King v. McMichael CA2/7

Filed 11/29/22 King v. McMichael CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

FRED KING, as Successor in B322579
Interest, etc.,
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 19CV358182)

v.

KENDAL MARIE McMICHAEL
et al.,

Defendants and
Respondents.

APPEAL from a judgment of the Superior Court of
Santa Clara County, Sunil R. Kulkarni, Judge. Affirmed.
Law Office of Brian Beckwith, Brian Beckwith; Ball Law
Corporation and Jonathan Ball for Plaintiff and Appellant.
Manning & Kass, Ellrod, Ramirez, Trester, David V. Roth,
Elise Dvorochkin and Mark R. Wilson for Defendants and
Respondents Kendal Marie McMichael and KMA Emergency
Services, Inc.
____________________________
 California’s statute of limitations governing a personal
injury claim is two years. (Code Civ. Proc., § 335.1.)1 However,
pursuant to section 340.5, part of the Medical Injury
Compensation Reform Act (MICRA), a personal injury action
“against a health care provider based upon such person’s alleged
professional negligence” must be brought within three years after
the date of injury or one year after the plaintiff discovers, or
should have discovered, the injury, whichever occurs first. If a
certified emergency medical technician (EMT) transporting a
patient to a hospital in an ambulance injures an individual in
another vehicle as a result of the EMT’s negligent driving, does a
one-year or two-year limitations period apply to the injured
party’s lawsuit?
The trial court in Rebecca Ann King’s personal injury
lawsuit against EMT Kendal Marie McMichael and ambulance
company KMA Emergency Services, Inc. entered judgment in
favor of McMichael and KMA after granting their motion for
summary judgment, ruling King’s complaint, filed more than
one year after a KMA ambulance driven by McMichael collided
with a car in which King was a passenger, was time-barred. On
appeal Fred King, King’s successor in interest,2 contends the

1 Statutory references are to this code unless otherwise
stated.
2 Rebecca King died shortly after briefing was completed in
her appeal. We granted the motion of her father, Fred King, to
substitute as a party in her place pursuant to California Rules of
Court, rule 8.36(a). For simplicity, we continue to use King to
refer not only to Rebecca King but also to appellant Fred King
when describing the arguments being made for reversal of the
judgment.

2
MICRA limitations statute does not apply to King’s “garden
variety” motor vehicle claim and the lawsuit was timely under
section 335.1.
King on appeal does not argue that McMichael was not
providing medical care—a professional health care service—by
transporting the patient to the hospital. The allegedly negligent
driving occurred in performing that professional medical
service—that is, McMichael was negligent in carrying out the
duties she owed as an EMT to her patient. King was injured as a
result of that professional negligence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Accident and the Complaint
According to the facts undisputed on appeal, KMA deploys
ambulances and medical professionals throughout the
San Francisco Bay Area. At the time of the incident McMichael
was a certified EMT with KMA. She had applied, and was
approved, for an “EMC System Identification Badge,” a
prerequisite to working in Santa Clara County as an emergency
medical provider. She was not, however, certified or licensed by
the Department of Motor Vehicles specifically as an ambulance
driver: McMichael had a Class C California driver’s license that
did not have an “AMB” endorsement and possessed no other
permit or license for the operation of a motor vehicle.
On November 11, 2017 McMichael was transporting a
patient in a KMA ambulance to a hospital in Santa Clara. The
ambulance was traveling at 30 miles per hour, and neither its
siren nor its lights were activated.
King was a passenger in a vehicle that had come to a
complete stop on Highway 87 (SR-87) in San Jose due to traffic
conditions. McMichael’s ambulance rear-ended King’s vehicle,

3
pushing it into the car in front of it. At the scene McMichael
admitted she had not noticed traffic had stopped. King was
injured as a result of the accident. A nurse accompanying
McMichael continued to care for the patient until another
emergency vehicle arrived to transport the patient to the
hospital.
On November 6, 2019 King sued McMichael and KMA
alleging a single cause of action for motor vehicle negligence.
Specifically, the complaint alleged McMichael and KMA
“negligently owned, maintained, entrusted, operated, and
otherwise negligently acted and failed to act, all with respect to a
certain motor vehicle, so as to cause said vehicle to collide with
another vehicle.”
2. The Summary Judgment Motion and King’s Opposition
McMichael and KMA moved for summary judgment,
arguing King’s complaint, filed more than a year after King
discovered or should have discovered any injury, was time-barred
under MICRA’s one-year limitations period. In support
McMichael and KMA relied in part on Canister v. Emergency
Ambulance Service, Inc. (2008) 160 Cal.App.4th 388 (Canister) to
argue they were health care providers for purposes of MICRA and
McMichael, as a certified and licensed EMT transporting a
patient in an ambulance, was rendering professional medical
services at the time of the accident.
With her opposition King included evidence that there was
no insurance policy in effect through which McMichael might be
insured for liability arising from the collision and the only
insurance policy that might insure KMA for the accident was an
automobile liability policy.

