Case Name: Sydney Berard-Moore v. Dignity Health, et al.
Case No.: 18CV322240

I. Background

This is a medical malpractice action brought by Sydney Berard-Moore (“Plaintiff”) against defendants Dignity Health (doing business as Dominican Hospital) (“Dignity”), Sutter Health, Palo Alto Medical Foundation, Physicians Medical Group of San Jose, Anesthesia Medical Group of Santa Cruz, John R. Saranto, M.D., and Lisa Ferguson, M.D.

According to the allegations in the second amended complaint, Plaintiff had an appendectomy in December 2016. One month later, she began experiencing severe pain and gastrointestinal distress. To address her symptoms, she underwent another procedure at the end of January 2017. During this follow-up procedure, the surgeon discovered an adhesion in her small intestine caused by a surgical staple. Plaintiff alleges the defendants caused her to suffer this additional injury because they failed to exercise due care in the course of providing her with medical treatment (e.g., the appendectomy) and left a stray surgical staple inside of her. She asserts a single cause of action against all of the defendants for negligence.

Currently before the Court is Dignity’s motion for summary judgment. Plaintiff opposes the motion and filed written objections to portions of the evidence submitted by Dignity. Dignity responded with a reply, additional evidence, and “objections” to Plaintiff’s objections. Although the motion was originally set to be heard on December 5, 2019, the Court continued the hearing to afford Plaintiff an opportunity to respond to Dignity’s additional evidence. Plaintiff responded with objections to the additional evidence and a supplemental brief; Plaintiff does not present any supplemental evidence.

II. Legal Standard

A defendant may move for summary judgment on the ground an action has no merit. (Code Civ. Proc., § 437c, subd. (a)(1).) A defendant bears the initial burden of proving “a cause of action has no merit [by] show[ing] that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) To carry this burden, the defendant must present supporting evidence, such as “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).)

“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 Civ. Proc., § 437c, subd. (p)(2).) “The plaintiff [ ] shall not rely upon the 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 or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

Ultimately, “[t]he motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

III. Objections to Evidence

Plaintiff objects to portions of the declarations of Dignity’s risk manager, Mary Ann Save, R.N., and its medical expert, Veronica Siewert, R.N. Dignity filed “objections” to these objections. Dignity’s filing consists, in part, of responses to some of Plaintiff’s objections; these responses have been considered in evaluating the objections. Dignity also includes unsubstantiated assertions of fact and other assertions that seem directed to the veracity or significance of certain facts in issue rather than the admissibility of evidence. These additional assertions are not well-taken. Dignity also includes objections to Plaintiff’s separate statement. This is not a recognized form of pleading in the context of a motion for summary judgment. (See Cal. Rules of Court, rules 3.1350, 3.1354; see also Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 8–9.) A majority of these “objections” are unintelligible as presented and additionally consist of legal arguments or narrative statements. Finally, at the end of Dignity’s filing, it includes a number of purported objections to Plaintiff’s evidence, particularly the declarations of her parents—Kim Moore and Debra Berard—as well as the expert declaration of Pamela Nye, R.N. The Court addresses these purported objections below.

Plaintiff also filed objections to the declaration of Dignity’s counsel presented with its reply.

A. Plaintiff’s Objections

1. Declaration of Mary Ann Save

Plaintiff objects to paragraph 3–7 of the declaration of Mary Ann Save who opines that Plaintiff’s treating physicians were independent practitioners and were not employees of Dignity.

