Warren v. County of Sacramento CA3 ( 2021 )

Filed 11/1/21 Warren v. County of Sacramento CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
DAVID WARREN et al., C088691
Plaintiffs and Appellants, (Super. Ct. No.
34201800225194CUMCGS )
v.
COUNTY OF SACRAMENTO et al.,
Defendants and Respondents.
Does the right to privacy include the individual’s right to determine which hospital
emergency room an ambulance will take the person to during a medical emergency? The
trial court in this case found no such right of privacy exists and entered a judgment
against plaintiffs and appellants David Warren and Kathryn C. Warren.
Appellants contend on appeal the trial court erred as they have standing to attack
the county protocol, the right to privacy and Probate Code section 4650 give them the
right to make the medical decision regarding where an ambulance takes them in a
medical emergency, and the Sacramento County protocol that establishes mandatory
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procedures for medical and emergency transportation is facially invalid to the extent it
violates this right. Respondents, County of Sacramento et al., concede the standing
issue but argue that the trial court’s subsequent determination that appellants failed to
identify a protected privacy right within their claim was correct, as was its entry of
judgment in favor of respondents, and therefore we should affirm the court’s decision.
We agree with the parties that appellants have standing to attack the protocol as
facially invalid as they are directly affected by its alleged violation. However, we
conclude that the right to privacy does not encompass a right to direct an ambulance to
the emergency room of one’s choice during a medical emergency. We shall affirm the
judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Sacramento County has authorized the Sacramento County Emergency Medical
Services Agency (SCEMSA) “to administer and control the provision of emergency
ambulance services, including emergency ambulance services, and to impose affirmative
service obligations to be performed by licensees, guaranteeing the adequacy and
efficiency of emergency ambulance services to the County, including any incorporated
portion thereof.” (Sac. County Code, ch. 4, § 4.18.000.) Respondent Dr. Hernando
Garzon, the medical director of the SCEMSA, oversees policies regarding the delivery of
emergency ambulance services. (Sac. County Code, ch. 4, § 4.18.005.) Among these
policies is Sacramento County Emergency Medical Services (EMS) 5000 series, which
addresses transportation and patient destination. Policies such as these are periodically
reviewed by the SCEMSA Joint Medical Oversight and Operational Oversight
Committees, which are comprised of various experts from local prehospital and hospital
emergency care systems.
2
EMS policy No. 5050.13 (hereafter 5050.13)1 governs where ambulances take
people. Its stated purpose is “[t]o guide prehospital care personnel in arriving at a
destination decision.” (5050.13.) The policy states in pertinent part:
“A. The patient meeting special triage criteria shall be transported to the
designated Special Triage receiving facility approved by the LEMSA. 2
“B. Patients likely to require specialized services as identified in treatment
protocol may be transported to the most appropriate receiving facility.
“C. If there exists no medical condition that the prehospital personnel believes is
unstable and no Special Triage Policy applies, then the patient shall be taken to the
facility chosen based on the following (in rank order) decisive factors:
“1. Patient’s/Guardian’s request (if patient is a minor)
“2. Family/Guardian’s request
“3. Private Physician’s request
“4. EMS System Resource availability, as determined by SCEMSA in
coordination with the EMS Chiefs.
“5. Law Enforcement Request
“D. Law Enforcement shall be responsible for patient in custody.
“E. Direct medical oversight shall be utilized to aid in arriving at a destination
decision in the following situations:
“1. Patient’s condition is believed to be unstable by the Prehospital personnel’s
assessment and the destination is not the most accessible facility.
1 5050.13 was replaced with EMS policy No. 5050.14 on May 1, 2018. Appellants
reference both 5050.13 and EMS policy No. 5050.14 throughout the matter. A copy of
EMS policy No. 5050.14 was lodged in the administrative record. The trial court based
its ruling on 5050.13. Therefore, for the sake of consistency this court will reference the
EMS policy in dispute as 5050.13.
