*1 S067060.Mar. [No. 1999.] DELANEY,
KAY Plаintiff and v. Respondent, BAKER, SR., al., CALVIN et Defendants and Appellants.
Counsel Shannon, Elie, Kristof; Klauschie & Offices Law of Klauschie & Thomas J. Farmer & E. and Frank Murphy, George J. Torrano for Defendants Murphy and Appellants. Priest,
Thelen Reid & Curtis A. Cole and Matthew S. Levinson for Califor- Association, nia Medical California Dental Association and California Healthcare Association as Amici Curiae on behalf of Defendants and Appellants.
Fred J. Hiestand for the Association for California Tort Reform as Amicus Curiae on behalf of Defendants and Appellants. Lardner, Waxman, &
Foley J. Mark Mark E. and Kenneth L. Reagan for California Association of Burgess Health Facilities as Amicus Curiae on behalf of Defendants and Appellants Hanson, Bridgett, Marcus, Rudy, Gordon, Vlahos & Paul A. Robert L. Rusky Napoli and James A. for the California Association of Homes and Aging Services for as Amicus Curiae on behalf of Defendants
Appellants. Horowitz; Clement; Sanford I. Leslie Ann and Richard M. Pearl for Plaintiff Respondent. Nardoni; Lomhoff; Balisok, Silvio Peter G. Houck & Russell S. Balisok and Nursing Reform, Steven C. Wilheim for California Advocates for Home Inc., Respondent. as Amicus Curiae on behalf of Plaintiff Legal Services, Carlson; Kaye, Scholer, Fierman, Hays Bet Tzedek Eric M. Handler, & Carole E. Handler and Rhondа R. Trotter for American Associa- Nursing tion of Retired Persons and National Citizens' Coalition Home Reform, Inc., Respondent. as Amici Curiae on behalf of Plaintiff *4 Gwilliam, Ivary, Chiosso, Brewer, Ivary Cavalli & Eric H. and James A. N. Attorneys Smith for Consumer of California as Amicus Curiae on behalf of Respondent. Plaintiff and
OPINION
MOSK, J. relationship parts This case is concerned with the between two Dependent Act, of the Elder Abuse and Adult Civil Protection Welfare seq. (hereinafter Act). Institutions Code1 section 15600 et the Elder Abuse provides part proven Section that "Where it clear convincing physical evidence that a defendant is liable for abuse . neglect. ,or fiduciary elderly adult], [of . . abuse. . . an or guilty recklessness, oppression, fraud, that the defendant has been or abuse, malice in the commission of this in addition to all other remedies provided (a) plaintiff {~J] otherwise law: The court shall award to the attorney's (b) imposed by [NJ] reasonable fees and costs. . . . The limitations [forbidding 377.34 the Code of Civil Procedure a decedent plaintiff's obtaining pain suffering damages] apply. estate from shall not However, damages permitted recovered shall not exceed the pursuant (b) be recovered to subdivision of Section 3333.2 of the Civil Code [limiting recovery $250,000]." of noneconomic losses to Section on hand, "Notwithstanding article, the other states in full: this a cause of action injury damage against provider, for or a health care as defined in Section Procedure, provider's 340.5 of the Code of Civil based on the health care statutory 1 All references are to this code unless otherwise indicated. shall be those laws which governed by
alleged professional negligence, of action.” to those causes specifically apply this case is a health care provider The whether question presented by elder adult the in the “reckless within engages neglect” remedies, be to section 15657’s subject heightened 15657 will section 15657 under these if section 15657.2 forbids the application owners, defendants, The home and of its argue circumstances. two nursing the latter that the term “based on . . . for claiming position, used in section 15657.2 includes such reckless neglect. Court of decided defendants for reasons We against below. Appeal explained correct, conclude that the Court of but for reasons different from Appeal those articulated in its opinion.
I. Factual and Procedural Background 15, 1993, Wallien, On Rose mother of April 88-year-old Kay plaintiff fell and fractured her ankle. Delaney, right Unable to care for Ms. Wallien healed, while her ankle looked skilled plaintiff nursing facility could the care her mother needed that time. Plaintiff provide during selected Center, Meadowood and Ms. Wallien entered the on Nursing facility April later, 9, 1993, 1993. Less than four months on Ms. Wallien died August death, while still a resident at At Meadowood. the time of her Ms. Wallien had III and stage bedsores) IV ulcers stage pressure (commonly known as ankles, feet, her and buttocks. A IV bedsore means that her tissue had stage been eaten to the bone. away down
There was evidence introduced that she was left in her frequently lying own urine and feces for extended of time. The periods neglect was appar- result, staff, the of turnover ently of part, rapid nursing staffing shortages, and the of The evidence also numer- inadequate training showed employees. ous violations of medical and that monitoring regulations recordkeeping necessary information from transmitted to Wallien’s prevented being per- sonal on a basis. The ocсurred physician timely neglect despite plaintiff’s staff, administration, and to a nurs- persistent complaints nursing finally, home ombudsman. The had ing been cited for facility neglect by patient Code, of (see 1424) Health Services Health & Saf. Department shortly § death, before Ms. Wallien’s admission. After her was facility given citation, class “A” which is only levied when care creates inadequate “substantial that death or probability serious harm . . . would physical (id., (c)), result” to home nursing residents and the was fined facility $7,500.
