Professional Documents
Culture Documents
For the purposes of this chapter, “beneficiary of the decedent's estate” means:
(a) If the decedent died leaving a will, the sole beneficiary or all of the
beneficiaries who succeed to a cause of action, or to a particular item of property that
is the subject of a cause of action, under the decedent's will.
(b) If the decedent died without leaving a will, the sole person or all of the persons
who succeed to a cause of action, or to a particular item of property that is the
subject of a cause of action, under Sections 6401 and 6402 of the Probate Code or, if
the law of a sister state or foreign nation governs succession to the cause of action or
particular item of property, under the law of the sister state or foreign nation.
3. Purpose
**The Legislature's intent in adopting the wrongful death statute was manifestly to create an
entirely new cause of action where none was thought to exist before, and, accordingly,
wrongful death remains a creature of statute in California. People v. Giordano (2007) 68
Cal.Rptr.3d 51, 42 Cal.4th 644, 170 P.3d 623. Death 11
(a) Except as otherwise provided by statute, a cause of action for or against a person
is not lost by reason of the person's death, but survives subject to the applicable
limitations period.
(b) This section applies even though a loss or damage occurs simultaneously with or
after the death of a person who would have been liable if the person's death had not
preceded or occurred simultaneously with the loss or damage.
Deceased minor's mother and sole custodian had standing under Civil Rights Act (42 U.S.C.A. §
1981 et seq.) to sue for damages for alleged deprivation of minor's constitutional and
federally protected rights, in view of California survival and wrongful death provision of
CCP § 377 and this section. Galindo v. Brownell, S.D.Cal.1966, 255 F.Supp. 930. Civil Rights
1332(1)
Wrongful death action survived death of plaintiff heir under Civ.Code § 956 (now
repealed), which provided that a thing in action arising out of wrong which results in
physical injury to person or out of statute imposing liability for such injury shall not
abate by reason of death of wrongdoer nor by reason of death of person injured or of any
other person who owns any such thing in action. Johnson v. Key System Transit Lines
(App. 1 Dist. 1962) 26 Cal.Rptr. 574, 210 Cal.App.2d 440. Death 29
**A cause of action for wrongful death is a new cause of action, and it is not the
survival of the separate and distinct cause of action which the injured person himself
had before death, and which may be subject to enforcement by the personal representative
of the deceased against the tortfeasor. Grant v. McAuliffe (1953) 41 Cal.2d 859, 264
P.2d 944. Abatement And Revival 54
**Survival statutes do not create a new cause of action, as do wrongful death statutes,
but they merely prevent the abatement of a cause of action of the injured person, and
provide for its enforcement by or against the personal representative of the deceased.
Grant v. McAuliffe (1953) 41 Cal.2d 859, 264 P.2d 944. Abatement And Revival 54
**Where cause of action for wrongful death arose in favor of widow and children of
deceased killed in automobile accident, such cause of action against tort-feasor
survived his subsequent death against tort-feasor's estate under this section. Nash v.
Wright (App. 2 Dist. 1947) 82 Cal.App.2d 475, 186 P.2d 691. Abatement And Revival
63; Death 30
**Under California law, cause of action against tobacco company was not lost by reason
of decedent's death, but survived, subject to applicable limitations period. Russell v.
Lorillard, Inc., C.A.9 (Cal.)2005, 144 Fed.Appx. 583, 2005 WL 1140018, Unreported.
Limitation Of Actions 174(1)
For the purposes of this chapter, “decedent's successor in interest” means the
beneficiary of the decedent's estate or other successor in interest who succeeds to a
cause of action or to a particular item of the property that is the subject of a cause
of action.
1. Successors
**Under California law, shooting victim's stepfather did not have standing to bring
survival cause of action, where stepfather was not personal representative of victim's
estate, victim's mother had predeceased him, and stepfather was not beneficiary of
victim's estate. Welch v. Yoell, C.A.9 (Cal.)2003, 73 Fed.Appx. 215, 2003 WL 21771929,
Unreported. Death 31(7)
A cause of action for the death of a person caused by the wrongful act or neglect of
another may be asserted by any of the following persons or by the decedent's personal
representative on their behalf:
(a) The decedent's surviving spouse, domestic partner, children, and issue of deceased
children, or, if there is no surviving issue of the decedent, the persons, including the
surviving spouse or domestic partner, who would be entitled to the property of the
decedent by intestate succession.
(b) Whether or not qualified under subdivision (a), if they were dependent on the
decedent, the putative spouse, children of the putative spouse, stepchildren, or
parents. As used in this subdivision, “putative spouse” means the surviving spouse of a
void or voidable marriage who is found by the court to have believed in good faith that
the marriage to the decedent was valid.
(c) A minor, whether or not qualified under subdivision (a) or (b), if, at the time of
the decedent's death, the minor resided for the previous 180 days in the decedent's
household and was dependent on the decedent for one-half or more of the minor's support.
(d) This section applies to any cause of action arising on or after January 1, 1993.
(e) The addition of this section by Chapter 178 of the Statutes of 1992 was not intended
to adversely affect the standing of any party having standing under prior law, and the
standing of parties governed by that version of this section as added by Chapter 178 of
the Statutes of 1992 shall be the same as specified herein as amended by Chapter 563 of
the Statutes of 1996.
(f)(1) For the purpose of this section, “domestic partner” means a person who, at the
time of the decedent's death, was the domestic partner of the decedent in a registered
domestic partnership established in accordance with subdivision (b) of Section 297 of
the Family Code.
(2) Notwithstanding paragraph (1), for a death occurring prior to January 1, 2002, a
person may maintain a cause of action pursuant to this section as a domestic partner of
the decedent by establishing the factors listed in paragraphs (1) to (6), inclusive, of
subdivision (b) of Section 297 of the Family Code, as it read pursuant to Section 3 of
Chapter 893 of the Statutes of 2001, prior to its becoming inoperative on January 1,
2005.
(3) The amendments made to this subdivision during the 2003-04 Regular Session of the
Legislature are not intended to revive any cause of action that has been fully and
finally adjudicated by the courts, or that has been settled, or as to which the
applicable limitations period has run.
**Under the statute of limitations, a plaintiff must bring a cause of action for
wrongful death within one year of accrual. The limitations period is thus defined by the
Legislature. Not defined by it is the date of accrual. By its omission, the Legislature
has compelled the courts to proceed. It has evidently chosen to defer to judicial
experience and to repose with the judiciary the rendition of rules for the accrual of a
wrongful death cause of action. At least as a usual matter, the general rule for
defining the accrual of a cause of action should govern a cause of action for wrongful
death. That means that, at least as a usual matter, the date of accrual of a cause of
action for wrongful death is the date of death, for it is only on the date of death that
a wrongful death cause of action becomes complete with all of its elements. However, the
discovery rule may govern the date of accrual of a cause of action for wrongful death
when the plaintiff is blamelessly ignorant of his cause of action. Thus, under such
circumstances, the date of accrual of a wrongful death cause of action is the date on
which the plaintiff comes at least to suspect, or have reason to suspect, a factual
basis for its elements. Norgart v. Upjohn Co. (1999) 21 Cal 4th 383, 87 Cal Rptr 2d 453,
981 P2d 79, 1999 Cal LEXIS 5308.
ccp_377_60_death_actions_for_causing_death_right_of_action_&_defenses_persons_entitled_t
o_sue_pesonal_representatives_ca_all_digest.doc_
Survival actions are permitted under § 1983 if authorized by applicable state law. 42
U.S.C.A. § 1983. Byrd v. Guess, 137 F.3d 1126, 40 Fed. R. Serv. 3d (LCP) 391 (9th Cir. 1998).
