Smith v. Vista Behavior Health Plans

Filed 8/22/07 Smith v. Vista Behavior Health Plans CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. George H. Wu, Judge. Reversed.

Arkin & Glovsky, Sharon J. Arkin, Scott C. Glovsky; The Kristy Law Firm and James R. Kristy for Plaintiffs and Appellants.

Wilson, Elser, Moskowitz, Edelman & Dicker, Robert M. Young, Jr., Vincent DAngelo and Robert Cooper for Defendants and Respondents.

__________________________

Plaintiffs Brian and Mary Smith appeal from the summary judgment entered for defendant Magellan Health Services, Inc., and several of its related entities in this action for the wrongful death of their adult daughter Janell. For the reasons set forth below, we reverse the judgment.

FACTS AND PROCEDURAL HISTORY

Janell Smith (Janell) was insured for mental health care by Magellan Health Services, Inc. (Magellan), and her policy provided benefits for inpatient hospitalization or lower levels of care such as partial hospitalization and outpatient treatment depending on which level of care was medically necessary.^[1]In determining whether Janell qualified for such benefits, Magellan engaged in a process called utilization review. In short, a Magellan care manager would keep track of a patients condition, and Magellans medical director, Dr. Todd Cornett, would decide whether to continue authorizing a certain level of care based on a determination that such care was medically necessary. This review process usually occurred every three or four days.

In November 2002, Janell, then 26, was briefly hospitalized at South Coast Medical Center in order to receive psychiatric care for anorexia nervosa (anorexia). When her condition later worsened, Janell was hospitalized at South Coasts Acute Psychiatric Care eating disorder program on January 23, 2003, in order to receive inpatient care. According to Magellans clinical notes for Janells case, she weighed just 68 pounds when she was re-admitted to South Coast less than 60 percent of her ideal body weight of 115 pounds.^[2] The clinical notes said that Janell sought treatment because she was depressed and feared for her life. She had suicidal thoughts, but had not formed a plan to carry them out. Her case was considered to be complicated. Under Magellans own criteria, a body weight less than 75 percent of the ideal, combined with a primary diagnosis of anorexia, meant that hospitalization was medically necessary. Pursuant to Magellans utilization review process, it authorized, then over the next month continued to re-authorize, coverage for Janells hospitalization.

The clinical notes showed that within a week of her re-admission to South Coast, Janell had lost two more pounds and, according to her treating psychiatrist, Dr. Eric Speare, was trending downward, which was ominous. On January 31, 2003, Janell was transferred to a medical care unit for tube feeding. By February 6, 2003, Janells weight was up to 72.5 pounds and she was transferred back to the psychiatric care ward. During the next few weeks, her condition improved some and she was not expressing suicidal thoughts. By February 26, 2003, Janell was up to 78.75 pounds, or about 63 percent of her ideal body weight.

On February 26, 2003, Fernando Cristancho of Magellan was filling in for Janells regular care manager. He wrote in the clinical notes that Janell was pushing to end her hospitalization, that she was still at just 63 percent of her ideal body weight, that the medical staff at South Coast wanted her to gain at least five more pounds, but that the dietitian wanted Janell to gain seven more pounds before considering discharge. Cristancho also wrote that Janell continued to meet Magellans criteria for continued inpatient care. He authorized one more day of such care, with another review scheduled the next day.

Cristanchos clinical notes from February 27, 2003, state: Reviewed case in rounds with medical director Todd Cornett, M.D. Dr. Cornett advised that the patient needs to be discharged on Monday [March 2, 2003]. Based on the review, Dr. Cornett thinks that the patie[nt] is physically o.k., there are no safety issues and the patient functions well at 75% of IBW [ideal body weight]. She has a supportive family, has a place to live and discharge plan includes transition to PHP [partial hospitalization] at Alvarado Parkway Institute. The family will have a family meeting on Saturday. [] Left voice mail message for Ann Cervantes, [South Coast] R.N. . . . and advised her of this decision. . . . [] Authorized 4 more IP [inpatient days at South Coast] . . . through 03/02/03 for a total of 26 days for this admission. Cristanchos clinical notes also said that he spoke with Janells father, Brian Smith (Smith), about Cornetts decision to authorize only through Sunday 3/2/03 . . . .