2 Defined elsewhere in the policy as the “Local EMS Agency.” (5050.13.)
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“2. Special Triage Policy dictates a different destination from the destination
based on patients, family/guardian, private physician’s, or law enforcement’s request.
“3. Control facility makes all destination decisions for a Mass Casualty Incident
(MCI) or during a countywide level II, III or IV expanded emergency.
“F. Direct medical oversight, when utilized, shall be the overriding decisive factor
in determining destination.
“G. Non-trauma patients under Cardiopulmonary Resuscitation (CPR) shall be
taken to the most accessible receiving hospital.
“H. Trauma patients with unstable or obstructed airways or tension
pneumothorax(es), that cannot be stabilized, cleared or relieved in the field, shall be taken
to the most accessible receiving hospital.” (5050.13.)
In late 2015 and early 2016, appellants brought their concerns about the
ambulance destination policy to Dr. Garzon’s attention. Appellants, a married couple
who reside in Sacramento County are both over the age of 70, have suffered numerous
cardiac incidents and are at significant risk of stroke. Pursuant to 5050.13, during their
ST-Elevation Myocardial Infarction (STEMI3) emergencies, ambulances transport them
to the nearest qualified hospital, Mercy San Juan Medical Center (Mercy San Juan),
rather than to the only hospital where their treating physicians have medical privileges,
University of California Davis Medical Center (UC Davis). Appellants asked Dr. Garzon
and SCEMSA to create an informed consent exception to 5050.13 so that they could be
transported by ambulance to UC Davis during STEMI emergencies. Dr. Garzon declined
and found Mercy San Juan had a higher certification for stroke care than UC Davis. His
review of appellants’ last three emergency transportations found they were appropriately
3 ST-Elevation Myocardial Infarction, a serious form of heart attack. (See Sharma v.
Providence Health & Servs.-Or. (2018) 289 Ore.App. 644, 648, fn. 2.)
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sent to the nearest treatment facility. In addition, there was no support for changing the
policy in either of the review committees.
Appellants presented their proposed amendment to 5050.13 to the Sacramento
County Board of Supervisors on August 7, 2017. The Sacramento County Board of
Supervisors declined to review the proposal, finding it was not within their jurisdiction.
On April 12, 2018, appellants filed a First Amended Complaint against
respondents Sacramento County, SCEMSA, Dr. Garzon, and others, asserting 5050.13
violates their right to privacy and the informed consent doctrine. Appellants included a
petition for an alternative writ of mandamus or prohibition in addition to seeking
declaratory relief. Appellants’ first cause of action sought a declaration from the trial
court that either the SCEMSA, the Sacramento County Board of Supervisors, or the state
agency supervising emergency medical services, the California Emergency Medical
Services Authority, be declared the proper entity to review and amend 5050.13.
Appellants’ second cause of action asked the trial court to declare 5050.13
unconstitutional and unenforceable, both on its face and as construed, in that it violates
appellants’ right to determine their medical care. The third cause of action, the proposed
writ relief, would direct respondents to amend 5050.13 to allow appellants to be
transported to the closest appropriate medical facility as determined by appellants. 4
Appellants’ trial brief asserted they sought either an individual exemption to
5050.13 or an individual exemption allowing them to be transported to UC Davis for
emergency treatment. They further sought a determination over whether a patient
4 While the record contains a reference to the trial court sustaining a demurrer to the first
and third causes of action while leaving intact the second cause of action seeking
declaratory relief, neither the demurrer nor the trial court’s ruling on the demurrer are in
the administrative record. Since there was a court trial on the standing issue that
encompassed a decision on the privacy issue, that question apparently was not resolved in
the demurrer.
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requiring emergency medical transportation, or a person designated to make health care
decisions for the person could choose which hospital the person would be taken to.
Finally, they sought to determine whether consent to medical treatment applied to if the
patient is competent or has designated a person to make medical decisions. Respondents’
trial brief argued the court should resolve the constitutionality of 5050.13, appellants
failed to identify a recognized right to privacy supporting their claims, the informed
consent doctrine was inapplicable, and a writ of mandate cannot compel Dr. Garzon to
exercise his discretion in a particular manner or to reach a particular result.