4
 Relying on the Supreme Court’s decision in Flores v.
Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75
(Flores) and two court of appeal cases decided after Flores, King
argued Canister, supra, 160 Cal.App.4th 388 was no longer
controlling authority. Instead, she insisted, a court determining
the potential applicability of MICRA’s limitations provision
needed to distinguish between a professional negligence claim
alleging a breach of a professional obligation to patients, and an
ordinary negligence claim involving a breach of duty owed to the
general public. In this case, she argued, McMichael’s negligence
related to the violation of generally applicable traffic laws, which
govern all California drivers, and “the violator just happens to be
an EMT.” MICRA did not apply, she continued, when, as here,
there was no nexus between the plaintiff and the patient
receiving treatment from the health care professional; the EMT
was neither licensed nor certified as an ambulance driver; and
the cost of medical malpractice insurance—the rationale for
MICRA’s enactment—had nothing to do with the case because
the only insurance policy covering the accident was an
automobile liability policy.
3. The Trial Court’s Order and the Entry of Judgment
The trial court granted McMichael and KMA’s motion,
concluding the one-year limitations period of section 340.5
applied to King’s action.3 King’s action was based on alleged
professional negligence, the court ruled, because, “at the time of
the incident, McMichael was engaged in the rendering of

3 King does not dispute McMichael and KMA’s argument she
should have discovered any injuries within one year of the
accident.

5
professional services for which she was licensed. And since
McMichael, an employee of KMA, was engaged in such services,
the same is true for KMA.” Relying on Canister, supra,
160 Cal.App.4th 388 after concluding the case had not been
overruled by Flores, supra, 63 Cal.4th 75, the court found, “[A]
core function of an EMT’s job is to transport patients to
hospitals,” and “EMT’s like McMichael are licensed to transport
patients.” While clarifying the professional service for which
McMichael was licensed was transporting a patient to a hospital,
the court also stated McMichael’s allegedly negligent driving fell
within MICRA’s scope. In the court’s view, that King was not
McMichael’s patient was inconsequential.
The court entered judgment in favor of McMichael and
KMA. King filed a timely notice of appeal.
DISCUSSION
1. Standard of Review
A motion for summary judgment is properly granted only
when “all the papers submitted show that there is no triable issue
as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” (§ 437c, subd. (c).) A defendant
may bring a motion on the ground there is a complete defense to
the action (§ 437c, subds. (o)(2) & (p)(2); Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 849), including on the ground
the action is barred by the statute of limitations, an affirmative
defense. (See, e.g., Norgart v. Upjohn Co. (1999) 21 Cal.4th 383,
405 [“we are of the view that it is indeed the case that there was
no triable issue of material fact and that Upjohn was entitled to
judgment as a matter of law based on the statute of limitations”];
see also Pollock v. Tri-Modal Distribution Services, Inc. (2021)
11 Cal.5th 918, 945 [“statute of limitations is an affirmative

