California’s Medical Injury Compensation Reform Act
(MICRA)
by
Weldon (Don) Havins, M.D., Esq.
Chief Executive Officer and Special Counsel, Clark
County Medical Society
When that day arrives, as it
inevitably must, mandating health care tort reform, physicians should be
cognizant of the “gold standard” Medical Injury Compensation Reform Act (MICRA)
tort reform passed by the California Legislature in 1975, which continues to
serve the public as well as health care providers to this day.
History
A report by the California Assembly
Select Committee on Medical Malpractice enumerated many causes leading to the
malpractice insurance crisis of 1975.
Among these was an increase in the number of malpractice claims filed (13.5
per 100 physicians in 1968 to 18 per 100 physicians in 1972), the average
closing costs of claims ($4500 in 1969 to $7500 in 1972), an increase in the
number of greater than $300,000 settlements and verdicts (3 in 1969 to 24 in
1973), and a 400% increase in malpractice insurance rates between 1968 and
1970.[1] A Department of Health, Education, and
Welfare Commission published a study of the malpractice insurance problem in
1973 made several recommendations but concluded that the problem required
individual State legislative resolutions.[2] In the Spring of
1975, an undetermined percentage of California physicians went on “strike” to
protest the cost of skyrocketing malpractice insurance premiums. Some hospitals responded to this action with
public information brochures which explained the nature of the “crisis,” from
the hospital's perspective, and attempted to reassure the public that all
emergency medical needs would be met.[3]
In response, Governor Edmund G.
(Pat) Brown convened a special session of the California Legislature to deal
with the situation.[4] In his proclamation statement he noted that
the cost of medical malpractice insurance had risen to levels which many
physicians and surgeons found intolerable, that the inability of doctors to
obtain such insurance was endangering the health of the people, and that many
hospitals were threatened with closing.[5]
The Legislature convened on May 19,
1975 where Assemblyman Barry Keene introduced Assembly Bill 1xx, a bill
intended to create changes in California laws to stabilize medical malpractice
insurance rates and avert the crisis.[6] The bill, as introduced, required malpractice
insurance companies to publicly justify all premium increases over 10%, changed
the California Medical Board to tighten control over physicians, imposed a
sliding scale of attorney contingency fees (10% of any recovery over $200,000),
created a California Arbitration Commission of Medical Injury Compensation,
required deduction from malpractice compensation awards collateral sources
payable to injured third parties, provided for periodic payments of future
damages over $50,000, and reduced the statute of limitations to three years for
medical negligence claims.[7]
After multiple amendments, the
Legislature passed the bill on September 11.[8] On September 23, 1975, Governor Brown signed
chapter 1 of the AB 1xx, known thereafter as the Medical Injury Compensation
Reform Act (MICRA).[9] The following day chapter 2 of the bill was
signed.[10] This bill made many minor changes in the
wording of the bill but, significantly, did add the “findings of the
legislature.”[11] These findings included the following:
there is
a major health care crisis in the State attributable to skyrocketing
malpractice premium costs and a resulting potential breakdown of the health
delivery system, severe hardships for the medically indigent, a denial of
access for the economically marginal, and depletion of physicians such as to
substantially worsen the quality of health care available to citizens of the
state.[12]
The Legislature, appropriately using its proclaimed
constitutionally mandated police powers to pass laws in furtherance of the
public interest, found this bill to be a “statutory remedy adequate and
reasonable.”[13]
The major provisions of MICRA
include a limitation on non-economic damages, admissibility at trial of
collateral source compensation, provision for periodic payments of future
damages, limitations on attorney contingency fees, changes to the statute of
limitations, a notice of intent to file a claim requirement, and a provision
for compulsory arbitration agreements.[14]
Non-economic Damage Limitation In
Medical Negligence Actions
Section 3333.2 of the California
Civil Code provides “[i]n no action shall the amount
of damages for non-economic losses exceed two hundred fifty thousand dollars
($250,000).”[15] The statute restricts this limitation to
professional negligence, by act or omission, “provided that such services are
within the scope of services for which the provider is licensed and which are
not within any restriction imposed by the licensing agency or licensed
hospital.”[16] This limit has been applied to non-economic
damages whether brought by the patients themselves or by survivors who initiate
litigation via a wrongful death action.[17]
In 1985, when the constitutional
challenge to section 3333.2 was decided by the California Supreme Court, four
States had ruled similar provisions unconstitutional.[18] In 1985 only one State, Indiana, had found a
limitation on damages for medical negligence to be constitutional.[19] The Supreme Court of the State of Idaho has
remanded for a factual determination on whether a medical malpractice “crisis”
actually existed in Idaho to justify adoption of a damages limitation.[20] The California Supreme Court held that due
process “does not prohibit the legislature from limiting the recovery of a
particular type of damages when the limitation furthers a legitimate state
interest.”[21] “Considering the malpractice insurance
crisis, the legislature's limitation of non-economic damages is consistent with
the putative goal of reducing malpractice insurance costs for both the
defendants and their insurance companies.”[22] The Court held there was no violation of the
equal protection clause when limiting non-economic damages to malpractice cases
because the crisis arose in that context.[23] The Court rejected the contention that the
statute unlawfully discriminates against malpractice plaintiffs because of a
disproportionate effect upon plaintiffs.[24] The U.S. Supreme Court dismissed an appeal
requesting review declaring an absence of a federal question.[25] Two years later, the California Supreme Court
held that section 3333.2 does not violate the constitutional right of a
plaintiff to a jury trial.[26] There have been no significant subsequent
constitutional challenges to section 3333.2.