After the trial court requested supplemental briefing on standing, respondents
asserted that if appellants failed to establish an applicable privacy right and thereby
sought improper declaratory relief, then they failed to establish their causes of action.
Lacking a viable cause of action, appellants’ motion in limine could be treated as a
motion for judgment on the pleadings in order to conserve judicial resources. As to the
as-applied challenge, the appellants lacked standing to direct respondents to exercise their
discretion in a particular way.
Appellants asserted in their supplemental brief that legislation ensuring the
provision of effective and efficient emergency medical care made appellants members of
a protected class who use the emergency medical transportation guaranteed by statute.
As members of a protected class, they had standing to seek adjudication of their rights
under 5050.13.
The parties stipulated to bifurcate the trial with the issue of standing to be
addressed first; the appellants clarified that they were electing to pursue their request for
declaratory relief based on only a facial constitutional attack upon the protocol and
supporting statutes rather than as applied challenge.
Following a review of the pleadings, the trial court found appellants failed to
demonstrate that a patient has a constitutional right to privacy entitling them in a medical
emergency to require emergency personal to transport them to the hospital of their
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choice. The trial court further found the right to refuse medical care cases were
inapplicable, and, under the rational basis standard, appellants could not prevail. Finding
that appellants failed to establish the existence of any justiciable controversy affecting the
right to privacy, the trial court concluded that appellants lacked standing to bring their
facial challenge seeking declaratory relief that 5050.13 is unconstitutional. The trial
court entered judgment in favor of respondents, found appellants failed to demonstrate an
actionable right to privacy, and dismissed the action with prejudice.
DISCUSSION
We begin our analysis with the statutory authority for SCEMSA to promulgate
5050.13.
The Emergency Medical Services System and the Prehospital Emergency Medical
Care Personnel Act (the EMS Act, or the Act) (Health & Saf. Code, § 1797 et seq.)5
governs emergency medical services in this state. Pursuant to the Act: “The medical
direction and management of an emergency medical services system shall be under the
medical control of the medical director of the local EMS agency. This medical control
shall be maintained in accordance with standards for medical control established by the
authority.” (§ 1798, subd. (a).)
In addition: “The local EMS agency, using state minimum standards, shall
establish policies and procedures approved by the medical director of the local EMS
agency to assure medical control of the EMS system. The policies and procedures
approved by the medical director may require basic life support emergency medical
transportation services to meet any medical control requirements including dispatch,
patient destination policies, patient care guidelines, and quality assurance requirements.”
(§ 1797.220.)
5 Undesignated statutory references are to the Health and Safety Code.
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Appellants contend declaratory relief is proper under Code of Civil Procedure
section 1060 because they have no other recourse to obtain review of 5050.13. They
argue that they have properly pleaded a cause of action, their facial challenge to 5050.13,
by demonstrating “that SCEMSA’s policies pursuant to the ACT’s provisions pose an[d]
inevitably present total and fatal conflict with applicable constitutional prohibition to
Appellants[’] right to privacy.” According to appellants, under this right they are entitled
to make health decisions without interference by respondents, and this right includes the
destination hospital for emergency medical treatment. Appellants further assert they have
standing to object to the provisions of 5050.13 and to demand that it be amended to
provide a reasonable alternative exception to its mandatory emergency medical
transportation destination requirement. They also argue that this case addresses a
patient’s right to make medical decisions rather than a treating physician. Appellants
further claim that Probate Code section 4650 applies to this case. Their final argument is
that since the Act and the Sacramento County Code guarantee access to available
emergency transportation, respondents are members of a protected class who have
standing to seek adjudication of their rights under 5050.13, and the trial court’s ruling
was inconsistent with the statutory provisions concerning ambulance services.