6
defense”].) Once the defendant has met his or her burden of
showing the existence of a complete defense, “the burden shifts to
the plaintiff . . . to show that a triable issue of one or more
material facts exists as to” the defense. (§ 437c, subd. (p)(2);
Aguilar, at p. 849; see Jessen v. Mentor Corp. (2008)
158 Cal.App.4th 1480, 1484-1485 [when a defendant moves for
summary judgment, “the burden shifts to the plaintiff to show
there is one or more triable issues of material fact regarding the
defense after the defendant meets the burden of establishing all
the elements of the affirmative defense”].)
We review a grant of summary judgment de novo (Samara
v. Matar (2018) 5 Cal.5th 322, 338) and, viewing the evidence in
the light most favorable to the nonmoving party and drawing all
reasonable inferences in favor of that party (Weiss v. People ex rel.
Dept. of Transportation (2020) 9 Cal.5th 840, 864), decide
independently whether the facts not subject to triable dispute
warrant judgment for the moving party as a matter of law.
(Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347;
Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618.)
Questions of statutory construction are also reviewed
de novo. (California Building Industry Assn. v. State Water
Resources Control Bd. (2018) 4 Cal.5th 1032, 1041; Kirk v. Ratner
(2022) 74 Cal.App.5th 1052, 1060.) “Our primary task ‘in
interpreting a statute is to determine the Legislature’s intent,
giving effect to the law’s purpose. [Citation.] We consider first
the words of a statute, as the most reliable indicator of legislative
intent. [Citation.]’ [Citation.] We construe the statute’s words in
context, harmonizing statutory provisions to avoid absurd results.
[Citation.] If the statutory text is susceptible to more than one
reasonable construction, we may consider extrinsic aids such as

7
legislative history to facilitate our interpretative analysis.”
(California Building Industry Assn., at p. 1041.)
2. Section 340.5 and Canister
Section 340.5 limits the period to commence “an action for
injury or death against a health care provider based upon such
person’s alleged professional negligence.” Subdivision (1) of
section 340.5 defines “health care provider” to include any person
licensed or certified pursuant to various identified provisions of
the Business and Professions Code and the Health and Safety
Code, which included mobile intensive care paramedics when
MICRA was enacted.4 Subdivision (2) defines “professional
negligence” as “a negligent act or omission to act by a health care
provider in the rendering of professional services, which act or
omission is the proximate cause of a personal injury or wrongful
death, provided that such services are within the scope of services

4 EMT’s are now certified pursuant to Division 2.5 of the
Health and Safety Code, Emergency Medical Services, which is
not one of the portions of the Health and Safety Code identified in
Code of Civil Procedure section 340.5, subdivision (1). However,
Health and Safety Code section 1797.4 provides, “Any reference
in any provision of law to mobile intensive care paramedics
subject to former Article 3 (commencing with Section 1480) of
Chapter 2.5. of Division 2 shall be deemed to be a reference to
persons holding valid certificates under this division as an
EMT-I, EMT-II, or EMT-P.” (See Canister, supra,
160 Cal.App.4th at pp. 396-399, 402.) Although disputing the
scope of the duties for which McMichael was licensed or certified,
King does not contend McMichael was not a health care provider
within the meaning of MICRA.

8
for which the provider is licensed and which are not within any
restriction imposed by the licensing agency or licensed hospital.”
Canister, supra, 160 Cal.App.4th 388 involved a police
officer accompanying an arrestee in the rear of an ambulance who
was injured when the ambulance hit a curb. A licensed EMT
employed by the ambulance company was driving while another
employee, also a licensed EMT, attended to the arrestee. The
officer alleged the ambulance was driven negligently and neither
employee had told him seatbelts were available. The issue on
appeal was whether the trial court had erred in ruling the officer’s
negligence action was subject to MICRA’s restrictions.5
Division Eight of this court held there was no error. (Id. at
pp. 392-394.)
After concluding EMT’s are health care providers under
MICRA,6 the court of appeal in Canister held “the act of operating
an ambulance to transport a patient to or from a medical facility
is encompassed within the term ‘professional negligence.’”
(Canister, supra, 160 Cal.App.4th at p. 404.) Pointing to
section 340.5, subdivision (2)’s definition of professional
negligence, the court explained the “relevant test is not the degree
of skill required, but whether the negligence occurred in the

5 The particular aspect of MICRA at issue in Canister was
Civil Code section 3333.1’s modification of the collateral source
rule in medical negligence cases. Determining whether the
MICRA statute of limitations applies does not require a different
analysis.
6 See footnote 4.

9
rendering of services for which a provider is licensed.” (Canister,
at p. 404.) 7
While acknowledging a person having “no special
knowledge, skill or care as a member of the medical profession”
may operate an ambulance, Canister stated that fact did not
preclude a determination the employees in the case before it were
“acting as health care providers in transporting the patient to a
medical facility.” (Canister, supra, 160 Cal.App.4th at p. 404.)
Canister continued, “The EMS Act [Emergency Medical Services
System and the Prehospital Emergency Medical Care Personnel
Act (Health & Saf. Code, § 1797 et seq.)] defines emergency
medical services in terms of the services ‘“utilized in responding to
a medical emergency.”’ [Citation.] Significantly, ‘emergency’ is
defined as ‘a condition or situation in which an individual has a
need for immediate medical attention, or where the potential for
such need is perceived by emergency medical personnel or a
public safety agency.’ [Citation.] Accordingly, ‘emergency
ambulance service’ encompasses all services rendered by
emergency ambulances, even if the ambulance is engaged in
nonemergency interfacility transfers.” (Id. at p. 405.)