According to Smiths deposition testimony, Cristancho phoned him and said Janell would be released on Monday [March 3]. Smith testified that he was angry and told Cristancho he was not sure Janell qualified for an outpatient program and that he needed more time to find one for her. Cristancho told Smith that Janell needed to be in a program by March 5 and said Smith and his wife Mary would meet with South Coast social worker Kim Glossbrenner the next day to discuss the next step. Smith testified that when he and Glossbrenner met with Janell the next day, Janell was excited to hear she was going to leave the hospital.

South Coasts medical staff disagreed with the decision to end Janells inpatient care. Dr. Speare wrote in a March 1 discharge summary that it was premature to transition [Janell] to intensive outpatient or partial hospital status because she was still below 70% of ideal body weight and really had just begun to gain weight. However, apparently, [Magellan] had called the parents telling them that the patient was to be transitioned, and this was relayed to the patient. This increased the resistance that was within her in that she felt that she should move to the lower level of care. Speare did not think Janell met the criteria to hold her against her will; he believed that transitioning her to a lower level of care at this time put her at greater risk for regression and relapse than if she stayed another week or two and got up to, at least, 85 pounds.^[3] Speare also wrote that Janell insisted on leaving, and promised to immediately continue treatment. Glossbrenner wrote in her notes on March 1, 2003, that Janell was manipulative and was poor in insight, judgment [and] commitment to get better. According to Smith, Glossbrenner told him she was exasperated by and opposed to the decision to release Janell. Glossbrenner also reportedly told Smith she was perplexed over Magellans decision to [pull] the plug or [pull] the rug from under Janell.

On March 2, 2003, Janell left South Coast. On March 9, 2003, Smith found his daughter unconscious in her condominium. Janell died on March 12, 2003. Medical reports showed that she had overdosed on a combination of acetaminophen, alcohol, cocaine, PCP, and benzodiazepines. She had also tried to cut one of her wrists. Brian Smith and his wife Mary sued Magellan for causing Janells death.^[4] Following various demurrers, their operative third amended complaint contained three causes of action: (1) a tort claim for bad faith denial of Janells insurance benefits, (2) wrongful death based on the same acts of bad faith, and (3) breach of Janells insurance contract.

Magellan brought a summary judgment motion based primarily on deposition testimony from Cornett and Cristancho that showed: (1) Magellan did not have the power to discharge Janell from South Coast only she and her physicians could do so; (2) Cornett did not decide on February 27, 2003, to discharge Janell on March 2 or to terminate her benefits for inpatient hospitalization; (3) instead, Cornett reauthorized hospitalization through March 2 as part of the utilization review process, intending to reevaluate her on that date to determine whether she continued to qualify for such treatment; (4) Janell decided to discharge herself from South Coast; (5) there was no indication she posed a threat to herself at that time; and (6) there was no evidence showing why Janell killed herself. Based on this evidence, Magellan argued that it had not breached its contract with Janell or committed any wrongful acts, and that there was no evidence that its actions were a proximate cause of Janells suicide. The trial court agreed and granted summary judgment for Magellan.

STANDARD OF REVIEW

Summary judgment is granted when a moving party establishes the right to the entry of judgment as a matter of law. (Code Civ. Proc.,  437c, subd. (c).) In reviewing an order granting summary judgment, we must assume the role of the trial court and re-determine the merits of the motion. In doing so, we must strictly scrutinize the moving partys papers. The declarations of the party opposing summary judgment, however, are liberally construed to determine the existence of triable issues of fact. All doubts as to whether any material, triable issues of fact exist are to be resolved in favor of the party opposing summary judgment. While the appellate court must review a summary judgment motion by the same standards as the trial court, it must independently determine as a matter of law the construction and effect of the facts presented. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.)