**Mother and sole custodian of minor fatally shot by defendant Los Angeles County deputy
sheriff had standing under Federal Civil Rights Act to bring action for damages for
alleged deprivation of decedent's constitutional and federally protected rights, since
California statutes provide both for survival of actions by decedent's executor or
administrator and for wrongful death actions by decedent's heirs or personal
representative and in present case plaintiff, judging by her amended complaint, sought
only to maintain a wrongful death action for any pecuniary loss sustained by loss of her
son's society, comfort, attention, services, and companionship. Galindo v. Brownell, 255
F. Supp. 930 (S.D. Cal. 1966).
Ccp_377_60_death_actions_for_causing_death_right_of_action_&_defenses_persons_entitled_t
o_sue_heirs_&_next_of_kin_ca_all_digest.doc
[Cumulative Supplement]
In the following cases it was held or recognized that fraudulent concealment of the
existence of a cause of action for wrongful death would toll or delay the commencement
of the statute of limitations under a number of rationales, including the determination
that filing within the statute of limitations was not a condition precedent to the right
to bring a cause of action, and, even in some jurisdictions where it was considered to
be a condition precedent, that a defendant should not be allowed to profit by his own
wrong.US
For federal cases involving state law, see state headings
**Cal
Wohlgemuth v Meyer (1956, 1st Dist) 139 Cal App 2d 326, 330, 293 P2d 816
Though allegations in wrongful death, malpractice action complaint might have been more
explicit as to reason for not discovering cause of action earlier, where it did not
appear that complaint could not be amended to meet such objection, trial court committed
reversible error by sustaining general demurrer without leave to amend. West's Ann.Code
Civ.Proc. §§ 340, subd. 3, 377.
**In malpractice cases, the statute of limitations only starts to run from date of
discovery of, or date when by exercise of reasonable diligence plaintiff should have
discovered, the wrongful act. West's Ann.Code Civ.Proc. §§ 340, subd. 3, 377.
198H Health
198HVI Consent of Patient and Substituted Judgment
198Hk904 Consent of Patient
198Hk906 k. Informed consent in general; duty to disclose. Most Cited
Cases
(Formerly 299k15(8) Physicians and Surgeons)
The doctor-patient relationship is a fiduciary one, and it is incumbent on doctor to
reveal all pertinent information to his patient.
198H Health
198HIV Relation Between Patient and Health Care Provider
198Hk578 k. Fiduciary duty. Most Cited Cases
(Formerly 204k5 Hospitals)
198H Health
198HI Regulation in General
198HI(C) Institutions and Facilities
198Hk257 k. Records and duty to report; confidentiality in general. Most
Cited Cases
(Formerly 204k5 Hospitals)
198H Health
198HV Malpractice, Negligence, or Breach of Duty
198HV(D) Duties and Liabilities to Non-Patients
198Hk750 k. In general. Most Cited Cases
(Formerly 299k7 Physicians and Surgeons)
In event of death of patient while under care of doctor and hospital, spouse has right
to know cause of death.
**Where, upon death of spouse while under care of doctor and hospital, information is
withheld from surviving spouse, such withholding is, in a sense, a misrepresentation,
within rule tolling statute of limitations applicable to action for malpractice until
discovery of negligence basis of action.
[1] Thus it is clear that California does not follow the restrictive general rule but
the more reasonable and logical one that the limitations on actions for wrongful death
are procedural and not substantive.
2. Sufficiency of Pleading.
On the issue of tolling the statute the amended complaint alleges the relationship of
doctor and patient between plaintiff's wife and the defendants other than the hospital,
and the relationship of hospital and patient between her and the hospital defendant;
that at all times from the commencement of her treatment until her death all defendants
falsely assured her and plaintiff and continued thereafter to assure plaintiff that they
had correctly diagnosed, treated and cared for her illness, and that her death was
unavoidable; that because of decedent's reliance, in her lifetime, and plaintiff's
reliance on said assurances, plaintiff with due diligence could not have ascertained and
did not ascertain defendants' negligence until on or about December 3, 1953.
[2][3] The amended complaint is far from being a model of pleading and would be subject
to a special demurrer; for example, no statement is given of the circumstances under
which plaintiff discovered the alleged negligence. See **Original Min. & Mill. Co. v.
Casad, 210 Cal. 71, 75, 290 P. 456. However, no such demurrer was interposed. As against
a general demurrer there were sufficient facts alleged to require that in sustaining the
demurrer the court should have permitted plaintiff to amend to set up, if he could, the
omitted facts.
[4][5] Plaintiff alleged the professional relationship between defendants and the
decedent and her and his reliance on their assurances. As said in Myers v. Stevenson,
supra, 125 Cal.App.2d at page 402, 270 P.2d at page 887: ‘If the allegations might be
more explicit as to the reason for not discovering the cause of action sooner, it does
not appear that they could not be amended *331 to meet any such objection and this being
so the sustaining of the demurrer without leave to amend would be reversible error, if
it appears that a cause of action could be stated.’ Especially is this so when it is
remembered that ‘It is a further settled rule in malpractice cases that the statute of
limitations only starts to run from the date of discovery of, or the date when by the
exercise of reasonable diligence the plaintiff should have discovered, the wrongful
act.’ 125 Cal.App.2d at page 402, 270 P.2d at page 887.FN2
FN2. The California cases so holding dealt with malpractice cases brought by the living.
As heretofore shown, there is no reason why the same rule should not apply in actions
under the wrongful death statute.
Original Min. & Mill. Co. v. Casad, 210 Cal. 71, 290 P. 456 (Cal., Jul 26, 1930)
Action by the Original Mining & Milling Company against R. Casad. From a judgment for
defendant, plaintiff appeals.
**To toll statute regarding fraud, complaint must allege when and circumstances under which
fraud was discovered and facts showing failure to make earlier discovery was not plaintiff's
fault. Code Civ.Proc. § 338, subd. 4.
**Complaint alleging method whereby plaintiff was defrauded and circumstances under which
fraud was discovered held sufficient, as regards tolling statute. Code Civ.Proc. § 338, subd.
4.
The complaint is based upon the theory that it is an action in equity to terminate a
constructive trust, and to compel respondent, as trustee, to return to appellant the sum
of $2,500, which, it is alleged, was fraudulently and unlawfully obtained by him. The
transaction of which complaint is made took place in 1921. This action was commenced May
5, 1927. Plaintiff seeks to evade the statute of limitations, which would long since
have barred the action, on the theory that it was commenced within three years after the
discovery of the fraud.