7 Canister also held, under the doctrine of respondeat
superior, “MICRA applies to an employing entity held vicariously
liable for the professional negligence of its agents, if such agents
are health care providers. . . . [T]he vicariously liable employer is
entitled to invoke against the injured plaintiff whatever
limitations on liability are available to its health care provider
employee.” (Canister, supra, 160 Cal.App.4th at p. 395, fn. 4.)
King does not challenge the trial court’s conclusion that, if
MICRA’s one-year statute of limitations applies to her lawsuit, it
applies to both McMichael and KMA.

10
 Responding to the police officer’s contention the statutory
phrase “professional services” extended only to those services for
which an EMT was licensed and the only services for which
EMT’s were licensed as professionals were medical services,
Canister stated, “EMT’s are licensed to provide transport to
patients” and, in any event, professional services included “more
than the distinct services that a health care provider is licensed to
perform.” (Canister, supra, 160 Cal.App.4th at p. 405.) Canister
explained regulations promulgated by the Emergency Medical
Services Authority, which was “‘“responsible for the coordination
and integration of all state activities concerning emergency
medical services”’” (id. at p. 397), specifically provide that, during
transport of the sick or injured, or during interfacility transfer, a
certified EMT is authorized to “[t]ransport patients.” (Id. at
p. 405.) Canister concluded an EMT’s alleged negligence in
operating an ambulance qualifies as professional negligence
“when the EMT is rendering services for which he or she is
licensed or when a claim for damages is directly related to the
provision of ambulance services by the EMT.” (Id. at p. 407.)
Finally, Canister concluded the fact the officer was not a patient
did not affect MICRA’s applicability: “By their terms, MICRA
statutes apply to negligent conduct by a health care provider in
the rendering of professional services and is not limited to actions
by the recipient of professional services,” citing, among other
cases, Hedlund v. Superior Court (1983) 34 Cal.3d 695, 704.
(Canister, at p. 407.)
3. Flores
Catherine Flores was injured when the rail on her hospital
bed collapsed. Her doctor had ordered the rail raised after an
assessment of Flores’s condition. Flores sued the hospital for

11
negligent failure to inspect and maintain the equipment. The
issue in Flores, supra, 63 Cal.4th 75 was whether Flores’s claim
was governed by MICRA’s limitations period or the two-year
period in section 335.1 for ordinary personal injury actions—more
specifically, whether the alleged negligent act or omission
occurred “in the rendering of professional services” for purposes
of section 340.5 and, as such, constituted professional negligence.
The Supreme Court concluded it was. (Flores, at pp. 79, 84.)
Flores argued the term “professional services” meant only
tasks requiring a specialized degree of medical skill and the
negligent maintenance of hospital equipment and premises could
not qualify as negligence in the rendering of professional services.
The hospital, in contrast, argued the term meant any services for
which the health care provider was licensed, including those
under general state licensing requirements for hospitals to
maintain premises in good repair. Any failure to use reasonable
care in maintaining equipment and premises, it contended, fell
within the scope of MICRA. (Flores, supra, 63 Cal.4th at pp. 84-
85.)
The Supreme Court rejected both parties’ positions as too
extreme. Although Flores was correct the phrase “professional
services” ordinarily means “‘“services . . . which can be judged
against the skill, prudence, and diligence commonly possessed”’
by other members of the profession,” which in the health care
context meant medical care, the Court held, “[T]his does not
mean that section 340.5 applies only to those specific tasks that
require advanced medical skills and training. A medical
professional or other hospital staff member may commit a
negligent act in rendering medical care, thereby causing a
patient’s injury, even where no particular medical skills were