Plaintiff this action and the brought against Meadowood two individuals Baker, Sr., Baker, (Calvin Jr.) and Calvin who served as administrators of the time Ms. Wallien resided at the The case was facility. during portions misconduct, to a of an neglect tried on theories willful jury negligence, as defined the Elder Abuse Act and death. On the wrongful elder by of an elder instructed that was statutory neglect theory, jury “[t]he essential elements of such a claim are: 1. That Mrs. Wallien was 65 years [^] age or older; [51] 2. Defendant is liable for neglect defined, [^] recklessness, malice in the 3. Defendant has been guilty oppression, recit- commission of this The instructions defined neglect.” jury neglect by that term in the Act. former the definition of Elder Abuse ing 15610.57.) of an elder The found for on her jury negligence neglect plaintiff evidence, not, and convincing claims. It found that defendants had clear or “malice” but that had been “reckless” in been guilty they “oppression” Rose their conduct. The determined that the sustained jury damage inconvenience, or disfigure- Wallien for pain, suffering, physical impairment $150,000. $15,000 ment was The awarded cost jury past neg- of medical and and treatment from defendants’ resulting hospital attributed 2 to Ms. Wallien’s damage ligence. jury percent to defendants’ and 19 contributory negligence, negligence percent 79 percent a defendant. to the of Dr. Dean who was no Jennings, longer Plaintiff moved for her fees and costs to section 15657. attorney pursuant $185,723.50 in The court the motion and awarded granted attorney plaintiff below, $32,291.24 For discussed the Court of fees and in costs. reasons affirmed the trial court’s We review because judgment. granted Appeal sections between resolving relationship importance question 15657,2. 15657 and
II. Discussion relation- been regarding Three distinct have proposed positions The Court of approach, between sections 15657 15657.2. Appeal’s ship be to find that there although may and to some extent plaintiff’s, on . . . negli- between actions “based considerable overlap *6 in section 15657.2 and the actions specified as set forth in section gence” 15657, limited because section 15657.2 requires section 15657 is not thereby be governed by based on negligence that causes of action only professional actions, in negligence particular to laws that specifically apply professional MICRA,2 the statutes that to as the and referred legislation package to do not “specifically apply” professional are limited section 15657 1975, 2MICRA, to several statutes Injury Compensation Reform Act of refers the Medical directed at “health care of action and remedies place upon conditions causes that restrict Proc., 90-day [requiring negligence.” Code Civ. “professional § providers” for Rather, generally actions. section 15657 affects two negligence applicable Procedure section statutes. The two statutes are Code of Civil victims, and for the estates of deceased precluding pain suffering that, statute, Procedure absent a and Codе Civil providing fees to be left to the of the agreement is apportionment attorney’s parties. Therefore, on . . . cause of action be both “based may and be for “reckless meaning within section 15657.2 within the of section neglect” 15657. matter,
We conclude that this is not As an initial we viable. interpretation note that it is not of the of section only plausible reading language 15657.2 and The word particularly phrase “specifically apply.” “spe- is not intended to cifically” necessarily convey opposite “generally,” but, context, when read in can be taken to mean that the law simply applying to governs alone causes of professional negligence action, and that section 15657 is not intended to alter this law.
This of section reading 15657.2 is based in on the that the recognition part MICRA statutes to actions specifically applicable professional negligence statutes implicitly incorporate generally to civil ac applicable pertaining tions, the limitations on including pain suffering damages attorney’s fees found in Code of Civil Procedure sections 377.34 and 1021. For statute, Business and Professions example, Codе section a MICRA for limits on provides fees for contingency attorneys who actions bring stated, within of MICRA. As we have one of the scope of such purposes lawsuits,” limits is to discourage “frivolous be stimulated may fee “potentially huge attorney (Roa awards if cases are won . . . .” v. Lodi Medical Inc. Group, 37 Cal.3d Cal.Rptr.
164].) fee limits would Contingency be successful in this only furthering however, if the goal, rule inherent in Code of Civil Procedure section 1021—that each is to its own party pay attorney’s fees—-governs. Thus, Business and Professions Code section “specifically” applicable actions, to to professional negligence appears implicitly incorporate Code of generally Civil Procedure section 1021. applicable Given that the language 15657.2 we “ex ambiguous, amine the history background statutory provision attempt ascertain the most (Watts reasonable of the measure.” v. interpretation id., lawsuit]; prior bringing notice [permitting periodic payment any judgment 667.7 § id., against the provider]; [requiring type providers’ mandatory a certain § 1295 of notice for Code, provisions]; attorney arbitration Bus. & Prof. [providing caps contingency on § fеes]; Code, [making Civ. compensation 3333.1 admissible evidence of workers’ or disabil- § id., $250,000 ity payments]; [providing damages].) 3333.2 cap noneconomic *7 30 (1995) 743, Cal.Rptr.2d 81, 807].)
Crawford 10 Cal.4th 751 896 P.2d legislative history Appeal's interpretation shows that the Court of plausible; thought is not rather it indicates that those who enacted the statute "professional negligence," meaning that the term at least within the of mutually neglect specified exclusive of the abuse and clearly Legislative in section 15657. This is seen most Digest in the Counsel's (Sen. to the 1991 amendments to the Elder Abuse Act Bill No. 679 (1991-1992 Reg. Sess.)), which included section 15657 and 15657.2. The digest specify describes section 15657.2 as follows: "This bill would also against professionals professional negligence that actions health care governed by specifically applicable professional negligence shall be actions, laws to provisions." (Legis. Dig., rather than these Counsel's Sen. Bill (1991-1992 Reg. Sess.), p. 1, added.)3 Similarly, No. 679 italics the bill was Assembly described in the Subcommittee on the Administration of Justice as apply professional negligence against follows: "This bill does not actions providers. exclusively governed by existing health care Such action shall be statutory provisions." (Assembly Justice, Analysis Subcom. on Admin. of (1991-1992 Reg. Sess.) July 16, 1991.) Sen. Bill No. 679 as amended Judiciary analysis Similar evidence can be found in the Senate Committee's (Sen. Judiciary, Analysis (1991- of the bill Com. on of Sen. Bill No. 679 Reg. Sess.) Apr. 30, 1991, p. 2) throughout legislative history of the 1991 amendments. and the positions
