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Date: 06-02-2020
Case Style:
Marline Wicks v. Antelope Valley Healthcare District
Case Number: B297171
Judge: Grimes, P.J.
Court: California Court of Appeals Second Appellate District, Division Eight on appeal from the Superior Court, County of Los Angeles
Plaintiff's Attorney: Philip Michels and Steven B. Stevens
Defendant's Attorney: Arthur E. Zitsow, Julie Pollock Birdt and David J. Ozeran
Description: The trial court granted summary judgment to a hospital in
a lawsuit brought by the family of an emergency room patient
who was released from the hospital and died eight hours later.
We conclude no evidence showed that the nursing staff caused or
contributed to the patient’s death; no evidence showed the
hospital was negligent in the selection and retention of the
two emergency room doctors who treated the patient; and the
evidence conclusively established the emergency room doctors
were not the ostensible agents of the hospital.
Accordingly, we affirm the judgment.
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FACTS
1. The Parties and the Complaint
Plaintiffs Marline and Bethanie Wicks are the spouse and
daughter, respectively, of decedent Matthew Wicks. They sued
two emergency room (ER) doctors (Christopher Belfour and
Lawrence Michael Stock); Antelope Valley Emergency Medicine
Associates, Inc.; and Antelope Valley Healthcare District, doing
business as Antelope Valley Hospital (the hospital), for medical
negligence in connection with Mr. Wicks’s death on October 26,
2016.
As relevant here, the complaint alleged the defendant
hospital selected and assigned physicians to care for and treat
Mr. Wicks, and those individuals were the ostensible agents of
the hospital. The complaint alleged the hospital was negligent in
the “selection, training, retention, supervision and hiring” of the
two ER doctors, and its nursing personnel were negligent in the
care and treatment of decedent. No details were alleged in the
complaint.
3
2. Defendant’s Motion for Summary Judgment
The hospital moved for summary judgment, contending
(1) its employees, nurses and nonphysician personnel complied
with the standard of care in their care and treatment of
Mr. Wicks; (2) no act or omission of the hospital negligently
caused or contributed to his death; (3) the hospital was not
negligent in its appointment of Dr. Stock or Dr. Belfour to the
medical staff; (4) neither doctor was an employee or agent of the
hospital; and (5) the hospital did not control, direct or supervise
either doctor in his care or treatment of decedent. Defendant
relied on the following evidence.
a. The Holland declaration
A declaration from Dr. J. Paul Holland, who has actively
practiced as an emergency physician since 1979, provided the
sequence of events at the hospital on October 26, 2016. His
recitation of these events was based on his review of decedent’s
medical records for that day. Those records were attached as an
exhibit to a declaration from defendant’s counsel (the Birdt
declaration), and authenticated in a declaration from the
hospital’s custodian of records, Laurie Lee Dorsey. The Holland
declaration correctly recites what is shown in the medical
records, as follows.
Mr. Wicks came to the emergency department at the
hospital at 4:03 a.m., complaining of “[s]tomach pain[,] tight
chest.” His vital signs (blood pressure, pulse, oxygen saturation,
etc.) were recorded at 4:17 a.m., and included a pain level of 7 out
of 10. At 4:19 a.m. (the noted “triage time”), nurse Krystal
Crawford noted Mr. Wicks’s height and weight (including a BMI
(body mass index) of 33.9), and that he complained of neck pain,
cough, sore throat and “chest congestion x tonight per patient
4
‘like a dull ache in my throat, like I’m getting strangled below my
neck.’ ” She noted the patient was alert, denying any chest pain
or shortness of breath, speaking normally, and ambulating
without difficulty. After the triage, he was placed in a bed at
4:22 a.m.
Mr. Wicks was then evaluated by nurse Amberlyn Aroneo
Wildoner. Her detailed notes, recorded at 4:59 a.m., state, among
other details, that Mr. Wicks was alert, oriented and cooperative,
appeared to be in distress due to pain, and stated he had woken
up with a pain in his upper chest/throat. He described the pain
as something “ ‘stuck’ ” in his throat. He denied any shortness of
breath or inability to swallow, and said “he feels like he needs to
clear his throat but when he does it doesn’t clear”; he said he also
woke up with epigastric pain. Nurse Wildoner noted no
respiratory distress, and “[c]hest pain present, upper, [s]ore
throat present.” Her notes at 5:03 a.m. show she placed him on a
cardiac monitor, and her notes at 5:46 a.m. show she established
an IV site, drew lab specimens and sent them to the lab.
Dr. Belfour evaluated Mr. Wicks at 5:10 a.m., ordered an
electrocardiogram (ECG) and reviewed the ECG results at
5:34 a.m. Dr. Belfour also ordered a chest X-ray, and the records
show radiologist Dr. Kellie Greenblatt reviewed it and noted, at
6:10 a.m., “[n]o radiographic evidence of acute cardiopulmonary
disease”; “[n]o significant interval change”; and “[m]ild
cardiomegaly” (enlarged heart).
