Case Number: EC059225    Hearing Date: September 09, 2014    Dept: 93

Superior Court of California
County of Los Angeles
Department 93

LYNDA BRYANT,

Plaintiff(s),
v.

PROVIDENCE HEALTH AND SERVICES FOUNDATION, et al.,

Defendant(s). Case No.: EC059225

Hearing Date: September 9, 2014

[TENTATIVE] ORDER RE:
DEFENDANT PROVIDENCE HEALTH SYSTEM – SOUTHERN CALIFORNIA DBA PROVIDENCE SAINT JOSEPH MEDICAL CENTER’S MOTION FOR SUMMARY JUDGMENT

Defendant Providence Health System – Southern California dba Providence Saint Joseph Medical Center’s (“Defendant Providence”) Motion for Summary Judgment is DENIED.

Evidentiary Objections

Plaintiff’s objections to the evidence filed in support of Defendant Providence’s motion are ruled on as follows:

• To Kohl Decl.: #s 1-2 (¶¶5, 8) sustained (legal conclusion); # 3 (¶9) overruled

• To Macer Decl.: #s 1-6 sustained (improper opinion; legal conclusion); # 7 overruled

Defendant Providence’s objections to the evidence filed in support of Plaintiff’s opposition are ruled on as follows:

• To Bryant Decl.:
o I overruled

In Kulshrestha v. First Union Commercial Corp., the California Supreme Court held that in-state declarations can comply with CCP Section 2015.5 “(1) by stating the “place of execution” in California, or (2) by stating that the certification or declaration under penalty of perjury occurs “under the laws of the State of California.” ((2004) 33 Cal.4th 601, 611.) Bryant’s declaration was executed in California under penalty of perjury, and thereby invokes the law of this state.

o II overruled: this section does not include any specific objections upon which the Court can rule.
o III: #s 6 (¶10), 7 (¶11), 8 (¶12), 9 (¶13), 15 (¶20) sustained for lack of personal knowledge; #s 1-5 (¶¶5-9), 10-14 (¶¶14-19) overruled

• To Onwaeze Decl.:

o I overruled: see discussion above for Bryant objection I.
o II-III sustained for lack of authentication (as to Patel Depo., Ex. A)
o IV: # 1 (re entire Decl.) overruled for the reasons stated regarding objection I; # 2 (re Ex. A) sustained for the reasons stated regarding objection II.

• The Roback Declaration is discussed below.

Factual Background

This action arises from the medical care provided by Defendant Providence to Plaintiff after she suffered a heart attack (myocardial infarction) on September 21, 2011. (UMFs 1-5, Motion, Macer Decl. (“Macer Decl.”) ¶¶8-9; Paglia Decl. (“Paglia Decl.”), Exh. A, pp. 0132-0133; 0239-0241.) During her treatment, Plaintiff was administered medication through multiple IV sites, including on her left hand and arm. (UMF 7, Macer Decl. ¶¶10-11; Paglia Decl., Exh. A, pp. 0239-0241, 0376, 0105.) The morning of September 22, 2011, at 7:30 a.m., Defendant Providence’s nursing staff reported that Plaintiff’s left extremity was considerably more edematous than her right extremity so her physician, Dr. Patel, ordered an elevation of her left extremity. (UMF 8, Macer Decl. ¶11; Paglia Decl., Exh. A, pp. 0300, 0368.) On September 23, 2011, Plaintiff’s left extremity had 3+ edema so Dr. Patel ordered Doppler studies and an MRI. (UMF 9, Macer Decl. ¶12; Paglia Decl., Exh. A, pp. 0295, 0201, 0537, 0638, 0360, 0361, 0224.) On September 24, 2011, Plaintiff’s doctors noticed blisters on her left extremity and ordered that her left extremity not be used for IV administration of medications. (UMF 10, Macer Decl. ¶13; Paglia Decl., Exh. A, pp. 0238, 0198-0199.)

On September 25, 2011, neurology ruled out compartment syndrome. (UMF 12, Macer Decl. ¶14; Paglia Decl., Exh. A, pp. 0293, 0173, 0174, 0216.) On September 27, 2011, hand surgeon Dr. Raven diagnosed Plaintiff with extra-compartment swelling and edema. (UMF 13, Macer Decl. ¶15; Paglia Decl., Exh. A, pp. 0290, 0193.) Plaintiff continued to receive monitoring and treatment of her left extremity condition until her discharge on October 7, 2011. (UMFs 14-16, Macer Decl. ¶¶16-18; Paglia Decl., Exh. A, pp. 0516, 0659, 0197, 0184, 0517, 0518, 0127, 0128, 0129.)