The principal facts set forth in the third amended complaint are as follows: In the
year 1921, one J. B. Hart was the secretary-treasurer of appellant. At that time
respondent, Casad, was the general manager and local agent at Merced of the San Joaquin
Light & Power Corporation. The theory is that in 1921 Hart and Casad conspired and
fraudulently contrived that Hart, as secretary-treasurer of appellant, should pay to
respondent out of appellant's funds the sum of $2,500. In pursuance of this scheme, Hart
drew a check on appellant's funds to the order of Casad individually, in the sum of
$2,500, and the check was cashed and indorsed by Casad individually. As part of the same
transaction, Hart and Casad prepared a false voucher, which was subsequently entered in
the books of appellant, indicating that the $2,500 payment was paid to Casad, not
individually, but as agent of the San Joaquin Light & Power Corporation, on account of a
certain contract then existing between appellant and the power company. It further
appears that prior to 1921 appellant had entered into a contract with the power company
under which various payments were to be made by appellant. These payments were in
varying amounts and were to be paid at different times. It is alleged that, when the
$2,500 in question was paid to Casad, *73 all sums then due under the contract had been
paid. The false voucher contained the words ‘Acct Power line’ and the words ‘in full
settlement for the above account,’ and was signed by Casad. **It is then alleged that
this false voucher was made by Hart and Casad with intent to deceive plaintiff and to
induce plaintiff to refrain from investigating the true nature of the transaction; that
plaintiff was so deceived and was induced to rely thereon and refrained from
investigating the true nature of the transaction.
In an attempt to further excuse its failure to discover the alleged fraud, the
complaint at some length sets forth that Hart had been secretary-treasurer of appellant
for many years and that he had the implicit faith and confidence of the directors and
stockholders of appellant, and that he had complete charge of the financial affairs of
the said corporation. It is further alleged that Hart occupied a high position of trust
and confidence with many other corporations and individuals, and had an excellent
reputation for honesty in the community; that he was manager and cashier of a bank at
Merced.
As an explanation of the time and manner in which the fraud was discovered, it is
alleged**457 that in September or October, 1926, the bank of which Hart was cashier and
manager was ordered to suspend business, and upon investigation it was discovered that
Hart had misappropriated and embezzled large sums from the bank; that about that time
Hart committed suicide; that ‘plaintiff thereupon caused a thorough investigation of its
financial affairs, and a thorough examination of the books and accounts kept by said J.
B. Hart * * * to be made, and thereupon and not before discovered the true nature of the
transaction. * * *’ It is then alleged that a demand was made on defendant April 22,
1927, but defendant failed and refused to return the money.
As already narrated, the trial court sustained a demurrer without leave to amend to
this complaint. There can be but little doubt that the particular statute of limitations
applicable to this case is that found in section 338, subd. 4, of the Code of Civil
Procedure, which provides that an action for relief on the ground of fraud or mistake
must be brought within three years of the time *74 the cause of action accrued but
**‘the cause of action in such case not to be deemed to have accrued until the
discovery, by the aggrieved party, of the facts constituting the fraud or mistake.’
The main problems thus presented are whether the facts alleged are sufficient to show
no actual or presumptive knowledge of the fraud on the part of appellant, and whether
the facts stated are sufficient to excuse a nondiscovery of the alleged fraud at a
sooner date.
Both parties rely on and concede that the rules of pleading laid down in the leading
case of Lady Washington Co. v. Wood, 113 Cal. 482, 45 P. 809, are applicable to this
case. The discussion therein contained is an excellent dissertation on the subject and
has often been quoted and relied upon. We quote from that case at some length. On page
486 of 113 Cal., 45 P. 809, 810, it is stated: ‘The right of a plaintiff to invoke the
aid of a court of equity for relief against fraud, after the expiration of three years
from the time when the fraud was committed, is an exception to the general statute on
that subject, and cannot be asserted unless the plaintiff brings himself within the
terms of the exception. It must appear that he did not discover the facts constituting
the fraud until within three years prior to commencing the action. This is an element of
the plaintiff's right of action, and must be affirmatively pleaded by him in order to
authorize the court to entertain his complaint. ‘Discovery’ and ‘knowledge’ are not
convertible terms, and whether there has been a ‘discovery’ of the facts ‘constituting
the fraud,’ within the meaning of the statute of limitations, is a question of law to be
determined by the court from the facts pleaded. As in the case of any other legal
conclusion, it is not sufficient to make a mere averment thereof, but the facts from
which the conclusion follows must themselves be pleaded. **It is not enough that the
plaintiff merely avers that he was ignorant of the facts at the time of their
occurrence, and has not been informed of them until within the three years. He must show
that the acts of fraud were committed under such circumstances that he would not be
presumed to have any knowledge of them,—as that they were done in secret, or were kept
concealed; and he must also show the times and the circumstances under which the facts
constituting the fraud were brought *75 to his knowledge, so that the court may
determine whether the discovery of these facts was within the time alleged, and, as the
means of knowledge are equivalent to knowledge, if it appears that the plaintiff had
notice or information of circumstances which would put him on an inquiry which, if
followed, would lead to knowledge, or that the facts were presumptively within his
knowledge, he will be deemed to have had actual knowledge of these facts.'
In Phelps v. Grady, 168 Cal. 73, the court, in discussing the rules of pleading
applicable to such cases, at page 78, 141 P. 926, 928, quotes from a leading case on the
subject, Wood v. Carpenter, 101 U. S. 135, 25 L. Ed. 807, as follows: ‘In this class of
cases the plaintiff is held to stringent rules of pleading and evidence, ‘and especially
must there be distinct averments as to **the time when the fraud, mistake, concealment,
or misrepresentation was discovered, and **what the discovery is, so that the court may
clearly see whether, by ordinary diligence, the discovery might not have been before
made.’ * * * A party seeking to avoid the bar of a statute on account of fraud must aver
and show that he used due diligence to detect it. * * * The circumstances of the
discovery must be fully stated and proved, and the delay which has occurred must be
shown to be consistent with the requisite diligence.' The principles above enunciated
have been frequently applied by our courts. See, generally, Victor Oil Co. v. Drum, 184
Cal. 226, 193 P. 243; Simmons v. Briggs, 69 Cal. App. 447, 231 P. 604; Gray v.
Yarbrough, 61 Cal. App. 724, 215 P. 914.
[1] It will be discovered upon an analysis of the above cases that there are three major
allegations that must be contained in the complaint before it will be held sufficient:
**(1) The complaint must allege when the fraud was discovered; **(2) the circumstances
under which it was discovered; and **(3) facts must be alleged to show that plaintiff is
not at fault for failing to discover the fraud sooner, and **that the plaintiff has no
actual or presumptive knowledge of facts sufficient to put him on inquiry.