Nurse Shelly Macias took over the care of Mr. Wicks from
nurse Wildoner at 6:19 a.m. Her notes show he was “[s]tanding
at bedside for comfort” at 6:29 a.m., she recorded his vital signs
at 6:53 a.m., and at 7:05 a.m. a person from the lab was at
bedside for another blood draw.
5
Dr. Stock took over Mr. Wicks’s care after Dr. Belfour’s
shift ended at around 6:00 a.m. According to Dr. Holland and the
medical records, over the next several hours, in addition to the
chest X-ray, various tests were performed, including another
ECG, two troponin tests and other blood work.
Dr. Stock met and examined Mr. Wicks at 8:42 a.m., but
testified he had no independent memory of the interaction. His
custom and practice was “obtaining history, understanding the
context of how [the patient] got there, doing an exam, and
reviewing risk factors . . . for the conditions, and then reviewing
any of the lab data or any [test] results” done since the patient’s
arrival. Although he had no independent memory of treating
Mr. Wicks, Dr. Stock testified it was his custom and practice then
and now to look at the electronic records system to see if
Mr. Wicks had been treated at the hospital previously. His
custom and practice was to look through such documents for
“a discharge summary, an old EKG, something to that effect that
might be very useful.” (The term ECG is synonymous with EKG.)
When asked if part of his custom and practice would be “to look
at the patient’s past medical history,” he responded, “Yes, I would
talk to the patient, I’d read the chart and—and generally would
look in the electronic medical record.”
At around 11:00 a.m., Dr. Stock decided to discharge
Mr. Wicks. He had seen Mr. Wicks a second time and noted he
had “improved”; by this time a second ECG and a second troponin
test had been performed. (Vital signs recorded by the nurses at
6:53 a.m., 7:53 a.m. and 9:53 a.m. (blood pressure, pulse, oxygen
saturation, etc.) were normal and stable, with pain reduced to
4 out of 10 at 6:53 a.m. and the same thereafter.) The time on
Dr. Stock’s discharge order is 11:06 a.m. Mr. Wicks was given
6
discharge instructions; these included a diagnosis of “chest pain
of unclear etiology,” and a referral to a cardiologist, as well as a
follow-up with his primary care physician in one day. (Decedent’s
wife testified that one of the doctors (she said Dr. Belfour) told
them he wanted Mr. Wicks to see a cardiologist the next day, and
that he thought the cardiologist listed in the instructions “will see
you tomorrow.”) Mr. Wicks left the emergency department at
11:16 a.m., and died less than eight hours later. The cause of
death was “acute dissection of aorta.”
Dr. Holland opined that the care and treatment provided by
the hospital’s nursing and ancillary personnel “were within the
standard of care at all times to a reasonable medical probability,”
and that no actions or inactions by nursing or ancillary personnel
caused or contributed to Mr. Wicks’s death. Among other things,
Dr. Holland stated that “[i]t is not required by the standard of
care for the nurses to go back and review prior records of a
patient in the circumstance where the patient is alert and
oriented.”
b. The Lutgen declaration
Defendant presented a declaration from Regina Lutgen, the
hospital’s manager of medical staff services. Ms. Lutgen was in
charge of “the oversight of the practices of Medical Staff Services”
at the hospital. She has been a “Certified Professional in Medical
Staff Practices” since 2015.
Ms. Lutgen explained that hospitals in California are
prohibited from employing physicians and surgeons to practice
medicine under the Corporate Practice of Medicine Doctrine.
Defendant therefore does not employ any physicians or surgeons
and only employs nurses and nonphysician staff to implement the
orders of the independent contractor physicians. She had
7
personal knowledge that the ER doctors who treated Mr. Wicks
were independent contractors with staff privileges at defendant
hospital and were not employed by defendant.
She stated that at all relevant times, the hospital “had
appropriate procedures for appointment of medical staff members
and periodic review of the competence of the physicians
comprising the medical staff of the hospital, including
appropriate procedures for the evaluation of medical staff
applications and assignment of clinical privileges.” Ms. Lutgen
described the application and approval procedure; stated that
each active member of the medical staff is reviewed for
reappointment every two years; and stated that both Dr. Stock
and Dr. Belfour had active privileges, were deemed competent by
the procedure she described, and had active medical licenses
without restriction by the state of California. She stated the
hospital “complied with the standard of care in California at all
times with regard to its appointment of medical staff.”
c. The Birdt declaration
In addition to presenting the medical records mentioned
above and copies of deposition testimony of various witnesses, the
Birdt declaration included a copy of the hospital’s “Conditions of
Services” form that Mr. Wicks signed at 5:08 a.m. on October 26,
2016. Mrs. Wicks testified at her deposition that was her
husband’s signature, and she also recognized his initials on the
document, a copy of which is an exhibit to her deposition.
The third paragraph of that document, initialed by
Mr. Wicks, described the “legal relationship between hospital and
physicians.” (This and all other paragraph headings in the
admission document were in boldface capital letters.) It states
that all physicians providing services, including the emergency
8
physician, “are not employees, representatives or agents of the
hospital.”