The non-economic damages limit
applies to the injury rather than to the number of defendants; thus, a
single injury proximately (legally) caused by the negligence of several
health care professionals is restricted to a maximum of $250,000 in
non-economic damages.[27] Following the common law rule that
independent successive acts producing separate injuries permit separate
recovery for each negligent act,[28] a single
health care provider who proximately and negligently causes more than one
separate and distinct injury entitles the plaintiff to a maximum of $250,000 in
non-economic damages for each injury (emphasis added).[29] Thus, several injuries by a single physician
inflicted on the same patient can yield multiples of the $ 250,000 non-economic
damages limitation.
Additionally, where medical
malpractice by a health care provider results in both a survival action by the
decedent's estate and a wrongful death action by the decedent's children, each
action is subject to a separate $250,000 non-economic damage award[30] because
there are separate injuries arising out of the same negligent act. For example, in an action for “loss of
consortium” by a spouse whose claim was joined by the physically injured
spouse's claim, for damages due to medical malpractice, the court found two
separate injuries arising from the same negligent act, thus entitling each
party to separate $250,000 non-economic damage awards.[31] Damages recovered in a wrongful death action
must be shared by all the heirs; thus, a surviving spouse may receive
substantially less than maximum possible $250,000.[32]
Collateral Source Benefit
Admissibility
Section 3333.1 (a) permits a health
care provider to introduce evidence of collateral source benefits payable to
the plaintiff as a result of the plaintiff's personal injury from the sources
of social security, disability insurance, health or accident insurance, workers
compensation, and/or group plan benefits.
If such evidence is admitted by the defendant, the plaintiff is entitled
to provide evidence as to the costs of these benefits.[33] Section 3333.1(b) provides that where such
evidence is introduced in a professional negligence action, the provider of the
benefits is precluded from recouping its payments.[34] This effectively shifts the costs of health
care damages from medical malpractice insurers to general health care insurance
providers.[35]
The California Supreme Court upheld
the constitutionality of section 3333.1 (a) against due process and
equal protection challenges, ruling that plaintiffs have no vested right in a
particular measure of damages and that the abolition of the collateral source
rule was rationally related to a legitimate state goal of reducing costs
incurred by malpractice defendants and malpractice insurance providers.[36] The Supreme Court upheld the
constitutionality of section 3333.1 (b) concluding that providers of
collateral source benefits have no vested right to subrogation, and that
section 3333.1 is rationally related to a legitimate state goal of shifting
some of the costs imposed on malpractice insurance providers to other insurance
providers.[37] The California Supreme Court ruled
admissible future medical expenses since they can be used to reduce the
defendant's obligation.[38] Section 3333.1 should apply to diversity
actions and actions brought under the Federal Tort Claims Act since a federal
court applies state law in matters involving the collateral source rule.[39]
Governmental source benefits are not
paid to the patient, but rather to the provider of medical services. Thus, Medi-Cal
payments are not considered collateral source benefits under section 3333.1.[40] Medicare and other federally funded
collateral source benefits are also inadmissible.[41] Benefits received from county hospitals are
inadmissible because the county is entitled to reimbursement from a tort
recovery.[42]
If benefits payable to the plaintiff
are provided by a self-funded employee benefit plan, ERISA will preempt section
3333.1 making evidence of this collateral source benefit inadmissible.[43]
Periodic Payments of Future Damages
California Code of Civil Procedure
Section 667.7 provides that the court, on the request of either party, shall
order periodic payments for future damages of $50,000 or more.[44] A request for periodic payments must be made
prior to entry of judgment.[45] Future damages include damages for future
medical treatment, care or custody, loss of future earnings, loss of bodily
function, and future pain and suffering.[46] Periodic payments means
payments “at regular intervals.”[47]
The California Supreme Court first
found this section unconstitutional on a 4-3 vote, and then, on rehearing,
upheld the section as constitutional in another 4-3 vote.[48] Challenged again on the basis of denial of
equal protection, an appellate court found this section constitutional.[49] The California Supreme Court held that it was
both unnecessary and inappropriate for the court to balance the relative
benefits and detriment of legislation.
