COURT OF APPEAL, FOURTH APPELLATE DISTRICT
APPEAL from judgments of the Superior Court of San Diego County, Luis R.
Law Offices of Charles A. Bleiler, Charles A. Bleiler, Diane E. Bond; Vicky Jean
Banks; and Audrey Powers Thornton for Plaintiffs and Appellants.
Neil, Dymott, Perkins, Brown & Frank, Hugh A. McCabe and Michael Bishop for
Defendant and Respondent Paradise Valley Hospital.
Martha L. McGill; Robert A. Cosgrove & Associates; Cosgrove & Birmingham
and Robert A. Cosgrove for Defendant and Respondent Jon E. Highum.
Plaintiffs Arturo A. Gonzalez and Maria D. Gonzalez appeal summary judgments
for defendants Paradise Valley Hospital (the Hospital) and Jon E. Highum, M.D. The
Gonzalezes sued the defendants for professional negligence, arising from the death of
their son Arturo Gonzalez (Arturo) after he escaped from the Hospital's psychiatric unit
during an involuntary 72-hour hold under Welfare and Institutions Code1 section 5150.
The Gonzalezes contend the trial court erred by ruling that under this court's opinion in
Heater v. Southwood Psychiatric Center (1996) 42 Cal.App.4th 1068 (Heater), section
5278 immunizes the defendants from any breaches of the applicable standards of care
during the detention. We agree with the Gonzalezes, based on our recent holding in
Jacobs v. Grossmont Hospital (2003) 108 Cal.App.4th 69 (Jacobs), and reverse the
judgments. We conclude section 5278 provides no immunity for negligence during a 72-
Arturo had a history of paranoid schizophrenia. On the evening of September 26,
1999, Arturo, after a period of not taking his medication, attempted to choke his mother.
National City police officers took him to the Hospital's emergency room and requested
that he be detained on a 72-hour hold under section 5150. Arturo was agitated and
"clearly psychotic." He ran out the door, but officers returned him to the emergency
room where he was placed in restraints and medicated. Dr. Highum, a psychiatrist,
Statutory references are to the Welfare & Institutions Code unless otherwise
ordered that Arturo be transferred to the Hospital's locked psychiatric unit for a 72-hour
hold on the ground he posed a threat to others.
The following morning, Dr. Highum examined Arturo and concluded he remained
a danger to others. Dr. Highum noted Arturo's "[t]hought content was without current
suicidal or homicidal ideation, obsessions or compulsions," but he was suspicious and
having auditory hallucinations. Dr. Highum treated Arturo with Haldol Decanoate,
which Arturo reported "worked relatively well for him previously."
That afternoon, Arturo broke through a window in the psychiatric unit and
escaped. He left the hospital grounds, entered a nearby apartment, which was occupied,
and grabbed a kitchen knife and cut his throat and abdomen. Police arrived and Arturo
obeyed their order to come outside. However, the police shot him and inflicted mortal
The Gonzalezes sued the Hospital and Dr. Highum for professional malpractice.3
In a first amended complaint, the Gonzalezes alleged the defendants knew or should have
known Arturo was at risk for escape, and they negligently failed to "provide adequate
treatment and medication for his mental illness," "failed to provide adequate supervision
by observing [him] . . . at regular intervals," and "failed to provide adequate restraints,
The Gonzalezes assert that because of "the loss of blood and psychosis, [Arturo]
was unable to comply with the police officer's command to drop the knife, and as he struggled to remain standing the police shot him to death." In support, they cite to their complaint, but it does not allege those particular facts. 3
The Gonzalezes also sued National City and individual police officers, but those
defendants are not involved in this appeal.
security, and proper facilities," and as a foreseeable consequence of the negligence
Arturo was shot and killed by police officers. The Gonzalezes alleged Dr. Highum was
acting within the scope of an agency or employment relationship with the Hospital.
The Hospital moved for summary judgment on the grounds it met the applicable
standard of care and its conduct was not a legal cause of Arturo's death, and in any event,
under section 5278 it is immune from liability for any medical malpractice or other
negligence occurring during a proper 72-hour hold. For the latter argument, the Hospital
relied on this court's opinion in Heater, supra, 42 Cal.App.4th 1068.
In opposition to the motion, the Gonzalezes argued Heater does not stand for the
proposition section 5278 confers absolute immunity on health care providers for
negligent treatment of a patient detained on a 72-hour hold. The Gonzalezes also argued
there are "triable issues of fact as to whether [the Hospital's] psychiatric lock-down
facility was compliant with building codes and the standard of care in the industry,"
whether Arturo "was properly supervised during his detention, and whether he received
the appropriate anti-psychotic medications and care required to treat his condition."