3. Plaintiff’s Opposition
Plaintiff’s opposition contended that (1) defendant’s motion
had no admissible evidence to support it, instead relying on “an
expert’s recitation of events, gleaned from a review of
unauthenticated documents”; (2) defendant was responsible for
the negligence of physicians assigned to its emergency
department; and (3) defendant offered “no admissible evidence
that it did anything to review the applications of the physicians
to assure that they were reasonably competent.”
In addition to objecting to all of defendant’s evidence,
plaintiff submitted two expert declarations, plus medical records
from Mr. Wicks’s earlier (November 2015) outpatient admission
to the hospital for hernia surgery. Defense counsel stipulated to
the authenticity and foundation of those records.
a. The Ritter declaration
Dr. Michael Steven Ritter has specialized in emergency
medicine since 1994, and has held various positions in the
emergency department at Mission Hospital in Mission Viejo since
1998. He has worked with and trained emergency medicine
nurses throughout his career, and has handled hundreds of
cardiac emergencies. Dr. Ritter stated that the standard of care
for emergency department nurses is a national standard, because
Mr. Wicks was treated in a major medical center located in a
major metropolitan area.
Dr. Ritter described several entries in the 2015 medical
records of decedent’s hernia repair. These records indicated a
history of smoking, morbid obesity, heart murmur, high blood
pressure and high cholesterol. Dr. Ritter also described nurse
9
Wildoner’s note of decedent’s past medical history, which states:
“History provided by, patient, No past medical history.”
Dr. Ritter opined that the care and treatment provided by
the hospital’s nurses fell below the standard of care expected of
emergency department nurses under similar circumstances. The
nurses failed to review Mr. Wicks’s chart and document his
cardiovascular risk factors, and the discharge nurse did not
document that she reassessed Mr. Wicks’s level of pain
immediately before his discharge. The medical records show the
last pain level assessment at 9:53 a.m. (the pain level was 4, at
6:53 a.m., 7:53 a.m. and 9:53 a.m.), with discharge at 11:16 a.m.
(The discharge nurse testified that her custom and practice was
to ask the patient about his level of pain at the time of discharge.)
Dr. Ritter opined that if the nurses had obtained
Mr. Wicks’s medical history, a reasonably prudent emergency
physician would have summoned a cardiologist for an emergency
consult, the cardiologist would have ordered a CT scan with IV
contrast, the CT scan would have shown the cause of Mr. Wicks’s
chest pain was an aortic dissection, and the cardiologist and ER
physician would have arranged for a cardiothoracic surgery
consult; if no surgeon was at its facility, Mr. Wicks would have
been transferred to another facility, and Mr. Wicks “would have
received timely diagnosis and treatment.”
b. The MacGregor declaration
Dr. John S. MacGregor has specialized in cardiology and
interventional cardiology since 1991. He testified he had been
asked to review the case from the point of view of what a
cardiologist would have done if called for an emergency consult of
Mr. Wicks, and the likely outcome of such a consult. On the
questions of whether the nurses violated their standards of care,
10
and what an emergency medicine physician would have done if
they had complied with the standard of care, he deferred to
Dr. Ritter and assumed the truth of Dr. Ritter’s opinions.
Dr. MacGregor opined that if a cardiologist had been timely
called for an emergency consult of a patient in Mr. Wicks’s
condition and with his history, the cardiologist would have
ordered a CT scan with IV contrast. “As we know that Mr. Wicks
was in pain and that he died seven hours later, we can determine
that, more likely than not, a CT scan with IV contrast of the
chest would have shown that the cause of Mr. Wicks’ chest pain
was a thoracic aortic dissection.” A cardiologist would have
arranged for a surgery consult; surgery would be performed, and
Mr. Wicks would have survived.
4. Defendant’s Reply
Defendant’s reply stated that defendant did not dispute the
qualifications of Dr. Ritter or Dr. MacGregor, but objected that
both declarations were inadmissible on causation. Defendant
objected to the causation opinions in both declarations on
grounds of speculation, conjecture, lack of foundation, and failure
to state causation to a reasonable medical probability.
5. The Trial Court’s Decision
The court granted defendant’s motion for summary
judgment. The trial court overruled plaintiffs’ objections to
defendant’s expert opinions and sustained defendant’s objections
to the causation opinions expressed by Dr. Ritter and
Dr. MacGregor. Dr. Ritter’s opinion that the nurses deprived
Mr. Wicks of timely care was predicated “upon a long series of
alleged dependent probabilities, which is legally a mere
possibility,” and thus “too speculative to be admitted as a matter
of law.” Dr. MacGregor’s declaration suffered from the same
11
deficiency. The trial court concluded Mr. Wicks received “actual
notice that the emergency department physicians were
independent contractors,” and “no reasonable jury could find that
Mr. Wicks did not understand the information provided.” And,
the court found plaintiffs “have not cogently disputed [the
hospital’s] showing that it exercised reasonable care in retaining
the identified emergency department physicians as independent
contractors.”