This leaves a choice between defendants’ position to some degree by curiae Consumer of California Attorneys (joined amici Reform, Inc., collectively Home herein Nursing California Advocates for the term “based on . . . curiae).4 amici Defendants argue referred related to the rendition covers all conduct “directly Clinic, Inc. v. (Central Service Medical Pathology services” grant legislative history materials. We their request judicial notice of various 3 Defendants A, No. legislative history materials to Senate Bill exhibit which consists of request to notice Code, 452, (c); Reynolds Tobacco Co. Mangini v. R. J. Evid. subd. 679. 73].) deny to notice request We their Cal.Rptr.2d Cal.4th 1064 [31 Assembly No. 1147 legislative history Bill Exhibit B consists of exhibits B and C. amendments, and (1997-1998 Sess.), clarify Reg. purported to essentially position that health Assembly adopted No. 1147 not enacted. Bill which was reading “professional adopts a narrow fully subject to sectiоn providers are (1989-1990 history Bill No. 83 of Senate negligence.” Exhibit C consists (never enacted) Sess.), preceding Act to the Elder Abuse Reg. proposed amendment Code, (a), (Evid. inquiry. §§ to our These exhibits are irrelevant amendments. (a) (b).) subds. & Association of Retired received from the American curiae briefs have also been 4 Amicus plaintiff; Nursing Reform on behalf Coalition for Home Persons and National Citizens’ Facilities, Reform, of Health California Association for California Tort from Association Association, Association, Healthcare and California Dental California California Medical on behalf of defendants. Association
31 181, 208, (1992) Court 3 Cal.4th 832 P.2d Superior 192 Cal.Rptr.2d [10 924] (Central would from the Pathology)—a reading they argue broadly exempt remedies heightened of section 15657 health care who recklessly providers elder and neglect adults. Amici curiae read the term “based on . . . much more that “reckless professional negligence” narrowly, argue under section neglect” 15657 is distinct from causes of action “based on . . . negligence” within and so health care who in such would be to section providers engage neglect subject below, 15657’s remedies. As wе believe amici curiae’s explained position the one that most follows the clearly language statute. purpose of our starting is the of the statutes them point analysis language selves. “Professional in section 15657.2 is defined as negligence” elsewhere act “negligent or omission to act a health by care in the provider rendering Proc., (Code 340.5.) services.” Civ. Generally “neg § “ is the failure ligence” ‘to exercise the care a person ordinary prudence ” would exercise under the (Flowers circumstances.’ v. Torrance Memorial (1994) Medical Center Hospital 8 Cal.4th Cal.Rptr.2d [35 142], omitted.) fn. “Professional is one type negligence, to which general negligence principles “With apply. respect professionals, their education and specialized do not serve to training increased impose of care but duty rather are considered additional ‘circumstances’ relevant an overall assessment of what constitutes in a ‘ordinary prudence’ particular Thus, situation. the standard for is articulated in terms of professionals ‘the exercising skill and knowledge, ordinarily possessed employed ” members of the prоfession good (Id. 997-998.) . . . .’ standing at pp. In order to obtain the remedies available in section a plain tiff must demonstrate clear and evidence that defendant is convincing reckless, more guilty something than he or she negligence; must show fraudulent, or oppressive, malicious conduct. The latter three categories “intentional,” “willful,” involve or “conscious” of a wrongdoing “despi Code, 3294, cable” (Civ. nature. “injurious” (c); see also College § Inc. v. Court Hospital, 8 Cal.4th Superior Cal.Rptr.2d P.2d 894].) “Recklessness” refers to a state of subjective than culpability greater which has been described simple negligence, “deliberate disregard” “high that an degree injury will probability” (BAJI occur No. 12.77 “recklessness” in the context [defining of intentional Torts, infliction of emotional action]); distress see also Rest.2d § Recklessness, “inadvertence, unlike negligence, involves more than incom unskillfulness, or a petence, failure to take but rather rises to precautions” the level of a “conscious choice of a course of action . . . with knowledge Torts, 500, com. (Rest.2d (g), to others involved in it.”
the serious danger 590.)5 *9 acts clear that the mating can therefore be read as Section 15657.2 do nоt include acts of simple professional section 15657 by proscribed forms with some state to of abuse or neglect performed but refer negligence, Thus, causes amici curiae argue, than mere greater negligence. culpability of action . . . of section 15657 are not of actions within the scope “cause[s] of section the meaning based on . . . within negligence” section an would render Defendants claim that such interpretation 15657.2. on its face excludes already because section 15657 15657.2 surplusage construed. We disagree. based on negligence strictly actions statement decided that express The could have Legislature reasonably needed because from section 15657 was negligence excluding professional 15657, and in the terms “neglect” of section and particular the language “recklessness,” clear that been too indefinite to make sufficiently have may 15657. to scope be negligence” beyond “professional the legislative history is by Amici curiae’s interpretation supported Asso- Hills Bar Beverly The of the legislation, section 15657. sponsor before ciation, shortly in a Senate committee analysis appearing was quoted standard that the high imposed enactment as “argu[ing] strenuously the bill’s (ii) reckless- (i) and liability and evidence convincing the bill—clear by care ness, malice, protects providers fraud—adequately oppression Bill or even gross negligence. No.] from acts of negligence, [Senate simple that argues abuse. egregious sponsor to acts 679 only pertains extreme not in such apply on and fees should limitations existing Sess.) (1991-1992 Reg. Sen. Bill No. 679 (Sen. 3d reading analysis, cases.” 10, 1991, as amended Sept. hand, section 15657.2 to