Plaintiff filed her action on September 6, 2012. The SAC alleges the following negligent conduct by Defendant Providence:

Defendants and each of them amongst other things failed to properly administer IV lines to the plaintiff, failed to monitor or properly monitor the IV lines administered to the plaintiff and failed to monitor or properly monitor the sites of the IV lines administered to the plaintiff, failed to observe or properly observe the swellings around the sites of the IV lines administered to the plaintiff.

As a direct and proximate result of said neglect of the defendants and each of them as set forth above, Plaintiff suffered an IV extravasation of her left hand in the course of the treatment and care rendered by the defendants.

In further breach of their duty of care to the plaintiff, defendants and each of them failed to timely diagnose and treat the IV extravasation of the plaintiffs left hand. The IV extravasation of the plaintiffs left hand was not diagnosed and or treated for at least three days after the occurrence of the IV extravasation, thereby resulting in further damage to the plaintiff’s left hand tissues and nerves.

(SAC ¶¶23-25.)

Breach of Duty and Causation

Defendant Providence argues that it did not breach the standard of care in treating Plaintiff, as alleged in her SAC and did not cause her alleged injuries. In support of this, Defendant Providence submits the expert declaration of George Macer, Jr., M.D. (“Dr. Macer”), who is board-certified in orthopedic surgery, and currently on the medical staffs of Long Beach Memorial Medical Center, Surgery Center of Long Beach, Lakewood Regional Medical Center; and Los Alamitos Medical Center. (Macer Decl. ¶¶4-6.)

Dr. Macer opines that Defendant Providence at all times comported with the standard of care in caring for Plaintiff, and that extravasations of IV medications can occur in the absence of negligence. (Macer Decl. ¶¶22-23, 25-28.) Dr. Macer states that the conduct of Defendant Providence’s nursing staff in carrying out the physicians’ orders, monitoring Plaintiff and reporting her condition to her physicians at all times complied with the standard of care. (Macer Decl. ¶¶22-23, 25-28.)

Finally, Dr. Macer concludes that no act or omission by Defendant Providence caused or contributed to Plaintiff’s injuries because its treatment of Plaintiff was proper and Dr. Patel determined that the amiodarone infiltration occurred outside the hospital and in the field, i.e. during amiodarone administration by the emergency medical technicians and ambulance personnel who responded to the 911 call at the coffee shop where plaintiff collapsed. (Macer Decl. ¶29.)

Dr. Macer’s expert opinion carries Defendant Providence’s initial burden of proof regarding its compliance with the standard of care and the issue of causation. The burden now shifts to Plaintiff to create a triable issue of fact regarding Defendant Providence’s compliance with the standard of care and causation.

In Opposition to the Motion, Plaintiff relies upon the declaration of Michael Roback, M.D. (“Dr. Roback”), who is board certified in Orthopaedic Surgery with more than 35 years experience in private practice as an orthopedic surgeon, and experience in the diagnosis and treatment of “compartment syndrome” of the forearm. (Roback Decl. ¶¶2, 5, Ex. 1.) Dr. Roback provides his expert opinion that the treatment of Plaintiff by the doctors and nursing staff at Defendant Providence “was below the standard of care in the prevailing community” and caused the injuries to Plaintiff’s left hand and arm. (Id. ¶¶29-38.) Dr. Roback describes actions (or inaction) by specific doctors who treated Plaintiff while at Defendant Providence, for their using a drug in her IV line that was incompatible with the amiodarone used in the IV, and failure promptly to diagnose and treat compartment syndrome, which he opines developed in her left arm while being treated at Defendant Providence. (Id. ¶¶29-38.) As discussed below, Defendant Providence Objects to the entire declaration of Dr. Roback.

Plaintiff makes a number of arguments in her Opposition to the Motion for Summary Judgment in an effort to create a triable issue of fact. First, Plaintiff argues that Defendant Providence was negligent based on the negligence of nurse Winston and the treating doctors in the administration of a drug that was incompatible with the amiodarone hydrochloride being administered through Plaintiff’s IV. Plaintiff also asserts that Providence is vicariously liable for the negligent acts of the treating doctors at the hospital who failed to monitor and address the problems with the IV in her left arm, in particular, development of compartment syndrome in her left forearm. Plaintiff asserts that the doctors are the employees or ostensible agents of the hospital.

