Case Number: BC657769 Hearing Date: August 08, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEEFENDANT CITRUS VALLEY HEALTH PARTNERS, INC. dba QUEEN OF THE VALLEY HOSPITAL’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION; SUMMARY JUDGMENT DENIED; SUMMARY ADJUDICATION GRANTED, IN PART

I. INTRODUCTION

On April 14, 2017, Plaintiffs Helene Huoth-Tran, individually and as Guardian Ad Litem for Jason Eang Tran, a minor, and Lincoln Tai Tran, a minor (collectively, “Plaintiffs”) filed this action against Defendants Citrus Valley Health Partners, Inc. dba Queen of the Valley Hospital (“Defendant”), Premiere Surgical Specialists, Myron C. Mariano, M.D. (“Dr. Mariano”), and Cheng Yuan Chu, M.D. (“Dr. Chu”) (collectively, “Defendants”) for wrongful death and medical malpractice relating to the care and treatment rendered to Tai Anh Tran (“Decedent”) on July 10, 2016.

II. FACTUAL BACKGROUND

On July 10, 2016, Decedent, a 40-year-old man, was taken to Queen of the Valley Hospital emergency department complaining of severe abdominal cramping pain. (Undisputed Material Fact “UMF” No. 1.) Decedent had abdominal cramping and vomiting starting the day before admission. (UMF No. 3.) Decedent was examined and the case was referred to internist Yongqing Feng, M.D. and Dr. Mariano. Decedent was admitted for work up and after Decedent’s CT results returned, Dr. Feng and Dr. Mariano discussed surgery with Decedent. Dr. Chu performed the anesthesiology during the surgery. After surgery, it was decided to leave Decedent intubated and for Decedent to remain in ICU care after recovery. Decedent was monitored, but did not respond to verbal stimuli. Decedent had a Code Blue prior to being transferred to ICU. An autopsy revealed Decedent died as a result of incarcerated ventral hernia complicated by aspiration of gastric contents during induction of anesthesia, acute aspiration pneumonia, and respiratory failure.

Plaintiffs contend Defendants were negligent in their care and treatment of Decedent. Defendant Queen of the Valley Hospital contends its care and treatment complied with the applicable standard of care and that they are not liable for the alleged negligence of Dr. Mariano and Dr. Chu, who were independent contractors and not employees of the hospital.

III. LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code of Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code of Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown 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 of Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code of Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code of Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code of Civ. Proc., § 437c, subd. (f)(2).)

IV. EVIDENTIARY OBJECTIONS

Plaintiff’s Evidentiary Objections

Plaintiff’s Objections Nos. 23 and 25 are SUSTAINED.

All other objections are OVERRULED. The recitation of events made in Dr. Nitti’s declaration were based on his review of Plaintiff’s medical records, which Defendants submitted on a CD. (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 738 [“A proper method for producing these facts would have been . . . by properly authenticated medical records placed before the trial court under the business records exception to the hearsay rule”].)

V. DISCUSSION

In a medical malpractice action, a plaintiff must establish the following elements: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence. [citations.]” (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420.)

A defendant moving for summary judgment in a medical malpractice action must “present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that their treatment fell below the standard of care.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.) “When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Munro v. Regents of University of California (1989) 215 Cal.3d 977, 984-985.)

Defendant moves for summary judgment on grounds: (1) the care and treatment rendered to Decedent complied with the standard of care in the community and nothing Defendant did or did not do contributed to the death of Decedent; and (2) co-defendants Dr. Mariano and Dr. Chu were not employees or agents or ostensible agents of Defendant.

Defendant submits the declaration of Gary Nitti, M.D. (“Dr. Nitti”), board certified in anesthesiology and Director of Cardiac Anesthesia Services at Tarzana Medical Center. (Declaration of Gary Nitti, M.D., ¶ 1.) Dr. Nitti reviewed Decedent’s medical records, the autopsy report, and deposition transcripts. (Nitti Decl., ¶ 2.) Dr. Nitti is familiar with the applicable standard of care and opines that the nursing and support staff at Queen of the Valley Hospital kept Decedent under continual observation and evaluation, were monitoring Decedent at appropriate intervals, and kept Decedent’s physicians apprised of his condition. (Nitti Decl., ¶¶ 5, 6.) The nature and scope of any surgical procedure is determined exclusively by the physicians and not by the nursing and/or hospital staff. (Nitti Decl., ¶ 7.) Further, the nature and scope of any anesthesia care and management is determined exclusively by physicians and not by the nursing and/or hospital staff. (Nitti Decl., ¶ 8.) The diagnosis, evaluation, assessment, decision making process, and judgment to proceed with surgery is exclusively under the control of physicians. (Nitti Decl., ¶ 10.) Dr. Nitti opines that nothing Queen of the Valley Hospital did or failed to do caused or contributed to the death of Decedent. (Nitti Decl., ¶ 11.)

Defendant submits a Conditions of Admission form that was signed by Decedent on July 10, 2016 at 5:15 p.m. (Motion, Exh. A.) The from includes a paragraph titled “Physicians are Independent Contractors” and requires the patient’s initials immediately below. Decedent also signed an Emergency Department Admission which contains a similar paragraph stating physicians are independent contractors and requiring the patient’s initials directly underneath. (Motion, Exh. B.) Further, Susan Taylor, CPMSM, the Coordinator of Medical Staff Services at Queen of the Valley Hospital states that in 2016, Dr. Mariano and Dr. Chu had staff privileges and limited permission to use certain facilities. (Declaration of Susan Taylor, ¶¶ 3, 4.)