Judgment in favor of the hospital was entered on March 25,
2019, and plaintiffs filed a timely appeal.
DISCUSSION
Plaintiffs contend there is no admissible evidence to
support the summary judgment motion, so the burden of
producing evidence never shifted to plaintiffs. They contend that
even if defendant’s evidence is admissible, the opposing Ritter
and MacGregor expert declarations demonstrate triable issues of
material fact that negligence by the hospital’s nurses was a
substantial factor in causing Mr. Wicks’s death. And they
contend the form Mr. Wicks signed and initialed telling him the
ER doctors were independent contractors and not employees or
agents of the hospital does not conclusively establish the doctors
were not defendant’s ostensible agents.
None of these contentions has merit.
1. The Standard of Review
A defendant moving for summary judgment must show
“that one or more elements of the cause of action . . . cannot be
established, or that there is a complete defense to the cause of
action.” (Code Civ. Proc., § 437c, subd. (p)(2).) Summary
judgment is appropriate where “all the papers submitted show
that there is no triable issue as to any material fact and that the
12
moving party is entitled to a judgment as a matter of law.” (Id.,
subd. (c).)
Our Supreme Court has made clear that the purpose of the
1992 and 1993 amendments to the summary judgment statute
was “ ‘to liberalize the granting of [summary judgment]
motions.’ ” (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th
536, 542.) It is no longer called a “disfavored” remedy. (Ibid.)
“Summary judgment is now seen as ‘a particularly suitable
means to test the sufficiency’ of the plaintiff’s or defendant’s
case.” (Ibid.) On appeal, “we take the facts from the record that
was before the trial court . . . . ‘ “We review the trial court’s
decision de novo, considering all the evidence set forth in the
moving and opposing papers except that to which objections were
made and sustained.” ’ ” (Yanowitz v. L’Oreal USA, Inc. (2005)
36 Cal.4th 1028, 1037.)
We apply the abuse of discretion standard to the trial
court’s evidentiary rulings. (Ducksworth v. Tri-Modal
Distribution Services (2020) 47 Cal.App.5th 532, 544.)
2. Defendant’s Evidence Was Properly Admitted
We dispose first of plaintiffs’ assertion that none of
defendant’s evidence was admissible, so plaintiffs did not have to
produce any evidence. Plaintiffs are mistaken.
a. The Holland declaration and the medical
records
With no basis either in fact or law, plaintiffs assert the
Holland declaration is inadmissible because it is based on
hearsay. Dr. Holland’s opinion was based on his review of
Mr. Wicks’s medical records and the deposition testimony of
witnesses in this case. Inexplicably, plaintiffs say the medical
records were unauthenticated. The medical records were
13
properly authenticated as the hospital’s business records, and as
such, they are not hearsay. They are the type of records on which
medical experts may and do rely in order to give expert testimony
in a medical malpractice case. (Garibay v. Hemmat (2008)
161 Cal.App.4th 735, 741-742 (Garibay) [in professional
malpractice cases, expert opinion testimony is required to prove
defendant’s performance met the prevailing standard of care,
except in cases where the negligence is obvious to laymen, but
expert opinion has no evidentiary value unless authenticated
medical records on which expert relied are offered in evidence].)
Here, defense counsel’s declaration stated that the copies of
Mr. Wicks’s medical records provided to Dr. Holland for review
“were true and exact copies of the records provided directly to my
office by the hospital’s Health Information Management
supervisor,” and that a true and correct copy of Mr. Wicks’s
hospital records from October 26, 2016, along with the
declaration of the hospital’s custodian of records, is attached as
Exhibit C to the volume of documentary evidence filed with
defendant’s summary judgment motion. The custodian’s
declaration in turn establishes these as the hospital’s business
records as described in Evidence Code section 1271. No more was
required, but in addition, these very same medical records were
identified at the depositions of the ER nurses and doctors who
created them—for example, nurses Macias, Wildoner and
Crawford.
Plaintiffs assert other baseless reasons why they think the
medical records in support of the summary judgment motion
were inadmissible, and each contention is utterly without merit.
They say defendant’s separate statement did not provide page
citations to the medical records, or to the deposition testimony on
14
which Dr. Holland relied in forming his opinions, and this failure
violated California Rules of Court, rule 3.1350(d)(3) (separate
statement must state undisputed material facts, including
“reference to the exhibit, title, page, and line numbers”).
Defendant complied with that rule by citing specific paragraphs
of Dr. Holland’s declaration as the evidence supporting each
undisputed material fact recited in the separate statement.
Citation to the particular page of each medical record and
witness testimony which provided the factual basis for each of
Dr. Holland’s opinions is not required by rule 3.1350(d)(3).
Plaintiffs say, as in Garibay, Dr. Holland had no personal
knowledge of the underlying facts, so his narration of those facts
“ ‘had no evidentiary foundation.’ ” The expert’s declaration in
Garibay had no evidentiary foundation because in that case the
medical records were not before the court. “Without those
hospital records, and without testimony providing for
authentication of such records,” the expert’s declaration had no
evidentiary basis. (Garibay, supra, 161 Cal.App.4th at p. 742.)