A defendant moving for summary judgment meets its burden of showing that there is no merit to a cause of action if that party has shown that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (Code Civ. Proc.,  437c, subds. (o)(2), (p)(2).) If the defendant does so, the burden shifts back to the plaintiff to show that a triable issue of fact exists as to that cause of action or defense. In doing so, the plaintiff cannot rely on the mere allegations or denial of her pleadings, but, instead, shall set forth the specific facts showing that a triable issue of material fact exists . . . . (Code Civ. Proc.,  437c, subd. (p)(2).) A triable issue of material fact exists if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. [Fn. omitted.] (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

DISCUSSION

1. Breach of Contract

Based on the deposition testimony of Cornett, Cristancho, and others, Magellan contends it did not breach its insurance contract with Janell because Cornett did not discharge Janell and did not decide on February 27, 2003, to cut off her inpatient hospitalization benefits after March 2, 2003. Instead, Cornett claims he authorized continued benefits through March 2, subject to further review and approval under Magellans utilization review process, and that Cristanchos entry in the clinical notes do not reflect his actual decision.

Under her policy with Magellan, Janell was entitled to receive benefits for different levels of care inpatient hospitalization, outpatient treatment, or something in-between depending on which was found medically necessary under Magellans criteria. The Smiths contend that Magellan refused to authorize further coverage for hospitalization after March 2 even though it was still medically necessary, presumably in an attempt to shift Janell to a lower level of care that was inadequate and less expensive. We agree that such conduct, if it occurred, would constitute a breach of contract.^[5] There is ample, although conflicting, evidence that it did.

First, under Magellans own criteria, hospitalization for anorexia was medically necessary if Janells body weight was less than 75 percent of the ideal. Cristanchos clinical notes show that on February 26, Janell was at just 63 percent of her ideal body weight and was still well below the ideal as of March 1, 2003. Those notes also recount statements by various South Coast medical personnel that discharge could not be considered until Janell gained several more pounds. In short, under the terms of Magellans policy, Janell was entitled to inpatient hospitalization benefits at that time.

Magellans clinical notes recount a February 27, 2003, meeting between Cornett and Cristancho where Cornett said Janell needed to be discharged on March 2, that her discharge plan included partial hospitalization at another facility, and that Cristancho had advised South Coast of this decision. According to those notes, Cornett authorized four more days of inpatient care through March 2 for a total of 26 days for this admission. (Italics added.) Cristanchos notes also said that he talked to Smith about Cornetts decision to authorize only through Sunday [March 2]. (Italics added.) Furthermore, the clinical notes from January 24 through February 26, 2003, show that each time Magellan conducted a utilization review and authorized further inpatient care, it scheduled a date for another utilization review. The February 27 clinical notes where Cristancho wrote that Janell needed to be discharged and that inpatient care had been authorized only through March 2 did not state that any further review would occur. Standing alone, those notes are evidence that Cornett decided to terminate Janells hospitalization benefits effective March 3, 2003, and was not planning further review of her eligibility for such coverage. Smith corroborated the notes when he testified that he was told by Cristancho on February 28, 2003, that Janell would be released on March 3 and needed to be in an outpatient program.^[6] Accordingly, the trial court erred when it determined that the insurance contract had not been breached.