“So long as the measure is rationally related to a legitimate state
interest, policy determinations as to the need for, and desirability of, the
enactment are for the Legislature.”[50]
Attorney
Contingency Fee Limits
California Business and Professions
Code Section 6146, amended in 1987, provides as the maximum attorney
contingency-fee contract limits in medical malpractice actions: 40% of the
first $50,000 recovered, 33% of the next $50,000; 25% of the next $500,000; and
15% of any excess over $600,000.[51] These limits apply whether the recovery is by
settlement, arbitration, or judgment, or whether the person for whom the
recovery is made is a responsible adult, an infant, or a person of unsound
mind.[52] There is no provision authorizing fees in
excess of this statutory limit;[53] however, the limitation does
not apply to an award for negligent injury occurring outside the scope of
practice of the practitioner's license.
Thus, section 6146 did not apply to the negligence and willful
misconduct of a psychiatrist who seduced a plaintiff while she was his patient.[54]
Statute of Limitations for Medical Malpractice Actions
Nevada’s statute of limitation for
medical malpractice can be found in NRS 41A.
In general, the statute of limitations is two years from the time of
injury or from the time the plaintiff should have reasonably discovered the
negligent injury to a maximum of four years (with exceptions for brain injuries
of children and for sterility).
California Code of Civil Procedure Section 340.5 provides that an action
for medical malpractice under MICRA shall be three years from the date of the
injury or one year from the time the plaintiff discovers, or should have
reasonably discovered, the injury.[55] “In no event shall the time for commencement
of legal action exceed three years unless tolled for any of the following: (1)
upon proof of fraud, (2) intentional concealment, or (3) the presence of a
foreign body, which has no therapeutic or diagnostic purpose of effect, in the
person of the injured person.”[56] Actions by a minor shall be filed within
three years from the date of the “wrongful act” except that if the minor is
less than six years of age, the action shall commence within three years or
prior to his eighth birthday, whichever is longer.[57] The use of the term “wrongful act” has been
construed to mean “injury.”[58] The term “injury” as used in this section
means both a person's physical abnormality and its negligent cause, not
necessarily the alleged wrongful act itself.[59] Injury occurs, and the three year period accrues,
when an appreciable harm is first apparent.[60] The statute shall be tolled for fraud or
collusion by the parent or guardian and the defendant's insurer or health care
provider.[61] This statute shortened the statute of
limitations from four years to three years.