In this case, defendant provided the medical records in support of
the motion and authenticated them six ways from Sunday.
Plaintiffs also assert that because the hospital is a party,
the declaration of its custodian of records is insufficient
authentication. No case authority is cited for this preposterous
assertion. Plaintiffs incorrectly infer that Evidence Code
section 1560 supports their assertion, but it does not. Section
1560 governs the sufficiency of compliance with a subpoena duces
tecum that is served upon a custodian of records of a business in
an action where the business is not a party. Nothing in
section 1560 suggests that a hospital’s custodian of records
cannot authenticate its own records. The business records
15
exception to the hearsay rule, Evidence Code section 1271,
governs the admissibility of hospital records, and Ms. Birdt’s
declaration supplied the facts to authenticate defendant’s
business records.
b. The Lutgen declaration and plaintiff’s
negligent hiring claim
Plaintiffs similarly contend the Lutgen declaration was
inadmissible hearsay, and therefore the burden of producing
evidence on their negligent hiring claim did not shift to them.
Again, they are mistaken.
We have described the Lutgen declaration (at pp. 6-7, ante).
In paragraphs 2, 4, 5, 6 and 7, Ms. Lutgen described the
hospital’s procedures for the appointment and evaluation of
independent contractor physicians and surgeons who comprise
the medical staff of the hospital, opined those procedures were
appropriate and complied with the standard of care concerning
the appointment of medical staff, and stated those procedures
were used in the appointment and periodic evaluations of every
physician applying for appointment to the medical staff. As the
hospital’s manager of medical staff services, in charge of the
oversight of the practices of medical staff services, she had
personal knowledge of the hospital’s procedures for awarding
staff privileges to its physicians and personal knowledge that the
hospital acted consistently with its procedures in appointing each
of its staff doctors.
Plaintiffs say Ms. Lutgen’s testimony “is nothing more than
inadmissible hearsay testimony about the contents of a file” that
is inadmissible under People v. Sanchez (2016) 63 Cal.4th 665,
684 (Sanchez) (“If an expert testifies to case-specific out-of-court
statements to explain the bases for his opinion, those statements
16
are necessarily considered by the jury for their truth, thus
rendering them hearsay.”). In paragraph 9 of her declaration,
Ms. Lutgen testified that she looked at the medical staff services
files of Drs. Stock and Belfour, and in paragraph 12, she testified
that she looked at the roster of physicians with medical staff
privileges at defendant hospital. (We asked counsel, in advance
of oral argument, to address during argument the question
whether the statements in paragraphs 9 and 12 were hearsay,
and whether the foundational requirements for the business
records exception to the hearsay rule were shown. Counsel did
so.)
In addition to the statements just described in paragraphs
9 and 12, Ms. Lutgen testified to her understanding that the
hospital’s files on the ER doctors were protected from discovery,
citing Evidence Code section 1157. She stated she would comply
with a court order to produce the files for in camera review. Such
files are confidential and not subject to discovery. (Evid. Code,
§ 1157, subd. (a) [“Neither the proceedings nor the records of
organized committees of medical . . . staffs in hospitals, . . .
having the responsibility of evaluation and improvement of the
quality of care rendered in the hospital, . . . shall be subject to
discovery.”]; Mt. Diablo Hosp. Medical Center v. Superior Court
(1984) 158 Cal.App.3d 344, 347 [“ ‘Section 1157 represents a
legislative choice between competing public concerns. It
embraces the goal of medical staff candor at the cost of impairing
plaintiffs’ access to evidence.’ ”].) Defense counsel told us at oral
argument plaintiffs never requested an in camera review of the
ER doctors’ files and therefore waived the Sanchez objection to
paragraph 9 of Ms. Lutgen’s declaration.
17
We do not need to decide if paragraph 9 is inadmissible
under Sanchez or whether plaintiffs waived the Sanchez objection
by failing to request an in camera review of the ER doctors’ files.
Ms. Lutgen’s testimony in paragraphs 2, 4, 5, 6 and 7 was based
on her personal knowledge and was sufficient to show the ER
doctors were granted staff privileges in accordance with
appropriate procedures for the appointment and evaluation of
independent contractor physicians and surgeons who comprise
the medical staff of the hospital. It was then up to plaintiffs to
create a material disputed fact that the ER doctors lacked
credentials or for any reason should not have been granted or
permitted to retain staff privileges. They offered no evidence,
and consequently summary judgment of their negligent hiring
claim was proper.
3. Plaintiffs’ Evidence Did Not Create A Material
Dispute That Any Nurse’s Action Or Omission
Caused Or Contributed To Mr. Wicks’s Death.