If, exempt meant in the other the Legislature liability, why section 15657 from large part health professionals when, in the former section it use the term would “professional from the above, as distinct regarded is commonly as discussed reckless, malicious, conduct with which or fraudulent oppressive . . . have “would Legislature do not believe is concerned? We (Murillo v. achieve its purpose.” mechanism to such an obscure chosen 682, Cal.Rptr.2d Inc. 17 Cal.4th 992 [73 Enterprises, Fleetwood 858].) follows: “Reckless jury in this case as defined for the the term “reckless” was 5We note that unjustifiable risk consciously disregards a substantial a is aware of person means that degree disregard that be of such nature injury. The risk shall or her act will cause that his person a reasonable conduct the standard of gross from constitutes a deviation thereof was in error. claim this instruction do not the situation.” Defendants observe in would Amici curiae’s is also a consideration of the differ- position supported of MICRA and the Elder Abuse Act. The of the latter ing purposes purpose to essentially vulnerable protect particularly portion population from mistreatment gross form of abuse and custodial As the neglect. Court of in ARA Inc. v. Court Appeal, Living Centers-Pacific, Superior (ARA (1993) 18 Cen- Cal.App.4th Cal.Rptr.2d Living 224] ters), has stated regarding genesis Elder Abuse development Act: “In ‘that adults be Legislature recognized may abuse, to subjected or abandonment and that this state neglect, has respon- (Former sibility such added protect persons.’ Stats. ch. § 1184, 3, 4223.)” It measures adopted designed encourage report- *10 (§ of such abuse and ing 15601 et neglect. amendment seq.) Subsequent enactment, refined the 1982 but the focus remained on abuse and reporting (see Centers, law enforcement to combat using it ARA Living supra, Also, 1560). enacted, at Cal.App.4th Penal Code section p. 368 was making a for, it or felony misdemeanor on the circumstances), (depending among other things, custodian of an elder or adult to dependent cause or willfully 1986, 769, (Stats. various permit ch. types injury. 2531.) p. § here, In the 1991 amendments at issue the focus shifted to civil private, enforcement of laws elder abuse and against neglect. Legislature “[T]he declared that ‘infirm and elderly adults are a persons disadvan- dependent class, taged that cases of abuse of these are seldom persons as prosecuted matters, criminal and few civil cases are in brought connection with this abuse due to court problems and the lack of proof, delays, incentives to 15600, (§ these prosecute (h), 1991, 774, suits.’ added by Stats. ch. 2.) It stated the intent § to ‘enable interested to persons engage attorneys to take the cause of abused up and elderly persons dependent (Id., (ARA Centers, adults.’ subd. (j))” Living supra, 18 at Cal.App.4th p. 1560.) As was stated in the Senate Rules Committee’s of Senate Bill analysis No. “in the death of the practice, victim and the in difficulty finding to attorney awarded, handle an abuse case where fees attornеys not be may impedes many victims from suing This bill successfully. would address [^] . . . problem by: the court to authorizing award fees attorney’s cases; specified by] allowing to be pain suffering damages [and awarded when a verdict of intentional and reckless abuse handed was down after the Com., abused (Sen. elder dies.” Rules of Sen. Bill Analysis (1991- No. 679 8, 1991, Sess.) 1992 Reg. 3.) as amended May MICRA has a different focus. The for MICRA impetus rapidly costs of rising medical insurance in the 1970’s. “The malpractice inability doctors to obtain such insurance and reasonable rates is endangering State, health of this and threatens the people closing many (Governor’s 1975) to Stats. 1975 (May Proclamation Leg. hospitals.” 1975-1976) & Trust (Second Ex. in American Bank quoted Sess. 359, 363, Cal.3d fn. Co. v. Community Hospital Cal.Rptr. 233].) was to the various 41 A.L.R.4th response pass that limit for lawsuits a health statutes MICRA to against comprise Code, §§ 3333.1, (Civ. care based provider professional negligence. 3333.2; Proc., 667; Code, Code Bus. & Prof. Civ. § considering
This difference in focus can be clarified differing types dis- 15657 and MICRA are concerned. As of conduct with which section cussed, “fiduciary abuse” and “neglect” section 15657 concerns “physical “the failure of neglect abuse.” Former section 15610.57 dеfines negligent to adult custody or an elder or having any person of care a reasonable in a like position exercise degree person includes, to, not all following: but is limited Neglect would exercise. food, in the (a) Failure to assist or personal hygiene, provision [ft shelter, (b) medical care Failure clothing provide physical [ft from (c) safety needs. ... Failure health mental health hazards, protect [ft Thus, (Italics added.) Failure to malnutrition.” (d) prevent [ft to cover an of former section 15610.57 appears within neglect *11 in section negligence” area of misconduct distinct from “professional defined in former section 15610.57 and used in section 15657.2: as “neglect” the a manner does refer to of medical services in not performance “ em- and care and knowledge, ordinarily possessed inferior to ‘the skill ” (Flowers Tor- in v. good standing’ members by profession ployed Center, but 998), Cal.4th at Medical Hospital supra, rance Memorial for to the needs to the of those basic attending rather failure responsible adults, of their dependent regardless professional comforts elderly It is that the obligations. to out their custodial instructive standing, carry as not above an gives example “neglect” definition statutory quoted but the fundamental in of medical services more undertaking the negligence needs.” care for and mental health to medical physical provide “[f]ailure 15610.57, abuse” in (b).) abuse” and (Former “Physical “fiduciary 15610.63, 15610.30), are inten- (see forms of as defined section §§ also from negligence.” that differ wrongdoing “professional tional neg- between “neglect” “professional in distinguishing The difficulty institutions, as nursing that health care such lies the fact some in ligence” homes, care. medical custodial functions provide professional perform malnutrition, to When, allows a suffer a home patient example, nursing the negligence,” that this was argue to “professional defendants appear suffi- furnishing or execute a to plan staff inability nursing prescribe need But such to attend to that herself. someone too infirm cient nutrition to is that term is defined in former “neglect,” omission also as unquestionably 15610.57. section if the ambiguity: the out of this way neglect
Section provides malice,” “reckless[],” then the falls or done fraud or action with “oppression, be the of section and as such cannot considered simply within scope the on . . . within negligence” “based 15657, and The use of such in section language 15657.2. explicit 15657.2, in make clear exclusion section “professional for, remedies Elder Abuse Act’s was as stated goal provide heightened elder “acts of abuse” legislative history, egregious against dependent (Sen. (1991-1992 Sess.) adults 3d Sen. Bill as No. 679 reading analysis, Reg. 10, 1991, 2), amended while acts of Sept. allowing rendition of medical to elder and adults services to be governed dependent to such That by specifically only laws these applicable negligence. egregious acts intended to be under 15657 is further were sanctioned under- scored fact that the statute to be liability by requires proved “clear and evidence” heightened convincing standard. noted, contend,