Appellants rely on the California Constitution’s privacy guarantee (Cal. Const.,
art. I, § 1.) We review the facial constitutional challenge to the policy enactment, a pure
question of law, de novo. (Rental Housing Owners Assn. of Southern Alameda County,
Inc. v. City of Hayward (2011) 200 Cal.App.4th 81, 90; Alviso v. Sonoma County
Sheriff’s Dept. (2010) 186 Cal.App.4th 198, 204.)
The California Constitution provides that all individuals have a right to privacy,
which “protects a larger zone in the area of financial and personal affairs than the federal
right. [Citations.]” (Wilson v. California Health Facilities Com. (1980) 110 Cal.App.3d
317, 324; Cal. Const., art. I, § 1.) A person’s medical history and information and the
right to retain personal control over the integrity of one’s body are protected under the
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right to privacy. (People v. Martinez (2001) 88 Cal.App.4th 465, 474-475; American
Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 332-333.) Although the right is
important, it is not absolute; it “must be balanced against other important interests” and
“may be outweighed by supervening public concerns.” (Hill v. National Collegiate
Athletic Assn. (1994) 7 Cal.4th 1, 37; Wilson, at p. 325.)
In a privacy action, “the complaining party must meet three ‘ “threshold elements”
. . . utilized to screen out claims that do not involve a significant intrusion on a privacy
interest protected by the state constitutional privacy provision.’ [Citation.] The party
must demonstrate ‘(1) a legally protected privacy interest; (2) a reasonable expectation of
privacy in the circumstances; and (3) conduct by defendant constituting a serious
invasion of privacy.’ [Citation.] This initial inquiry is necessary to ‘permit courts to
weed out claims that involve so insignificant or de minimis an intrusion on a
constitutionally protected privacy interest as not even to require an explanation or
justification by the defendant.’ [Citation.]” (Lewis v. Superior Court (2017) 3 Cal.5th
561, 571.)
While the right to privacy allows a person to refuse medical treatment, it does not
guarantee a person the right to require a particular treatment or to be treated in a
particular manner. In People v. Privitera (1979) 23 Cal.3d 697 (Privitera), our Supreme
Court addressed a constitutional challenge to former section 1707.1, which prohibited the
sale of “any drug or device to be used in the diagnosis, treatment, alleviation or cure of
cancer which has not been approved by the designated federal agency (21 U.S.C. § 355)
or by the state board. [Citation.]” (Privitera, at p. 700.) The defendants were convicted
of selling laetrile as a cure for cancer, and challenged the statute under the state and
federal rights to privacy. (Ibid.)
Regarding the federal privacy right, the Supreme Court held: “The interest
defendants allege is, apparently, ‘the interest in independence in making certain kinds of
important decisions.’ [Citation.] But the kinds of ‘important decisions’ recognized by
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the high court to date as falling within the right of privacy involve ‘ “matters relating to
marriage, procreation, contraception, family relationships, and child rearing and
education” ’ [citations], but do not include medical treatment.” (Privitera, supra,
23 Cal.3d at p. 702.)
The defendants fared no better under the state privacy right. The Supreme Court
found the primary purpose behind the privacy guarantee in the state constitution was “ ‘a
more focused privacy concern, relating to the accelerating encroachment on personal
freedom and security caused by increased surveillance and data collection activity in
contemporary society. The new provision’s primary purpose is to afford individuals
some measure of protection against this most modern threat to personal privacy.’ ”
(Privitera, supra, 23 Cal.3d at p. 709, quoting White v. Davis (1975) 13 Cal.3d 757, 774.)
Our high court found that “[i]n the absence of any evidence that the voters in amending
the California Constitution to create a right of privacy intended to protect conduct of the
sort engaged in by defendants, we have no hesitation in holding that section 1707.1 does
not offend that constitutional provision.” (Privitera, at pp. 709-710.)
Privitera holds “that there is a presumption of constitutional validity and no
trespass into the forbidden zone of privacy where health and health care legislation are
involved. Thus, the state standard initially also requires a legitimate and reasonable state
interest and means that bear a real and rational relation to the object sought to be
obtained. [Citations.]” (Wilson v. California Health Facilities Com., supra,
110 Cal.App.3d at p. 324, fn. omitted.) Likewise, where “the challenged action primarily
concerns health and safety, no fundamental right to privacy is at stake. [Citation.]
