.  The petitioner county issued an order barring outdoor dining during a surge in the COVID-19 Pandemic.  An association of restaurants and an individual restaurant sued the county, seeking writ relief, declaratory and injunctive relief and relief for violation of due process, equal protection, and infringement of the right to liberty under the California Constitution. In the trial court, both sides submitted expert evidence for and against the restriction's relationship to preventing transmission of the virus. The trial court consolidated the actions, and issued an order enjoining the county from enforcing or enacting any county ban on outdoor dining, unless and until its public health officers conduct a risk-benefit analysis and articulate it for the public.  The county petitioned the court of appeal for writ relief.  The appellate court stayed the trial court's preliminary injunction order and issued an order to show cause.  While the writ was pending, the governor lifted a Regional Stay at Home Order that banned outdoor dining, and the county issued an order permitting outdoor dining with significant restrictions.

The appellate court determined the writ proceeding was not moot, because the county may reimpose the prohibition on outdoor dining if the region faces another surge.  The appellate court further determined that the trial court erred by failing to apply the proper deferential standard for evaluating state and local agencies' responses to public health emergencies.  The 1905 Jacobsen v. Massachusetts U.S. Supreme Court decision held that government action that purports to protect the public health will be upheld, unless it has no real or substantial relation to the object of public health, or beyond all question is a plain, palpable invasion of rights secured by the fundamental law.  The court analyzed recent decisions from the U.S. Supreme Court analyzing Pandemic restrictions on church services, and determined that the Jacobsen holding is still the rule as to secular businesses.  Therefore, the rational-relationship test for substantial due process claims applies; as does the rule of deference to administrative action, limiting that review to determining whether the agency's action has been arbitrary, capricious, or entirely lacking in evidentiary support.  The court cannot reweigh the evidence, or substitute its own judgment for the agency's.  Both the real parties' substantive due process claims and their contention that the county exceeded its emergency powers under Health & Safety Code section 101040 are analyzed under this rational relation test.  The trial court found the county's evidence provided a rational basis for the challenged order, but nevertheless adopted the opinion of the real parties' expert that a health order required a risk-benefit analysis.  Mandating such a nebulous requirement, the appellate court ruled, is inconsistent with the determination of whether the agency's actions were arbitrary, capricious, or entirely lacking in evidence.  Requiring public agencies to undertake such studies would take time and resources that may not be available when swift government action might be taking in response to surging infection, hospitalization, and death.  Because the real parties failed to meet their burden of showing the county's order was arbitrary, capricious, or without rational basis, they cannot ultimately succeed on the merits.  The trial court therefore erred in granting them injunctive relief.

The appellate court also rejected the individual restaurant's argument that the order violated freedom of assembly.  Even assuming the restaurant has a freedom of assembly, the county order does not regulate assembly based on expressive conduct, and is based on a legitimate and substantial government interest.  Further, it leaves open alternative channels for assembling, such as video conferencing and socially-distanced in-person gatherings.

Although Officers Had Probable Cause to Arrest Suspect, They Are Not Immune from Negligence Liability for Interfering with Paramedic Treatment; Immunity for Injuries to Prisoners Does Not Apply to Public Employees

In Collins v. County of San Diego, published February 17, 2021, the Fourth District Court of Appeal, Division 1 affirmed a judgment entered after jury trial.  County sheriff's deputies investigated reports from the plaintiff that resulted from the plaintiff's delusions.  The plaintiff's roommates told the deputies that the plaintiff had been acting oddly.  There was conflicting evidence over whether the roommates said the plaintiff had been binge drinking.  The plaintiff left the apartment, stumbled, and fell.  A passerby called 911.  Paramedics arrived and began assessing the plaintiff.  An ambulance was called.  Sheriff's deputies, including one who had been involved in the call to the apartment, arrived and arrested the plaintiff.  There was conflicting evidence over whether the paramedics had completed assessment of the plaintiff.  The arresting deputy took the plaintiff to jail.  There, a nurse employed by the county conducted a medical intake exam.  The nurse decided the plaintiff was safe to place in a jail cell.  The plaintiff sustained a forehead injury, treated with a band-aid.  The jail doctor visited the plaintiff in jail.  He was not told of the plaintiff's hallucinations or incoherent statements, or that he had fallen and injured his head.  The doctor concluded no further care was needed.  The plaintiff fell again.  He was taken to a private hospital.  He was diagnosed with severely low sodium level and a brain bleed to his frontal lobe.  The doctors at the hospital allegedly mistreated the condition, further injuring the plaintiff.  The plaintiff settled with the hospital and its doctors.  He then sued the county, two of the arresting deputies, and the two nurses who saw him in jail.  The jury found the deputies and nurses negligent, but rejected an unlawful arrest claim on the ground the deputies had probable cause to arrest the plaintiff.

