Professionals
The opinion is incorrect in light of the hospital’s licensing requirements, which the parties did not brief, and which are
unaddressed in the opinion. The provision and maintenance of safe beds is part of the service for which the hospital is licensed, bringing the acts and omissions related thereto within the scope of MICRA.
The opinion acknowledges that “[t]he test under section 340.5 is whether the negligent act occurred in the rendering of services for which the health care provider is licensed.” (213 Cal.App.4th at 1398 [Slip Opn., p. 15], citations and internal quotations omitted.) Put another way, “[t]he MICRA statutes define ‘professional negligence’
as that negligence that occurs while the health care provider is
providing services that are ‘within the scope of services for which the provider is licensed.’” (Canister, supra, 160 Cal.App.4th at 404, citations and internal quotations omitted.)
More recently, the Court of Appeal followed this rule in Arroyo, supra, 225 Cal.App.4th 279. In that case, the plaintiffs
alleged that their decedent’s body had been mishandled post-mortem, resulting in disfigurement to the face, which could not be concealed by the mortuary. Alternatively, they argued that decedent had erroneously been declared dead and placed in the hospital morgue refrigerator while still alive, and that the disfigurement occurred when she woke up in the refrigerator and attempted to escape before
freezing to death. Plaintiffs proceeded on two theories: (1) a theory of body mishandling, and (2) medical negligence/wrongful death.
Plaintiffs argued that the body mishandling claim was timely under the two-year statute applicable to general personal injury claims. The Court rejected plaintiffs’ argument, and affirmed the order sustaining the demurrer as to the body mishandling claim on the ground that the claim was governed (and barred) by Section
340.5. The Court cited Central Pathology for the proposition that
“professional negligence” is “directly related to a matter that is an ordinary and usual part of medical services.” (Arroyo, supra, 225 Cal.App.4th at 297.) It also followed Canister, supra, 160
Cal.App.4th at 406-407, in stating that “professional negligence”
means “negligence occurring during the rendering of services for which the health care provider is licensed.” (Arroyo, supra, 225 Cal.App.4th at 297.)
The Court relied on the fact that the hospital was licensed as a general acute care hospital with a capacity of more than 100 beds, which means that, per regulation, it must have a morgue with refrigerated compartments. Accordingly, the “transportation of a deceased patients’ remains to the morgue, and the placement of the remains in a refrigerated compartment, necessarily fall within the
scope of services for which the Hospital is licensed. In other words, such conduct is undoubtedly ‘an ordinary and usual part of [its]
medical professional services.’ (Central Pathology, supra, 3 Cal.4th at p. 193.)” (Arroyo, supra, 225 Cal.App.4th at 297-298.)
Notwithstanding this rule, neither the parties nor the opinion addresses the pertinent licensing and regulations. In fact, the
provision and maintenance of safe hospital beds is a service for which hospitals are licensed. Hospitals are licensed under Division 2 of the California Health and Safety Code. Licensing regulations are adopted by the State Department of Health Services, and published in Title 22 of the California Code of Regulations.
The California Code of Regulations requires that “[a]ll hospitals shall maintain continuous compliance with the licensing requirements.” (Cal. Code Regs. (“C.C.R.”), tit. 22, § 70129, subd.
(a).) The Department “may suspend or revoke any license issued . . . upon any of the following grounds. [¶] (1) Violation by the licensee of any of the provisions of Chapter 2 (commencing with Section 1250), Division 2, Health and Safety Code, or the regulations promulgated by the Department.” (22 C.C.R. 70135(a).)
Section 70815 of the California Code of Regulations states: “A bed with a suitable mattress and a chair shall be provided for each patient.” The regulations also require that such equipment be maintained. Section 70207 states: “There shall be adequate
equipment and supplies maintained related to the nature of the needs and the services offered.” (22 C.C.R. 70207.) “Maintenance means the upkeep of a building and equipment to preserve the original functional and operational use.” (22 C.C.R. 70045.) Additionally,
Section 70837 requires that “[t]he hospital shall be . . . in good repair at all times. Maintenance shall include provisions and surveillance of services and procedures for the safety and well-being of patients, personnel and visitors.” (22 C.C.R. 70837(a).)
Not only is the provision and maintenance of hospital beds expressly part of the services for which a hospital is licensed, but the maintenance of safe beds is otherwise considered to be within the scope of a health care provider’s clinical decision making. For instance, the Hospital Bed Safety Work Group, of which the United States Food and Drug Administration is a member, states that, “[i]n creating a safe bed environment, the following general principle[]
should be applied: [¶] Inspect, evaluate, maintain, and upgrade
equipment (beds/mattresses/bed rails) to identify and remove potential fall and entrapment hazards . . . .” (Hospital Bed Safety Work Group, Clinical Guidance for the Assessment and Implementation of Bed Rails in Hospitals, Long Term Care Facilities, and Home Care Settings (April 2003) < http://www.ecri.org/documents/
patient_safety_center/bedsafetyclinicalguidance.pdf > (accessed July 2, 2014), at p. 5.) It also states that: “Maintenance and monitoring of the bed, mattress, and accessories . . . should be ongoing.” (Id. at p.
11.)
Bedrails, handgrips, lifting poles, transfer bars, and control bed rails all are directly related to the care and treatment of a patient.
They are intended to prevent the patient from falling out of bed; to remind the patient not to get out of bed when medically
contraindicated and/or medical equipment is attached to the patient;
and to help protect the patient from falling during transport. They
also help the patient with movement within the bed and with getting in and out of bed, and with repositioning when necessary for
examination or treatment. Additionally, they are one of several methods to provide the patient with easy access to bed controls, and devices for communication with hospital staff. (Id. at p. 14.)