**458 [2] Plaintiff has ably and adequately pleaded the necessary facts in reference to
requirements numbered 1 and 2, supra. It is in reference to requirement No. 3 that the
most serious question is presented, but we are of the opinion *76 that the facts pleaded
are, if sustained by the evidence, sufficient in law to excuse the plaintiff for failure
to earlier discover the fraud pleaded. The language of Victor Oil Co. v. Drum, supra, at
page 241 of 184 Cal., 193 P. 243, 249, seems appropriate: ‘The courts will not lightly
seize upon some small circumstance to deny relief to a party plainly shown to have been
actually defrauded against those who defrauded him on the ground, forsooth, that he did
not discover the fact that he had been cheated as soon as he might have done. It is only
where the party defrauded should plainly have discovered the fraud except for his own
inexcusable inattention that he will be charged with a discovery in advance of actual
knowledge on his part. The present case is not of that character.’
§ 4. View that time of discovery does, or may, affect running of statute of limitations
in wrongful death actions
[Cumulative Supplement]
The following cases support the rule that the time of discovery of the cause of the
decedent's death does, or may, affect the running of the statute of limitations in
wrongful death actions.US
For federal cases involving state law, see state headings
Cal
Frederick v Calbio Pharmaceuticals (1979, 2d Dist) 89 Cal App 3d 49, 152 Cal Rptr 292
Barker v. Brown & Williamson Tobacco Corp., 88 Cal. App. 4th 42, 105 Cal. Rptr. 2d 531
(4th Dist. 2001)
**Personal injury and wrongful death claims against alleged polluter accrued, for
limitations purposes, when injury was diagnosed or death occurred, except to extent
plaintiffs could show that, at that time, they neither knew nor had reason to suspect
defendant was cause of injury or death, that they in fact discovered claims at later
date, and that they lacked means to discover claims earlier. O'Connor v. Boeing North
American, Inc., 92 F. Supp. 2d 1026 (C.D. Cal. 2000) (applying California law)
§ 6[b] Where statute provides that action must be commenced within specified time,
without specifying when period begins to run—Where statute is general and refers to
other causes of action
Where the applicable statute of limitations for wrongful death did not specify the time
at which the limitations period began to run, but was contained in a general statute of
limitations referring to the types of actions in addition to wrongful death actions, it
was held in the following cases that it did not begin to run until the plaintiff
discovered or should have discovered the decedent's injury.
**The court in Frederick v Calbio Pharmaceuticals (1979, 2d Dist) 89 Cal App 3d 49, 152
Cal Rptr 292, wherein the plaintiffs commenced a wrongful death action more than 1 year
after the decedent's death against the manufacturer of a drug administered to the
decedent, held that the 1-year limitation for wrongful death actions against a
manufacturer based upon negligence or products liability did not begin to run until the
plaintiff discovered or should have discovered his injury in the form of the death of
his decedent and its negligent cause. The plaintiffs alleged that the facts relating to
the cause of the decedent's death did not become known to them, nor could they, by the
exercise of reasonable diligence, have become aware of the facts, until the Food and
Drug Administration issued a press release more than 1 year after the decedent's death
stating that the drug was being recalled due to incidents of thrombosis and blood
clotting which constituted a pattern of danger to patients undergoing therapy with the
drug. Noting that the applicable statute of limitations, which did not specify when the
limitations period began to run, referred to actions for injury to, or the death of, one
caused by the wrongful act or neglect of another, and that it was included along with
other actions such as libel and slander in a general statute of limitations, the court
stated that any general rule deferring commencement of the 1-year period applicable to
personal injury actions was also applicable to wrongful death claims. It reasoned that
the effect of the inclusion was to place the right of action in the category of other
causes, and to apply the statute of limitations to that action in manner and substance
as applied to all other civil actions, treating it as a part of the remedy only, and not
as a condition to the cause. Finding that the discovery rule had been applied in
wrongful death actions based on medical malpractice, the court stated that there was no
logical basis to deny its application in wrongful death suits in any other category
where the plaintiff was "blamelessly ignorant" of the cause of death.
Time from which statute of limitations begins to run against cause of action for wrongful
death, 97 A.L.R.2d 1151
**14 ALR 6th 301, Timeliness of Action Under Medical Malpractice Statute of Repose,
Aside from Effect of Fraudulent Concealment of Patient's Cause of Action.
**19 ALR 6th 475, Effect of Fraudulent or Negligent Concealment of Patient's Cause of
Action on Timeliness of Action Under Medical Malpractice Statute of Repose.
[Cumulative Supplement]
Without considering the issue as one of estoppel, the courts in the following cases held
or recognized that a medical practitioner's or facility's concealment of a patient's
cause of action against the practitioner or facility tolls the running of the medical
malpractice statute of repose. [31]Cal.
**Young v. Haines, 41 Cal. 3d 883, 226 Cal. Rptr. 547, 718 P.2d 909 (1986)
**Brown v. Bleiberg, 32 Cal. 3d 426, 186 Cal. Rptr. 228, 651 P.2d 815 (1982)
**Sanchez v. South Hoover Hospital, 18 Cal. 3d 93, 132 Cal. Rptr. 657, 553 P.2d 1129
(1976)
Moqeet v. Loma Linda University Medical Center, 2004 WL 2110577 (Cal. App. 4th Dist.
2004), unpublished/noncitable, (Sept. 22, 2004) and review denied, (Dec. 15, 2004)
LeBeau v. Roxane Laboratories, Inc., 2003 WL 21054640 (Cal. App. 4th Dist. 2003),
unpublished/noncitable
Nassar v. Loma Linda University Medical Center, 2002 WL 50597 (Cal. App. 4th Dist.
2002), unpublished/noncitable
**Warren v. Schecter, 57 Cal. App. 4th 1189, 67 Cal. Rptr. 2d 573 (2d Dist. 1997), as
modified on denial of reh'g, (Oct. 10, 1997)
**McNall v. Summers, 25 Cal. App. 4th 1300, 30 Cal. Rptr. 2d 914 (2d Dist. 1994)
**Dolan v. Borelli, 13 Cal. App. 4th 816, 16 Cal. Rptr. 2d 714 (2d Dist. 1993)
**Ashworth v. Memorial Hospital, 206 Cal. App. 3d 1046, 254 Cal. Rptr. 104 (2d Dist.
1988), reh'g denied and opinion modified, (Jan. 20, 1989)
**Donabedian v. Manzer, 187 Cal. App. 3d 1021, 232 Cal. Rptr. 325 (1st Dist. 1986)
**Trantafello v. Medical Center of Tarzana, 182 Cal. App. 3d 315, 227 Cal. Rptr. 84 (2d
Dist. 1986)
**Osborne v. County of Los Angeles, 91 Cal. App. 3d 366, 154 Cal. Rptr. 129 (2d Dist.
1979)
**Tresemer v. Barke, 86 Cal. App. 3d 656, 150 Cal. Rptr. 384, 12 A.L.R.4th 27 (2d Dist.
1978)
*Wells Fargo Bank v. Superior Court, 74 Cal. App. 3d 890, 141 Cal. Rptr. 836 (3d Dist.