2. Breach of the Covenant of Good Faith

Insurance policies, just like other contracts, impose on the parties a duty of good faith and fair dealing. The implied covenant imposes on each party the obligation to do everything that the contract presupposes they will do to accomplish its purposes. Bad faith involves more than a mere breach of contract however, and implies unfair dealing instead of mistaken judgment. (Progressive West Ins. Co. v. Superior Court (2005) 135 Cal.App.4th 263, 276-277.) Because of the unique nature of insurance contracts to offer the insured security and peace of mind that benefits will be paid in time of need the courts have imposed special obligations on insurers in order to encourage them to promptly process and pay claims. Insurers must investigate claims thoroughly, may not deny coverage based on improper standards or unduly restrictive policy interpretations, and may not unreasonably delay in processing or paying claims. (Id. at p. 277.) To establish a breach of the implied covenant, the plaintiff insured must show that benefits due under the policy were withheld unreasonably or without cause. If benefits are not withheld, the implied covenant has not been breached. (Id. at p. 278.)

Magellan contends on appeal, as it did below, that it did not breach the covenant of good faith and fair dealing because: (1) it did not terminate benefits for hospitalization and therefore did not breach the contract, and (2) nothing about its conduct was unreasonable or otherwise in bad faith. Triable issues of fact exist as to both points, however. First, as just discussed, there are triable issues of fact whether Magellan breached its contract because there is evidence which, if believed, shows that Magellan decided to stop paying for Janells hospitalization even though such treatment was medically necessary under the policy. Second, viewing the evidence most favorably to the Smiths, the circumstances surrounding this apparent breach of contract raise inferences of bad faith.

According to the deposition testimony of Pam Masters, who was Magellans quality improvement director in February and March 2003, Magellans own policies required Cornett to offer to speak with Janells treating physician, Dr. Speare, and try to obtain as much information from the treatment facility as possible before cutting off authorization for Janells hospitalization benefits. Cornett admitted in his deposition that he did not speak with Speare after January 28 because he believed the information he was receiving from his subordinates was sufficient. Speare confirmed that he did not recall doing a review of Janells case with Cornett before the decision to cut off her hospitalization benefits was made, and felt that was unusual. Masters agreed that nothing in the records showed that Cornett tried to contact Dr. Speare to review Janells status before deciding to terminate her inpatient coverage benefits.^[7]

Despite having done nothing to ascertain Janells true condition, and just one day after Cristanchos February 26, 2003, notation that Janell was at just 63 percent of her ideal body weight, that South Coasts medical staff believed she needed to gain several pounds before considering her discharge, and that she continued to meet Magellans criteria for hospitalization, Cornett decided to stop Janells hospitalization benefits effective March 3 because he believed Janell was at 75 percent of her ideal body weight, was physically fine, and had no safety issues. The clinical notes also quote Cornett as saying there was a discharge plan to transition Janell to partial hospitalization at another facility, but Smith testified that when he spoke with Cristancho on March 1, he complained that he needed more time to arrange a discharge plan for Janell. The clinical notes from March 3 also include a summary of Dr. Speares March 1 discharge summary, where he wrote that it was too soon to release Janell, that doing so posed a risk of regression and relapse, and that she was still six pounds below Speares targeted discharge weight. This evidence can all be construed as a failure by Cornett to fully investigate and evaluate Janells true condition before cutting off her hospitalization benefits, despite evidence in the record before Cornett made his decision, or before it took effect, that Janells treating physician believed she was at risk of a relapse if she switched to a lower level of care. Such conduct, if proven, is unreasonable and constitutes bad faith.^[8] (Hughes v. Blue Cross of Northern California (1989) 215 Cal.App.3d 832, 846.)^[9]

3. Wrongful Death Cause of Action

The Smiths second cause of action for wrongful death was based solely on Magellans conduct as alleged in the first cause of action for bad faith. The trial court granted summary judgment as to the wrongful death claim based on the only ground raised by Magellan because there were no triable issues of bad faith conduct by Magellan, the wrongful death cause of action necessarily failed. The Smiths did not address this issue in their opening brief on appeal, and Magellan contends by way of a footnote to its brief that the Smiths have therefore waived their wrongful death cause of action. The Smiths did address the issue in their appellate reply brief, contending that: (1) reversal of the summary judgment reinstates all causes of action (Homestead Savings v. Superior Court (1986) 179 Cal.App.3d 494, 498); and (2) they did not truly waive the issue because their opening brief addressed the one issue common to both their bad faith and wrongful death claims that triable issues exist as to Magellans bad faith conduct.