12
required to complete the task at hand. A hospital’s negligent
failure to prevent a patient from becoming separated from an
oxygen ventilator, for example, occurs in the ‘rendering of
professional services’ (§ 340.5, subd. (2)), ‘regardless of whether
separation was caused by the ill-considered decision of a
physician or the accidental bump of a janitor’s broom.’” (Flores,
supra, 63 Cal.4th at pp. 85-86.)
The Court also declined to accept the hospital’s approach,
explaining, “It would . . . sweep in not only negligence in
performing the duties that hospitals owe to their patients in the
rendering of medical diagnosis and treatment, but negligence in
performing the duties that hospitals owe to all users—including
personnel and visitors—simply by virtue of operating a facility
that is open to the public. [Citation.] It would mean, for
example, that section 340.5 would apply to a visitor’s action for
injuries resulting from a custodian’s negligence in leaving a
broom on a hallway floor, or a doctor’s action against the hospital
for failure to place a warning sign on a wet, recently mopped
floor.” (Flores, supra, 63 Cal.4th at p. 86.) “Rather,” the Court
stated, “the special statute of limitations for professional
negligence actions against health care providers applies only to
actions alleging injury suffered as a result of negligence in
rendering the professional services that hospitals and others
provide by virtue of being health care professionals: that is, the
provision of medical care to patients.” (Id. at p. 88.)
Accordingly, the Court concluded, whether negligence in
maintaining hospital equipment or premises constituted
professional negligence depended on the nature of the
relationship between the equipment or premises, on the one
hand, and the provision of medical care, on the other: “[I]f the act

13
or omission that led to the plaintiff’s injuries was negligence in
the maintenance of equipment that, under the prevailing
standard of care, was reasonably required to treat or
accommodate a physical or mental condition of the patient, the
plaintiff’s claim is one of professional negligence under
section 340.5.” (Flores, supra, 63 Cal.4th at p. 88.) Because
Flores’s injuries resulted from the hospital’s alleged negligence in
the use or maintenance of equipment that was “integrally
related” to her medical care, the Court determined the negligence
occurred in the rendering of professional services and was thus
professional negligence within the meaning of section 340.5.
(Flores, at p. 89.)
4. The Trial Court Properly Granted the Motion for
Summary Judgment
On appeal King first argues McMichael’s allegedly
negligent driving did not constitute professional negligence
because she was not licensed to drive an ambulance while
transporting patients—that is, McMichael could not have been
rendering professional services “within the scope of services for
which the provider is licensed,” as required by section 340.5,
subdivision (2). In support King relies on various provisions of
the Vehicle Code and other authorities, including an Ambulance
Driver’s Handbook issued by the Department of the California
Highway Patrol pursuant to Vehicle Code section 2512,
subdivision (d),8 that indicate an ambulance driver transporting a

8 We grant King’s unopposed request to take judicial notice
of the Ambulance Driver’s Handbook, an official act of the
executive department of the State of California. (Evid. Code,
§§ 452, subd. (c), 459, subd. (a).)

14
patient must possess an ambulance driver certificate issued by
the Department of Motor Vehicles (DMV). King contends
Canister, and thus the trial court, erred in concluding all EMT’s
are licensed to drive an ambulance while transporting a patient.9
The issue before us, of course, is not whether each point
made by our Division Eight colleagues in Canister was correct or
survives the Supreme Court’s decision in Flores, but whether
McMichael’s allegedly negligent driving comes within
section 340.5’s definition of alleged professional negligence. In
that regard, as the Canister court explained, whether or not an
EMT is specially licensed to drive an ambulance, the regulations
governing the basic scope of practice for EMT’s expressly include
transporting patients. (Cal. Code Regs., tit. 22, § 100063,
subd. (a)(8)(J) [“(a) During training, while at the scene of an
emergency, during transport of the sick or injured, or during
interfacility transfer, a certified EMT or supervised EMT student
is authorized to do any of the following: [¶] . . . [¶] (8) Provide
initial prehospital emergency care to patients, including, but not
limited to: [¶] . . . [¶] (J) Transport patients”]; see Canister, supra,
160 Cal.App.4th at p. 406.) Although McMichael’s lack of an
ambulance driver certificate certainly could be relevant to

9 According to the Ambulance Driver’s Handbook, “Every
driver of an ambulance responding to an emergency call or
transporting a patient shall be at least 18 years of age, hold a
valid California Driver License, possess a valid ambulance driver
certificate issued by the Department of Motor Vehicles (DMV),
and be trained and competent in ambulance operation and the
use of safety and emergency care equipment.” (Dept. of the Cal.
Highway Patrol, Highway Patrol Handbook 82.4, Ambulance
Driver’s Handbook (rev. Jan. 2015) p. 2-3; see Veh. Code, § 12527,
subd. (a).)