Defendants as the term “based on . . . professional used in section negligence,” any actions related applies directly to the services a health care provider. provided adoption of such an It position would anomalous result. would make produce determination as to whether custodians “recklessly neglectful” were elderly person to sectiоn 15657 turn on the subject custodian’s licens- A status: custodian allowed an her ing who elder or adult in his or be care to become malnourished would be to 15657’s subject heightened only remedies if he or she not a licensed health professional. First, is no There indication that the this Legislature intended anomaly. *12 noted, “neglect” under the Elder Abuse Act to the acts or of refers omissions the care or of an or a adult.” “any having custody elder person dependent (Former 15610.57.) of in “Abuse an elder or a adult” is defined abandonment, abuse, abuse, 15610.07 section as neglect, fiduciary “physical isolation, abduction, or other treatment resulting with harm or physical pain or mental or the custodian of suffering, care deprivation by goods (Italics services to avoid harm or necessary physical suffering.” mental added.) The Elder in turn Abuse Act defines “care custodians” at section 15610.17, facilities, (a) subdivision to include health as “Twenty-four-hour 1250, defined in Sections the Health and Safety 1250.3 of Code,” homes, nursing includes as well a number of other profes- facilities. sionally operated
Second, the one of the history demonstrates that main legislative purposes of 15657 abuse elderly was the elimination institutional
36 materials for Included in the of legislative in health care facilities. packet issued to the summary then-recently Bill No. was the executive Senate 679 Nursing the Little Commission entitled “Skilled of Hoover report 1991 April (See Assem. Com. on Judiciary, Analysis Homes: Care Without Dignity.” 1991, 13, 2.) (1991-1992 Sess.) as amended June p. Sen. Bill No. Reg. “The author committee stated: analysis [presumably As one legislative to combat elder abuse must that all reasonable argues steps Senator Mello] to the be taken. . . . author refers subcommittee April [1991] [T]he [H] This Dignity.’ report . . . ‘Skilled Homes: Care Without Nursing report endured ‘too of California’s many’ and suffering’ chronicles ‘pain Admin, Justice, 120,000 (Assem. on residents of such facilities.” Subcom. 12, Sess.) (1991-1992 as amended Reg. July, of Sen. Bill No. 679 Analysis 3.) p. also discloses the assumption opponents The legislative history remedies of section 15657 were Bill No. that the heightened Senate the fact that section 15657.2 care Notwithstanding to health providers. apply from the 15662) included in Senate Bill No. 679 designated (originally (1991-1992 Bill 1st Mar. (see reading Sen. No. beginning very Facilities, of Health as the Sess.)), represen- the California Association Reg. the bill. Its statement home industry, opposed tative of nursing “In analyses. committee opposi- was incorporated opposition bill, that Health Facilities argues the California Association of tion to this and healthcare professionals a real threat to healthcare institutions poses [it] additional bill be to focus that the effect of this will alike. believe They to increase their litigation. healthcare exposure claims on providers, for health be insurance higher premiums ‘The net result will simply ” of Sen. Bill No. (Sen. Com. on Judiciary, Analysis of all providers types.’ its Sess.) 4.) The association withdrew (1991-1992 opposition Reg. to limit designed exposure it after a number of amendments proposed only on damage of a cap pain such as damages, imposition health facilities of limitations (§ (b)) subd. placement and suffering damages final (c)), included in the (§ legis- were liability employer of Sen. Bill Analysis Assem. Com. on Judiciary, Republican lation.6 12, 1991, (1991-1992 Sess.) July as amended Reg. No. 79 both the Legislature clear that it history, appears From this legislative Bill No. 679 of Senate and the opponents enacted Senate Bill No. 679 definition of 6Also, expansive a more No. contained versions of Senate Bill earliеr *13 introduced, 15660). (at originally designated as As that time elder abuse under section 15610, which scope of former section all conduct within encompassed abuse elder abuse, intimidation, abuse, fiduciary abandon- neglect, punishment, cruel “physical included suffering, or ment, isolation, pain or mental resulting physical in harm or treatment or other necessary to avoid are goods and services which by a care custodians of deprivation 1184, 3, ch. by added Stats. suffering.” former § mental physical harm or 4223.) p. understood that one of the major of this objectives legislation protection residents of homes and other nursing health care facilities. It is to this contrary then read the objective “based . . . phrase professional found in section 15657.2 to mean that homes or other nursing health facilities are from largely under section 15657 for the exempt liability remedies heightened to which custodians are who not health care profession- als are subject.
Defendants’ argument in favor of principal their is their claim position that our in Central holding Pathology, supra, Cal.4th it. supports They contend that the term “based on . . . means the professional negligenсe” same as out “arising of professional as the term negligence,” was interpreted in Central and that that Pathology, court the latter to mean interpreted phrase act any related to “directly defendants’ performance ser- (Id. But, vices.” below, at explained defendants have given Central a broader Pathology than reading was intended.
In Central Pathology, court considered Code of Civil Procedure 425.13, section a statute in 1987 and amended to its passed form in present Code 1988. of Civil Procedure section 425.13 is distinct from the MICRA legislation over a passed decade earlier. Code of Civil Procedure section (a) (hereafter subdivision 425.13(a)) provides pertinent “In action part: any for damages out of the arising negligence a health care no claim provider, for punitive shall be included in a or other complaint unless the pleading court enters an order allowing amended that includes a pleading claim for to be punitive damages filed. The court may allow of an filing amended pleading claiming dam- punitive on a ages motion the amended party seeking and on pleading the basis supporting affidavits opposing that the presented has plaintiff established that there is a substantial that the probability will plaintiff prevail on the claim pursuant Section 3294 of the Civil Code.” The Central court Pathology considered whether (a) section 425.13 in a case applied health care against providers alleged both medical (intentional intentional torts infliction of emotional fraud) distress and connection awith failure to alert timely to the onset plaintiff of her cancer.
