Lopez v. American Medical Response West expands MICRA to negligent driving?

On March 15 Division 5 of the First District Court of Appeal filed its decision in Lopez v. American Medical Response West (Cal. Ct. App., Mar. 15, 2023, No. A161951) 2023 WL 2518511. While relatively short, the opinion has far-reaching consequences for not only medical malpractice litigants, but the personal injury realm at large. In short, the opinion held that a non-patient passenger harmed by an EMT's negligent driving was a professional negligence action subject to MICRA.

The facts are relatively simple. An EMT of the defendant ambulance company was driving a patient that was strapped to a gurney. The patient's son accompanied him in the ambulance and was secured with a seatbelt. The EMT rear-ended another car, causing harm to both the patient and the patient's son. About seven months after the collision, the law firm for both the patient and his son sent a demand letter to the third-party claims administrator for the ambulance company. There was no reference to MICRA's Code of Civil Procedure section 340.5. The letter provided details of both plaintiffs' injuries and treatment and demanded $150,000 on behalf of the son and $11,467 on behalf of the patient.

Shortly before the one-year anniversary of the crash, the law firm sent a letter that referenced Code of Civil Procedure section 364. The lawsuit was filed about 14 months after the incident. The trial court granted the ambulance company's motion for summary judgment, finding that the case was untimely under MICRA's one-year statute for medical malpractice actions under Code of Civil Procedure section 364.

The Court of Appeal affirmed, finding that the negligent driving of the EMT was considered professional negligence and, as such, all of the MICRA provisions applied. In doing so, the Court of Appeal relied heavily on Canister v. Emergency Ambulance Service, Inc. (2008) 160 Cal.App.4th 388. Canister involved a case where the Court of Appeal held that MICRA applied when a non-patient police officer was injured due to poor driving by an EMT while accompanying an arrestee patient in the back of an ambulance.

Until this Lopez decision, it was questionable regarding whether Canister was still good law as it pre-dated the California Supreme Court's decision in Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75. Flores clarified that: "[W]e conclude that whether negligence in maintaining hospital equipment or premises qualifies as professional negligence depends on the nature of the relationship between the equipment or premises in question and the provision of medical care to the plaintiff." Flores cautioned that MICRA did not apply to acts of ordinary negligence that play no part in the patient's medical diagnosis or treatment. As an example, Flores explained "If ... a chair in a waiting room collapses, injuring the person sitting in it, the hospital's duty with respect to that chair is no different from that of any other home or business with chairs in which visitors may sit. [MICRA] does not apply to a suit arising out of such an injury."

Given that the police officer in Canister was not a patient, it was unclear whether Canister remained good law given Flores.

Indeed, two cases after Flores contained critical language of Canister. The first was Johnson v. Open Door Community Health Centers (2017) 15 Cal.App.5th 153, 160. In Johnson, a patient was at a medical clinic in order to review her test results with a Nurse Practitioner. Before the consult, and before she entered the treatment room, the patient had her vital signs taken and was weighed on a scale without incident. After the consultation and examination was over, the patient left the treatment room and tripped on the same scale. However, the scale was moved during the consult and was partially obstructing the path from the room to the hall. The patient suffered serious injuries but waited over a year to file her premises liability lawsuit. The trial court granted summary judgment, finding the patient's case untimely under MICRA.

The First District reversed, finding that MICRA did not apply and thus the patient's case was timely. The Court of Appeal explained that although the patient tripped on medical equipment coincidentally used as part of her earlier medical treatment, the wrongful obstruction of the hallway by equipment constituted ordinary, not professional, negligence. While the Johnson court noted that "the outcome is arguably correct" in Canister, the Johnson court explicitly noted that "the court's rationale, in Canister, does not comply with Flores's analysis."

The second was the Second District in Aldana v. Stillwagon (2016) 2 Cal.App.5th 1, 4. In Aldana, a third-party driver was injured by the negligent driving of a paramedic supervisor who was en route to an injured victim in his employer's pickup truck in order to supervise EMTs and potentially provide emergency assistance. In Aldana, the Second District found that even though the driver was a medical professional who was responding to a call about an injured person, "the automobile collision remains a 'garden-variety' accident not resulting from the violation of a professional obligation but from a failure to exercise reasonable care in the operation of a motor vehicle." The pickup truck was not an emergency vehicle. Therefore, "[d]riving to an accident victim is not the same as providing medical care to the victim," especially when the patient is not in the vehicle. Thus, MICRA did not apply.