1977)
Blake v. Wernette, 57 Cal. App. 3d 656, 129 Cal. Rptr. 426 (3d Dist. 1976)
**12 ALR 5th 1, Medical Malpractice: Who Are “Health Care Providers,” or the Like,
Whose Actions Fall Within Statutes Specifically Governing Actions and Damages for
Medical Malpractice.
**89 ALR 4th 887, What Patient Claims Against Doctor, Hospital, or Similar Health Care
Provider Are Not Subject to Statutes Specifically Governing Actions and Damages for Medical
Malpractice.
**70 ALR 4th 535, Medical Malpractice: Statute of Limitations in Wrongful Death Action Based
on Medical Malpractice.
**80 ALR 2nd 368, When Statute of Limitations Commences to Run Against Malpractice
Action Against Physician, Surgeon, Dentist, or Similar Practitioner.
**173 ALR 576, Comment Note.--What Constitutes Concealment Which Will Prevent Running of
Statute of Limitations.
30 Time from which statute of limitations begins to run against cause of action
for wrongful death, 97 A.L.R.2d 1151 (1964) HN: 1 (Cal.Rptr.)
324 Relief under Federal Civil Rights Acts to state prisoners complaining of denial
of medical care, 28 A.L.R. Fed. 279 (1976) HN: 2 (S.Ct.)
148 Relief under Federal Civil Rights Acts to state prisoners complaining of
interference with access to courts, 23 A.L.R. Fed. 6 (1975) HN: 4,6,9,10,11 (F.2d)
389 Am. Jur. 2d Penal and Correctional Institutions s 169, Duty to protect inmate
(2014) HN: 8 (F.2d)
333 Comment Note.--Prison conditions as amounting to cruel and unusual
punishment, 51 A.L.R.3d 111 (1973) HN: 2 (F.3d)
Galindo v. Brownell, 255 F.Supp. 930, 931, (S.D.Cal., Mar 22, 1966)
Said construction of Section 1988 is consistent with its interpretation by the Eighth
Circuit in Pritchard v. Smith, 289 F.2d 153, 88 A.L.R.2d 1146 (C.A.8 1961) where state
law was invoked to authorize survival of a Civil Rights action against a decedent
defendant. California statutes provide both for survival of actions by a decedent's
executor or administrator, § 573 Cal.Probate Code, and for wrongful death actions by a
decedent's heirs or personal representative, § 377 Cal.Code of Civil Procedure.
Plaintiff herein, who, judging from her amended complaint, seeks only to maintain a
wrongful death action for any pecuniary loss sustained by loss of her son's society,
comfort, attention, services and companionship, has standing as an heir of the decedent
to sue for damages for his wrongful death, see Evans v. Shanklin, 16 Cal.App.2d 358, 60
P.2d 554 (1936), or so we must assume for purposes of passing upon a motion to dismiss.
In the opinion of this Court resort to such remedy is necessary to render the Civil
Rights Act fully effective in this case and is therefore sanctioned under 42 U.S.C. §
1988. For the foregoing reasons,
It is ordered that each of the defendants' motions to dismiss the amended complaint is
hereby denied.
City of Revere v. Massachusetts General Hosp., 463 U.S. 239, 243, 103 S.Ct. 2979, 77
L.Ed.2d 605 (U.S.Mass., Jun 27, 1983)
City of Revere v. Massachusetts General Hosp., 463 U.S. 239, 103 S.Ct. 2979, 77 L.Ed.2d
605 (U.S.Mass., Jun 27, 1983)
Hospital brought action against city for cost of medical services rendered to person
shot by police officer. Dismissal of the complaint by the Superior Court, Suffolk
County, Massachusetts, was affirmed in part and reversed and remanded in part by the
Supreme Judicial Court of Massachusetts, 385 Mass. 772, 434 N.E.2d 185. On grant of
certiorari, the Supreme Court, Justice Blackmun, held that: (1) where there had been no
formal adjudication of guilt against person shot by police officer, at the time that
such person required medical care for which hospital sought recovery from city, Eighth
Amendment had no application as basis for such recovery, and (2) city fulfilled its
constitutional due process obligation by seeing that person injured by police was taken
promptly to hospital providing treatment necessary for his injury, and as long as
governmental entity ensures that medical care needed is in fact provided, Constitution
does not dictate how cost of that care should be allocated as between the entity and
provider of the care, but, rather, same is matter of state law.
92 Constitutional Law
92XXVII Due Process
92XXVII(G) Particular Issues and Applications
92XXVII(G)19 Tort or Financial Liabilities
92k4414 k. Support of persons and liability for public care in
general. Most Cited Cases
(Formerly 92k299.3, 92k299(3))
**Where there had been no formal adjudication of guilt against person shot by police
officer, at the time that such person required medical care for which hospital sought
recovery from city, Eighth Amendment had no application as basis for such recovery;
rather, the relevant constitutional provision was the due process clause of the
Fourteenth Amendment. U.S.C.A. Const.Amends. 8, 14.
92 Constitutional Law
92XXVII Due Process
92XXVII(H) Criminal Law
92XXVII(H)3 Law Enforcement
92k4533 Stop and Arrest
92k4537 k. Conduct. Most Cited Cases
(Formerly 92k262)
[4][5] The Eighth Amendment's proscription of cruel and unusual punishments is violated
by “indifference to serious *244 medical needs of prisoners.” Estelle v. Gamble, 429
U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). As MGH acknowledges, Brief for
Respondent 3, on the facts of this case the relevant constitutional provision is not the
Eighth Amendment but is, instead, the Due Process Clause of the Fourteenth Amendment.
“Eighth Amendment scrutiny is appropriate only after the State has complied with the
constitutional guarantees traditionally associated with criminal prosecutions.... [T]he
State does not acquire the power to punish with which the Eighth Amendment is concerned
until after it has secured a formal adjudication of guilt in accordance with due process
of law.” Ingraham v. Wright, 430 U.S. 651, 671–672, n. 40, 97 S.Ct. 1401, 1412–1413, n.
40, 51 L.Ed.2d 711 (1977); see Bell v. Wolfish, 441 U.S. 520, 535, n. 16, 99 S.Ct. 1861,
1872, n. 16, 60 L.Ed.2d 447 (1979). Because there had been no formal adjudication of
guilt against Kivlin at the time he required medical care, the Eighth Amendment has no
application.
B
[6][7] **The Due Process Clause, however, does require the responsible government or
governmental agency to provide medical care to persons, such as Kivlin, who have been
injured while being apprehended by the police. **In fact, the due process rights of a
person in Kivlin's situation are at least as great as the Eighth Amendment protections
available to a convicted prisoner. See Bell v. Wolfish, 441 U.S., at 535, n. 16, 545, 99
S.Ct., at 1872, n. 16, 1877.FN6 We need not define, in this case, Revere's due process
obligation to pretrial detainees or to other persons in its care who require medical
attention. See *245Youngberg v. Romeo, 457 U.S. 307, 312, n. 11, 102 S.Ct. 2452, 2456,
n. 11, 73 L.Ed.2d 28 (1982); Norris v. Frame, 585 F.2d 1183, 1187 (CA3 1978); Loe v.