The court began with an into the inquiry language of the statute. It first noted that MICRA, “professional negligence” was defined by as discussed “ above, as ‘a act or omission negligent to act a health in the provider ” rendering (Central professional services.’ at Pathology, supra, Cal.4th 187.) The court then turned to the out of.” phrase “arising The court found the out “arising of’ had been phrase with equated “origina- tion, growth flow from the event” but stated that it *14 case bemay tort causes of action in this the intentional
was “unclear whether ” (Id. at negligence.’ p. or flow from ‘professional said to originate, grow, not resolved examination before the court was 188.) Because the question statute, its legislative history. it then turned to of the of the language 188-192.) at (Central 3 Cаl.4th Pathology, supra, pp. in as originally passed that section revealed legislative history (Central care claims health against providers. had to all simply applied amended 188-189.) When that section was 3 Cal.4th at supra,
Pathology, pp. observed, Subcommittee Assembly the comment of in the court “ to correct an ‘This bill is intended of Justice stated: the Administration written, lawsuit any 4215.13 could apply As Section oversight. [sic] this could include lawsuits health care .... Arguably, against any provider and inten- fraud, such as defamation, unrelated to the practitioner’s practice, asserts version of section The author the original 425.13] tional torts. [of [ID in to health practitioners . . . protection that the intention was provide from unsub- relief was sought as Specifically, their capacity practitioners. alleging negli- in actions damages claims of punitive stantiated other in any capacity. no intent to practitioners There was gence. protect [425.13(a)] to lawsuits of Section limits the application amendment] [The ’ ” negligence.” “professional of health involving allegations practitioner’s omitted.) italics 3 Cal.4th at some (Central Pathology, suprа, “The subcommit- Assembly then concluded The Central court Pathology conduct unrelated to a that lawsuits practitioner’s tee’s comment emphasizes excluded from intended to be care related services were health providing the term that the inclusion of Plaintiffs contend ambit of section 425.13. to the to be unrelated of lawsuits assumed torts’ in the list ‘intentional to exclude that the intended Legislature demonstrates practice practitioner’s From our of section 425.13. from the all intentional torts requirements however, statute, the reference conclude that we history review not belie its the comments does the author of torts’ by to ‘intentional restrict the appli- the amendment—to of the essential purpose statement ‘in health against practitioners to lawsuits brought of section 425.13 cation ” at (3 Cal.4th their capacity practitioners.’ not an examination based on court’s reasoning Pathology The Central also of the (a), 425.13 but history only particular stated, reading contrary] “Under As the court [a statute’s purposes. action in an damages 425.13(a), seeking punitive injured patients their health assert that could readily involving professional seek that the punitive tort and patients an intentional committed providers a cause of including tort. By the intentional connection with only *15 action, action for an intentional tort in a negligence would plaintiffs sidestep 425.13(a) section and the the resulting procedural requirements Legislature Thus, to sought on them. of section impose interpretation] [such 425.13(a) effectively artful to annul the permits pleading afforded protection that (3 191.) section.” Cal.4th at
Moreover, the court reasoned that a contrary reading would lead to an absurd result. “If we were to of accept [contrary] interpretation 425.13(a), the section’s would to protections only ‘nonintentional tort’ apply are, however, conduct that gives rise to punitive There situa- damages. few tions in which claims for are punitive damages on mere predicated negli- or a gence conscious disregard or of rights others and in which safety no intentional torts are An alleged. of the statute interpretation [Citation.] that would restrict its to such a applicability limited of cases is category inconsistent with the intention of the to Legislature health care protect from providers frequently frivolous pleaded claims. punitive damage . . . an interpretation would render the statute [S]uch virtually meaning- (Central less.” Pathology, supra, 191.) Cal.4th at p.
Therefore, in considering 425.13(a), scope the court sum- marized: “We context, that in the recognize medical there malpractice may be considerable of intentional overlap of negligent causes action. Be- cause acts a supporting cause of negligence action also might a support tort, cause of action for an intentional we have not limited of application MICRA to provisions causes of action that are based on a solely ‘negligent act or omission’ as provided these statutes. To ensure that the legislative intent MICRA underlying is we have implemented, recognized that the of conduct scope afforded under MICRA protection (actions provisions ‘based on professional negligence’) must be determined consideration after the purpose each underlying (Central individual statutes.” Pathology, of 3 Cal.4th at supra, concluded, added.) italics The court for reasons above, discussed given purрose (a), section 425.13 underlying out phrase “arising should be professional negligence” interpreted to causes pertain of action related to the manner “directly in which profes- sional services were provided” regardless whether these claims could be characterized as negligent (3 intentional torts. Cal.4th at p.
The Central court made Pathology clear that it not deciding of the term “professional negligence” used in MICRA or in statutes other than 425.13(a). As the court stated: “Whether professional statutes, negligence, as defined in MICRA includes intentional torts not the is Rather, question. the trial court must determine whether a action plaintiff’s is one damages out ‘arising of a health care professional negligence 425.13(a), added.) (§ italics Based on the language provider.’ [section 425.13(a)] an action for legislative history, and its we conclude that damages if health care arises out. provider for which are related injury sought directly (Central Pathology, supra, services provider.” health provided *16 added.) some Cal.4th at italics
Thus, the court did not define the universally Central Pathology purport out of the much less “based “arising professional negligence” phrase phrase the It contention that the of negligence.” rejected language definitive, Rather, the the itself court yielded single, meaning.7 phrase that the of these could vary recognized scope depend phrases “the each of the statutes.” To claim individual ing upon purpose underlying 425.13(a) that the Central definition extended section is to Pathology beyond Moreover, limitations on its the that this court own after ignore put opinion. that “the conduct under MICRA its statement of afforded protection scope determined (actions ‘based on after must be con professional negligence’) (Central each of the statutes” sideration individual purpose underlying cited 192), 3 Cal.4th at the Central court with Pathology, supra, Pathology v. 40 Cal.3d 435-436 Waters Bourhis approval Cal.Rptr. 469], which a different suggested phrase interpretation Business “based on within the context of professional negligence” Code Professions section 6146.
In the case find that the Elder Abuse Act very we present presents 425.13(a) Central different scheme from section discussed in Pa- statutory the “based on thology. professional negligence” narrowly Interpreting phrase not render section 15657 as was the case with section meaningless, would Rather, 425.13(a). such would enhance the former statute’s an interpretation are elder and adults who residents of remedial purpose, protecting neglect homes and health care facilities from reckless other nursing discussed, Indeed, would forms of abuse. as this avoid various interpretation from section having the health anomaly professionals exempted for which non- remedies for the same misconduct heightened very 15657’s would be liable. professionals Pathology reading broad support to a in Central of their point 7Defendants footnote case, et Association al. that agree states: “We amici curiae California Medical
that with amending considering at the time it reports Legislature before committee Legislature distinguish upon’ ‘based not intend to the terms 425.13 indicate did state, reports precedent is substantial ‘arising amendment]. out of.’ The ‘There [the ’ negligence.” “professional all to claims of pertain [Citations.]" provisions [MICRA] 187-188, only that (Central fn. meant there is Pathology, supra, pp. at But this Cal.4th used the significance that the drafters section 425.13 term to the fact indeрendent no has negligence, phrase either one not that “arising out of’ instead “based on” meaning. invariable Moreover, there is no legislative in the Elder Abuse comparable history Act that would suggest “based on expansive reading phrase There professional negligence.” is no in that that the suggestion history meant Legislature “based on refer to professional negligence” any ” action health “against ‘in their as On practitioners capacity practitioners.’ discussed, contrary, homes history suggests nursing and other health care were of the Elder providers among targets primary Abuse Act.
