California – Driver’s Personal Injury Claim Against Ambulance That Rear-Ended Him Is A Medical Malpractice Claim
Francisco Gutierrez was driving on Interstate 280 when he was forced to stop. Shortly after Gutierrez stopped, Tostado, who was driving an ambulance, rear-ended him. At the time of the accident, Uriel Tostado was an emergency medical technician (EMT) employed by ProTransport-1, LLC and was transporting a patient from one medical facility to another. While Tostado drove, his partner attended to the patient in the rear of the ambulance.
Gutierrez was injured in the collision and visited a chiropractor for treatment within ten days of the incident. Almost two years later, Gutierrez filed a complaint against Tostado and ProTransport-1, alleging various personal injury claims. The respondents filed a motion for summary judgment on the sole ground that Gutierrez’s claims were time barred under MICRA’s one-year statute of limitations. The trial court agreed that MICRA applied and granted the motion. The trial court concluded that because Tostado was transporting a patient at the time of the accident, he was rendering professional services. The trial court held that Gutierrez’s claims against the defendants were time-barred under the statute.
Medical Injury Compensation Reform Act (“MICRA”)
MICRA defines professional negligence as “a negligent act or omission to act by a health care provider in the rendering of professional services.” (§ 340.5, subd. (2).) The parties did not dispute that an EMT transporting a patient in an ambulance is providing medical care to the patient for purposes of the statute.
The California Appellate Court stated: “the question here is whether an injury to a third party, who is not a patient, is subject to MICRA’s statute of limitations because the injury occurred during, and as a result of, the provision of medical care by a medical provider … [we] conclude that MICRA is not limited to suits by patients or to recipients of medical services as long as the plaintiff is injured due to negligence in the rendering of professional services and his injuries were foreseeable. … The fact that Tostado was not driving quickly here or that Gutierrez was in a separate vehicle rather than in the ambulance does not change the analysis or our conclusion that third parties injured in a collision with an ambulance when it is rendering medical care are subject to MICRA.”
A dissenting opinion stated, in part: “This case arises out of a run-of-the-mill traffic accident involving an ambulance
that happened to be transporting a patient on a non-emergency matter, presumably with its siren off. As a consequence, plaintiff Francisco Gutierrez had no way of knowing that the ambulance that rear ended him was transporting a patient and therefore no way of knowing that, under interpretation adopted by the majority, MICRA’s statute of limitations applies … MICRA’s statute of limitations need not be interpreted to apply here because the ambulance that rear-ended plaintiff happened to be carrying a passenger. Instead, MICRA’s statute of limitations can—and, in my view, should—be interpreted to apply only if the plaintiff advances a claim requiring proof that an obligation owed by health providers was violated.”
Gutierrez v. Tostado, H049983.
Why is it that being struck in the rear by an ambulance on a nonemergency transport is a medical malpractice claim subject to MICRA?
Indiana – Receiving Notice Of Improperly Sterilized Surgical Instruments Is A Medical Malpractice Claim
Linda Gierek and over a thousand other patients who underwent surgical procedures at a hospital operated by Anonymous 1, Anonymous 2, and Anonymous 3 (the Hospital) were informed by the Hospital that one of its
technicians had failed to complete a step in the procedure for sterilizing certain surgical instruments and that, as a result, the patients may have been exposed to infectious diseases. Linda and her husband Stephen filed a class-action
complaint with the trial court and a proposed class-action complaint with the commissioner of the Indiana Department of Insurance (DOI) asserting claims against the Hospital for negligent infliction of emotional distress, negligence, and, in the alternative, medical malpractice.
The Court of Appeals of Indiana stated in it Opinion dated June 14, 2023: “The Plaintiffs’ complaints allege that the Hospital committed tortious conduct. The contested issue here is whether that conduct was malpractice, i.e., whether
that conduct was either “health care” or “professional services” that were provided, or should have been provided, by the Hospital to Plaintiffs. Ind. Code § 34-18-2-18. To determine whether the MMA is applicable, courts look to the substance of a claim, not its label … the substance of Plaintiffs’ claims is that the Hospital owed Plaintiffs a duty to perform surgical procedures with sterile instruments; that the Hospital breached that duty by performing surgical procedures with instruments that may not have been properly sterilized, which may have exposed Plaintiffs to infectious diseases; and that the Hospital’s breach proximately caused them to suffer emotional distress. Without question, a surgical procedure is the very essence of “health care” as defined by the MMA: “an act or treatment performed or furnished … by a health care provider … to … a patient during the patient’s medical care [or] treatment[.]” Ind. Code § 34-18-2-13. Because the alleged torts are based on health care that was provided by the Hospital to Plaintiffs, the MMA clearly applies to Plaintiffs’ claims. Plaintiffs’ arguments to the contrary are unconvincing because they rely on either inapplicable premises-liability cases or language that does not appear in the MMA. Accordingly, we affirm the trial court’s ruling on this issue.”