Objections to Declaration of Michael Roback, M.D.

Plaintiff relies on the opinions of Dr. Roback to support her argument that there are triable issues of fact as to the negligence of Defendant Providence. Defendant Providence objects to the declaration in its entirety on multiple grounds. First, Defendant objects that Dr. Roback failed to attach the medical records on which he relies, citing to Garibay v. Hemmat (2008) 61 Cal.App.4th 735, 742-43. However, Dr. Roback states that, other than the Wyett Pharmaceutical document, he reviewed only the records provided to him by attorney Onwaeze. (Roback Decl. ¶8.) Further, attorney Onwaeze states in his declaration that “[a]ll the medical records referenced by Dr. Roback in his declaration were from medical records provided by the defendants in support of their motion for summary judgment.” (Onwaeze Decl. ¶5.)

In addition, it appears from a preliminary review of Dr. Roback’s declaration that the medical records listed on pages 3 and 4 are, in fact, included in the medical records submitted by Defendant Providence to the Court. As the Court of Appeal has held, “The Garibay case does not require a party opposing summary judgment to file duplicate copies of the medical records on which the opposing expert relied in forming a disputed expert opinion if they are already before the court in support of the motion.” (Shugart v. Regents of University of Cal. (2011) 199 Cal.App.4th 499, 506.) In Shugart, the Court of Appeal reversed the grant of summary judgment by the trial court – which had relied on Garibay in granting summary judgment for failure of the expert to submit medical records on which he relied, finding that the statement by the expert that he had “reviewed the medical records, deposition transcript, and declarations of Christine Shugart” to be sufficient for purposes of stating his expert opinion. (Id. at 506.)

Indeed, the expert in Shugart did not even recite the Plaintiff’s medical history in his declaration, only stating his expert opinion that the defendant doctor met the standard of care. (Id. at 507.) The court concluded: “while Dr. Ostergard’s declaration is not a model of specificity, it is sufficient to raise a triable issue of fact as to whether Dr. Warren’s medical care of Christine met the standard of care in the medical community and whether that care caused or contributed to Christine’s alleged damages.” (Id.at 506.)

In this case, Dr. Roback could have simply stated that he reviewed all of the medical records submitted in support of Defendant Providence’s Motion for Summary Judgment, but instead he attempted to list all the specific reports of individual doctors within those medical records. This Court is not inclined to find that a declaration with greater detail about what the expert relies upon lacks evidentiary support for failure to attach the actual medical records.

Further, while Dr. Roback should have provided a page citation to each record for the Court and counsel’s convenience, the Court was able to find all of the records he specifically discusses in his declaration. For example, in his declaration, Dr. Roback references specific page numbers in paragraph 12 (pages 0143 to 0156 of hospital medical records); paragraph 14 (page 0168 in reference to consulation by Dr. Najibi), paragraph 16 (page 0173 in reference to consultation by Dr. Hanna-Kastoun), and paragraph 18 (page 0211 in reference to consultation by Dr. Falkinstein). In addition, some of the doctors’ reports are specific exhibits to the Paglia Declaration filed by Defendant Providence, including the Office records of Dr. Balfour (Exs. C, E), the September 21, 2011 Heart Surgical report of Dr. Gifford (Ex. D), and the December 4, 2012 Peripheral Arterial Evaluation report of Dr. Gifford (Ex. D). The records from Olive View Medical Center are contained in Exhibit B to the Paglia declaration.

While this Court has not had the time to confirm that every record is contained in the medical records provided by Defendant Providence, the combination of the representations by attorney Onwaeze and Dr. Roback with the Court locating most of the documents in the medical records consistent with these representations, support the Court overruling the objection on this basis. To the extent Defendant Providence seeks more information on records relied upon by Dr. Roback, this would be the proper subject of discovery. At this point, the question before this Court is whether there is a sufficient evidentiary foundation for the expert opinions given by Dr. Roback, and this Court finds, consistent with the holding in Shugart, that a sufficient showing has been made by Plaintiff.
Defendant Providence also objects to reliance by Dr. Roback on information from Wyeth Pharmaceuticals (category “y” page 4). While Dr. Roback has not provided a copy of the company brochure, this objection raises a different issue because it does not concern medical records, which are the subject of the Garibay and Shugart decisions. Rather, Dr. Roback is relying on “material of a type that is reasonably relied upon by experts in the particular field in forming their opinions.” (Evid. Code §801(b); People v. Gardeley (1996) 14 Cal.4th 605, 618.) Information from a pharmaceutical company regarding impacts of its drugs when combined with other drugs is the type of information that an expert doctor would reasonably rely upon in forming an opinion. Again, this is a subject that would, however, be the proper subject of further discovery.