Armistead, 582 F.2d 1291 (CA4 1978), cert. denied, 446 U.S. 928, 100 S.Ct. 1865, 64
L.Ed.2d 281 (1980).
**** Williams v. Vincent, 508 F.2d 541, 543, (2nd Cir.(N.Y.) Dec 30, 1974)
Civil rights action wherein plaintiff sought to recover against various state prison
personnel for injuries sustained while in prison in state correctional facility. The
United States District Court for the Southern District of New York, Robert L. Carter,
J., entered order dismissing complaint on ground that it failed to state a cause of
action, and plaintiff appealed. The Court of Appeals, Lumbard, Circuit Judge, **held
that officials of state correctional institution could be held liable to plaintiff under
Civil Rights Act if a deliberate indifference caused an easier and less efficacious
treatment to be consciously chosen when, confronted with fact that a portion of
plaintiff's ear had been cut off during an altercation with a fellow inmate, they merely
stitched stump of plaintiff's ear and did not make an attempt to suture severed portion
of his ear back on.
78 Civil Rights
78III Federal Remedies in General
78k1392 Pleading
78k1395 Particular Causes of Action
78k1395(7) k. Prisons and jails; probation and parole. Most Cited
Cases
(Formerly 78k235(7), 78k13.12(6))
**A complaint under statute governing deprivation of civil rights, when based on
inadequate medical treatment, states a cause of action if it alleges conduct which
shocks the conscience, such as deliberate indifference by prison authorities to a
prisoner's request for essential medical treatment. 42 U.S.C.A. § 1983.
78 Civil Rights
78I Rights Protected and Discrimination Prohibited in General
78k1089 Prisons
78k1091 k. Medical care and treatment. Most Cited Cases
(Formerly 78k135, 78k13.4(5))
[3] Williams maintains on appeal that the complaint alleges sufficient callousness and
deliberate neglect on the part of prison officials to his medical needs and to his
requests for treatment that it states a claim under section 1983 for violation of his
eighth and fourteenth amendment rights. [FN6] A complaint under section 1983 based on
inadequate medical *544 treatment states a cause of action if it alleges conduct which
‘shocks the conscience,’ such as deliberate indifference by prison authorities to a
prisoner's request for essential medical treatment. Bishop v. Stoneman, 508 F.2d 1224
(2d Cir. 1974); Corby v. Conboy, 457 F.2d 251, 254 (2d Cir. 1972); Martinez v. Mancusi,
443 F.2d 921 (2d Cir. 1971); cf. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30
L.Ed.2d 562 (1972).
In response to Williams' claim, the State, on behalf of the defendants, makes the
following arguments which were apparently accepted by the district court below. First,
it argues that the claim relating to the doctor's decision merely to sew up the wound
with ten stitches is based on nothing more than a difference of opinion over a matter of
medical judgment, and as such fails to state a deprivation of constitutional
magnitude. United States ex rel. Hyde v. McGinnis, 429 F.2d 864 (2d Cir. 1970); see
Corby v. Conboy, 457 F.2d at 254.
Second, with respect to the alleged denial of medication while Williams was confined for
22 days in solitary, the State argues that there is no express allegation in the
complaint that medical care was requested by Williams from solitary, and that the
complaint is therefore insufficient as it does not allege that prison officials
willfully refused to treat a known ailment. [FN7] We disagree, and find that the
complaint states a cause of action under section 1983.
[4] With respect to the refusal of prison doctors to provide the medical care Williams
requested when he was first brought to the prison hospital, the allegations support the
claim that it was deliberate indifference towards Williams' medical needs, rather than
an exercise of professional judgment, which led prison medical officials merely to
stitch the stump of his ear. **Such a claim is supported by the allegation that Williams
was told simply that ‘he did not need his ear’ by doctors who then threw the severed
portion away in front of him, and also by the fact that if it was possible that
Williams' ear could have been saved by sewing it back on immediately at the hospital,
one would expect a concerned doctor to have tried. Of course, it may turn out that the
treatment Williams requested was impossible under the circumstances, or that there were
other medical considerations which led the doctors, rightly or wrongly, merely to close
the wound with ten stitches. But on the basis of the allegations in the complaint, and
assuming that evidence might show that sewing the severed portion of the ear back on was
practicable, the possibility that deliberate indifference caused an easier and less
efficacious treatment to be consciously chosen by the doctors cannot be completely
foreclosed. The complaint here alleges more than what we found insufficient in United
States ex rel Hyde v. McGinnis 429 F.2d 864 (2d Cir. 1970), relied upon by the district
court below, where this court stated that the complaint rested solely on a disagreement
with a doctor's professional judgment over the relative efficacy or equivalence of
different forms— pills or liquid— of a specific tranquilizer. Id. at 867.
[5] With respect to the denial of medication while Williams was in solitary following
the stitching of his wound, a liberal reading of this pro se complaint, as well as the
supporting affidavit, suggests that Williams may be able to show that he needed and
requested medication while in solitary following the injury, but that such requests were
callously refused or ignored. **Allegations *545 of such willful refusals of requests
for medical treatment by prison officials, especially in the circumstances described in
the complaint, state a cause of action under section 1983. See Bishop v. Stoneman, 508
F.2d 1224 (2d Cir. 1974); Corby v. Conboy, 457 F.2d 251, 254 (2d Cir. 1972).[FN8]
the Court made clear that the obligation extends not only to those cases in which **the
denial of care “may actually produce physical torture or a lingering death” but also
those in which “denial of medical care may result in pain and suffering which no one
suggests would serve any penological purpose.” Id. at 103, 97 S.Ct. at 290.
Estelle v. Gamble, 429 U.S. 97, 102, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (U.S.Tex., Nov
30, 1976)
In Estelle v. Gamble, 429 U.S. 97, 102, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (U.S.Tex.,
Nov 30, 1976) the court stated,
**In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 933, 34 L.Ed. 519 (1890) (“Punishments
are cruel when they involve torture or a lingering death . . .”).
westnext_search_deny_depriv_med_treatm_for_cancer_pretrial_detain_result_death_mortality
_viol_const_right_against_delib_indiff_ser_med_needs_fed_all_76_results.doc
Connick v. Thompson, 131 S.Ct. 1350, 179 L.Ed.2d 417, 79 USLW 4195, 11 Cal. Daily Op.
Serv. 3740, 2011 Daily Journal D.A.R. 4526, 22 Fla. L. Weekly Fed. S 887 (U.S., Mar 29,
2011)
Failure to treat medical need could result in significant injury or unnecessary and
wanton infliction of pain
**State prison guard was not entitled to qualified immunity from inmate's civil rights
claim alleging that guard inflicted cruel and unusual punishment on him by refusing to
give him medication prescribed to alleviate pain caused by inmate's cancer treatment;
general standard of liability under Eighth Amendment for refusal to render medical
treatment, as well as application of the standard to pain medication, were both
unchanged since events giving rise to the suit, and were reasonably clear and definite
as applied to the case. U.S.C.A. Const. Amend. 8. Ralston v. McGovern, 167 F.3d 1160
(7th Cir. 1999).