Because the viability of the wrongful death claim depends solely on the viability of the bad faith claim, and because issues concerning the bad faith claim were fully briefed by the parties, we see no prejudice to Magellan by considering the wrongful death cause of action as well, and therefore exercise our discretion to consider a point first raised in the Smiths reply brief. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.) Accordingly, because there were triable issues of fact to support a finding of Magellans bad faith conduct, we hold that the trial court erred by granting judgment for Magellan on the Smiths wrongful death cause of action.

4. Triable Issues of Fact Regarding Proximate Cause

Magellan contends on appeal, as it did below, that there is no evidence its conduct caused Janell to leave the hospital or commit suicide.^[10] Magellan bases its contention on the following: (1) the Smiths testified that they did not expect Janell to kill herself; (2) Dr. Speare did not believe Janell was suicidal when she left South Coast and did not believe she presented a sufficient danger to herself to warrant holding her against her will; and (3) another therapist who treated Janell before her hospitalization, and who treated her again right after she left South Coast in March 2003, did not believe she exhibited suicidal tendencies at that time. Because Janell discharged herself from South Coast, and because there was no evidentiary linkage between Magellans conduct and her suicide, Magellan asks us to affirm the summary judgment on this ground.

We begin with the declaration of Dr. Eugene Beresin, a professor of psychiatry at Harvard Medical School with an expertise in anorexia. Beresin reviewed Janells medical records, the clinical notes, and the deposition testimony of Speare, the Smiths, Glossbrenner, Cornett, and Cristancho. After summarizing Magellans conduct, Beresin opined that Janell required further inpatient hospitalization at South Coast and [such treatment] was medically necessary[] . . . due to the kind of services she was receiving and the severity of her condition, and safe and adequate care could not be received as an outpatient or in a less intensive medical setting. He said that anorexia was a very serious and often life threatening disease. It has one of the highest risks of mortality of any psychiatric disorder. The number one cause of death in anorexia patients is suicide. The number two cause of death is . . . starvation. These opinions were received into evidence.

After noting the severity of Janells case, Beresin concluded that to a reasonable medical probability, it is more likely than not that Magellans unreasonable, reckless, premature and abrupt decision to terminate Janells hospitalization was a substantial factor causing her death. Magellan caused her to leave the highly structured inpatient hospitalization program, where she was closely monitored, while she desperately needed to stay in the hospital and be closely monitored. Their decision played into her confusion, resistance and ambivalence about treatment and caused her to leave the hospital without any authorized discharge plans in place. If Janell had continued to stay as an inpatient at South Coast instead of having her hospitalization wrongly and abruptly ended, it is my professional opinion to a reasonable medical probability that Janells condition would have improved and she would not have died when she did.

This concluding portion of Beresins declaration was not admitted in evidence after the court sustained Magellans objection that it was not supported by any underlying evidence and therefore lacked foundation. (Evid. Code,  801, subd. (b) [expert opinion testimony must be based on matter of a type that may reasonably be relied upon by experts to form an opinion]; Hongsathavij v. Queen of Angels etc. MedicalCenter(1998) 62 Cal.App.4th 1123, 1127 [expert opinion based on conclusion or assumptions not supported by evidence in the record lack foundation and are not admissible].) If the trial court erred by excluding this portion of Beresins declaration, then there would be evidence raising a triable issue of fact on the causation issue.^[11] We agree with the Smiths that the disputed portion of Beresins declaration did not lack the required factual foundation.

First, as already discussed, there is evidence that Magellan wrongly halted coverage for Janells hospitalization benefits and was directing her to a lower level of care that was inadequate for her needs.