Plaintiff primarily objects on the grounds of a lack of foundation and a lack of personal knowledge. Plaintiff’s objections on these grounds are not well-taken, including her objection to Ms. Save’s statement that she has personal knowledge of the facts in her declaration. First, an objection on the ground of a lack of foundation is not a proper objection because the term “foundation,” a colloquial term used to describe a wide variety of admissibility requirements, is too broad and indefinite. (People v. Porter (1947) 82 Cal.App.2d 585, 588; People v. Modell (1956) 143 Cal.App.2d 724, 729–30.) Second, although Plaintiff otherwise specifies that she is challenging Ms. Save’s competence as a witness, her objection lacks merit as a matter of substance. Declarations filed in support of a motion for summary judgment “shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations.” (Code Civ. Proc., § 437c, subd. (d); see also Evid. Code, § 702, subd. (a) [“[T]he testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter.”].) Ms. Save is a registered nurse and is the Director of Quality and Risk Management at Dignity’s Dominican Hospital; she affirms she has personal knowledge of the facts in her declaration. This is sufficient to establish she is competent to testify about the relationship between Dignity and Plaintiff’s treating physicians. In sum, Plaintiff’s objections on the grounds of a lack of foundation and lack of personal knowledge are without merit.

Plaintiff additionally includes disjointed statements in her objections such as “HEARSAY-no foundation. electronically served on any party including specifically counsel for plaintiff.” (Sic.) (Obj. at p. 4:15–16.) As another example, Plaintiff states “[t]here is no basis for establishing any personal knowledge of surgical staplers or the standard of care for operating room personnel in which surgical staplers are utilized. No foundation.” (Obj. at p. 4:17–19.) In addition to the basic lack of clarity in both statements, both statements are nonresponsive. Ms. Save does not opine on the proper use of a surgical stapler or standard of care. Also, Ms. Save does not recount any out-of-court statements. Thus, these disjointed objections do not justify excluding portions of Ms. Save’s declaration.

Finally, Plaintiff argues in her objections that Ms. Save testifies to conclusions as compared to evidentiary facts. It is true that a declaration in support of a motion for summary judgment must contain “evidentiary facts, not legal conclusions or ‘ultimate’ facts.” (Hayman v. Block (1986) 176 Cal.App.3d 629, 638–39; accord Hope Internat. University v. Super. Ct. (2004) 119 Cal.App.4th 719, 739, fn. 9 [“[C]onclusions of fact are not binding on a summary judgment motion.”].) Even so, that particular legal principle is not a rule of admissibility. (See Burch v. Regents of the University of Cal. (E.D.Cal. 2006) 433 F.Supp.2d 1110, 1119.) And so, while “statements in declarations [that] are not facts [ ] will not be considered on a motion for summary judgment,” a plaintiff should simply address such statements in his or her opposition “instead of challenging the admissibility of the evidence.” (Burch, supra, 433 F.Supp.2d at p. 1119.) Here, Plaintiff’s argument lacks merit as to most of the statements, such as statements about whether Dignity employed particular physicians. That said, Plaintiff’s characterization is apt with respect to Ms. Save’s conclusion that physicians and surgeons working at Dignity are not its “agents.” (Save Decl., ¶ 4.) Consequently, although not an issue of admissibility, the Court notes as a preliminary matter that Ms. Save’s disclaimer of any agency relationship is not a proper evidentiary fact and will not be considered as such for the purpose of this motion.

In conclusion, and with this final note in mind, Plaintiff’s objections to the Save declaration are OVERRULED.

2. Declaration of Veronica Siewert

Plaintiff objects to the declaration of Veronica Siewert on many of the same grounds discussed above. She asserts there is a lack of foundation for Ms. Siewert’s testimony and that she lacks personal knowledge. These objections are not well-taken for the same reasons set forth above. Plaintiff additionally advances a hearsay objection on the basis medical records relied upon by Siewert are not properly before the Court. “Although hospital and medical records are hearsay, they can be admitted under the business records exception to the hearsay rule.” (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742.) And, “although hospital records are hearsay, they can be used as a basis for an expert medical opinion.” (Id. at p. 743.) “However, ‘a witness’s on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into “independent proof” of any fact.’ [Citation.]” (Ibid.) Here, contrary to what Plaintiff suggests, the records relied upon by Siewert and discussed in her declaration are properly before the Court. Dignity presents the records along with testimony from its custodian of records (Prosyk Decl., ¶ 2 & Ex. A) that is sufficient to establish the records are independently admissible under the business records exception to the rule against hearsay. (See generally People v. Zavala (2013) 216 Cal.App.4th 242, 246, citing Evid. Code, § 1271.) Accordingly, Plaintiff’s objection based on the purported absence of supporting medical records lacks merit.

