Emergency Medicine MIEC Claims Alert
Volume 5, Number 6
April 1999

Barris v. County of Los Angeles Goes to the California Supreme Court
by David E. Willett, Esq.*

* Mr. Willett is a partner in the law firm of Hassard Bonnington, LLP, specializing in healthcare law. His office is in San Francisco, CA.

Introduction

In the March 1999, Emergency Medicine MIEC Claims Alert, William H. Ginsburg and Arthur R. Chenen reviewed the California Court of Appeal’s decision in Barris v. County of Los Angeles [60 Cal. App.4th 471 (1997)]. The attorneys concluded:

“It certainly seems that the California Appellate Court’s reasoning and conclusion that the MICRA damage limits do apply to EMTALA claims, at least where the claim arises from the provision of below standard medical care, as opposed, for example, to a failure to provide care, is correct. No doubt California hospitals will be watching closely when the Supreme Court decides this issue.”

On March 25, 1999, the California Supreme Court’s decision was filed in this case. The Court concluded that the $250,000 MICRA cap on non-economic damages applies to an EMTALA claim for failure to stabilize prior to patient transfer. MIEC legal counsel David E. Willett, Esq. summarizes the Court’s decision.

In this case, an 18-month old child who was a Kaiser beneficiary was not given blood tests or antibiotics when brought to the County facility, because Kaiser requested that the child be transferred without that treatment. The child expired shortly after arrival at Kaiser.

Since 1992, a broad definition of “professional negligence” set out by the Court of Appeal in Central Pathology Service v. Superior Court has been assumed to apply in determining whether MICRA applies to a given claim. The Barris decision is particularly significant because the Court rejects the Central Pathology language as a measure for MICRA’s application. The Court reiterated the view expressed in Delaney, the recent decision involving Elder Abuse claims, where the Court distinguished a statutory “reckless neglect” claim from an action “based on professional negligence” subject to MICRA. Accordingly, the Court concluded that the scope and meaning of the phrases “arising from professional negligence” and “based on professional negligence” could vary depending upon the legislative history and “the purpose underlying each of the individual statutes.” The County had sought a holding that MICRA applies whenever the injury for which damages are sought is “directly related” to the professional services rendered by a health care provider.

In order to determine whether MICRA applies to this EMTALA claim, the Court examined the specific duty imposed under EMTALA regarding patient stabilization before transfer. The Court concludes that an EMTALA claim for failure to stabilize is “based on professional negligence” because the plaintiff must prove that the hospital did not provide a patient known to be suffering from an emergency medical condition with medical treatment necessary to assure, within reasonable medical probability, that no deterioration of the condition would likely occur. Finding that the standard of “reasonable medical probability” is an objective one, inextricably interwoven with the professional standard for rendering medical treatment, the Court finds that the EMTALA claim, although it includes additional elements imposed by federal law, contains no elements inconsistent with MICRA. The Court criticizes the Federal District Court decision in Jackson v. East Bay Hospital which refused to apply the MICRA cap to an EMTALA claim, and rejects plaintiff's contention that this is a “hybrid” action that involves both negligence claims subject to MICRA and non-negligence claims under EMTALA which are not subject to MICRA. 

The majority therefore outlines a statute-by-statute approach, which “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’ subject to [MICRA].”

The concurring opinion would conclude, as a general matter, that any action against a hospital for a violation of EMTALA’s duty of care provisions qualifies as an action based on professional negligence subject to MICRA, reasoning that EMTALA imposes liability for negligent omissions in the rendering of professional services, which by definition describes obligations subject to MICRA. The majority limits the application of its decision to failure to stabilize claims, and refuses to rule on whether MICRA would apply to a failure to screen claim, upon which non-suit was granted on the facts in this case. 

The majority’s insistence upon examining the particular claim, to determine whether requisite proof necessarily requires application of a professional standard for rendering medical treatment, raises substantial concerns. To the extent that plaintiffs can couple a malpractice claim with a claim alleging statutory violations not dependent upon medical standards and relevant expert medical testimony, MICRA may be avoided.

The good news here is that the California Supreme Court applied the MICRA cap to an EMTALA claim. The bad news is that the Court refused to say that MICRA applies to all EMTALA claims and, more importantly, held that each statutory claim must be examined with respect to statutory purposes and the nature of the proof required. Given this opportunity, plaintiffs will no doubt look for statutory claims which can somehow be distinguished from claims for professional negligence. Despite this potential for mischief, and the possibility that plaintiffs may actually find ways to make significant end runs around MICRA, the Barris result is certainly more favorable to the medical community than a holding accepting the arguments of plaintiff’s attorneys that MICRA should not apply to EMTALA claims.

For more information about EMTALA, physicians can contact HCFA at www.hcfa.gov and the American College of Emergency Physicians at www.acep.org.

The California Healthcare Association (CHA) has published A Guide to Patient Anti-Dumping Laws. The guide is $85 for members and $170 for nonmembers. Member hospitals can call 800/494-2001 for a copy of this new resource.