Second, there is factual support in the record for Beresins opinion that Magellans conduct was a substantial factor in Janells decision to leave South Coast. The clinical notes show that she was pushing to be released before she was ready to step down to a lower level of care. Smith testified that he told Janell about Magellans decision, and said she was excited by it. Speare wrote in his March 1 discharge summary that the Smiths told Janell she was being transitioned out of the hospital, thereby increasing the resistance that was within her because she believed she needed a lower level of care. Speare explained at his deposition that as part of the recovery process from anorexia, theres often a struggle between the part of the person that wants to get well and the part of the person that resists getting well. He believed Janells resistance was strong, as evidenced by her refusal to follow the treatment program or take certain prescribed medications, along with her tendency to minimize her condition. That, combined with learning from her parents about Magellans decision, helped to feed that resistance and wish to move to a lower level of care, even though she really needed the higher level of care. Such resistance is common to anorexics and impedes their recovery. Based on this, there was evidence in the record to support Beresins opinion that Magellans conduct played into Janells resistance and ambivalence and was a substantial factor that caused her to leave South Coast to pursue a lower level of care.

Third, there was evidence in the record to support Beresins conclusion that Magellans conduct more likely than not was a substantial factor in causing her death. Speare testified at his deposition that when Janell left South Coast, she was not ready for a lower level of care because she was still too sick, and . . . her likelihood of moving [in] the direction of illness rather than health was great. He believed she was still severely anorexic and that, as a result, her brain function was impaired. This is confirmed by Glossbrenner, whose notes of March 1, 2003, reported that Janell still had poor insight and judgment and lacked a commitment to get better. Speare testified that when he wrote that Janells discharge placed her at greater risk of regression and relapse, he meant she had a greater risk of going backwards to a previous level of illness or function and relapse, which is almost the same thing, a recurrence of symptoms, than if she stayed longer in the hospital. He said Janell was anxious and confused upon being discharged, which, combined with her lack of commitment to a discharge plan, concerned him about what would happen afterwards. When Janell was re-admitted to South Coast in January 2003, she was expressing suicidal thoughts. As her treatment progressed and her condition improved, the clinical notes show such thoughts were no longer being expressed. As Beresin stated in a portion of his declaration that was received in evidence, anorexics have a high mortality rate and suicide is the number one cause of their deaths. It is logical to infer from this evidence that if Janell had a relapse, it could include a renewal of her suicidal thoughts. Thus, there was evidence from which Beresin could conclude that Janells premature departure from South Coast caused her to have a relapse and regress to the point that her suicidal thoughts resumed, leading her to take her life.

Finally, Magellan contends that because the Legislature authorizes its use of utilization review, it cannot be held liable for Janells death. Magellan extrapolates this argument from Wilson v. Blue Cross of So. California (1990) 222 Cal.App.3d 660 (Wilson), which held that a health plans hired utilization review company could be held liable for an anorexics suicide after cutting off his hospitalization benefits. As part of that holding, the Wilson court distinguished Wickline v. State of California (1986) 192 Cal.App.3d 1630 (Wickline), because Wickline involved a treating physicians nonliability for discharging a patient after her Medi-Cal hospital benefits were terminated pursuant to a state mandated utilization review process. Because the decedents health care policy in Wilson did not authorize utilization review, Wilson held that Wickline involved a public policy consideration that was absent from its facts. (Wilson, supra, at pp. 672-674.)

Magellan contends that it is a health care service plan under Health and Safety Code section 1345, subdivision (f)(1). As such, it is required to have in place utilization review procedures to govern its decisions to approve or deny coverage based on whether it is medically necessary. (Health & Saf. Code,  1367.01, subds. (a)-(c).) Therefore, it contends, it is more like the defendant in Wickline and the same public policy considerations apply. We disagree.

