Articles

The Boundaries of Micra

As detailed elsewhere in this issue, MICRA places severe restrictions on recoverable damages in actions for medical malpractice. Because of this, it is important to know just which claims are subject to MICRA. While case law is still developing in this area, several distinct claims are evident.

1. Where MICRA applies.

MICRA applies to personal injury actions against health care providers based upon professional negligence. See C.C. § 3333.1(a), 3333.2(b)(2). As defined in these statutes, “‘Professional 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 that 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.” C.C. § 3333.1(c)(2). In other words, for example, a claim against a podiatrist for negligently performing surgery is covered by MICRA. A claim against a podiatrist for injuring someone while negligently driving to the hospital to perform surgery is not. See Murillo v. Good Samaritan Hospital of Anaheim (1979) 99 Cal.App.3d 50, 56, overruled to extent inconsistent with Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1002, n. 6; see also Kotler v. Alma Lodge (1998) 63 Cal.App.4th 1381 (MICRA held not to apply to residential care facility which did not fit statutory definition of “clinic, health dispensary, or health facility”.) ¹ ²

2. Battery.

A battery is an intentional, unlawful, harmful or offensive contact by one person with the person of another without consent. Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1495. Claims for battery are outside the scope of MICRA. See Perry v. Shaw (2001) 88 Cal.App.4th 658, 668-669.

In a medical context, a healthcare provider commits battery when he performs a procedure without consent or obtains consent for one form of treatment but later performs a substantially different treatment. Cobbs v. Grant (1972) 8 Cal.3d 229, 239; Perry v. Shaw (2001) 88 Cal.App.4th 658, 668-669 (breast augmentation procedure performed without consent.) ³ Battery can also be committed when the patient gives consent for a procedure but the consent is conditional and the healthcare provider violates the condition, or where consent is initially given but is later withdrawn. CACI 530; Ashcraft v. King (1991) 228 Cal.App.3d 604, 610 (consent given to operation only if family-donated blood used).

3. Premises liability.

The precise boundary between professional negligence and premises liability is currently unsettled. It is not yet clear, for instance, whether every fall in a hospital is subject to MICRA or only falls caused by some conduct falling beneath the professional standard of care (e.g., a fall caused by the failure of a nurse to raise the bedrails for a patient whose medical condition requires this). See generally Flowers v. Torrance Memorial Hospital Medical Center, supra, 8 Cal.4th at 998-1000, and n. 3; see also Williams v. Sup. Ct. (1994) 30 Cal.App. 4th 318 (holding that CCP § 425.13 may apply even though the person injured is not the patient (phlebotomist injured by violent patient)). This is an area ripe for further development as cases with appropriate facts arise.

4. Elder abuse or neglect.

A licensed healthcare provider may be sued for elder abuse or neglect. Such a suit is not subject to MICRA. Delaney v. Baker (1999) 20 Cal.4th 23. Delaney described the difference in the two actions as follows:

“neglect” within the meaning of Welfare and Institutions Code section 15610.57 covers an area of misconduct distinct from “professional negligence.” [It] refers not to the substandard performance of medical services but, rather, to the “failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations.” Delaney, supra, as cited in Covenant Care, Inc. v. Sup. Ct. (2004) 32 Cal.4th 771, 783. ⁴

5. Unlawful failure to treat under federal or state law.

A claim under the Federal Emergency Medical Treatment and Active Labor Act (42 U.S.C. § 1395dd) for failure to stabilize a patient before transferring him to another hospital is subject to MICRA. Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 113-114. On the other hand, an action for breach of the California statutory duty to summon medical aid for a prisoner in an emergency is not. Flores v. Natividad Medical Center (1987) 192 Cal.App.3d 1106, 1114.

6. Insurance bad faith or breach of contract.

A claim against a healthcare provider for not prescribing necessary treatment is subject to MICRA. But a claim against an insurer for failing to authorize treatment ordered by a health care provider is not. It is instead a claim for insurance bad faith or breach of contract. See C.C. § 3428(c) and Pegram v. Herdrich (2000) 530 U.S. 211, 230-236.

There have been several recent attempts to circumvent MICRA by suing medical groups who served some role as an intermediary between health care providers and an insurance company. These attempts have been unsuccessful so far. But the proper standard for determining whether such a group is acting more like a health provider or an insurer is still unsettled. Cf. Lathrop v. Healthcare Partners Medical Group (2004) 114 Cal.App.4th 1412, 1420-1421 with Palmer v, Sup. Ct. (2002) 103 Cal.App.4th 953, 965.

7. Intentional torts.

California has never held that MICRA applies to intentional torts. See Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 115; see also Waters v. Bourhis, supra, 40 Cal.3d at 436-437 (claim of sexual battery against physician not subject to MICRA.)

Conclusion

Because MICRA so severely restricts recoverable damages, there will be continued attempts to circumvent it. Further development of the case law in this area is to be expected.

Reference:

¹ professional negligence” in these statutes should mean that a claim against a podiatrist for performing surgery outside the scope of his license, i.e., on the knee, should not be covered by MICRA either. See Waters v. Bourhis (1985) 40 Cal.3d 424, 436.

² It should be noted that the term “professional negligence” may be construed broadly with reference to one MICRA-type statute, but not another. Perry v. Shaw (2001) 88 Cal.App.4th 658, 661.

³ These situations are to be contrasted with the failure to obtain informed consent, the performance of emergency treatment, or a deviation required to address an undisclosed inherent complication with a low probability. All of these are considered to involve a claim for professional negligence and not for battery. Cobbs v. Grant, supra; Piedra v. Dugan, supra, 123 Cal.App.4th 1483, 1496.

⁴ See also Chafetz, Why Plaintiffs Prefer Pleading Elder Abuse to Medical Malpractice, Contra Costa Lawyer, June 2005.

» View this article in PDF format

To view PDF files, you must have Adobe Reader. To download a free copy, please visit Adobe's Web Site. If you use the plug-in version, simply close the browser window after you have finished reading the PDF to go back to our site.

» Back to Articles