**County inmate's medical needs, which included claims of serious back pain, loss of
feeling in his feet and legs, and bouts of incontinence, were sufficiently serious to
warrant medical attention and placed inmate in substantial risk of developing greater
health problems if left untreated, and thus established objective component of claim
that prison employees were deliberately indifferent to inmate's serious medical needs in
violation of his Eighth Amendment rights, given that inmate suffered terminal cancer of
the spine, affecting his mobility and bladder control and causing great pain in spinal
column and lower extremities. U.S. Const. Amend. VIII; 42 U.S.C.A. § 1983. Taylor v.
Franklin County, Ky., 104 Fed. Appx. 531 (6th Cir. 2004).
**In Sawyer v Sigler (1970, DC Neb) 320 F Supp 690, affd (CA8 Neb) 445 F2d 818, in which
suits under 42 U.S.C.A. § 1983 by three state prisoners were consolidated for trial, it
appeared that although the second plaintiff suffered from cancer and had possibly
related swelling of the lymph glands and throat, as well as pain in his jaw, prison
authorities had afforded him no medical treatment beyond the administration of
painkillers both before and after having recognized that he needed treatment outside the
prison, for which they were unable to arrange. Granting injunctive relief as to this
plaintiff, predicated upon a violation of his Eighth Amendment rights, the court noted
that whether the lack of care afforded him was the result of obvious neglect or
intentional mistreatment, the proper standard of medical care had not thereby been met.
State penitentiary medical director did not act with deliberate indifference to medical
needs of inmate who was diagnosed with cancer, as required to establish Eighth Amendment
violation for purposes of § 1983 action arising from inmate's death from cancer; medical
director instructed county jail to transfer inmate to only state prison located near
medical center that provided chemotherapy. U.S.C.A. Const. Amend. 8; 42 U.S.C.A. § 1983.
Phillips v. Monroe County, Mississippi, 143 F. Supp. 2d 663 (N.D. Miss. 2001).
** 3. Chance v. Armstrong
United States Court of Appeals, Second Circuit. May 07, 1998 143 F.3d 698 1998 WL 228075 97-2028
State prisoner brought §1983 action against state correctional officials and dentists and
doctors who treated him during his incarceration at state facility, alleging failure to
provide him with adequate dental care. Defendants moved to dismiss. The United States
District Court for the District of Connecticut, Dominic J....
...For purposes of prisoner’s inadequate medical care claim under Eighth Amendment, physician may be
deliberately indifferent if he or she consciously chooses an easier and less efficacious treatment plan.
U.S.C.A. Const.Amend. 8....
...While mere medical malpractice is not tantamount to deliberate indifference in context of prisoner’s
inadequate medical care claim, certain instances of medical malpractice may rise to the level of
deliberate indifference, as when the malpractice involves culpable recklessness, i.e., an act or a failure
to act by the prison doctor that evinces a conscious disregard of a substantial risk of serious harm.
U.S.C.A. Const.Amend. 8....
...To establish an Eighth Amendment claim arising out of inadequate medical care, a prisoner must prove
deliberate indifference to his serious medical needs. U.S.C.A. Const.Amend. 8....
... Chance sued under 42 U.S.C. §1983, alleging that the defendants failed to provide him with adequate
medical care and thereby violated his constitutional rights....
** 4. McElligott v. Foley
United States Court of Appeals, Eleventh Circuit. August 03, 1999 182 F.3d 1248 1999 WL 565471 98-3451
Jail inmate who had complained for several months of severe stomach pains, and who was
diagnosed with colon cancer at hospital shortly after his release from jail, brought §1983
action against jail physician, head nurse at jail, and county, alleging that his Eighth
Amendment rights had been violated. The United States District Court for...
...While it is true that when a prisoner has received medical care, courts hesitate to find an Eighth
Amendment violation on part of prison officials, this does not mean that the course of a physician’s
treatment of a prisoner’s medical or psychiatric problems can never manifest deliberate indifference to
the inmate’s medical needs, and grossly incompetent medical care, or a choice of an easier but less
efficacious treatment, can constitute deliberate...
... Moreover, “[w]hen the need for treatment is obvious, medical care which is so cursory as to amount to
no treatment at all may amount to deliberate indifference.” ...
...Even where medical care is ultimately provided to prisoner, prison official may nonetheless act with
deliberate indifference to prisoner’s serious medical needs, in violation of Eighth Amendment, by delaying
the treatment of serious medical needs, even for a period of hours; however, reason for delay, and nature
of medical need, are relevant in determining what type of delay is constitutionally intolerable. U.S.C.A.
Const.Amend. 8....
...It was clearly established in February 1997 that deliberate indifference to serious medical needs of
prisoners on part of prison officials violates Eighth Amendment prohibition on cruel and unusual
punishment, and thus, jail physician, and head nurse at jail, were not entitled to qualified immunity in
§1983 action based on allegations that they had been deliberately indifferent to prisoner’s repeated
complaints, over period of several months, of severe stomach pains. U.S.C.A. Const.Amend. 8; 42 U.S.C.A.
§1983...
** 17. Stewart v. Murphy
United States Court of Appeals, Fifth Circuit. April 27, 1999 174 F.3d 530 1999 WL 246710 98-60083
Estate and survivors of prison inmate who died as result of decubitus ulcers (bedsores)
brought §1983 action against prison physicians, alleging that their treatment of inmate
violated Eighth Amendment. The United States District Court for the Northern District of
Mississippi, Jerry A. Davis, United States Magistrate Judge, granted...
...Inadequate medical care by a prison doctor can result in a constitutional violation for purposes of a
§1983 claim when that conduct amounts to deliberate indifference to the prisoner’s serious medical needs,
constituting the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment. U.S.C.A.
Const.Amend. 8; 42 U.S.C.A. §1983....
...[1]Along this line, inadequate medical care by a prison doctor can result in a constitutional violation
for purposes of a §1983 claim when that conduct amounts to “deliberate indifference to [the prisoner’s]
serious medical needs”, “constitut[ing] the ‘unnecessary and wanton infliction of pain’ proscribed by the
Eighth Amendment”....
...Even if prison nurses’ alleged failure to follow prison physicians’ orders regarding treatment of
inmate who died as result of decubitus ulcers (bedsores) amounted to deliberate indifference on part of
nurses in violation of Eighth Amendment, physicians could not be held liable pursuant to §1983 under
theory of respondeat superior or vicarious liability based upon claimed omissions by nurses. U.S.C.A.
Const.Amend. 8; 42 U.S.C.A. §1983....
...For this 42 U.S.C. §1983 action arising out of the death of Eugene Stewart, an inmate in the
Mississippi Department of Corrections (MDOC), Appellants challenge an adverse summary judgment, claiming
material fact issues for whether, in violation of the Eighth Amendment, three of Stewart’s treating
physicians and the medical director at the prison hospital were deliberately indifferent to his serious
medical needs, resulting in his death....