Health and Safety Code section 1367.01 is part of article 5 of chapter 2.2 of Division 2 of the Health and Safety Code. As part of that same article, however, section 1370 provides limited legal immunity to persons who conduct peer review, but shall not be construed to confer immunity from liability on any health care service plan. Section 1371.25 provides that health care plans and health care providers are not liable for the acts or omissions of others, but may still be found liable under the doctrines of equitable indemnity, comparative negligence, contribution, or other statutory or common law bases for liability. Finally, Civil Code section 3428, subdivision (a) provides that health care services plans such as Magellan shall have a duty of ordinary care to arrange for the provision of medically necessary health care service to its subscribers and enrollees, . . . and shall be liable for any and all harm legally caused by its failure to exercise that ordinary care . . . . In short, even though Magellan was legally entitled to base its decision on the utilization review process, if it breaches an applicable legal duty when engaging in that process, it can still be liable for the harm caused.^[12]

DISPOSITION

For the reasons set forth above, the judgment is reversed. Appellants to recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, ACTING P. J.

WE CONCUR:

BOLAND, J.

FLIER, J.

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^[1] Also named as defendants are two entities related to Magellan Vista Behavioral Health Plans and Green Spring Health Services, Inc. For purposes of this appeal, there appears to be no difference between any of these three entities, and when we refer to Magellan we include the other two defendants.

^[2] We will refer to these records, which were produced by Magellan during discovery, as the clinical notes.

^[3] When Speare spoke of holding Janell against her will, he was referring to a 72-hour, involuntary detention under Welfare and Institutions Code section 5150.

^[4] We will sometimes refer to appellants Brian and Mary Smith as the Smiths.

^[5] We therefore disagree with the trial courts conclusion that no breach occurred because Magellan had not discontinued coverage but had instead funded a different level of care.

^[6] The portions of Cristanchos deposition testimony that are in the record show that he had some difficulty reconciling his notes with his contention that they were intended to reflect Cornetts decision to authorize hospitalization through March 2, then conduct a further review to see if such coverage was still medically necessary. Despite that characterization of his February 27 notes, Cristancho testified that he could not recall the February 27 conversation with Cornett, could not recall Cornett saying there would be another utilization review on March 3, could not recall his February 28 conversation with Smith where he said benefits for hospitalization had been authorized only through March 2, but probably did tell Smith of Cornetts decision to stop authorizing such care.

^[7] Masters contended that the review did not take place because Cornett had not decided to stop authorizing hospitalization benefits. As previously discussed, however, the evidence on that point is in conflict.

^[8] It is equally arguable that bad faith existed were the trier of fact to conclude that Cornett had not decided to stop authorizing benefits for continued hospitalization but that Cristancho, who was not a physician, made that decision on his own.

^[9] The trial court sustained objections to portions of expert witness declarations submitted by the Smiths concerning Magellans handling of Janells case and how its conduct violated industry standards of care. Because our holdings that triable issues of fact exist to show that Magellan breached its contract and acted in bad faith did not require evidence from those disputed declarations, we do not reach the issue of whether the courts evidentiary rulings were proper.

^[10] As we read the trial courts statement of decision, it does not appear that the trial court reached the proximate cause issue when ruling on Magellans summary judgment motion. While we may not affirm a summary judgment on an issue that the trial court did not rule upon unless we first request supplemental briefing (Code Civ. Proc.,  437c, subd. (m)(2)), because the issue was first raised by the Smiths, then addressed by Magellan in its respondents brief, and because we are reversing and not affirming the summary judgment, we will reach the issue.

^[11] Although Magellan argues in support of the trial courts evidentiary rulings, it does not address whether Beresins statements about causation, if properly received in evidence, created a triable issue of fact on that point. We therefore deem that issue waived. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.)

^[12] As an adjunct to this argument, Magellan contends that imposing liability upon it for conducting legislatively authorized utilization reviews would be unconstitutional. Because its reliance on utilization review does not immunize it from civil liability for its failure to use ordinary care, however, the constitutional argument fails.