15
resolving issues of liability, it is immaterial for purposes of
determining the applicable statute of limitations. The plain
meaning of section 340.5, subdivision (2)’s requirement that the
professional services rendered fall within the scope of the health
care provider’s license is that the pertinent license is the one
described in section 340.5, subdivision (1)—here, McMichael’s
EMT license.
That the actual driving of the ambulance, like the
maintenance of a hospital bed rail, may not require any special
medical knowledge or skill does not mean King’s claim falls
outside the ambit of section 340.5. (See Flores, supra, 63 Cal.4th
at pp. 85-86; see also Mitchell v. Los Robles Regional Medical
Center (2021) 71 Cal.App.5th 291, 298 [section 340.5 applied to
personal injury action brought by emergency room patient who
fell when allowed to walk to the restroom unattended; “[w]e
recognize that accompanying someone to the restroom is not a
sophisticated medical procedure. But that is not determinative.
Section 340.5 applies to more than tasks that ‘require advanced
medical skills and training’”].) King does not argue on appeal
that transporting the patient to the hospital—determined by the
trial court to constitute the professional service being performed
by McMichael—did not constitute the rendering of medical care.10

10 We have reservations about a conclusion that driving an
ambulance constitutes medical care qualifying as a professional
service for purposes of Code of Civil Procedure section 340.5—at
least when, as here, the driver has not activated the ambulance’s
lights and siren. Although, as Canister, supra, 160 Cal.App.4th
at page 405, pointed out, Health and Safety Code section 1797.70
defines “emergency” as “a condition or situation in which an
individual has a need for immediate medical attention, or where
the potential for such need is perceived by emergency medical

16
McMichael’s allegedly negligent driving occurred in executing
that medical service—that is, she was negligent in discharging
the duties she owed as an EMT to her patient—and King was
injured as a result of that negligence. King’s lawsuit thus comes
within the ambit of section 340.5, consistent with the holdings of
both Flores, supra, 63 Cal.4th 75 and Canister, supra,
160 Cal.App.4th 388.
Resisting that conclusion, King argues, even if Canister
remains good law, the trial court erred in relying on it here
because the plaintiff police officer in that case was riding in the
ambulance with the patient and had some relationship to the
patient (and, as a consequence, to the health care provider). King,
in contrast, was not riding in the ambulance and had no prior
relationship to McMichael, KMA or the patient. Thus, King
argues, the claim sounded in ordinary negligence because the
duty McMichael breached was “to drive with due regard for the
safety of all persons using the highway” (e.g., Veh. Code, § 21056),
a duty applicable to all drivers and not unique to health care
providers, and King’s claim did not depend on the presence of, or
injury to, a patient in the ambulance. The order granting
summary judgment, King asserts, failed to make the distinction
mandated by Flores, supra, 63 Cal.4th 75 when it differentiated

personnel or a public safety agency,” our colleagues in
Division Six of this court observed in Aldana v. Stillwagon (2016)
2 Cal.App.5th 1 that, in light of Flores, supra, 63 Cal.4th 75, it
was questionable whether both the EMT driving the ambulance
and the EMT attending the patient were rendering professional
services. (Aldana, at p. 7.) We need not address the issue,
however, because King does not contend McMichael was not
providing medical care for purposes of MICRA by transporting
the patient to a hospital.