The other reason Central supporting Pathology's holding —preventing frustration of the statute’s artful also not purpose through pleading—is to section applicable 15657. of what Regardless plaintiffs plead, they would not be entitled to the remedies of section heightened 15657 unless they proved statutory recklessness, abuse or neglect committed with oppression, *17 course, fraud or malice. Of the existence of such a remedy may increase the claim, settlement value of the but to the only extent that the facts indicate that defendant had committed reckless etc. neglect, Such increase in settle- bolsters, ment frustrates, value rather than the of section 15657. purpose case, In the there present is substantial evidence that Rose Wallien was subject failed, in that neglect time, defendants over an extended of period bedsores, attend to her advanced and otherwise her in neglected such a as to contribute way to her and pain and eventual death. suffering There is also substantial evidence to the support that the jury’s finding conduct was reckless, given defendants’ of knowledge Wallien’s condition deteriorating and plaintiff’s effort to repeated intervene in her mother’s behalf. Defend- ants do not the challenge of the sufficiency evidence as to either the “neglect” “recklessness” Substantial findings. evidence therefore supports the of awarding estate, fees and attorney’s and pain suffering to her as section 15657 permits, defendants’ reckless neglect.
We that our emphasize of the interpretation “based on phrase found in the scheme of unique statutory the Elder Abuse Act is not necessarily to other applicable statutes in which that phrase appears. Consistent court, with the Central we stress that Pathology the of meaning the would phrase the depend upon legislative history underlying purpose of (Central each of the statutes. 3 Cal.4th Pathology, supra, at p. we do not Specifically, to construe the purport meaning same phrase within the is, course, context of the MICRA statutes. It of “generally presumed when a word is used in a sense in one of a particular part statute, it is intended to have the same if it in another appears part the same statute.” (People (1983) v. Dillon 34 Cal.3d 468 [194 697].) 668 P.2d Cal.Rptr. But that rebuttable if are is there presumption the does not indications of intent. And contrary presumption statutory when the or a similar different same apply phrase appears terminological schemes with designs Establishing distinct objectives.8 codified than discern our law is less uniformity throughout important “ ” of ‘the as to effectuate the Legislature intent of so ing purpose’ each individual v. 16 Cal.4th (Phelps statute. Stostad 760].) A narrow Cal.Rptr.2d reading phrase one of “based on in this context consistent with professional negligence” elder adults through 15657—to primary protect purposes at civil from being neglected remedies application heightened recklessly custodians, or other the hands their which includes the homes nursing health care facilities in they reside.
III. Disposition For all of the of the Court is affirmed. judgment foregoing, appeal J., Kennard, J., J., Chin, J., Baxter, J., C. Werdegar, George, concurred. J., Concurring.
BROWN, I with result reached agree Although I find the Court majority, Appeal’s straightforward interpretation Code more consistent with Welfare Institutions section 15657.21 *18 the same the Legislature’s while at time statutory language fully effectuating remedies abuse of intent to additional provide against elderly Act under Abuse and Adult Protection adults the Elder Civil Dependent (§ (EADACPA) 15600 et seq.). case, 15657 and
In this must determine the sections we interplay the decedent’s recovery of the act. Section 15657 authorizes 15657.2 death action as as the award well wrongful pain suffering construction, judicial statutory term has a definitive 8It is true that when a received employs that term. Legislature presumed is to have intended that construction whenever it Pools, 320, 602, (1989) Maloney Cal.Rptr. 770 Viking v. Cal.3d 608-609 [257 Inc. 48 discussed, 732].) universally to define Pathology purport But as Central did not Moreover, noting that negligence.” it is worth professional of the term “based on Act to the Elder Abuse Pathology, postdates amendments Central filed 1991 Sess.) (1991-1992 time No. Reg. At the Senate Bill 679 found in Senate Bill No. 679. enacted, professional on “arising professional negligence” “based the terms out of (1990) (See Bommareddy narrowly Superior v. Court negligence” had construed. quite been 425.13(a) excluding Cal.Rptr. [interpreting section as Cal.App.3d 1024 [272 246] torts]; (1987) 1114-1116 Cal.App.3d Natividad Medical Center intentional Flores v. to negligence” in MICRA professional the term Cal.Rptr. [interpreting “based 24] [238 845.6].) pursuant care to Government Code section “failure to medical exclude summon” are to and Institutions Code. 1Unspecified statutory references the Welfare states, [i.e., fees. Section 15657.2 this article attorney “Notwithstanding 15657.3], sections 15657 through any cause of action for injury damage a health care as defined in Section 340.5 of the Code of against provider, Procedure, Civil based on the health care alleged provider’s shall be those laws negligence, governed by which specifically apply those causes of action.” professional negligence
The Court of concluded2 “that while it could been Appeаl have said more section 15657.2 ensures simply, California Medical In- application [the (MICRA)], Reform Act of jury Compensation but does not displace EADACPA, enhanced remedies of when action for elder abuse is ‘based ” on the health care provider’s alleged In professional negligence.’ reaching conclusion, this the court that the recognized of section 15657.2 language “indicates a legislative focus on statutes of to this specific application claims, category such as those that MICRA. For comprise Civil example, 3333.1, Code section the collateral source [abrogating rule enacted as and] (see of MICRA Flowers part v. Torrance Memorial Medical Hospital Center 8 Cal.4th (Flowers)), 884 P.2d Cal.Rptr.2d 142] to ‘an action for applies a health personal injury against based provider Code, (Civ. 3333.1, . . upon professional negligence . .’ (a).) subd. Simi- § 3333.2, Civil Code larly, [limiting recovery noneconomic dam- ages Flowers, also enacted (see of MICRA part and] 8 Cal.4th at supra, 999), action for applies ‘any a health care injury against based on provider Code, (Civ. . . . .’ (a).) Statutes these, like limit specifically their to actions application against health care based on provider are those professional negligence, statutes that section 15657.2 states . ‘shall . . govem[].’ however,