Source Gierek v. Anonymous 1, Anonymous 2, and Anonymous 3, No. 22A-CT-1225.
If you receive a letter from a hospital stating that surgical instruments used in your surgery were not properly sterilized and therefore you may have been exposed to infectious diseases, should your claim for emotional distress be considered a medical malpractice claim? In Indiana, it is …
West Virginia – Mishandling Fetal Remains Is A Medical Malpractice Claim
On May 17, 2018, Angela and Denny Seth Lester (“the Lesters”) presented to Charleston Area Medical Center, Inc. d/b/a Women and Children’s Hospital (“CAMC”) where Ms. Lester suffered a stillbirth, after the fetus she was carrying died of natural causes. The stillbirth resulted in CAMC’s possession of the fetal remains, which it placed in a morgue on the labor and delivery floor.
The Lesters retained Mounts, a funeral home in Mingo County, West Virginia, to carry out the funeral arrangements and final disposition of the fetal remains. On May 21, 2018, Mr. Lester signed an authorization releasing the remains to Mounts. That same day, Mounts employee Nicole Cline, who had taken the day off work, traveled to Charleston, West Virginia, in her personal vehicle with her husband, Jeff Cline, to accompany him to a medical appointment.
A hospital employee escorted Ms. Cline to a small room where the CAMC employee placed a small package containing the fetal remains in a basket. After Ms. Cline signed paperwork acknowledging her receipt of the remains, the CAMC
employee accompanied Ms. Cline back to her vehicle with the remains. The CAMC employee placed the remains on the back seat of Ms. Cline’s vehicle without the basket. Ms. Cline asked to keep the basket, but the CAMC employee refused, saying that it was hospital property. Fearful that the remains would shift around or be harmed during transport, Ms. Cline instructed her husband to hold the remains in his lap on the drive to the funeral home.
On January 29, 2020, Mr. Cline posted a public video on multiple social media outlets describing the process of loading the fetal remains into the personal vehicle, as well as transporting and embalming the remains. The video wrongfully suggested that Ms. Lester voluntarily terminated her pregnancy. The Lesters viewed the video and became aware of how the fetal remains had been handled and transported.
The Lesters filed a complaint alleging four separate counts of negligence against CAMC: (1) general negligence, (2) negligent infliction of emotional distress, (3) negligent mishandling of a corpse; and (4) negligent supervision. The Lesters claimed that CAMC negligently placed the fetal remains in the back of a personal vehicle filled with groceries and that they suffered “serious emotional distress due to the careless actions of [CAMC] in negligently delivering, transporting[,] and mishandling” the remains. Furthermore, the Lesters contended that CAMC negligently released the fetal remains to be placed in a personal vehicle “without proper equipment, and by allowing unauthorized persons to be involved with the transportation and handling of” the remains. Finally, the Lesters asserted that CAMC negligently supervised its employee who placed the fetal remains in the back seat of Ms. Cline’s personal vehicle.
The Supreme Court of Appeals of West Virginia held on June 12, 2023: “CAMC obtained the fetal remains during Ms. Lester’s hospitalization through the administration of health care services to its patient, Ms. Lester. CAMC came into possession of the fetal remains as a direct result of providing health care to Ms. Lester. Furthermore, after CAMC obtained the fetal remains, it continued to act on behalf of Ms. Lester in maintaining the remains in the hospital morgue on the labor and delivery floor and then transferring the remains to the funeral home for final disposition. Therefore, we find that the handling and transfer of the fetal remains was an act or service performed or furnished by a health care provider, CAMC, on behalf of Ms. Lester during her care, treatment, or confinement … we find that the Lesters’ four enumerated counts against CAMC are subject to the MPLA. The amended complaint alleges claims of negligence, negligent infliction of emotional distress, negligent mishandling of a corpse, and negligent supervision that all arise in the context of the alleged mishandling of the fetal remains as health care services to Ms. Lester. It is of no significance that the Lesters have not explicitly pled a medical professional negligence claim because the Court looks beyond the plaintiff’s labels for the causes of action … we find that the MPLA also applies to any alleged unauthorized disclosure of medical information [“we are compelled to find that if a privacy claim was asserted based upon unauthorized disclosure of medical information through placing the fetal remains in a private vehicle with an unauthorized person, it would be contemporaneous and related to the anchor claim—handling of fetal remains as a result of a stillbirth delivery. Therefore, the MPLA applies to the Lesters’ privacy violation claim as well”].”
The West Virginia Supreme Court held: “Because we find that the Lesters’ claims against CAMC are subject to the MPLA and there was no required pre-suit notice, we must conclude that the circuit court was deprived of subject matter jurisdiction … It is undisputed that the Lesters did not comply with the pre-suit notice requirements. Consequently, the circuit court lacked subject matter jurisdiction and should have dismissed the Lesters’ claims.”
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