The defense expert, Dr. Holland, opined that no actions or
inactions by nursing or ancillary personnel caused or contributed
to Mr. Wicks’s death. Plaintiffs contend Dr. Holland’s opinion on
causation was conclusory and therefore inadmissible, and in any
event the trial court erred in disregarding the Ritter and
MacGregor opinions on causation. We disagree on both points.
a. Dr. Holland’s opinion
We see nothing conclusory in Dr. Holland’s opinion. He
accurately recounted, based on his review of the hospital records,
everything that happened in detail from the time Mr. Wicks
presented at the ER until his discharge. He opined the nurses
regularly and appropriately attended to Mr. Wicks. Their
evaluations were appropriate. Mr. Wicks’s vital signs were noted
18
four times, and each time, they were in normal limits. The
nurses correctly carried out all doctors’ orders. All labs ordered
were performed and the two ECG’s and X-ray that were ordered
were performed.
Dr. Holland pointed out that the two ER doctors testified it
was their custom and practice to ask about the patient’s past
medical history and chronic conditions. When a patient is alert
and oriented, there is no need for a nurse to obtain and note a
patient’s medical history, as the patient can give the doctors any
further medical history the doctors may think they need.
Dr. Holland testified an aortic dissection is extremely
difficult to diagnose and has a very high mortality rate even if it
is diagnosed early. It is undisputed that nurses cannot diagnose
an aortic dissection or interpret the results of an ECG or chest Xray, and it is not the nurses’ responsibility to order further tests.
Nurses cannot order a patient admitted to the hospital or order a
cardiology consult; only a doctor can do those things. There is no
record that a doctor issued any order that the nurses failed to
carry out. Nothing in Mr. Wicks’s vital signs, lab results or the
notes of the ER doctors’ review of the ECG’s, X-ray and troponin
levels would have alerted a nurse to do anything these nurses did
not do.
In short, Dr. Holland thoroughly explained the facts on
which he based his opinion and the reasons why he concluded the
nurses met the standard of care and did not contribute to
Mr. Wicks’s death. The trial court did not err in overruling
plaintiffs’ objections to his testimony.
b. Dr. Ritter’s opinion
That brings us to the declarations of plaintiffs’ experts.
19
Since defendant did not dispute the qualifications of
Dr. Ritter or Dr. MacGregor, we assume they were qualified to
offer expert opinions in this case. But we find neither expert
declaration created a material disputed fact that the nurses’
performance caused or contributed to Mr. Wicks’s death to a
reasonable medical probability.
Dr. Ritter testified the nurses were negligent in that they
failed to review Mr. Wicks’s chart and document his
cardiovascular risk factors, and nurse Macias did not document
that she reassessed Mr. Wicks’s level of pain before his discharge.
Dr. Ritter testified that if the nurses had done these things, then
(1) to a reasonable degree of medical probability, an ER doctor
would have summoned a cardiologist, (2) the cardiologist more
likely than not would have ordered a CT scan with IV contrast or
other advanced diagnostic studies, (3) more likely than not, the
CT scan with IV contrast would have shown the aortic dissection,
(4) the ER doctor and the cardiologist would have arranged for a
cardiovascular surgery consultation, and (5) if the hospital had
no cardiothoracic surgeon, then, more likely than not, Mr. Wicks
would have been transferred to another facility for the
consultation. Dr. Ritter opined, “I can determine to a reasonable
degree of medical probability, if the nurses had obtained a proper
and complete history and provided it to the emergency medicine
physician, Mr. Wicks would have received timely diagnosis and
treatment.”
We agree with the trial court this is speculation and lacks
reasoned explanation. Dr. Ritter did not explain how the nurses’
failure to take a history contributed to any of the decisions made
by the ER doctors. He did not explain why, if the nurses had
taken a history and documented Mr. Wicks’s pain level
20
immediately before discharge, that would have informed the ER
doctors they needed to take any of the steps enumerated above.
Dr. Ritter completely ignored the testimony of both ER doctors
that they themselves customarily reviewed a patient’s medical
history. The nurses’ failure to report Mr. Wicks’s history to the
ER doctors could not have caused or contributed to his death,
because the doctors themselves obtained Mr. Wicks’s history, and
Dr. Stock reviewed the hospital’s electronic records, so they did
not need the nurses’ notes.
Dr. Ritter opined the nurses should have noted Mr. Wicks’s
history of heart murmur, smoking cigarettes, hypertension, high
cholesterol, and morbid obesity. The undisputed evidence shows
that four times, the nurses took and recorded Mr. Wicks’s vital
signs, including blood pressure, pulse and oxygen saturation, and
they noted his body mass index indicating obesity. An hour after
he arrived at the hospital, nurse Wildoner placed Mr. Wicks on a
cardiac monitor, and less than an hour later she established an
IV site, drew lab specimens and sent them to the lab.
The ER doctors ordered numerous tests to determine if
Mr. Wicks needed emergency cardiac care. The doctors ordered
and evaluated the results of two ECG’s, a chest X-ray, two
troponin tests and other blood work. Dr. Ritter offers no
explanation why nurses’ notes summarizing past records of
cardiac risk factors would have helped the ER doctors understand
anything about Mr. Wicks’s cardiac condition that they did not
already know from his vital signs, ECG’s, chest X-ray and
troponin tests.