“The question, whether section 15657.2 states that MICRA statutes shall solely or shall govern also govern. answer that the [Defendants] intended Legislature that MICRA alone should when cause of apply action is based on the health care provider’s alleged professional negligence. argument assumes that the implicitly [Defendants’] of MICRA or application *19 EADACPA is an either-or but that both cannot proposition, the apply same case. Court of with this Appeal] disagree[d] [The Section assumption. 15657 solely statutes of displaces general such as Code of applicability, 377.34, Civil Procedure section the limits recoverable for a death, decedent’s 1021, or and Code injuries of Civil Procedure section which limits the of recovery fees. EADACPA’s attorney enhanced-remedy do not provisions conflict with any of MICRA.” specific provision [], material, together, 2Brackets enclosing this manner without are used herein to indicate quoting opinion deletions when from the Appeаl; enclosing of the Court of brackets material (other are, citations) indicated, publisher’s than added parallel unless otherwise used to denote by insertions or additions this author. 44 found no conflict between the provision
The Court of also Appeal and the in MICRA regulating fees in section 15657 attorney provision contract for or collect in connection fee that contingency attorney may a health care based such an action “against provider upon person’s with Code, (Bus. 6146.) & Prof. “This . . . .” negligence § alleged professional MICRA, however, fees it of to contingency only; solely pertains provision that an attorney may ‘limits on the of a recovery places percentage plaintiff’s (Roa a basis.’ v. Lodi contingency retain when he plaintiff represents 920, 927, 77, 5 (1985) Inc. 37 Cal.3d fn. 695 Group, Cal.Rptr. Medical [211 does not for a 164].) The section 15657 by provide P.2d award permitted fee; calculated as a of solely recovery it is not contingency percentage it does not come out of or reduce award. plaintiff’s and more importantly an additional liability of fees under section 15657 is An award attorney Proc., (a)(10)(B) on the defendant. Code Civ. imposed costs].) statute are a form of recoverable fees authorized [attorney [There MICRA the enhanced remedy conflict between the no provisions is] Thus, nothing joint application of EADACPA. precludes provisions [both].” not because that this is viable”
The majority interpretation “conclude^] intended to convey opposite is not necessarily word ‘specifically’ “[t]he but, context, can be taken to mean read in simply when ‘generally,’ alone governs negligence the law applying action, alter is not intended to causes of and that section 15657 ante, at p. this law.” (Maj. opn., best, (See Webster’s New is strained. reasoning definitionally
At this here, 1989) ed. 1287 relevant (3d “specific”—and Dict. college World [as limited; or as “1 or limiting specifying extension “specifically”—defined definite; 2 or constituting specific explicit plans] precise; [no specified; 4 of characteristic of something [specific 3 to or traits] species peculiar convoluted kind”].) explanation or The majority’s sort special, particular, statutes pertain generally applicable that MICRA “implicitly incorporate^] ante, 29) no more at also provides actions” (maj. to civil ing opn., (see the law is a “seamless web” than the truism that analytical insight 594 P.2d (1979) Cal.Rptr. v. Cal.3d People [155 Perez Mosk, assumed that J.)) or that (dis. A.L.R.4th opn. “[i]t 339] (Estate a statute.” when it passes in mind laws existing has Legislature 874].) Cal.Rptr. 14 Cal.3d McDill “accepting Court of explained, [such an] as the Appeal More importantly, *20 the Legisla- ignoring] 15657.2 would require of section [] interpretation to displace intent was simply If the Legislature’s focus on MICRA. ture’s reference application to MICRA was unnecessary, particu- since two statutes are not larly inconsistent.” The court also noted “that the ‘notwithstanding’ language that sections 15657 may additionally suggest 15657.3, article,’ which constitute through ‘this will be subservient to ‘those laws which to those specifically apply causes of professional negligence words, action.’ In other to extent ‘those statutes to specifically applicable those professional negligence causes of action’ conflict with provisions 15657.3, of sections 15657 through terms of the former statutes will rather control than the terms of the latter. []”
The Court of Appeal’s also obviates the need to intеrpretation parse distinction between “neglect” The “professional negligence.” majority concedes this aptly some at poses least in the case of certain “difficulty” health care ante, institutions such as homes nursing 34), at (maj. opn., since section 15610.57 refers to the failure” to render “negligent adequate care to an or adult elderly of “ne- virtually every category glect” set forth in the statute involves some form of professional negligence if committed a health care provider. (E.g., (b)(1) § [“[fjailure to assist in food, or in personal hygiene, provision clothing, shelter”], (2) [“[fjailure to care”], (3) [“[fjailure medical provide to from protect hazards”], health and (4) [“[fjailure & safety to malnu- prevent trition or dehydration”].) Imposing “recklessness” does not requirement transform the essential character of the conduct underlying from negligence.
The majority the Court suggests construction of section Appeal’s 15657.2 conflicts with the legislative history EADACPA. (Maj. opn., ante, at 29-30.) pp. The Court of “that the Appeal acknowledged Legislative Counsel’s Digest described ‘this bill’ scheme [amending statutory to include the sections at issue that actions ‘specifying] against health here] professionals shall be negligence governed by laws specifically actions, applicable rather than by these provisions' (Legis. Counsel’s Sen. Dig., (Mar. 1991) Bill No. 679 added.) italics Albeit this imprecise, statement is not inconsistent with [the Court of Appeal’s] interpretation statement refers ‘professional []. negligence actions.’ It cannot be disputed pure negligence causes of action are not to section subject 15657. The enhanced remedies of that section arise only where the defendant has acted with recklessness, fraud oppression, or malice in the commission of the neglect. (§ 15657.)
“Moreover, this confusing 1991 amendments in the description Legislative Counsel’s is scant Digest evidence of a intent that section 15657.2 have the affect that (Cf. attribute to it. Isbister [defendants] *21 Cruz, (1985) Cal.Rptr. 40 Cal.3d Santa Inc. Boys’ [219
v. Club was scant Counsel Legislative comment confusing 707 P.2d [finding 212] ‘ digest counsel’s intent].) legislative “Although evidence of legislative statute, not the law.” . . .’ it is an ambiguous be may helpful interpreting 161], (In Cal.Rptr.2d Barry Cal.App.4th [26 re W. find in that we omitted.) not disregard problems citation We will as a simply in the fashion advocated the statute [defendants] interрreting in the comments (or similar) ambiguous inconclusive result of this Co. v. Supe J.A. Jones Construction history. legislative omitted.] [Fn. 1568, 1578 (1994) 27 Cal.Rptr.2d 206] [‘wisest rior Court Cal.App.4th [33 itself is that history on when history only course is to rely unambiguous’].)” regarding defendants’ arguments the court was
Although responding statement, are equally its observations of this legislative the significance criticism. majority’s apposite of avoiding has the further virtue
The Court of Appeal’s interpretation
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