The court of appeal rejected the defendants' various attacks on the judgment.  The defendants argued that the negligence verdict against the deputies was inconsistent with the finding that they had probable cause to arrest.  The appellate court concluded that while probable cause would immunize the deputies from liability for a negligent arrest, it did not immunize them from negligence apart from the arrest.  Here, there was evidence supporting the plaintiff's theory that the officers negligently interfered with the paramedics due to arresting him before they had a chance to finish their examination.  The court also rejected an attack on an instruction that the deputies were liable for the doctors' and hospital's alleged negligence in treating him.  A defendant who negligently injures a plaintiff is liable for any subsequent injury from negligent treatment of the injury they caused.  The court rejected the argument that Government Code section 845.6 immunized the deputies or county from liability for the subsequent medical treatment.  Section 845.6 applies only to injuries to prisoners, and the plaintiff was not yet a prisoner when the deputies allegedly interfered with the paramedics.  The appellate court rejected the argument that the individual defendants were immune from liability for the plaintiff's injuries in jail under Government Code section 844.6's immunity for injuries to prisoners.  Section 844.6 immunizes only public entities, not public employees.  The nurse who initially examined the plaintiff argued he was immune under Government Code section 855.6, which immunizes examinations to determine if persons are dangers to themselves or others.  The court ruled that the immunity did not apply, because it is inapplicable to examinations for the purpose of treatment.  One of the purposes of the examination was to determine whether the plaintiff needed medical treatment.  Finally, the court approved the trial court's apportionment of the offset from the doctors' and hospital's settlement against the judgment, which did not reduce the percentage of the settlement amount apportioned to noneconomic damages based on MICRA limitations on noneconomic damages.  MICRA caps apply only to judgments, not settlements.

Interagency Firefighting Immunity Does Not Apply to Non-Fire Lifesaving Activities

In Wilson v. County of San Joaquin, published July 30, 2019, the Third District Court of Appeal reversed summary judgment in favor of the defendant county.  The plaintiffs' infant child, in critical condition, was transported from plaintiffs' house by private ambulance.  Two City of Stockton firefighters rode in the ambulance and performed emergency medical procedures.  The infant eventually passed away. The city firefighters provided their services under an agreement between the city and county under which the city's fire department would provide emergency medical services as part of the county's emergency medical services system.  The plaintiffs sued the county for the firefighters' lifesaving efforts.  They alleged that the firefighters committed medical malpractice and professional negligence.  The trial court granted the county summary adjudication under Government Code section 850.6.  Section 850.6 provides that when a public entity provides "fire protection or firefighting service" outside of the public entity's regular area, the public entity receiving the fire protection or firefighting service is not liable for any act or omission of the public entity providing the service.

The appellate court concluded that section 850.6's immunity did not apply.  The Law Revision Commission comment on section 850.6 stated that the statute makes clear which public entity is liable "when one entity calls for the assistance of another in fighting a fire."  The comment, along with the statute's plain language, indicates that it applies only to services related to fighting a fire.  Cases interpret a related immunity, Government Code section 850.4 (providing immunity for injury caused in fighting fires) not to apply absolute immunity to lifesaving actions unrelated to fighting fires; instead, Health & Safety Code section 1799.107 provides only a qualified immunity to such activities, immunizing public entities and emergency rescue personnel from liability for providing emergency medical services unless performed in bad faith or in a grossly negligent matter.  The court concluded the placement of both section 850.4 and 850.6 in the same chapter suggests a legislative intent that they be interpreted similarly.

Decision to Release 5150 Detainee Is Not Protected by Anti-SLAPP Law

In Swanson v. County of Riverside, published June 17, 2019, the Fourth District Court of Appeal, Division 1 affirmed a trial court's denial of a special motion to strike under the anti-SLAPP statute.  The plaintiffs sued the defendant county because the county released a Welfare & Institutions Code section 5150 detainee after evaluation under Welfare & Institutions Code section 5152.

The appellate court concluded that an evaluation under section 5152 is not speech protected by the anti-SLAPP statute.  It is not analogous to a peer review, which is protected.  The suit is for the county's act in releasing the detainee, not for a statement.  The appellate court declined to analyze the plaintiffs' chances for success.