Dr. Ritter opined that if the doctors had ordered a
cardiology consultation, a cardiologist would have ordered a CT
scan with IV contrast. But Dr. Ritter did not dispute
21
Dr. Holland’s testimony that only a doctor can order tests such as
a CT scan, order a cardiology consultation, and decide whether to
discharge or admit a patient to the hospital. Dr. Ritter does not
explain how a nurse’s notes would have informed the ER doctors
they needed to order a CT scan with IV contrast. The ER doctors
did not need a nurse’s notes of Mr. Wicks’s cardiac risk factors to
decide whether Mr. Wicks needed a cardiology consultation; they
indisputably knew he needed a cardiology consultation, because
they told him to consult a cardiologist the next day. What the
ER doctors did not know is that Mr. Wicks would suffer an aortic
dissection several hours later, but Dr. Ritter does not explain how
nurses’ notes or an inquiry about Mr. Wicks’s level of pain
immediately before his discharge would have alerted the
ER doctors that they needed to rule out aortic dissection.
In sum, Dr. Ritter’s opinions lack reasoned explanation for
his conclusions, and his opinions rest not on facts but on a series
of hypothetical conditions, i.e., if the ER doctors had ordered an
emergency cardiology consult, then more tests would have been
ordered, and the tests would have revealed the risk of aortic
dissection, and surgery would have been performed, and
Mr. Wicks would have survived. An expert’s opinion rendered
without a reasoned explanation of why the underlying facts lead
to the ultimate conclusion has no evidentiary value because an
expert opinion is worth no more than the reasons and facts on
which it is based. (Kelley v. Trunk (1998) 66 Cal.App.4th 519,
523.)
The holes in Dr. Ritter’s declaration cannot be backfilled by
the declaration of Dr. MacGregor, who hedged in giving his
testimony by saying he had no opinion on whether the nurses
met the standard of care, or on what an ER doctor would have
22
done if the nurses had met the standard of care. He simply
assumed as true the facts and opinions expressed by Dr. Ritter.
An expert may not predicate an opinion on the opinion of another
expert. (Christiansen v. Hollings (1941) 44 Cal.App.2d 332, 347
[“It is, of course, the rule . . . that the opinion of an expert cannot
be predicated on the opinion of another expert.”].) Dr. MacGregor
simply assumed causation from the fact of Mr. Wicks’s death. An
expert’s opinion that something is true if certain assumed facts
are true, without any foundation for concluding those assumed
facts exist, has no evidentiary value. (Bushling v. Fremont
Medical Center (2004) 117 Cal.App.4th 493, 510.)
In short, the trial court did not err in sustaining
defendant’s objections to the Ritter and MacGregor declarations
on causation. Because plaintiffs did not create a triable issue on
whether the nurses’ conduct caused or contributed to Mr. Wicks’s
death, summary judgment for the hospital was proper.
4. The ER Doctors Were Not Ostensible Agents
of the Hospital.
It is well established in California that a hospital may be
liable for the negligence of physicians on the staff, unless the
hospital has clearly notified the patient that the treating
physicians are not hospital employees and there is no reason to
believe the patient was unable to understand or act on the
information. This rule is founded on the theory of ostensible
agency.
In Mejia v. Community Hospital of San Bernardino (2002)
99 Cal.App.4th 1448 (Mejia), the court explained the required
elements of ostensible agency: “(1) conduct by the hospital that
would cause a reasonable person to believe there was an agency
relationship and (2) reliance on that apparent agency
relationship by the plaintiff.” (Id. at p. 1457.) Mejia observed
23
that California law has “inferred ostensible agency from the mere
fact that the plaintiff sought treatment at the hospital without
being informed that the doctors were independent contractors.”
(Ibid.) “Thus, unless the patient had some reason to know of the
true relationship between the hospital and the physician—i.e.,
because the hospital gave the patient actual notice or because the
patient was treated by his or her personal physician—ostensible
agency is readily inferred.” (Id. at pp. 1454-1455.)
In this case, after Mr. Wicks had been in defendant’s
emergency room for a little over an hour, he signed and initialed
an admission form that stated, “All physicians and surgeons
providing services to me, including the radiologist, pathologist,
emergency physician, anesthesiologist, and others, are not
employees, representatives or agents of the hospital. . . . [T]hey
have been granted the privilege of using the hospital for the care
and treatment of their patients, but they are not employees,
representatives or agents of the hospital. They are independent
practitioners.”
Plaintiffs contend the evidence defendant presented—the
signed and initialed admission form, plus evidence of Mr. Wicks’s
physical and mental state and surrounding circumstances at the
time—did not establish, as a matter of law, that the doctors were
not the hospital’s ostensible agents. Plaintiffs rely on Mejia and
Whitlow v. Rideout Memorial Hospital (2015) 237 Cal.App.4th
631 (Whitlow). They contend these cases stand for the
proposition, in effect, that no matter what circumstances bring a
patient to an emergency room, an admission form notifying the
patient that the ER doctor is not an employee or agent of the
hospital cannot establish lack of agency as a matter of law. We
do not so read Mejia and Whitlow.