The remaining objections to the declaration of Dr. Roback are overruled. The Court finds that the declaration contains sufficient evidentiary support for the purpose of creating a triable issue of fact as to the breach of a standard of care owed to Plaintiff by the doctors who treated Plaintiff at Defendant Providence, proximately causing her injuries. The remaining question, however, is whether Defendant Providence can be vicariously liable for the actions of the doctors who treated Plaintiff. By contrast, as discussed below, the Court finds that Plaintiff has not created a triable issue of fact as to negligence by treating nurse Winston at the hospital.

Negligence by Nurse Winston

First, Plaintiff argues that Defendant Providence is responsible for the acts of its nursing staff, and nurse Winston administered the drug sodium bicarbonate to Plaintiff in her IV line, which Wyeth Pharmaceutials, the producer of Amiodarone Hydrochloride (also used in Plaintiff’s IV line), is incompatible. However, nowhere does Dr. Roback state in his declaration that the nurse breached her standard of care in administering the bicarbonate in compliance with the instructions of the proscribing doctor. Indeed, Dr. Roback describes it as an error of Dr. Patel to order the IV injection of bicarbonate along with amiodarone. (Roback ¶30.a.) It is not the responsibility of the nurse to decide which medications to proscribe to a patient; in fact, nurses are not licensed to proscribe medications to patients. Therefore Plaintiff has not created a triable issue of fact that the nurse violated a duty owed to the patient by following the instructions of the treating doctor.

Failure of Doctors at Defendant Providence to run tests on Plaintiff’s forearm for compartment syndrome or otherwise to diagnose compartment syndrome

Next, Plaintiff argues that Defendant Providence breached a duty of care to Plaintiff in failing to diagnose and surgically treat the compartment syndrome she developed in her forearm while she was at Providence Hospital. However, Defendant Providence can only be liable for the acts of the doctors who cared for Plaintiff at the hospital if they were the employees or agents of the hospital. Defendant Providence urges this Court to find as a matter of law that the treating doctors are independent contractors, and not agents of Defendant Providence.
Finally, Defendant argues that Plaintiff has failed properly to allege “compartment syndrome,” or to name in the SAC the doctors who are alleged to have been negligent in their treatment of Plaintiff.

Relationship between Defendant Providence and Doctors

Plaintiff argues that the treating doctors were the employees of Defendant Providence or, in the alternative, they were the ostensible agents of Defendant Providence. Both theories are discussed below.

Treating Doctors as Independent Contractors or Employees

First, Defendant Providence argues that it cannot be vicariously liable for the conduct of Plaintiff’s treating physicians because there is no employment relationship between it and those physicians. Rather, Defendant Providence contends Plaintiff’s physicians are all independent contractors. The employer of an independent contractor is not liable for the physical harm caused by the act or omission of the contractor. (O’Gan v. King City Union High School (1970) 3 Cal.App.3d 641, 646.) Defendant Providence cannot simply rely on the legal prohibition against the corporate practice of medicine to support a finding that it cannot be liable for the actions of the treating doctors. Rather, this Court needs to analyze whether on the facts of this case the doctors in the hospital served as independent contractors or employees of the hospital.

The Court in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 351, sets forth the factors for determining whether a worker is an employee or an independent contractor.

Those factors include: (1) the employer’s right to control the means and manner of accomplishing the result; (2) whether the worker is engaged in a distinct occupation or business from the employer; (3) whether the type of occupation is usually “done under the direction of the principal or by a specialist without supervision”; (4) the skill required in the particular occupation; (5) the length of time for which the services are to be performed; (6) the method of payment whether by the time or by the job; (7) whether the parties believe they are creating an employee relationship; and (8) the right to discharge the worker at will. (Id. at 351; see also Bradley v. Networkers International, LLC (2012) 211 Cal.App.4th 1129, 1146 n.6. As the Court held in Bradley: “Under this test, a court should evaluate all relevant factors, and the label that the parties attach to the relationship is not dispositive and will be ignored if their actual conduct establishes a different relationship.” (211 Cal.App.4th at 1146.)