Finally, Plaintiff objects to Ms. Siewert’s statement that the surgical scrub technologist, Horacio Alvarez, comported with the standard of care on the basis she is not qualified to testify about the standard of care for technologists as compared to the standard for nurses. “In order to testify as an expert in a medical malpractice case, a person must have enough knowledge, learning[,] and skill with [the] relevant subject to speak with authority, and he or she must be familiar with the standard of care to which the defendant was held.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) A court is not required to exclude expert testimony in a medical malpractice action solely because the expert pursued a different specialty than that which is relevant to the applicable standard of care. (Brown v. Colm (1974) 11 Cal.3d 639, 645–46, citing Mirich v. Balsinger (1942) 53 Cal.App.2d 103, 115 [otolaryngologist qualified to testify about plastic surgery].) The expert is qualified to testify about the applicable standard of care so long as he or she “has disclosed sufficient knowledge of the subject….” (Brown, supra, 11 Cal.3d at p. 647.) Here, Ms. Siewert’s many years of experience in different nursing and supervising roles, in the operating room, and performing the procedure at issue establish she is qualified to opine on the standards of care for nurses and technologists. Also, she has knowledge of the particular standard applicable to a technologist as she describes in her declaration the technologist’s duties during a laparoscopic appendectomy. And so, Plaintiff’s challenge to Ms. Siewert’s qualification to testify about the standard of care for a technologist is not well-taken.

For these reasons, all of Plaintiff’s objections to the Siewert declaration are OVERRULED.

3. Declaration of Jennifer Elgie Paez

Plaintiff argues Dignity’s counsel, Jennifer Elgie Paez, violated rule 3.7 of the California Rules of Professional Conduct and makes improper and inadmissible statements in her reply declaration introducing and authenticating additional documentary evidence. Plaintiff’s objections are not well-taken.

First, the “‘advocate-witness rule,’ which prohibits an attorney from acting both as an advocate and a witness in the same proceeding, has long been a tenet of ethics in the American legal system, and traces its roots back to Roman Law.” (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1208–09.) Based on this rule—codified as Rule 3.7—a “lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness….” This case has yet to proceed to trial. Additionally, Rule 3.7 has exceptions for testimony on an uncontested issue or on the nature and value of legal services provided. Here, some of the declaration of Dignity’s counsel concerns the nature of the legal services she provided as it relates to Plaintiff’s allegations of “sandbagging.” Otherwise, none of the challenged statements concern a contested issue; they are not statements of substance. Rather, they are statements introducing documentary evidence. The Court notes that some statements in the declaration veer towards argument or summarize her testimony, such as the statement that Plaintiff did, in fact, have knowledge of the evidence presented with Dignity’s reply based on the parties’ interactions in the course of litigation. While these statements might have been better presented in a brief rather than a declaration, the statements are those of an advocate and not a witness, and so they do not run afoul of this rule. Ultimately, there is no disqualification motion before the Court (not that the Court is suggesting such a motion is warranted or would be meritorious). And so, even if Plaintiff was correct in her accusation, this would not necessarily be a basis for excluding evidence as compared to a basis for disqualifying the attorney from serving as an advocate. In sum, Plaintiff’s assertion is not well-taken based on the record here.