There is no one year “reasonable discovery” statute of limitations
provision for minors.[62]
Tolling of the statute of
limitations due to fraud or intentional concealment require affirmative acts by
the health care provider, not merely omissions or continued failure to disclose
facts after surgery.[63] A non-therapeutic foreign body left in the
patient tolls the statute for an unlimited time.[64] However, once the patient becomes aware of
the presence of the foreign body or should have become aware of its presence,
the one year statute accrues.[65]
The limitations period for adults
and minors also applies to wrongful death actions where the plaintiff is the
decedent's surviving heir.[66] The accrual period commences at the time of
the decedent's death.[67]
The statute of limitations defense
must be pleaded in an affirmative defense in a demurrer or in the answer to the
complaint or it is considered waived.[68] If the demurrer is overruled, pleading the
statute of limitations in the answer to the complaint will permit a pre-trial
request for a bifurcated trial on statute of limitations issue alone.[69]
The 90 Day Notice of Intention to Sue
California Code of Civil Procedure
Section 364 provides that “no action based upon a health care provider's
professional negligence shall be commenced unless the defendant has been given
at least 90 days prior notice of the intention to commence the action.”[70] The notice must include the basis of the
claim and the type of loss sustained, including the specific nature of the injuries.[71] If notice is served within ninety days of the
statute of limitation’s limit, the statute of limitations will extend for
ninety days from the date of service of notice.[72] Failure to comply has no effect on the action
but does subject the attorney to disciplinary action by the state bar.[73] In a small claims court action for medical
malpractice, the plaintiff will be given a continuance so that the notice
requirement may be satisfied.[74] The tolling provisions apply only to
negligence causes of action and not to those based on intentional torts such as
battery.[75]
The California Supreme Court held
that section 364 tolls the one year statute of limitations for plaintiffs who
serve a ninety-day notice during the last ninety days of the one year period,
but not for plaintiffs who serve a ninety-day notice before the last ninety
period and that this does not deny equal protection of the laws.[76] The tolling of the one year statute of
limitations for a maximum of ninety days does not apply to the three year statute
of limitations, states one Appellate Court.[77] However, another Appellate Court ruled that
the ninety-day extension did apply to toll the three year statute of
limitations, and that this construction more consistent with the “ultimate
legislative purpose to be served.”[78] Whether the ninety-day tolling period applies
to the three and well as the one year period of the statute of limitations of
section 340.5 appears ripe for a the Supreme Court finding.
In 1993, the California Legislature
added to the Business and Professions Code, Section 364.1, which requires the
plaintiff's attorney to send notice of an intent to
file suit for professional malpractice to the Medical Board of California or to
the Board of Podiatric Medicine, as applicable, at the same time notice is sent
to the defendant.[79] The Medical Board of California or the Board
of Podiatric shall maintain the notice as a confidential part of a potential
investigation file.[80] This statute has not generated litigation to
date.
Compulsory Arbitration Agreements
California Code of Civil Procedure
Section 1295 provides for and authorizes compulsory arbitration agreements in
medical service contracts. The agreement
must be the first article of the contract, and must use the following language:
It is
understood that any dispute as to medical malpractice, that is as to whether
any medical services rendered under this contract were unnecessary or
unauthorized or were improperly, negligently or incompetently rendered, will be
determined by submission to arbitration as provided by California law, and not
by a lawsuit or resort to court process except as California law provides for
judicial review of arbitration proceedings.
Both parties to this contract, by entering into it, are giving up their
constitutional right to have any such dispute decided in a court of law before
a jury, and instead are accepting the use of arbitration.[81]
Immediately before the
signature line the following must appear in at least ten point red type:
NOTICE:
BY SIGNING THIS CONTRACT YOU ARE AGREEING TO HAVE ANY ISSUE OF MEDICAL
MALPRACTICE DECIDED BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP YOUR RIGHT TO
A JURY OR COURT TRIAL. SEE ARTICLE 1 OF
THIS CONTRACT.[82]
Once signed, the agreement governs
all subsequent open-book account transactions for medical services until or
unless rescinded by 30 days written notice.[83] The agreement may be signed or rescinded by a
legal guardian if the patient is incapacitated or a minor.[84] If these (a) through (c) are completed, the
contract is not one of adhesion, nor unconscionable, nor otherwise improper.[85] These provisions do not apply to a health
care service plan.[86] A court found an arbitration clause
