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Barris v. County of Los Angeles3/25/1999
further medical examination and such treatment as may be required to stabilize the medical condition." (Id., § 1395dd(b)(1)(A).) Recognizing that personal injury may result directly from a hospital's failure to provide such care, Congress authorized the filing of civil actions for the recovery of damages subject to state law limitations on damages: "Any individual who suffers personal harm as a direct result of a participating hospital's violation of a requirement [under EMTALA] may, in a civil action against the participating hospital, obtain those damages available for personal injury under the law of the State in which the hospital is located, and such equitable relief as is appropriate." (42 U.S.C. § 1395dd(d)(2)(A).)
In California, MICRA places a $250,000 limit on the ability of an injured plaintiff to recover damages for non-economic losses " n any action for injury against a health care provider based on professional negligence." (Civ. Code, § 3333.2, subds. (a), (b).) For purposes of MICRA, "` rofessional negligence' means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital." (Civ. Code, § 3333.2, subd. (c)(2).)
In my view, a hospital's demonstrated failure to act in accordance with EMTALA is, in and of itself, "a negligent . . . omission to act by a health care provider in the rendering of professional services" under the MICRA definition of professional negligence. (Civ. Code, § 3333.2, subd. (c)(2).) As I see it, any injury action based on a hospital's noncompliance with EMTALA's medical screening requirement or its provision for medically necessary stabilization treatment within the hospital's particular capabilities is an action based on professional negligence within the contemplation of MICRA.
Unlike the majority, then, I 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, without regard to whether the particular claim entails consideration of the prevailing medical standards of care generally associated with a malpractice action. (Cf. Power v. Arlington Hosp. Ass'n (4th Cir. 1994) 42 F.3d 851, 861 [concluding that an EMTALA claim based on alleged disparate medical screening by a hospital was subject to Virginia's cap on medical malpractice damages even though the claim did not allege a breach of the prevailing standard of care].)
BAXTER, J.
I CONCUR: CHIN, J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Unpublished Opinion Original Appeal Original Proceeding Review Granted XXX 60 Cal.App.4th 471 Rehearing Granted Court: Superior County: Los Angeles Judge: Victoria Chavez
Counsel who argued in Supreme Court (not intended for publication with opinion): Kenneth M. Sigelman Kenneth M. Sigelman & Associates 1901 First Avenue, 2nd Floor San Diego, CA 92101 (619) 238-3813 Sharon J. Arkin Shernoff, Bidart, Darras & Arkin 600 South Indian Hill Boulevard Claremont, CA 92610 (909) 621-4935 Alison M. Turner Greines, Martin, Stein & Richland 9601 Wilshire Boulevard, Suite 544 Beverly Hills, CA 90210-5215 (310) 859-7811
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