Plaintiff also objects to whether Dignity’s counsel has sufficient personal knowledge and adequately authenticates the exhibits she introduces. These objections are also unavailing. Dignity’s counsel states she has personal knowledge of the facts in her declaration. There is no basis for discounting this statement given, as counsel of record, she would presumably have personal knowledge about the provenance of the documents she introduces and particularly in light of her other statements about the course of discovery. It is routine in law-and-motion practice for exhibits to be proffered and authenticated by way of a declaration of the attorney with knowledge about what the exhibits are and how they were obtained. (Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 523.) An attorney’s statement that documents are what they purport to be is sufficient to overcome a generic authenticity objection. (See, e.g., Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1527.) And, here, Plaintiff is not actually disputing that the documents are authentic or disputing the authenticity of the signatures on the admissions forms. Plaintiff disputes whether the admissions forms control in the context of an analysis of ostensible agency. This is a dispute over the legal significance of the evidence and not its admissibility.

For all of these reasons Plaintiff’s objections to the reply declaration of Jennifer Elgie Paez are OVERRULED. As the Court independently notes above, to the extent there are statements in the declaration that are arguments rather than evidentiary statements, the Court simply does not consider them as evidence.

B. Dignity’s Objections

With respect to the declaration of Kim Moore, Dignity does not actually interpose objections to evidence meaning it does not identify issues with the admissibility of the evidence. Instead, Dignity makes assertions of fact and legal arguments. Accordingly, there are no evidentiary objections to the Moore declaration and the points advanced are not well-taken as presented. Dignity copied and pasted the same points as part of its objections to the declaration of Debra Berard. Thus, the Court reaches the same conclusion with the exception of two actual objections to evidence, Nos. 58–59. Objection Nos. 58–59 are OVERRULED because the challenged statements are not improper opinions; they are proper lay observations about Plaintiff’s symptoms, such as pain and vomiting, and lay observations about what happened at the hospital as well as her interactions with doctors.

With respect to the declaration of Pamela Nye, R.N., Dignity also improperly includes statements and arguments that have nothing to do with the admissibility of the evidence. That said, Dignity does interpose an actual objection to Nye’s qualification to provide expert testimony. This objection is OVERRULED because, contrary to Dignity’s characterization, there is sufficient evidence of Nye’s experience with surgical procedures and providing nursing care in the operating room notwithstanding the fact that she has further specialized training in neuroscience and neurosurgery. (Nye Decl., ¶¶ 1, 13–15.) The objections on the ground of lack of foundation and speculation are also OVERRULED because they are not stated with sufficient specificity and are unsupported by the record, which sufficiently discloses the information upon which Ms. Nye’s statements are based.

IV. Merits of Motion

A. Dignity’s Initial Burden

Dignity argues Plaintiff’s action lacks merit because she cannot establish its employees breached the standard of care. In support, Dignity asserts its nurse Debra O’Neal and surgical scrub technologist Horacio Alvarez comported with the applicable standards of care. It additionally asserts it does not employ, and thus, is not responsible for the conduct of the other physicians who cared for Plaintiff, including surgeon John R. Saranto, M.D., Matthew Hansman, M.D., and physicians in the Emergency Department.

A hospital is vicariously liable for the malpractice of the physicians, nurses, and other medical professionals that are actually employed by or ostensibly agents of that hospital. (Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 337.) A claim for medical malpractice or medical negligence is simply a species of negligence claim consisting of the same essential elements, namely duty, breach, causation, and damages. (Turpin v. Sortini (1982) 31 Cal.3d 220, 229–30.) The distinction is that the skill and training of the defendant “serves to establish the basis by which ‘ordinary prudence’ will be calculated and the defendant’s conduct evaluated.” (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 998.) Because a medical professional’s conduct is measured against the skill, prudence, and diligence as is commonly possessed and used by others in that medical profession, expert testimony is ordinarily required to establish the standard of care and whether a breach of that standard occurred. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606–07; accord Avivi, supra, 159 Cal.App.4th at p. 467.)

