On January 23, 2015, the Court of Appeal published its opinion in Harb v. City of Bakersfield, et al., a case regarding an incident that occurred almost a decade ago. The opinion clarified how juries can be instructed in matters regarding the negligence of both law enforcement and emergency medical personnel. The ruling is certain to impact the way trial courts treat cases against first responders.
On November 24, 2007, Dr. Mohamad Harb was driving home following a shift at Kern Medical Center when he suffered a stroke that caused him to drive his car over a curb. At 6:55 p.m., Bakersfield police officer Claudia Payne was dispatched to the accident scene, which was classified as a possible driving-under-the-influence incident.
Upon Officer Payne's arrival, Dr. Harb was disoriented and had vomit on his shirt. With the assistance of two other Bakersfield police officers, Officer Payne handcuffed Dr. Harb. At 7:10 p.m., Officer Payne called for an ambulance; paramedic Brian Dumont of Hall Ambulance Service, Inc. arrived at 7:14 p.m. Dumont asked Dr. Harb questions and received confused answers, he performed a Glasgow Coma Scale test, on which Dr. Harb scored 14 of 15. The police then performed two breathalyzer tests, both of which registered 0.00.
At trial, Dumont testified that he advised Officer Payne that Dr. Harb needed medical attention and Officer Payne stated she would be taking Dr. Harb to the hospital. Contrarily, the police officers testified that Dumont advised there was nothing medically wrong with Dr. Harb. However, all parties agreed that at 7:24 p.m., Dumont's ambulance left the scene without Dr. Harb. Three minutes later, two Bakersfield detectives specially trained in investigating driving-under-the-influence incidents arrived at the scene. After speaking with Dr. Harb, they decided he needed to go to the hospital.
Another ambulance was called; by the time it arrived, Dr. Harb was pale, the right side of his face was drooping, and he could not walk without dragging his right leg. The second ambulance left the scene with Dr. Harb at 7:44 p.m., and arrived at the hospital at 7:58 p.m. That night Dr. Harb underwent life-saving surgery. However, he was left with severely limited function - he is now wheelchair-bound and requires an assistant to perform routine activities of daily living.
Dr. Harb and his family sued the City of Bakersfield, Hall Ambulance Service Inc., Officer Payne, and Mr. Dumont for delay in transporting Dr. Harb to the hospital after his stroke. At trial, experts offered competing opinions as to whether prompt medical treatment could have prevented Dr. Harb's condition. In closing argument, counsel for Bakersfield argued that Dr. Harb was contributorily negligent for failing to take his prescribed blood pressure medication, the absence of which contributed to the stoke. The jury returned verdicts in favor all of the defendants, finding that Officer Payne and Bakersfield were not negligent and that Mr. Dumont and Hall Ambulance were not grossly negligent.
Plaintiffs moved for a new trial on the grounds that: 1) the trial court improperly instructed the jury on police immunity under Government Code section 820.4, and 2) it was improper for the defense to argue that Dr. Harb was contributorily negligent because plaintiffs were not seeking damages for the stroke itself, but for the additional injuries caused by the delay in treating it. The trial court denied the motion and plaintiffs appealed.
Police Immunity
The trial court instructed the jury that, "A police officer is not liable for his act or omission, exercising due care, in the execution or enforcement of any law." Plaintiffs contend that the instruction was both superfluous and ambiguous.
The Court held that although the instruction was a faithful statement of the law, it was redundant because it had previously been held to immunize government officials for only their non-negligent acts. [See Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 717.] Additionally, since the instruction was phrased as a negative, it was likely that the instruction confused the jury as to the meaning of "due care" and that immunity only applied in situations in which the officer had been found to be not negligent. Given that the negligence of Officer Payne and the city were the very things at issue in the case, the Court found that the instruction was reversible error and enough to warrant a new trial against the City and Officer Payne.
Contributory Negligence
Regarding the contributory negligence of Dr. Harb, the Court stated the issue as "Plaintiffs, in effect, ask this court to adopt the following rule of law: First responders to the scene of an accident (such as police officers, paramedics, and EMT's [sic]) cannot reduce their liability by asserting it was the victim's own fault for requiring care in the first place, provided that the victim's claim is limited to injuries caused by the first responders' tortious acts or omissions."
The Court called this a matter of first impression in California, but held - based on an overview of the law of other jurisdictions and the basic principle that "a tortfeasor takes the plaintiff as he finds him" [Bowen v. Board of Retirement (1986) 42 Cal.3d 572, 580.] - that a patient's conduct prior to seeking medical attention should not be considered by a jury.
In determining whether the instruction concerning Dr. Harb's negligence was prejudicial, the Court stated that there is no bright line rule to follow in making such a determination, but instead all of the circumstances of the trial must be considered. [See, Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577, 601.] In Harb, defense counsel emphasized plaintiff's alleged negligence in opening statement, while questioning expert witnesses, and again in closing argument. Specifically, in closing, defense counsel argued, "Harb gambled with his own life [by not taking his medication.] … He owns all of the responsibility here as to what happened…. He chose that path." The Court concluded that the instruction, coupled with the repeated arguments of counsel, warranted a new trial against all defendants.
The Court made sure to differentiate its holding from cases in which the plaintiff's negligence occurred concurrently with that of the defendant. For example, where a plaintiff negligently reports his medical history to his treater, a health care provider may still argue the plaintiff is contributorily negligent for any resulting errant treatment.