To find an ostensible agency, there must be: (1) conduct by the hospital that would cause a reasonable person to believe that the physician was an agent of the hospital; and (2) reliance on that apparent agency relationship by the plaintiff. (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1453.) However, “there is really only one relevant factual issue: whether the patient had reason to know that the physician was not an agent of the hospital.” (Id. at p. 1454.) “[U]nless 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.)

Based on Dr. Nitti’s expert declaration and on the two consent forms signed by Decedent and stating the physicians are independent contractors, Defendants have met their initial burden of showing they did not breach the applicable standard of care and they are not liable for the alleged negligence of Dr. Mariano and Dr. Chu. The burden shifts to Plaintiff to show a triable issue of material fact exists.

Plaintiff submits the declaration of Robert Cole, M.D. (“Dr. Cole”), board-certified in general surgery. (Declaration of Robert Cole, M.D., ¶ 1.) However, Dr. Cole states that the opinions and conclusions stated in the declaration are not necessarily ones that he may have or express at the time of trial, as he understands additional depositions and discovery may occur. He also states that his declaration “is not intended to be an expression of opinion of whether the hospital or any of the physicians treating [Decedent] complied with their standard of care or whether breaches of those standards were a substantial factor in causing his death.” (Cole Decl., ¶ 2.) Dr. Cole’s declaration writes about Decedent’s condition and the standard of care hypothetically. (Cole Decl., ¶ 5(g) [“If, hypothetically, Mr. Tran had not agreed to undergo the surgery and had wanted to leave the hospital, the standard of care for a surgeon as well as for an emergency medicine specialist would have required them to impress upon Mr. Tran his emergent condition and the dangers of not having his condition repaired immediately”].) Dr. Cole’s declaration does not contradict that of Dr. Nitti, who opined that the care and treatment rendered by Defendant to Decedent was within the standard of care.

As for Dr. Mariano and Dr. Chu as ostensible agents of Queen of the Valley Hospital, Plaintiff has failed to show a triable issue of material fact exists. Plaintiff cites to Whitlow v. Rideout Memorial Hospital (2015) 237 Cal.App.4th 631, where a patient presented to the emergency department in excruciating pain and was asked to sign a Conditions of Admissions form, which the hospital used to show notice had been given that physicians were independent contractors. (Id. at p. 634.) The patient was misdiagnosed with a tension headache, was discharged, and died two days later of a massive left temporal hemorrhage. (Ibid.) The Court of Appeal explained that in the emergency room setting, a patient who presents for treatment expects to receive it, and informing the patient that doctors and staff of a technical difference in the relationship between the hospital and its physicians is not sufficient to impart knowledge sufficient to enable the patient to exercise and informed choice. (Id. at pp. 638-639.)

In Reply, Defendant contends this case is distinguishable from Whitlow and is more similar to Markow v. Rosner (2016) 3 Cal.App.5th 1027, where the patient signed over 25 notices over the four years he was in treatment, stating that physicians at Cedars-Sinai were independent contractors. Defendant argues that in Markow and here, the patient signed the forms in non-emergency settings, unlike Whitlow. Defendant further argues the difference between this case, Mejia, and Whitlow, is that the patient did have reason to know that physicians were independent contractors, and it was the surgery not the emergency treatment, which gives rise to this action. Therefore, the notice that Decedent signed prior to his surgery is most relevant on the issue of whether he knew his surgeons were independent contractors.

The Court finds Plaintiffs have failed to show a triable issue of fact exists as to whether Queen of the Valley and its employees were negligent, because Plaintiffs failed to present an expert declaration opining they breached the standard of care. However, as to the issue of Defendant’s liability for Dr. Chu and Dr. Mariano as their ostensible agents, a triable issue of fact remains. The Court agrees this case is distinguishable from Whitlow and that the pertinent inquiry is whether Decedent, prior to surgery, had reason to know his surgeons were independent contractors. However, it is still a triable issue whether the Conditions of Admissions forms were sufficient and whether there were other circumstances, such as whether the registration clerk explained the difference to Decedent so that he could make an informed choice.

Although Defendants seek a continuance of this hearing to allow additional depositions, Section 437c, subdivision (h) allows for a continuance only where “it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented . . .” (Code of Civ. Proc., § 437c, subd. (h).) Here, Defendants brought this Motion and there is no justification for not having completed necessary discovery before filing it. Further, they have not submitted affidavits showing “facts essential to justify opposition may exist but cannot, for reasons stated, be presented.” Therefore, the request for continuance is DENIED.

VI. CONCLUSION

In light of the foregoing, the Motion for summary judgment is DENIED.

The Motion for summary adjudication as to the issue of Defendants’ negligence in their care and treatment of Decedent is GRANTED.

The Motion for summary adjudication as to the issue of Defendants’ liability for the alleged negligence of Dr. Mariano and Dr. Chu is DENIED.

Moving party to give notice.