At issue in this case is whether Dignity’s employees failed to exercise due care with respect to the stapling mechanism used during the appendectomy. During Plaintiff’s appendectomy, the surgical team used an endoscopic stapler known as an “Endo GIA” that consists of an “Endo GIA handle” and a “load” or “cartridge.” (Siewert Decl., ¶ 10.) The handle is not a single-use or disposable piece of equipment; it is sterilized between procedures and reused. (Siewert Decl., ¶ 10.) The load is a sterile, pre-packaged cartridge of staples that is affixed to the handle for use. (Siewert Decl., ¶ 10.) The surgical team does not load the staples into the cartridge or adjust the cartridge; once the load is unpackaged and affixed to the handle, the stapler is ready for use. (Siewert Decl., ¶ 10.)

According to Ms. Siewert, the load “is opened at the time of use by the circulating nurse who opens the load’s packaging (without actually touching the contents of the load), confirms it is the correct load with the surgeon, and places the sterile load onto the sterile surgical field for the scrub tech to attach the load to the handle and pass to the surgeon.” (Siewert Decl., ¶ 10.) During the procedure, it is up to the surgeon to determine whether the stapler is misfiring or malfunctioning during use and to report this to the hospital. (Siewert Decl., ¶ 11.) Instrumentation such as a stapler or staples are not counted during a laparoscopic procedure unless—unlike Plaintiff’s procedure—it becomes an open procedure. (Siewert Decl., ¶ 9.)

According to Dignity’s other expert, Catherine Andallo, the technologist would have set up the sterile field of the operating room, including by opening and setting out disposable sterile supplies. (Andallo Decl., ¶ 8.) Upon “scrubbing in,” the technologist would have loaded and tested the endoscopic stapler before handing it to the surgeon. (Andallo Decl., ¶ 8.) A technologist first attaches the load to the clip at the end of the handle and listens for a “click” to ensure it is properly affixed. (Andallo Decl., ¶ 8.) In the absence of a “click,” a technologist should know the stapler is not correctly loaded and would not pass the stapler to the surgeon. (Andallo Decl., ¶ 8.) Once the load is attached, the stapler is considered to be “open,” and the technologist tests the stapler by pressing the lever to make sure it will close. (Andallo Decl., ¶ 8.) If the technologist cannot close the stapler, it should not be passed to the surgeon for use. (Andallo Decl., ¶ 8.) During the procedure, the technologist would have passed the surgeon sponges and other equipment, such as the “GIA stapler that had been appropriately loaded and tested.” (Andallo Decl., ¶ 8.) After the procedure, sponges and sharps are counted and the technologist otherwise cleans up the operating room by properly disposing of sharps and other materials and sending instruments to the proper department for sterilization. (Andallo Decl., ¶ 8.) Ms. Andallo does not opine that the cartridge is examined or that staples are counted after the procedure.

Dignity’s own evidence is conflicting. Although one of Dignity’s experts opines that setting up the sterile field, including setting up and testing the endoscopic stapler, is the responsibility of the scrub technologist, its other expert opines that the circulating nurse plays a role in setting up the stapler as well. Additionally, Dignity presents conflicting evidence about whether a technologist must test the stapler prior to the procedure and whether the technologist or surgeon is responsible for addressing any malfunction of the stapler.