Section 364 Notice of Intent to Sue Does Not Toll Claim or Late-Claim Application Deadlines

In Last Frontier Healthcare District v. Superior Court (Harper), published March 26, 2019, the Third District Court of Appeal issued a writ reversing a trial court order granting a Government Code section 946.6 petition for late claim relief.  The plaintiff had surgery on February 17, 2017 at the Modoc Medical Center.  She alleges the surgery was negligent.  On January 31, 2018, Harper served on the medical center and the surgeon a Code of Civil Procedure section 364 notice of intent to commence a malpractice action.  The defendant healthcare district, which did business as the medical center, is a public entity.  It treated the 364 notice as a governmental claim.  ON March 16, 2018, it rejected the "claim" as untimely.  On April 6, 2018, the plaintiff submitted to the medical center an application for leave to present a late claim.  The application stated the cause of action accrued February 17, 2017.  The district denied the application as untimely.  The plaintiff then petitioned the court for relief under section 946.6.  The petition also alleged the cause of action accrued February 17, 2017.  The trial court granted the petition.  The court stated that it assumed the accrual date was the date of surgery. The court reasoned that the plaintiff's one-year deadline to apply for late-claim relief under Government Code section 911.4 was tolled by the 364 notice.

The Court of Appeal held that the trial court erred.  In Woods v. Young (1991) 53 Cal.3d 315, the California Supreme Court held that sending a notice of intent under section 364 tolled the statute of limitations for commencing an action.  But the government claim presentation deadline and the deadline for seeking leave to present a late claim are not statutes of limitation, and do not set forth the deadline for commencing an action.  The tolling set forth in Woods does not apply to the plaintiff's late-claim application.  Because filing a late-claim application with the entity within a year of accrual is a jurisdictional prerequisite to a Government Code section 946.6 petition, the trial court had no jurisdiction to grant the plaintiff relief.

The appellate court also rejected the plaintiff's argument that the trial court nevertheless had jurisdiction to grant the application, because the district did not establish that her application was presented more than a year after accrual.  The plaintiff, as the party seeking relief under the petition, had the burden of raising an issue on the date of accrual.  She conceded in her application and petition that her cause of action accrued on the date of surgery.

Officer Entitled to Qualified Immunity for Failure to Prevent Arrestee's Suicide Attempt in Cell, but Is Not Entitled to Summary Judgment on State Law Claim

In Horton v. City of Santa Maria, published February 1, 2019, a divided 9th Circuit panel affirmed in part and reversed in part a district court order denying summary judgment to a police officer and his city employer in a case brought under 42 U.S.C. section 1983 and California Government Code section 845.6.  The plaintiff was arrested after slashing the tires of a vehicle his girlfriend was riding in.  He admitted to hitting the girlfriend in the past. While in the holding cell at the police station, he told the defendant officer of various troubles in his life, and that he was nervous being in a cell, but twice denied needing medical care.  Another officer referred to the possibility of a psych consult for the plaintiff.  The plaintiff's mother talked to him on the phone.  The officer then spoke to the mother on the phone for about 15 minutes.  The mother told the officer the son had engaged in self-harm and suicidal ideation.  While the officer talked with the mother, the plaintiff undid his belt, looped it through the bars, and hanged himself.  The plaintiff was left alone for a half hour, during which he developed brain damage from the hanging.  The district court denied summary judgment to the officer and the city on the federal and state claims.

The 9th Circuit panel unanimously reversed denial of summary judgment as to the section 1983 claim against the officer.  Because insufficient case law established that the officer's actions amounted to deliberate indifference under the then-prevailing Fourteenth Amendment standard for denial of medical care to pretrial detainees, any Fourteenth Amendment violation was not clearly established.  The officer was therefore entitled to qualified immunity. The court also unanimously ruled that it lacked jurisdiction over the denial of summary judgment to the city on the Monell claim.  While denial of summary judgment based on qualified immunity is immediately appealable, denial of summary judgment to a municipal defendant may be appealed only if reversal on the qualified immunity issue as to the individual will also lead to reversal for the municipality.  That standard was not met here, because the municipality could be held liable even if the officer was entitled to qualified immunity due to lack of clearly-established law.

The majority held that the district court also properly denied summary judgment on the state law claim.  Under the facts, the majority found triable issues of fact on whether the information the defendant officer had showed that the plaintiff required immediate medical care to prevent his suicide attempt.  The dissenting judge argued that there was no evidence that the plaintiff required immediate medical care, or that immediate medical care would have prevented the suicide attempt or injury.  The dissenting judge further criticized the majority for following 9th Circuit case law interpreting Government Code section 845.6 whcih the California appellate courts subsequently criticized.