24
The facts and circumstances in Mejia and Whitlow are
entirely different than this case. In Mejia, the hospital did not
give the patient any notice that its staff physicians were
independent contractors, and the patient had no reason to know
they were not agents of the hospital. (Mejia, supra,
99 Cal.App.4th at p. 1450.) In contrast with Mejia, Mr. Wicks
signed a straightforward notice, with no obtuse legalese, telling
him the staff physicians were independent contractors and not
employees or agents.
In Whitlow, the patient was in no condition to understand
the admission form she signed in the emergency room stating
that all physicians furnishing services to her were independent
contractors and not employees or agents of the hospital. Her son
declared his mother was “crying in horrible pain” when the
hospital’s registration processor told her to sign and initial the
form, she was nauseous and unable to read it, and the processor
did not explain the contents of the form or read it to her.
(Whitlow, supra, 237 Cal.App.4th at pp. 633-634.)
A neurosurgeon who reviewed the decedent’s medical records and
her son’s declaration opined she was suffering from a massive left
temporal hemorrhage and was incapable of understanding what
was contained in the form. (Id. at p. 634.)
The Whitlow court described the patient as “in dire distress
and excruciating pain” and as being “forced to sign admissions
forms that include the agency disclaimer.” (Whitlow, supra,
237 Cal.App.4th at p. 637; see id. at p. 640 [“we reject the trial
court’s finding that defendant hospital successfully absolved itself
of liability as a matter of law when a woman, writhing in pain
and vomiting as a result of the worst headache she had had in
25
her life, signed a boilerplate admissions form disclaiming the
agency of the emergency room physician who treated her”].)
In contrast with Whitlow, there is nothing to suggest
Mr. Wicks was incapable of understanding the admission form.
He drove himself to the hospital. He was not in dire distress or
excruciating pain. The form Mr. Wicks signed has a special line
for him to initial that he was aware the doctors were not
employees. He initialed the line and signed the form about an
hour after he arrived at the ER. Nine minutes before he signed
it, hospital records described him as alert, oriented, cooperative
and able to describe his symptoms. Dr. Belfour spoke with
Mr. Wicks two minutes after he signed the form and noted
Mr. Wicks reported moderate chest discomfort. And Mr. Wicks
had signed and initialed the same forms before on two previous
hospital admissions in 2015.
At the factually opposite end of the spectrum from Mejia
and Whitlow is Markow v. Rosner (2016) 3 Cal.App.5th 1027,
where the court found no basis to hold a hospital liable for the
negligence of a staff physician. The physician had been the
patient’s chosen personal doctor for four and a half years. (Id. at
p. 1033.) The patient signed 25 conditions of admission forms
and other consent forms notifying him that his physician was an
independent contractor, not an agent or employee of the hospital.
(Id. at pp. 1033-1034.) The patient did not seek emergency care
from the hospital. Despite evidence that the physician was the
hospital’s director of its pain clinic, used the hospital’s name and
logo on his business cards, wore a hospital badge, and treated
patients in a building displaying the hospital’s name and logo,
the court found these facts were “negated” by the actual notice
the hospital gave the patient that his doctor was an independent
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contractor, not the hospital’s agent or employee. (Markow, at
pp. 1041-1042.)
In contrast with Markow, here Mr. Wicks sought
emergency care from hospital staff physicians he did not choose,
and he had previously signed two, not more than 25, hospital
forms notifying him the staff physicians were not employees or
agents.
Neither Mejia, Whitlow, nor Markow is factually on point
with this case. Yet all three opinions inform our decision in this
case. They rest on the same principle of California law, that
although a hospital may not control, direct or supervise
physicians on its staff, a hospital may be liable for their
negligence on an ostensible agency theory, unless (1) the hospital
gave the patient actual notice that the treating physicians are not
hospital employees, and (2) there is no reason to believe the
patient was unable to understand or act on the information, or
(3) the patient was treated by his or her personal physician and
knew or should have known the true relationship between the
hospital and physician.
The undisputed evidence in this case is that defendant gave
Mr. Wicks meaningful written notice, acknowledged by Mr. Wicks
at the time of admission, only a little over an hour after he
arrived at the hospital, when he was alert, oriented and
cooperative, that the staff physicians were not employees or
agents. Hospitals providing emergency care to members of the
public who do not have an appointment or any relationship with
the staff physicians have no practical means to give such notice
before a patient is admitted. Were we to accept plaintiffs’
argument that defendant may be liable in this case for the
negligence of its ER doctors, there would be no circumstance
27
under which actual notice to an ER patient of an ER doctor’s
status as an independent contractor would suffice to avoid a
hospital’s liability for the doctor’s negligence.
Outcome: The judgment is affirmed. Defendant shall recover its costs on appeal.
Plaintiff's Experts:
Defendant's Experts:
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