In support, the Gonzalezes submitted the declaration of their expert, psychiatrist
Clark E. Smith. In Dr. Smith's opinion, Dr. Highum knew or should have known Arturo
was "a dangerously unstable, acutely psychotic patient, at extremely high risk for
elopement," and he breached the standard of care by not giving Arturo medication "for
stabilization for acute psychosis." According to Dr. Smith, Haldol Decanoate is a "short
term sedating medication" that "requires six days to reach a peak effect," and the drug is
"intended to be used on patients that have been stabilized on short acting antipsychotic
medications." Dr. Smith believed it was "extremely unlikely that . . . Arturo . . . had
received any therapeutic effect from the Haldol Decanoate shot given approximately two
hours before he died." Further, Dr. Smith believed the Hospital was negligent in placing
Arturo "in a room without adequate observation and with breakable windows which
Heater, supra, 42 Cal.App.4th 1068, the court granted the Hospital's
motion on the sole ground of immunity under section 5278. Dr. Highum separately
moved for summary judgment on the same ground, and the court granted the motion.
Judgments for the Hospital and Dr. Highum were entered on February 11, 2002, and
A "party moving for summary judgment bears the burden of persuasion that there
is no triable issue of material fact and that he [or she] is entitled to judgment as a matter
of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant
satisfies this burden by showing " 'one or more elements of' the 'cause of action' in
question 'cannot be established,' or that 'there is a complete defense' " to that cause of
action. (Ibid.) If the defendant meets his or her initial burden, "the opposing party is
then subjected to a burden of production of his [or her] own to make a prima facie
showing of the existence of a triable issue of material fact." (Ibid.) We review rulings on
summary judgment motions independently. (Rubenstein v. Rubenstein (2000) 81
Scope of Immunity Under Section 5278
In California, the Lanterman-Petris-Short Act (LPS Act) (§ 5000 et seq.) governs
the involuntary treatment of the mentally disordered. (Conservatorship of Susan T.
(1994) 8 Cal.4th 1005.) Under the LPS Act, a designated facility may detain a person for
up to 72 hours for evaluation and treatment if there is "probable cause to believe that the
person is, as a result of mental disorder, a danger to others, or to himself or herself, or
gravely disabled." (§ 5150; see also § 5151.)4 "Each person admitted to a facility for 72-
hour treatment and evaluation . . . shall receive an evaluation as soon after he or she is
admitted as possible and shall receive whatever treatment and care his or her condition
requires for the full period that he or she is held." (§ 5152, subd. (a).)
Section 5278 provides in part: "Individuals authorized under this part to detain a
person for 72-hour treatment and evaluation pursuant to Article I (commencing with
Section 5150) . . . shall not be held either criminally or civilly liable for exercising this
authority in accordance with the law." The Gonzalezes contend the immunity does not
extend to negligent treatment during the confinement. The defendants counter that under
Other provisions of the LPS Act allow for longer periods of treatment. (See
§§ 5250 [intensive 14-day treatment]; 5260 [extended commitment for the suicidal]; 5300 [180-day commitment for the imminently dangerous], 5350 [30-day temporary conservatorship or one year conservatorship for the gravely disabled].)
Heater, supra, 42 Cal.App.4th 1068, any negligence committed during a legal 72-hour
hold is within section 5278's scope of immunity.
Heater, this court stated "no other conclusion is possible than that section 5278
means precisely what it says it means, and that civil liability, whether for battery, for
false imprisonment, or for medical malpractice is precluded insofar as the detention is 'in
accordance with the law.' " (Heater, supra, 42 Cal.App.4th at p. 1083.) In that case,
however, the only alleged wrongful act discussed was the administration of a tranquilizer
without the plaintiff's consent. The plaintiff's assault and battery cause of action was
based on the lack of consent, and there is no suggestion the medical malpractice claim
was based on other conduct. In our recent decision in Jacobs, supra, 108 Cal.App.4th at
page 77, we cautioned that Heater's discussion of section 5278's applicability to medical
malpractice claims is limited to the facts presented there.
The scope of immunity afforded by section 5278 is a legal question governed by
rules of statutory construction. "A court's overriding purpose in construing a statute is to
ascertain legislative intent and to give the statute a reasonable construction conforming to
that intent. [Citation.] In interpreting a statute to determine legislative intent, a court
looks first to the words of the statute and gives them their usual and ordinary meaning."
(Home Depot, U.S.A., Inc. v. Contractors' State License Bd. (1996) 41 Cal.App.4th 1592,
1600.) "If the language is clear and unambiguous, the plain meaning of the statute
governs." (Ford v. Norton (2001) 89 Cal.App.4th 974, 981.) "The words of a statute
must be construed in context and provisions relating to the same subject matter must be
harmonized to the extent possible." (Ibid.)