Cabrales v. County of Los Angeles, 886 F.2d 235 (9th Cir.(Cal.), Sep 21, 1989)
Pretrial detainee's mother filed suit against county, commander of county jail, and
others to recover under the federal civil rights statute for the detainee's death. The
United States District Court for the Central District of California, Mariana R.
Pfaelzer, J., denied a motion for judgment notwithstanding the verdict against the
county and the jail commander and awarded attorney fees. Appeal and cross appeal were
taken. The Court of Appeals, 864 F.2d 1454, affirmed. The United States Supreme Court,
109 S.Ct. 2425, granted certiorari and vacated the judgment in a memorandum. On remand,
the Court of Appeals held that disputed issues of fact existed about whether the
county's policy of understaffing its jail with psychiatrists amounted to a policy of
“deliberate indifference” to the medical needs of pretrial detainees.
Decision reinstated.
103 What statute of limitations is applicable to civil rights action brought under
42 U.S.C.A. sec. 1983, 45 A.L.R. Fed. 548 (1979)
A physician need not fail to treat an inmate altogether in order to violate that inmate's
Eighth Amendment rights. Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir.1989).FN9 A
failure to competently treat a serious medical condition, even if some treatment is
prescribed, may constitute deliberate indifference in a particular case. Id. Also,
“[d]eliberate indifference may be found where prison officials fail to provide an inmate with
medical care for reasons unrelated to the medical needs of the prisoner, such as
administrative concerns.” Oliver v. Carey, 315 Fed. Appx. 649 (9th Cir.2009) (citing Jett,
439 F.3d at 1097) (In Oliver, the plaintiff alleged that defendant doctors were deliberately
indifferent when they denied his grievance appeal based on an eight to ten month delay for
orthopedic services, and because “the scheduling of contract providers was beyond the
authority of CSP staff.”)
FN9. In Ortiz, the Ninth Circuit reversed summary judgment where medical staff and doctor
knew that the pretrial detainee had a head injury, but prescribed contraindicated
medications, disregarding evidence of complications to which the defendants had been
specifically alerted by the private treating physician. Id.
**A failure to competently treat a serious medical condition, even if some treatment is
prescribed, may constitute deliberate indifference in a particular case. Ortiz, 884 F.2d
at 1314.
Ortiz v. City of Imperial, 884 F.2d 1312, 1313, (9th Cir.(Cal.) Sep 13, 1989)
Survivors of prisoner, who died as result of skull fracture sustained in fall while in
custody, brought civil rights action against prison nurses and physician, among others,
alleging deliberate indifference to prisoner's medical needs. The United States District
Court for the Southern District of California, Gordon Thompson, Jr., Chief Judge,
granted summary judgment to defendant. Prisoner's survivors appealed, and defendants
cross-appealed. The Court of Appeals held that: (1) material question of fact,
precluding entry of summary judgment, existed as to whether acts or omissions of prison
nurses and physician were sufficiently harmful to evidence deliberate indifference to
prisoner's medical needs, and (2) amended complaint related back to date of filing of
original complaint, and thus was not time barred.
92 Constitutional Law
92XXVII Due Process
92XXVII(H) Criminal Law
92XXVII(H)11 Imprisonment and Incidents Thereof
92k4823 k. Medical care and treatment. Most Cited Cases
(Formerly 310k17(2), 92k272(2))
**Proof of complete failure to treat prisoner is not required to show that prisoner was
denied adequate medical care in violation of his due process rights. 42 U.S.C.A. § 1983;
U.S.C.A. Const.Amends. 5, 14.
The City of Imperial police found Ortiz asleep on a canal bank. They arrested him on an
outstanding warrant and took him to the Imperial County Jail. While in custody the next day,
Ortiz fell and struck his head. He was taken to the emergency room in a local hospital, where
his head wound was sutured. No x-rays were taken. The doctor, Dr. Alm, diagnosed the cause of
Ortiz's fall as alcohol withdrawal.
Ortiz was released to police custody two hours later. Dr. Alm gave the sheriff a Patient
After Care Sheet. On the sheet, the words “HEAD INJURY” were circled in ink and marked with a
star. Following that heading, the sheet read:
Problems from such injuries can occur sometime later. Report to your doctor immediately or
the emergency room if anything listed occurs.
—UNCONTROLLED VOMITING, STIFF NECK, FEVER (VOMITING ONCE OR TWICE IS NOT UNCOMMON)
NOTE: WAKEN PATIENT EVERY 2 HOURS FIRST NIGHT TO CHECK FOR THESE SIGNS
Ortiz was returned to his cell. He fell again an hour later and was placed in the infirmary.
The parties do not dispute Ortiz received medical care in the following two days—his medical
charts show jail medical personnel monitored him closely. The parties dispute the
significance of the care he received.
All medical personnel caring for Ortiz—nurses Phillips, Beltran and Brown and Dr. Reid—were
aware of Ortiz's head injury. In addition, the nurses had the Patient After Care Sheet. Yet
when Ortiz began to exhibit the symptoms identified on the sheet, they did not call the
emergency room or Dr. Alm. Instead, they called Dr. Reid, who on three occasions prescribed
sedatives for Ortiz over the telephone without examination. Sedatives are an appropriate
remedy for alcohol withdrawal symptoms, but are inappropriate for head injuries since they
mask the symptoms of serious complications from such injuries.
Two days after falling, Ortiz was found unconscious with blood coming from his mouth. He was
taken to the hospital where he died ten days later. His autopsy revealed he died of
“enephalomacia due to subdural hematoma due to blunt force *1314 trauma to the head with
skull fractures.” He had sustained the skull fractures at the time of his initial fall.
[1] Appellants claim appellees violated Ortiz's due process rights by denying him adequate
medical care. See Jones v. Johnson, 781 F.2d 769, 771 (9th Cir.1986). It is not enough for
appellees to have committed mere medical malpractice. They must have been “deliberately
indifferent to [Ortiz's] serious medical needs.” Id. Furthermore, “[t]his indifference must
be substantial to violate the constitution.” Id.
[2] Contrary to appellees' arguments, however, appellants need not prove complete failure to
treat Ortiz. As this court has stated, “access to medical staff is meaningless unless that
staff is competent and can render competent care.” Cabrales v. County of Los Angeles, 864
F.2d 1454, 1461 (9th Cir.1988) (citing Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir.1982)),
vacated on other grounds, ––– U.S. ––––, 109 S.Ct. 2425, 104 L.Ed.2d 982 (1989), reinstated
886 F.2d 235 (9th Cir.1989).
[3] Appellees' own declarations show Ortiz “had a serious medical need,” Jones, 781 F.2d at
771, and raise a material question of fact whether their acts or omissions were “sufficiently
harmful to evidence deliberate indifference” to those needs. Estelle v. Gamble, 429 U.S. 97,
106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). Because the nurses and Dr. Reid knew of
Ortiz's head injury but disregarded evidence of complications to which they had been
specifically alerted and, without an examination, prescribed sedatives that were
contraindicated, we cannot say as a matter of law they were not deliberately indifferent to
Ortiz's medical needs. Summary judgment as to nurses Phillips, Beltran and Brown and Dr. Reid
is therefore reversed.