17
the professional obligations of hospitals in the rendering of
medical care to their patients and the nonprofessional obligations
of hospitals to maintain their premises in a manner preserving
the safety and wellbeing of all users (id. at p. 87). King argues
the medical treatment was not essential to her claim, which was
not based on “alleged professional negligence” at all.
The essence-of-the-claim analysis of section 340.5 is
arguably supported by the Supreme Court’s decision in Hedlund
v. Superior Court, supra, 34 Cal.3d at p. 704, which held
section 340.5 applied to a cause of action for injuries suffered as a
result of a therapist’s negligent failure to warn a potential victim
of a threat made by the therapist’s patient. In reaching that
conclusion the Court explained, “Under well established
principles the applicable statute of limitations is determined by
the nature of the right sued upon.” (Hedlund, at p. 704.) After
explaining the therapist’s diagnosis of, and prediction about the
danger of violence posed by, the patient—the professional
service—were an “essential element of a cause of action for
failure to warn” and were the “basis upon which the duty to the
third party victim is found” (id. at p. 703), the Court concluded,
“The diagnosis and the appropriate steps necessary to protect the
victim are not separate or severable, but together constitute the
duty giving rise to the cause of action” (id. at p. 704). In contrast,
King essentially asserts, in the case at bar the professional
service rendered to the patient was not the basis for the duty to
King allegedly breached by McMichael.
This argument, while not unreasonable, is ultimately
unpersuasive in light of the plain meaning of the statutory
language, as well as the Supreme Court’s analysis of that
language in Flores, supra, 63 Cal.4th 75. First, section 340.5

18
refers to a negligent act or omission “in the rendering of
professional services,” but does not require the services to have
been performed for the person bringing the claim against the
health care provider. (§ 340.5, subd. (2).) Surely if the patient in
the ambulance had been injured in the accident, MICRA would
apply. To conclude a different statute of limitations applies to an
injured third party’s lawsuit would at the very least be, as the
Supreme Court observed in Hedlund, “anomalous.” (Hedlund v.
Superior Court, supra, 34 Cal.3d at p. 704 [“[i]t would be
anomalous . . . if a third party’s cause of action based on the same
negligent act were treated differently than an action by the
patient”].) Similarly, nothing in the statutory language requires
the plaintiff injured by the professional negligence to have had
any prior relationship to either the health care provider or the
patient. (Cf. Aldana v. Stillwagon (2016) 2 Cal.App.5th 1, 8
[“MICRA is not limited to suits by patients”].)
Nor is there merit to a contention King’s claim was not one
for a negligent act “in the rendering of professional services.” As
discussed, King does not argue transporting the patient to a
hospital was not professional medical care that McMichael was
providing. Necessarily, then, driving the vehicle—the act of
transporting—was integral, not merely incidental, to the
professional medical service. (See Flores, supra, 63 Cal.4th at
p. 88 [explaining, in concluding the allegedly negligent inspection
and maintenance of hospital equipment constituted professional
negligence, “A hospital’s negligent failure to maintain equipment
that is necessary or otherwise integrally related to the medical
treatment and diagnosis of the patient implicates a duty that the
hospital owes to a patient by virtue of being a health care
provider”].) Applying the reasoning in Flores, McMichael’s

19
alleged negligence in operating the vehicle directly implicated a
professional duty owed by McMichael as a health care provider;
and King’s claim accordingly sounded in professional negligence.
King attempts to reinforce the argument this is a lawsuit
for ordinary negligence by asserting professional negligence
claims against health care providers require expert testimony to
establish the appropriate standard of care, but the standard of
care for health care providers (the standard of other EMT’s) would
be irrelevant were the case to go to trial. That argument,
unsupported by any meaningful authority, assumes the
conclusion. It is far from clear on this record that expert
testimony concerning the proper method of transporting patients
to a hospital, and the necessary level of caution in doing so, would
be inadmissible, if not required, at a trial of King’s negligence
claim. (On the other hand, if “‘the conduct required by the
particular circumstances is within the common knowledge of the
layman,’” expert testimony is not required to establish the
standard of care in a medical malpractice case. (Landeros v.
Flood (1976) 17 Cal.3d 399, 410; accord, Johnson v. Superior
Court (2006) 143 Cal.App.4th 297, 305.) Driving into the rear of
a vehicle stopped in heavy traffic arguably violates a standard of
care that is well within the common knowledge of lay jurors.)
5. Post-Flores Court of Appeal Cases Do Not Support
Reversal of the Judgment
Neither Aldana v. Stillwagon, supra, 2 Cal.App.5th 1 nor
Johnson v. Open Door Community Health Centers (2017)
15 Cal.App.5th 153 (Johnson), cases decided after the Supreme

