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(Covenant Care v. Sup. Ct.)

Negligence-Professional
(Covenant Care v. Sup. Ct.)

In its ordinary sense, “professional negligence” is failure to exercise “ ‘knowledge, skill, and care ordinarily employed by members of the profession in good standing.’ ”  (Delaney, supra, 20 Cal.4th at p. 31.)  Hence, such misconduct as plaintiffs alleged—intentional, egregious elder abuse—cannot be described as mere “professional negligence” in the ordinary sense of those words.  But as defendants point out, in light of our prior pronouncements respecting section 425.13(a), that fact is not necessarily dispositive.  (See Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 191-192 (Central Pathology).)

In Central Pathology, a patient sued a physician and a laboratory, alleging they failed to notify her she was developing cancer when a pap smear the physician performed and sent to the laboratory for analysis revealed the presence of abnormal cells.  (Central Pathology, supra, 3 Cal.4th at p. 185.)  The patient’s initial complaint was for negligence in the provision of medical services, but she moved to amend it to add causes of action for fraud and intentional infliction of emotional distress and to seek punitive damages in connection with those claims.  Construing section 425.13(a)’s reference to “any action for damages arising out of the professional negligence of a health care provider,” we concluded the statute applied to the proposed additional intentional tort causes of action, as well as to the ordinary negligence causes of action already contained in the complaint.  (Central Pathology, supra, at p. 192.)  Were we to hold otherwise, we reasoned, “injured patients seeking punitive damages in an action involving professional negligence could readily assert that their health care providers committed an intentional tort” and thus by “artful pleading” effectively “annul the protection afforded [health care providers] by that section.”  (Id. at p. 191.)
Covenant Care v. Sup. Ct.(LOURDES M.. INCLAN) March 25, 2004-S098817       
 

Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992 , 35 Cal.Rptr.2d 685; 884  
Tort-Professional Negligence-(Delaney)          
Tort-Professional Negligence-(Flowers v. Torrance) 

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