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 Negligence-Professional
(Delaney)

Professional Negligence
(Delaney)

This leaves a choice between defendants' position and the positions of amici curiae Consumer Attorneys of California (joined to some degree by California Advocates for Nursing Home Reform, Inc., herein collectively referred to as amici curiae). fn. 4 Defendants argue the term "based on ... professional negligence" covers all conduct "directly related to the rendition of professional services" (Central Pathology Service Medical Clinic, Inc. v. [20 Cal.4th 31] Superior Court (1992) 3 Cal.4th 181, 192 [10 Cal.Rptr.2d 208, 832 P.2d 924] (Central Pathology)-a reading they argue would broadly exempt from the heightened remedies of section 15657 health care providers who recklessly neglect elder and dependent adults. Amici curiae read the term "based on ... professional negligence" much more narrowly, and argue that "reckless neglect" under section 15657 is distinct from causes of action "based on ... professional negligence" within the meaning of section 15657.2, and so health care providers who engage in such neglect would be subject to section 15657's remedies. As explained below, we believe amici curiae's position is the one that most clearly follows the language and purpose of the statute.

The starting point of our analysis is the language of the statutes themselves. "Professional negligence" in section 15657.2 is defined elsewhere as a "negligent act or omission to act by a health care provider in the rendering of professional services." (Code Civ. Proc., § 340.5.) [3] Generally "negligence" is the failure " 'to exercise the care a person of ordinary prudence would exercise under the circumstances.' " (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997 [35 Cal.Rptr.2d 685, 884 P.2d 142], fn. omitted.) "Professional negligence" is one type of negligence, to which general negligence principles apply. "With respect to professionals, their specialized education and training do not serve to impose an increased duty of care but rather are considered additional 'circumstances' relevant to an overall assessment of what constitutes 'ordinary prudence' in a particular situation. Thus, the standard for professionals is articulated in terms of exercising 'the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing ....' " (Id. at pp. 997-998.)

[1c] In order to obtain the remedies available in section 15657, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve "intentional," "willful," or "conscious" wrongdoing of a "despicable" or "injurious" nature. (Civ. Code, § 3294, subd. (c); see also College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 721 [34 Cal.Rptr.2d 898, 882 P.2d 894].) [4] "Recklessness" refers to a subjective state of culpability greater than simple negligence, which has been described as a "deliberate disregard" of the "high degree of probability" that an injury will occur (BAJI No. 12.77 [defining "recklessness" in the context of intentional infliction of emotional distress action]); see also Rest.2d Torts, § 500.) Recklessness, unlike negligence, involves more than "inadvertence, incompetence, unskillfulness, or a failure to take precautions" but rather rises to the level of a "conscious choice of a course of action ... with knowledge of [20 Cal.4th 32] the serious danger to others involved in it." (Rest.2d Torts, § 500, com. (g), p. 590.) fn. 5

[1d] Section 15657.2 can therefore be read as making clear that the acts proscribed by section 15657 do not include acts of simple professional negligence, but refer to forms of abuse or neglect performed with some state of culpability greater than mere negligence. Thus, amici curiae argue, causes of actions within the scope of section 15657 are not "cause[s] of action ... based on ... professional negligence" within the meaning of section 15657.2. Defendants claim that such an interpretation would render section 15657.2 surplusage because section 15657 already on its face excludes actions based on professional negligence strictly construed. We disagree. The Legislature could have reasonably decided that an express statement excluding professional negligence from section 15657 was needed because the language of section 15657, and in particular the terms "neglect" and "recklessness," may have been too indefinite to make sufficiently clear that "professional negligence" was to be beyond the scope of section 15657. Delaney v. Baker (1999) 20 Cal.4th 23 , 82 Cal.Rptr.2d 610; 971
 

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

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