20
Court’s decision in Flores and relied upon by King, supports
reversal of the judgment in favor of McMichael and KMA.
In Aldana the defendant, an on-duty paramedic supervisor
responding to a 911 call, was driving his employer’s pickup truck,
which had an emergency vehicle permit but could not transport
patients, to the location of an injured victim to supervise the
responding EMT’s and provide any necessary assistance.
En route the supervisor failed to make a complete stop at a red
light and collided with the plaintiff’s vehicle. (Aldana v.
Stillwagon, supra, 2 Cal.App.5th at pp. 4-6.) Division Six of this
court held driving to the third party victim did not constitute
“professional services” and, as noted (see fn. 10), in the course of
its opinion questioned whether Canister’s conclusion that the
EMT driving the ambulance was rendering professional services
remained good law after Flores. (Id. at p. 7.)
Aldana’s critique of Canister may well be correct.
Depending on the circumstances, driving an ambulance might
not be health care or professional services within the meaning of
MICRA because it is a task requiring “no particular medical
skills,” not entirely unlike a janitor’s use of a broom. But to
reiterate, King does not dispute that McMichael was engaged in
rendering professional medical services when she was
transporting the patient to a hospital, an activity for which she
was certified and which was “inextricably identified” with the
health of patients. (See Canister, supra, 160 Cal.App.4th at
p. 403; cf. T.L. v. City Ambulance of Eureka, Inc. (2022)
83 Cal.App.5th 864, 879 [there is no question defendants, an
EMT and a paramedic, “were providing a medical support
service” in transporting plaintiff by ambulance from a crisis
stabilization unit to an inpatient psychiatric facility].) Indeed,

21
the Aldana court distinguished the case before it from Canister
because it did not involve transporting a patient. (Aldana v.
Stillwagon, supra, 2 Cal.App.5th at pp. 7-8.)
In Johnson, supra, 15 Cal.App.5th 153 the plaintiff, after a
consultation at a health clinic, tripped on a scale partially
blocking her path from a treatment room to the hall as she
headed for the exit. Because the plaintiff was injured after her
care was completed and alleged the placement of the scale posed
a tripping hazard, implicating the clinic’s duty to all users of its
facility, the court of appeal held section 340.5 did not govern the
action. (Id. at pp. 156, 160.) In reaching its conclusion the court
summarized several pre-Flores cases, including Canister, and
determined, to the extent still good law, they did not support
application of section 340.5 to the case before it. Although
suggesting Canister’s rationale was not fully consistent with
Flores’s analysis, Johnson nevertheless observed Canister’s
outcome was “arguably correct” because “(1) the negligent
performance of tasks requiring no medical skill or training may
nonetheless implicate professional medical services and trigger
the application of MICRA [citation]; and (2) the EMTs who
allegedly operated an ambulance without due care were
rendering professional services at the time and their failure to do
so competently caused the officer’s injuries.” (Id. at pp. 161-162.)
Here, McMichael, who allegedly operated her vehicle with
negligence, was rendering professional services (transporting a
patient to the hospital) at the time; and McMichael’s failure to do

22
so competently caused King’s injuries. Johnson fully supports
the conclusion that section 340.5 applies in this case.
6. King’s Policy Argument Is Misplaced
As a final argument King points out McMichael and KMA
have no medical malpractice insurance that covers their liability
for the injuries she suffered.11 Thus, King asserts, applying
section 340.5 in her case does not further the purpose of MICRA,
which, Flores explained, is a “wide-ranging statutory scheme
designed to reduce the cost of medical malpractice insurance,”
enacted “to address ‘skyrocketing malpractice premium costs.’”
(Flores, supra, 63 Cal.4th at pp. 81, 86.)
King’s attempt to extrapolate from an individual case to the
entire emergency medical services industry is misplaced.
Whether malpractice insurance is available to McMichael and
KMA tells us nothing about how financial responsibility for
injuries suffered in traffic accidents might affect the professional
liability coverage available to EMT’s and ambulance companies
generally or their overall economic viability. We do know,
however, as the Supreme Court observed in Hedlund, that “the
legislative purpose of reducing health care costs” is implicated
even “[w]hen a health care provider’s professional negligence
results in harm to parties other than a patient.” (Hedlund,
supra, 34 Cal.3d at p. 704.)

11 McMichael and KMA challenged in the trial court King’s
reliance on any fact concerning insurance coverage of the
accident because it was not identified in her separate statement
of additional material facts. The record on appeal, which did not
include any reporter’s transcript of a hearing on the summary
judgment motion, was silent as to the trial court’s response, if
any, to their argument.

23
 DISPOSITION
The judgment is affirmed. McMichael and KMA are to
recover their costs on appeal.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.

24