Additionally, even overlooking this conflicting evidence on what the obligations of a nurse and technologist are, neither Ms. Andallo nor Ms. Siewert explain why they conclude the technologist here, Mr. Alvarez, did not breach the standard of care. An expert opinion must be accompanied by a “reasoned explanation connecting the factual predicates to the ultimate conclusion [ ] because an ‘expert opinion is worth no more than the reasons upon which it rests.’” (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117, quoting Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523–25.) After setting forth a technologist’s duties, both Ms. Siewert and Ms. Andallo offer bare conclusions that Mr. Alvarez did not breach the standard of care. Neither Ms. Siewert nor Ms. Andallo state what Mr. Alvarez did or did not do during the surgery as a predicate for reaching the conclusion that he comported with the standard of care. As for the nurse, Ms. O’Neal, in addition to the conflicting statements about the standard of care, there are problems with Ms. Siewert’s testimony about whether Ms. O’Neal met that standard. Ms. Siewert opines that a circulating nurse ordinarily opens the packaging on the load, confirms with the surgeon that it is the correct load, and places the load on the sterile surgical field. (Siewert Decl., ¶ 10.) But she simultaneously opines that Ms. O’Neal “set out the Endo GIA cartridge (stapler)” but did not set up Mr. Alvarez’s sterile field. (Siewert Decl., ¶ 8.) And, there is no indication that Ms. O’Neal confirmed with the surgeon that the load was correct. In sum, Ms. Siewert provides conflicting testimony about whether Ms. O’Neal was supposed to help Mr. Alvarez set-up the sterile field—including by opening, confirming, and setting out the cartridge—and does not clearly and consistently explain how Ms. O’Neal’s conduct comported with the standard of care.

For all of these reasons, Dignity does not carry its initial burden of showing the action lacks merit on the basis Plaintiff cannot establish that Dignity’s employees breached the standard of care. Put another way, there are disputed issues of material fact as to whether Dignity’s employees breached the standard of care. That is enough to deny summary judgment.

B. Plaintiff’s Showing of Triable Material Facts

For purposes of completeness, the Court will look at Plaintiff’s evidence to see if Plaintiff has raised a separate issue of triable material fact that would preclude summary judgment.

In opposition, Plaintiff emphasizes that Dignity does not address all of her theories of liability. She asserts it fails to address her allegations of delayed diagnosis, products liability, and res ipsa loquitur. Her arguments are, in large part, unpersuasive.

First, Plaintiff does not frame the breach as a failure or delay in diagnosing her bowel obstruction; she identifies the breach as the leaving of the staple in her body during the appendectomy. Second, there is no colorable argument that a claim for products liability is pleaded either generally or as against Dignity. Although Plaintiff states that Does 51–60 are part of the supply chain for the stapler, she does not thereafter assert a products liability claim. More significantly, allegations against some other defendants are immaterial to Dignity’s motion. And, it is unclear how Dignity could qualify as a proper defendant for the purpose of a products liability claim based on a design or manufacturing defect. (See, e.g., Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 316.) Next, res ipsa loquitur is not an additional claim or theory Dignity must address. For context, “certain kinds of accidents are so likely to have been caused by the defendant’s negligence that one may fairly say ‘the thing speaks for itself.’” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825.) “The Latin equivalent of this phrase, ‘res ipsa loquitur,’ was first applied to a barrel of flour that rolled out of the window of the defendant’s warehouse onto the plaintiff.” (Ibid.) “As later courts repeated the phrase, it evolved into the name of a rule for determining whether circumstantial evidence of negligence is sufficient.” (Ibid.) “In California, the doctrine of res ipsa loquitur is defined by statute as ‘a presumption affecting the burden of producing evidence.’” (Ibid., quoting Evid. Code, § 646, subd. (b).) Because res ipsa loquitur is a presumption that impacts what evidence suffices to establish breach and, in turn, a prima facie claim of negligence, it follows that it is not a separate and distinct claim or theory Dignity must negate.

At trial, “[t]he presumption arises when the evidence satisfies three conditions: ‘“(1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.”’ [Citations.]” (Brown, supra, 4 Cal.4th at pp. 825–26.) The plaintiff must present evidence to support all three elements to give rise to the presumption of negligence. (Elcome v. Chin (2003) 110 Cal.App.4th 310, 316.) And so, even when a plaintiff intends to rely on a presumption of negligence at trial, a defendant’s burden at summary judgment is the same. (Id. at pp. 317–318.) The defendant must simply present evidence showing he or she did not breach the standard of care. (Id. at p. 318.) If the defendant carries the initial burden, the plaintiff may carry his or her opposing burden by either “(1) producing direct evidence of each defendant’s negligence and causation, or (2) producing evidence of the three elements of res ipsa loquitur.” (Ibid.) But Dignity did not carry its initial burden, and Plaintiff does not attempt to establish the elements of res ipsa loquitur in opposition.

