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MICRA mania runs wild -- Second District extends protection to auto insurers

Posted by: Michael A. Kelly
April 07, 2008
Topic: Medical Malpractice

If thirty-three years of treating patients as second class citizens isn't ridiculous enough, the unfair and discriminatory protection afforded to medical malpractice insurance company has now been extended to immunize the auto insurers of Ambulances not involved in emergency runs! What is next? MICRA protection for the custodians who work for medical office building managers and fail to put out "Wet Floor" cones? Don't laugh, it is not that far fetched.

In Canister v. Emergency Ambulance Services (Cal.App. 2nd Dist.) 2008 DJAR 2739, the Second District broadly construed (1) MICRA's definition of "health care provider," (2) MICRA's definition of "professional services," and (3) MICRA's application to plaintiffs who are not intended recipients of professional services. The Canister court concluded that driving an ambulance during a non-emergency interfacility transfer is a "professional negligence" covered by MICRA!

The Facts: an EMT-I (not a paramedic) was operating an ambulance during the transfer of an arrestee, via ambulance, from one medical facility to another. A police escort was riding along and was injured when the ambulance suddenly swerved. The police officer suffered personal injuries, and sued Emergency Ambulance Services (EAS) based on negligent operation of the vehicle.

The Court of Appeal held as follows. First, an EMT is a "health care provider" per MICRA. Second, somehow, negligent operation of an ambulance in a non-emergency setting is "professional negligence"--not ordinary negligence--per MICRA. Finally, MICRA even applies as to people--like the police officer in Canister--who are not the intended recipient of the professional services.

The most frightening part of this ruling is that it stretches the already-faulty rationale for MICRA in the first place: to decrease medical liability insurance costs (of course, it has not decreased insurance rates, but has made insurance companies richer). The ambulance driven in Canister would likely have a regular auto insurance policy--and certainly not a medical liability policy. Consequently, even though auto insurance is not rising like medical liability insurance, auto insurers still get the windfall from the ruling: their liability is capped, even though there is no reason for the cap.


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