Personal Injury Lawyer Blog
It is worth noting that situations similar to those described in this elder abuse case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, UC Davis Medical Center, Mercy, Methodist, or Sutter.
(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)
NATIONAL CONVALESCENT HOSPITAL, INC. IS ENTITLED TO THE BENEFIT OF MICRA’S C.C.P. §340.5 ONLY AS TO PLAINTIFFS’ FIRST CAUSE OF ACTION FOR NEGLIGENCE, BUT NOT THE EIGHTH CAUSE OF ACTION FOR WRONGFUL DEATH WHICH IS PREMISES ON INTENTIONAL TORT
Initially, Plaintiffs distinguish between a negligence claim as set forth in their First Cause of Action, on one hand, and a wrongful death claim as set forth in the Eighth Cause of Action, on the other. A wrongful death action is statutory. Ruttenberg v. Ruttenberg (1997) 53 Cal. App. 4 801. According to C.C.P. §377.60, A cause of action for the death of a person caused by the wrongful act orneglect of another may be asserted by any of the following persons or by the decedent’s personal representative on their behalf. See also Quiroz v. Seventh Ave. Center (2006) 140 Cal. App. 4th 1256, 1263 (same). In other words, wrongful death may lie for a wrongful act in the absence of negligence. e.g., a battery causes death.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
Barris v. County of Los Angeles (1999) 20 Cal 4th 101, considered whether MICRA’s limitation on general damages (Civil Code §3333.2) applied to another statutory tort, under a provision of the federal Emergency Medical Treatment and Active Labor Act (EMTALA) requiring that patients be stabilized before discharge. Barris, at p. 115-116 explained that MICRA does not apply to intentional torts. Barris then explained in conclusion, that the court’s task in determining whether MICRA’s Civil Code §3333.2 applies to a statutory tort such as EMTALA – failure to stabilize – properly involves examining the legal theory underlying the particular claim and the nature of the conduct challenged to determine whether, under California law, it would constitute professional negligence … .
Whether a claim constitutes professional negligence may be determined by examining whether the defendant holds a license described in MICRA. Another question is whether the conduct of the defendant who has a license was within the scope of licensure, as unlicensed activity, or activity in excess of that for which the defendant is licensed, is not protected by MICRA. Finally, the conduct must be negligent, not intentional. Barris, supra.
The first cause of action is plainly for negligence. The Eighth Cause of Action incorporates the charging allegation of each of the claims, including intentional tort claims. Therefore, it is not protectable under MICRA, including MICRA’s shortened statute of limitations. Instead, the statute of limitations is C.C.P. §335.1. In the words of Barris the legal theory underlying the statutory tort of wrongful death is intentional tort theory, and MICRA is inapplicable. (See Part 7 of 9.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.