When discussing Canister, the Aldana court explained: "In light of Flores, it is questionable whether [Canister's holding] was correct. Nonetheless, Aldana explained that "[e]ven if Canister was correctly decided, it is distinguishable."

Despite the prior criticism of Canister, Lopez fully embraced Canister, finding that Canister remained good law. Therefore, as in Canister, Lopez held that the "MICRA's statute of limitations applies to plaintiffs' claims because their alleged injuries occurred while the EMT's were rendering professional services by transporting plaintiffs in an ambulance." Lopez distinguished itself from Aldana on the basis that in Aldana, the EMT was driving a pickup truck and "was not providing care or transporting a patient when the collision occurred." Therefore, Lopez held that the claims of both the patient and the non-patient passenger were covered by MICRA. For whatever reason, the plaintiffs' filed a joint appellate brief represented by the same firm who handled the underlying action and did not make any arguments distinguishing the two plaintiffs on the basis that one was a patient and the other was not.

Lopez did not address the situation of whether a third-party, non-patient in a separate car injured by an ambulance transporting a patient would fall under MICRA. However, there is a real threat that trial courts may view such cases as falling under MICRA's provisions. Given Lopez, it is possible that a trial court may find that a crash caused by a negligently driven ambulance on the way to a scene would fall under MICRA. It is even possible that a trial court could find that an EMT negligently operating an ambulance without its lights on in a non-urgent, non-emergent drive could be considered professional malpractice. This potential expansion of MICRA into driving, a task that does not require any specialized skill and that simply requires a basic class C license, seems to run afoul of the spirit of the Flores decision. Such an expansion and application of MICRA's provisions would have devastating consequences on non-patients who are harmed by the negligent driving of EMTs.

The decision not only potentially limits the recovery of non-patients, but it also harms medical malpractice litigants. Here, the plaintiffs' firm foolishly sent out a Code of Civil Procedure section 364 letter instead of just filing the lawsuit within the one-year anniversary. As section 364 is a provision of MICRA and only applies to professional negligence actions, such a letter undermined the plaintiffs' own argument that the action was not one for medical malpractice.

A section 364 letter sent within the last 90 days of the statute provides an extra 90 days to file a lawsuit. However, a letter sent prior to the last 90 days of the statute provides no extension at all. Moreover, if notice is sent prior to the last 90 days of the statute, a second notice within the last 90 days has no impact on the statute of limitations and does not provide the extra time to file the lawsuit. (Kumari v. The Hospital Committee for the Livermore-Pleasanton Areas (2017) 13 Cal.App.5th 306, 308.)

In the very recent decision of McGovern v. BHC Fremont Hospital, Inc. (2022) 87 Cal.App.5th 181, the First District Court of Appeal held that a litigation hold and evidence preservation letter that did not detail the plaintiff's injuries did not qualify as a section 364 letter. Therefore, the trial court erred in that case when it found the case untimely as the second letter in that case did provide an extension of the statute.

By contrast, in Lopez, the detailed demand letter qualified as a section 364 letter. While it did not reference section 364, the letter provided "the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered under section 364(b). The fact that it was sent to the claims representative rather than the defendant itself was irrelevant as the law firm knew that Sedgwick was responsible for adjusting the plaintiffs' claims and that he received the first letter as an agent of the ambulance company.

Had the plaintiffs just filed and served their lawsuit within a year without the specifically-identified section 364 letter, their case would have been timely even though the trial court ultimately found that the matter was subject to MICRA. Section 364 is not a jurisdictional requirement and failure to comply cannot act as a bar to the plaintiffs' case. Under companion section 365, failure to comply with section 364 could subject the attorney to state bar discipline. However, not only has not a single attorney been disciplined in the 48 years since the section was passed, there was a legitimate dispute regarding whether this matter was even one for professional negligence. In addition, section 364 is very poorly written and was explicitly criticized in Woods v. Young (1991) 53 Cal.3d 315, further justifying not complying with section 364. Here, perhaps in an attempt to avoid state bar discipline, and after a lengthy law and motion and appellate process, the plaintiffs' attorney instead completely barred his clients' cases under the statute of limitations.