Consequently, when the state asserts important interests in safeguarding health, review is
under the rational basis standard. [Citation.]” (Coshow v. City of Escondido (2005)
132 Cal.App.4th 687, 711-712.)
The same applies here. Where an ambulance takes a person in a medical
emergency is a medical decision that does not implicate one’s personal integrity or the
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corresponding right to refuse medical treatment. The policy at issue here does not
compel a person to be placed in an ambulance and forced to go to a hospital against that
person’s will, as a person may always refuse ambulance service and go to another
hospital on his or her own accord. It is thus unlike surgery or another form of medical
treatment without the patient’s consent. (See Conservatorship of Wendland (2001)
26 Cal.4th 519, 531.) This decision likewise does not implicate one of the important
decisions which implicate the right to privacy.
Since 5050.13 does not implicate any constitutionally protected privacy interest,
we analyze it under the rational basis standard. “The rational basis test asks whether the
classification is rationally related to a legitimate governmental purpose. [Citation.]”
(Griffiths v. Superior Court (2002) 96 Cal.App.4th 757, 776.)
The policy readily satisfies this test. Time is particularly scarce in medical
emergencies. A policy mandating that a person in a medical emergency be transported to
the nearest appropriate medical facility reduces travel time for ambulances while getting
patients most quickly to the appropriate place for treatment. This serves both the person
being transported and those awaiting an ambulance, who might otherwise lose crucial
time waiting for an ambulance to become available because it was transporting a patient
to a more distant facility because it was that patient’s place of choice. The SCEMSA
policy thus withstands constitutional scrutiny.
Neither Probate Code section 4650 nor the Act’s guarantee of emergency
ambulance services can rescue appellants’ claim.
Probate Code section 4650 provides:
“The Legislature finds the following:
“(a) In recognition of the dignity and privacy a person has a right to expect, the
law recognizes that an adult has the fundamental right to control the decisions relating to
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his or her own health care, including the decision to have life-sustaining treatment
withheld or withdrawn.
“(b) Modern medical technology has made possible the artificial prolongation of
human life beyond natural limits. In the interest of protecting individual autonomy, this
prolongation of the process of dying for a person for whom continued health care does
not improve the prognosis for recovery may violate patient dignity and cause unnecessary
pain and suffering, while providing nothing medically necessary or beneficial to the
person.
“(c) In the absence of controversy, a court is normally not the proper forum in
which to make health care decisions, including decisions regarding life-sustaining
treatment.”
This codifies a right to refuse treatment, particularly in the end of life context, but
it does not create a right to direct or compel a particular form of treatment. In the context
of appellants’ claim, it is no different than the state constitutional right to privacy. And
like that right, it is not implicated by 5050.13.
While the Act guarantees emergency medical services (see § 1797.5 [“It is the
intent of the Legislature to promote the development, accessibility, and provision of
emergency medical services to the people of the State of California”]), a state guarantee
of a particular right or benefit does not create a corresponding right by a beneficiary to
dictate how the right or benefit is to be carried out. (See e.g., Harris v. Superior Court
(1977) 19 Cal.3d 786, 795 [appointment of particular counsel for indigent defendant
within trial court’s discretion, defendant cannot compel the trial court to select counsel of
defendant’s choice]; People v. Sapp (2003) 31 Cal.4th 240, 256 [trial court can disregard
defendant’s preference in appointing counsel].) The Act vests considerable discretion in
SCEMSA and its director to promulgate policies like 5050.13. Since appellants failed to
identify a right to privacy that is implicated by this policy, they cannot attack it in the
courts.
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DISPOSITION
The judgment is affirmed. Respondents shall recover costs on appeal, if any.
(Cal. Rules of Court, rule 8.278(a)(1) & (2).)
\s\ ,
BLEASE, Acting P. J.
We concur:
\s\ ,
DUARTE, J.
\s\ ,
RENNER J.
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