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(Flowers v. Torrance)

Professional Negligence
(Flowers v. Torrance)

[1a] The Court of Appeal majority erroneously premised their result on a perceived conceptual distinction between "ordinary" and "professional" [8 Cal.4th 997] negligence, which in their view differentiates separate and independent theories of liability even when based on the same facts asserted by the same plaintiff. While this distinction may be relevant and necessary for purposes of statutory construction and application (cf. Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181 [10 Cal.Rptr.2d 208, 832 P.2d 924] [construing "professional negligence" as used in Code Civ. Proc., § 425.13]), it is misplaced in resolving a motion for summary judgment in which the question is whether the moving party has demonstrated or negated negligence as a matter of law. In the latter context, the nature of the alleged breach of duty affects only the determination of the appropriate standard of care, which otherwise remains constant irrespective of the terminology used to characterize it.

[2] "[N]egligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm." (Rest.2d Torts, § 282.) Thus, as a general proposition one "is required to exercise the care that a person of ordinary prudence would exercise under the circumstances." fn. 2 (Polk v. City of Los Angeles (1945) 26 Cal.2d 519, 525 [159 P.2d 931]; Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496]; see Civ. Code, § 1714, subd. (a).) Because application of this principle is inherently situational, the amount of care deemed reasonable in any particular case will vary, while at the same time the standard of conduct itself remains constant, i.e., due care commensurate with the risk posed by the conduct taking into consideration all relevant circumstances. (Dalzell v. County of Los Angeles (1948) 88 Cal.App.2d 271, 276 [198 P.2d 554]; Lasater v. Oakland Scavenger Co. (1945) 71 Cal.App.2d 217, 221 [162 P.2d 486].) " 'There are no "degrees" of care, as a matter of law; there are only different amounts of care, as a matter of fact ....' [Citation.]" (Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 871 [118 P.2d 465].) "Persons dealing with dangerous instrumentalities involving great risk of harm must exercise a greater amount of care than persons acting in less responsible capacities, but the former are no more negligent than the latter for failing to exercise the required care. [Citation.]" (Ibid.; cf. Polk v. City of Los Angeles, supra, 26 Cal.2d at p. 535 [applying the same measure of the standard of care to the former rule of contributory negligence].)

[3] 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 [8 Cal.4th 998] 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 ...." (Prosser & Keeton, Torts (5th ed. 1984) The Reasonable Person, § 32, p. 187.) For example, the law " 'demands only that a physician or surgeon have the degree of learning and skill ordinarily possessed by practitioners of the medical profession in the same locality and that he [or she] exercise ordinary care in applying such learning and skill to the treatment of [the] patient.' [Citation.]" (Huffman v. Lindquist (1951) 37 Cal.2d 465, 473 [234 P.2d 34, 29 A.L.R.2d 485], italics added.) Similarly, a hospital's "business is caring for ill persons, and its conduct must be in accordance with that of a person of ordinary prudence under the circumstances, a vital part of those circumstances being the illness of the patient and incidents thereof." (Rice v. California Lutheran Hospital (1945) 27 Cal.2d 296, 302 [163 P.2d 860], italics added; see also, e.g., Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 438 [131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166] [psychotherapist "need only exercise 'that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of [that professional specialty] under similar circumstances.' "]; Gambert v. Hart (1872) 44 Cal. 542, 552 [same; attorneys]; Stuart v. Crestview Mut. Water Co. (1973) 34 Cal.App.3d 802, 811-812 [110 Cal.Rptr. 543] [same; engineers]; Montijo v. Swift (1963) 219 Cal.App.2d 351, 353 [33 Cal.Rptr. 133] [same; architects]; Lindner v. Bartlow, Davis & Wood (1962) 210 Cal.App.2d 660, 665 [27 Cal.Rptr. 101] [same; accountants].)

[1b] Since the standard of care remains constant in terms of "ordinary prudence," it is clear that denominating a cause of action as one for "professional negligence" does not transmute its underlying character. For substantive purposes, it merely serves to establish the basis by which "ordinary prudence" will be calculated and the defendant's conduct evaluated. Nor does it distinguish a claim separate and independent from some other form of negligence. As to any given defendant, only one standard of care obtains under a particular set of facts, even if the plaintiff attempts to articulate multiple or alternate theories of liability. (Cf. Central Pathology Service Medical Clinic, Inc. v. Superior Court, supra, 3 Cal.4th at p. 192; Rowland v. Christian, supra, 69 Cal.2d at pp. 119-120.)

Any distinction between "ordinary" and "professional" negligence has relevance primarily when the Legislature has statutorily modified, restricted, or otherwise conditioned some aspect of an action for malpractice not directly related to the elements of negligence itself. For example, the statute [8 Cal.4th 999] of limitations for professional negligence against a health care provider can extend up to three years (Code Civ. Proc., § 340.5), in contrast to the one year applicable to ordinary negligence (Code Civ. Proc., § 340). (See also Code Civ. Proc., § 340.6 [setting limitations period for attorney malpractice at four years but shortening time if plaintiff discovers cause of injury sooner].) The Medical Injury Compensation Reform Act (MICRA) contains numerous provisions effecting substantial changes in negligence actions against health care providers, including a limitation on noneconomic damages (Civ. Code, § 3333.2), elimination of the collateral source rule as well as preclusion of subrogation in most instances (Civ. Code, § 3333.1), and authorization for periodic payments of future damages in excess of $50,000 (Code Civ. Proc., § 667.7). (See also Code Civ. Proc., § 425.13 [restricting claims for punitive damages in actions for professional negligence against health care providers].) While in each instance the statutory scheme has altered a significant aspect of claims for medical malpractice, such as the measure of the defendant's liability for damages or the admissibility of evidence, the fundamental substance of such actions on the issues of duty, standard of care, breach, and causation remains unaffected.
Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992 , 35 Cal.Rptr.2d 685; 884  
 

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