" 'The LPS Act must be construed to promote the intent of the Legislature, among
other things, to end the inappropriate, indefinite and involuntary commitment of mentally
disordered persons, to provide prompt evaluation and treatment and to protect mentally disordered persons (§ 5001).' [Citation.]" (Jacobs, supra, 108 Cal.App.4th at p. 75,
quoting Michael E. L. v. County of San Diego (1986) 183 Cal.App.3d 515, 525.)
Jacobs, we concluded that in enacting section 5278, the Legislature did not
intend to immunize health care providers from liability for breaches of the applicable
standards of care during the period of confinement. (Jacobs, supra, 108 Cal.App.4th at p.
79.)5 Here, we affirm our conclusion that section 5278 is inapplicable to actions for
negligence stemming from acts or omissions in evaluation or treatment during 72-hour
Section 5278 provides that "[i]ndividuals authorized . . . to detain a person for 72-
hour treatment and evaluation pursuant to Article 1 (commencing with Section 5150) . . .
shall not be held either criminally or civilly liable forexercising this authority in accordance with the law." (§ 5278, italics added.) The italicized language shows the
Legislature's intent to protect health care providers from any liability for intentional torts
arising from the exerciseof (1) the statutory authority to involuntarily detain mentally ill
persons, upon probable cause, and (2) the statutory mandate to promptly evaluate and
treat detained persons. (§§ 5150, 5151; Jacobs, supra, 108 Cal.App.4th at p. 78.)
Jacobs, supra, 108 Cal.App.4th 69, after initial briefing was
completed here. We invited the parties to submit supplemental briefing in light of Jacobs, and we have taken their responses into consideration.
"Without the immunity provided by section 5278, an involuntary detention and treatment
without consent would arguably constitute kidnapping, false imprisonment, or battery."
is confined to the exercise of statutory authority to detain,
evaluate and treat against the patient's wishes, and does not extend to the manner in
which evaluation and treatment are carried out. In other words, liability arising from
negligent evaluation or treatment is not liability arising from the "exercis[e of] this
authority in accordance with the law." (§ 5278.) The interpretation of section 5278 the
defendants urge is contrary to its language, and would undermine a purpose of the
Legislature in enacting the LPS Act, protection of mentally ill persons. Any intent of the
Legislature to confer an immunity that would deny involuntarily detained persons redress
for injuries caused by evaluation or treatment falling below the standard of professional
Dr. Highum contends his alleged negligence is immunized because "[k]eeping an
involuntarily-detained patient confined in a hospital . . . during a 72-hour hold is inherent
in a detention pursuant to . . . section 5150." Dr. Highum relies on the following
language from Jacobs, supra, 108 Cal.App.4th at pages 78-79: "[T]he scope of section
5278 immunity extends to claims based on facts that are inherent in an involuntary
detention pursuant to section 5150. If there is probable cause for the detention, the
statute therefore provides immunity for the decision to detain as well as for the detention
and its inherent attributes, including the fact that the patient must necessarily be evaluated
and treated without consent. . . . However, the immunity does not extend to other
negligent acts, intentional torts, or criminal wrongs committed during the course of the
detention, evaluation, or treatment." (Italics added.) We clarify here that the immunity
of section 5278 does not extend to any negligent acts, and the inclusion of the word
"other" in Jacobs was unintended. As we went on to hold in Jacobs, supra, at page 79,
"section 5278 does not provide immunity for injuries proximately caused by negligence."
Additionally, Dr. Highum cites Government Code section 856.2, subdivision
(a)(2), which immunizes public entities and their employees from liability for an "injury
to, or the wrongful death of, an escaping or escaped person who has been confined for
mental illness or addiction." Dr. Highum points out that in Jacobs,we found our
interpretation of Welfare and Institutions Code section 5278 is consistent with its
statutory counterpart, Government Code section 856, which immunizes public entities
and their employees from liability for injuries arising from the determination of whether
to confine a person for mental illness or addiction, the terms and conditions of the
confinement, and whether to release a confined person, if such determinations are
"carr[ied] out with due care." (Gov. Code, § 856, subds. (a) & (b), italics added.)
"Public employees are specifically not exonerated from liability for injuries proximately
caused by their negligent or wrongful acts or omissions in carrying out or failing to carry
out the specified determinations. (Gov. Code, § 856, subd. (c).)" (Jacobs, supra, 108
Cal.App.4th at p. 79.) However, the LPS Act includes no provision such as Government
Code section 856.2, subdivision (a)(2), and any corresponding immunity for the private
The Gonzalezes alleged Arturo's death was proximately caused by defendants'
negligence during his detention, specifically, Dr. Highum's failure to appropriately treat
his psychosis and the Hospital's failure to adequately supervise and observe him and its
provision of inadequate facilities. The Gonzalezes raised triable issues of fact regarding
their negligence claims, and thus the summary judgments were improper.
The judgments are reversed. The Gonzalezes are awarded costs on appeal.
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