incorporated in a hospital's admission forms requires reasonable explanation of
its meaning, effects, and options to be binding.[87] The failure to comply with provisions (a)
through (c) renders unenforceable the arbitration provision agreement.[88]
The constitutionality of section
1295 has not been challenge, probably because arbitration agreements are well
established in contract law and this section merely provides formally for
arbitration agreements in medical service contracts. Courts have mentioned the strong public
policy favoring arbitration as a means of resolving disputes, including
disputes over medical malpractice claims.[89]
The scope of
medical service contract arbitration agreements include intentional
torts such as battery as well as professional negligence.[90] Arbitrators hearing cases under section 1295
are authorized to award punitive damages for resulting from more than mere
negligence, such as an intentional (battery) tort.[91] Claims arising outside the scope of medical
service, such as sexual assault by an orderly, are not bound by an arbitration
agreement for medical services.[92]
Although section 1295 provides that
a properly drafted arbitration agreement is not subject to an unconscionability or unfairness challenge, a plaintiff has
the right to challenge the voluntariness of consent
to the agreement.[93] A claim of fraud in the inducement of an
arbitration provision must be decided by the court before the matter can be
ordered to arbitration pursuant to the agreement.[94]
Courts are split on whether a nonsignatory to the agreement is bound to arbitration when
the cause of action arises out of medical services provided under the
arbitration agreement. One court held
that a nonsignatory husband, in a loss of consortium
claim, not bound by the wife's arbitration agreement.[95] Another court held a nonsignatory
wife, in a loss of consortium claim, bound by her husband's arbitration
agreement.[96] An unmarried father of a stillborn child was
bound to arbitration by the mother's arbitration agreement.[97] An heir in a wrongful death claim was not
bound by the patient's arbitration agreement,[98]
but would have been bound had the arbitration agreement expressly stated an intent to bind heirs.[99]
From the defendant's perspective, a
physician employee of a medical group who had not signed nor was aware of his
patient's arbitration agreement was held bound to arbitration proceedings in a
malpractice action resulting from medical services he rendered.[100] Additionally, a court held an arbitration
agreement binding in an action involving a doctor associated with the signatory
doctor.[101]
Conclusion
The major provisions of MICRA could be listed in the following
priority: limitation on non-economic damages (pain and suffering),
admissibility at trial of collateral sources of compensation (insurance,
workers compensation, etc.), provision for periodic payments of future damages
(installment payments of the award), limitations on attorney contingency fees
(progressively less percent of the award for increasingly high awards), changes
to the statute of limitations (Nevada has a relatively favorable one now for
medical malpractice), and notice of intent to file a claim (probably not a
deterrent in Nevada). Agreeing on a
priority may be important to facilitate coordination of all our efforts since
is appears unlikely (at this time) that a broad package of tort reform
legislation would all pass in a single legislative session.
[1] Assem.
Select Comm. on Medical. Malpractice, Prelim. Rpt. (Cal., June, 1974).
[2] Medical
Malpractice, Report of the Secretary's Commission on Medical Malpractice,
Department of Health, Education and Welfare, Washington, D.C., DHEW Publication
No. (OS) 73-88, Jan. 16, 1973.
[3] The
Malpractice Crisis: What's happening at St. Joseph Hospital, May 1975.
[4] Proclamation by the Governor Convening the Legislature in Second
Extraordinary Session, May 16, 1975.
[5] Id.
[6] Cal. A.B. 1xx,
Second Extraordinary Legis. Sess.
(May 19, 1975).
[7] Id.
[8] 1975 Cal. Stat. ch1. (Second Extra.
Sess.)
[9] Id.
[10] 1975 Cal. Stat. ch. 2 (Second Extra.
Sess.)
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Cal. Civ. Code § 3333.2 (West 1970 and
Cumulative Pocket Part 1996).
[16] Id. at (c) (2).
[17] Yates v. Pollock, 194 Cal. App. 3d 195, 199, 239 Cal. Rptr. 385 (1987).
[18] Carson v.
Maurer, 120 N.H. 925 (1980) ($250,000 limit on non-economic damages); Arneson v. Olsen, 270 N.W.2d 125 (N.D. 1978)
($300,000 limit on total damages); Simon v. St. Elizabeth Medical Center,
3 Ohio Op. 3d 164 (1976) ($200,000 limit on general damages); Baptist Hosp.
of Southeast Texas v. Baber, 672 S.W.2d 296 (Tex.
App. 1984) ($500,000 limit on damages other than medical expenses).
[19] Johnson v. St. Vincent Hosp., Inc., 273 Ind. 374 (1980).
[20] Jones v. State Board of Medicine, 97 Idaho 859 (1976).
[21] Fein v. Permanente Medical Group, 38 Cal. 3d 137, 157, 211
Cal. Rptr. 368, 695 P.2d 665 (1985).
[22] Id. at 159.
[23] Id. at 162.
[24] Id. at 163.
[25] Fein v. Permanente Medical Group, 474 U.S. 892 (1985)
(appeal dismissed).
[26] Yates, 194 Cal. App. 3d at 200.
[27] Atkins v. Strayhorn, 223 Cal. App.
3d 1380, 1396 (1990); Gilman v. Beverly California Corp., 231 Cal. App.
3d 121, 129 (1991).
[28] Ash v.