With all of that said, there is merit to Plaintiff’s contention about her theory of vicarious liability, which relates to Dignity’s remaining argument in support of its motion. For context, in addition to arguing its nurse and scrub technologist did not breach the standard of care, Dignity seems to argue it is not otherwise liable for the negligent conduct of any other medical professional. But Dignity advances this argument in an unclear manner because it states it did not employ Dr. Saranto (named here), Matthew Hansman, M.D., (not specifically named), and other unspecified Emergency Department physicians. In making this representation, Dignity does not explain why it is solely addressing whether it employed other physicians that treated Plaintiff as compared to nursing and other support staff. And, because Dignity so vaguely disclaims responsibility for physicians in the Emergency Department, it cannot be ascertained whether and how this representation actually relates to the facts alleged. To the extent Dignity’s position is that nurse Debra O’Neal and scrub technologist Horacio Alvarez were the only employees that treated Plaintiff, it does not clearly make or substantiate this point. And, even if it did, Plaintiff argues and presents evidence in opposition to show the physicians, even if not actually employed, were ostensible agents. (See, e.g., Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1458; see Moore Decl., ¶ 13; see Berard Decl., ¶¶ 3–6.) Dignity attempts to address this issue and gaps in its papers on reply.

First, Dignity cites Business and Professions Code section 2400, which it claims establishes, categorically, that physicians in California are not employees of hospitals. Its recitation of the law is inaccurate. For context: “The Medical Practice Act prohibition of the corporate practice of medicine is declaratory of a basic public policy against corporate practice of the learned professions.” (Conrad v. Medical Bd. of California (1996) 48 Cal.App.4th 1038, 1042.) “The doctrine is intended to ameliorate ‘the evils of divided loyalty and impaired confidence’ which are thought to be created when a corporation solicits medical business from the general public and turns it over to a special group of doctors, who are thus under lay control. [Citation.]” (Id. at pp. 1042–43.) But, “the general ban on the corporate practice of medicine is subject to several exceptions.” (Id. at p. 1043.) Significantly, “Business and Professions Code section 2400 recognizes that physicians may be employed on a salaried basis by licensed charitable institutions, foundations, or clinics, if patients are not charged for the professional services rendered.” (Ibid.) Dignity does not explain or present evidence establishing, based on the form of its business and structure as well as billing and financial practices that Section 2400 controls here.

As for the issue of agency, Dignity presents admissions forms explicitly stating it does not employ the physicians working in its facilities. (Paez Decl., Exs. E–G.) But these admissions forms conflict with the statements of Plaintiff’s parents about their knowledge of the status of treatment providers. (Moore Decl., ¶ 7; Berard Decl., ¶¶ 4–7.) Moreover, Dignity does not respond to the case cited by Plaintiff, namely Mejia. (See also Whitlow v. Rideout Memorial Hospital (2015) 237 Cal.App.4th 631, 635–41 [“[W]e reject the notion that a signature on an admissions form conclusively constitutes notice to a patient seeking care in an emergency room that the treating physician, whom she did not choose and did not know, is not an agent of the hospital.”; reversing order granting summary judgment].) Accordingly, Dignity does not establish that there are no disputed facts and it is not liable for the conduct of any other providers (physician, nurses, or otherwise) that treated Plaintiff. Ultimately, even if it did, this would not warrant a different outcome given its own conflicting evidence on the standard of care.

In conclusion, Dignity fails to carry its initial burden and Plaintiff raises a triable issue of fact as to ostensible agency. For both reasons, Dignity’s motion for summary judgment is DENIED.