Mortensen, 24 Cal. 2d 654, 657,
P.2d , ,
Cal. Rptr.
(1944); Helling v. Lew, 28 Cal. App. 3d 434, 439, P.2d
, (1972).
[29] Id.
[30] Schwarder
v. United States, 974 F.2d 1118 (9th Cir. 1992).
[31] Atkins v. Strayhorn, 223 Cal. App. 3d 1380 (1990); Williams v.
Superior Court, 30 Cal. App. 4th 318, 323-324; Taylor v.
United States, 821 F.2d 1428, 1431 fn. 2 (9th Cir. 1987), cert.
denied, 485 U.S. 992 (1988).
[32] Yates, 194 Cal. App. 3d at 200-01.
[33] Cal. Civ. Code § 3333.1 (a) (West 1970
and Cumulative Pocket Part 1996).
[34] Id. at (b).
[35] Barme
v. Wood, 37 Cal.3d 174, 181, 689 P.2d 446, 207 Cal. Rptr.
816 (1984).
[36] Fein,
38 Cal. 3d 137 (1985), cert. denied, 474 U. S. 892.
[37] Barme, 37
Cal. 3d 174, 181.
[38] Fein,
38 Cal. 3d at 165, fn. 21.
[39] In re Air
Crash Disaster Near Cerritos, Cal., 982
F.2d 1271, 1277 (9th Cir. 1992).
[40] Brown v. Stewart, 129 Cal. App. 3d 331 (1982).
[41] Barme, 37 Cal.3d 174, 181
fn. 6.
[42] City and County of San Francisco v. Sweet, 12 Cal. 4th
105 (1995).
[43] Inter Valley
Health Plan v. Blue Cross/Blue Shield, 16 Cal. App. 4th 60,
63-65 (1993).
[44] Cal. Civ. Proc. Code § 667.7 (West 1975).
[45] Craven v. Crout, 163 Cal. App. 3d 779, 784, 209 Cal. Rptr.
649 (1985).
[46] Id.
[47] Id.
[48] American Bank & Trust Co. v. Community Hospital, 36 Cal.
3d 359, 683 P.2d 670, 204 Cal. Rptr. 671 (1984).
[49] Craven, 163 Cal. App. 3d 779, 209 Cal. Rptr.
649.
[50] American
Bank, 36 Cal. 3d at 369.
[51] Cal. Bus.
& Prof. Code § 6146 (a) (West 1990) (the 1987 amendments are known as the
Willie L. Brown, Jr.-Bill Lockyer Civil Liability
Reform Act of 1987. 1987
Cal. Stat. § 1, ch. 1498. Prior to this
contingency-fee limits were: 40% of the first $50,000; 33% of the
next $50,000; 25% of the next $100,000; and 10% of the recovery exceeding
$200,000. 1975 Cal. Stat. 2d Extra. Sess. chs. 1,2 (1975)).
[52] Id. at (b).
[53] Hathaway v. Baldwin Park Community Hosp., 186 Cal. App. 3d
1247, 1253, 231 Cal. Rptr. 334 (1986).
[54] Waters v. Bourhis, 40 Cal. 3d 424
(1985).
[55] Cal. Civ. Proc. Code § 340.5 (West 1982
and Cumulative Pocket Part 1996).
[56] Id.
[57] Id.
[58] Torres v. County of Los Angeles, 209 Cal. App. 3d 325, 334
(1989); Katz v. Children's Hosp. of Orange County, 28 F.3d 1520, 1533
(1994).
[59] Hazel v. Hewlett, 201 Cal. App. 3d 1458, 247 Cal. Rptr. 723 (1988).
[60] Brown v. Bleiberg, 32 Cal. 3d 426 (1982).
[61] Cal. Civ. Proc. Code § 340.5.
[62] Young v. Haines, 41 Cal. 3d 883, 897 (1986).
[63] Trantafello v. Medical Center of Tarzana, 182 Cal. App. 3d 315, 321
(1986); Reyes v. County of Los Angeles, 197 Cal. App. 3d 584, 595
(1988).
[64] Ashworth v. Memorial Hosp., 206 Cal. App. 3d 1046 (1988).
[65] Id., 206 Cal. App. 3d at 1058.
[66] Ferguson v. Dragul, 187 Cal. App.
3d 702, 708 (1986).
[67] Id., 187 Cal. App. 3d at 709.