Susan Kohl, the Director of Risk Management, Regulatory Compliance, and Patient Safety for Defendant Providence, states in her declaration that the hopsial does not control how the medical staff provide patient care, does not pay the medical staff or provide them with any employee benefits. (Motion, Kohl Decl. (“Kohl Decl.”) ¶¶6-9.) In light of this lack of control and payment to Plaintiff’s treating physicians, Defendant Providence has carried its initial burden of proof that Plaintiff’s treating physicians were independent contractors and not employees.

In opposition, Plaintiff offers no evidence to dispute these facts, but argues that her treating physicians were ostensible agents of Defendant Providence.

Ostensible Agency

The California courts have required two elements for the doctrine of ostensible agency to apply: (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. (See Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1453.) Regarding the first element, courts generally conclude that it is satisfied when the hospital ¿holds itself out to the public as a provider of care. In order to prove this element, it is not necessary to show an express representation by the hospital.” (Id. at 1453-54.) Instead, a hospital is generally deemed to have held itself out as the provider of care, unless it gave the patient contrary notice. (Id. at 1454.)

Defendant Providence argues in its Reply that Plaintiff signed the conditions of admission, which state that its physicians are independent contractors. (Paglia Decl., Exh. A, Vol. I, pp. 0124-25.) While these “Conditions of Admission” do state that the doctors in the hospital are independent contractors, notably, this document is not signed by Plaintiff or anyone in her family. Rather, the document at pages 0124-25 is dated September 21, 2011, the date of Plaintiff’s admission, and appears to be initialed by a hospital staff member, and says, “silent, no family.” The “Authorization for and Consent to Surgery,” submitted as Exhibit F to the Supplemental Paglia Declaration (page 0238) appears to have a signature in the box for patient or representative, but then has some writing in the box that states “reason patient did not sign.”

There is no evidence that either of these forms was shown to or signed by Plaintiff. Indeed, while Plaintiff was unconscious when she was admitted to the hospital, it appears that treatment was subsequently provided in the hospital, but there is no evidence that either of these documents were shown to Plaintiff or signed prior to her discharge. Accordingly, it is at least a triable issue of fact whether Defendant Providence made any attempt to place Plaintiff on notice that its doctors were independent contractors.
Moreover, as the Mejia court noted: “Many courts have even concluded that prior notice may not be sufficient to avoid liability in an emergency room context, where an injured patient in need of immediate medical care cannot be expected to understand or act upon that information.” (Mejia, supra, at 1454.) Similarly, in Stanhope v. Los Angeles College of Chiropractic (1942) 54 Cal.App.2d 141, where the Plaintiff injured his back and was brought to the defendant L.A. College of Chiropractic “screaming with pain,” the court held that the doctors in the X-Ray laboratory were the ostensible agents of the college where the college “did nothing to put respondent on notice that the X-ray laboratory was not an integral part of appellant institution and it cannot seriously be contended that respondent, when he was being carried from room to room suffering excruciating pain, should have inquired whether the individual doctors who examined him were employees of the college or were independent contractors.” (Id. at 146.) Rather, the court found that the question of agency was properly a question of fact for the jury. (Id.)

Defendant Providence urges the Court to adopt the contrary reasoning of the Sixth Circuit Court of Appeals in Roberts v. Galen of VA, Inc. (6th Cir. 1997) 111 F.3d 405, reversed on other grounds, (1999) 525 U.S. 249, which held that in an emergency situation the actions of the hospital, instead of the knowledge of the patient, controls where the hospital generally provides patients with notice that the doctors are independent contractors but Plaintiff was physically unable to sign the notice. Notably, however, Roberts was interpreting Kentucky law, which appears to differ from the controlling California law cited in Mejia, and further, this case is distinguishable because here Plaintiff remained in the hospital until her discharge on October 7, 2011, but there is no evidence that the hospital at any time after her admission gave her notice of the form or obtained her signature.

The second element, reliance, is established when the plaintiff ¿looks to¿ the hospital for services, rather than to an individual physician. (Mejia, supra, at 1454.) Here, Plaintiff submits her own declaration to establish that she did not look to the individual physicians for treatment, but to Defendant Providence. (Opp., Bryant Decl. (“Bryant Decl.”) ¶¶14-16.) This case is in sharp contrast to Mayers v. Litow (1957) 154 Cal.App.2d 413 417-18, relied on by Defendant Providence, in which the patient arranged for surgery with specific doctors, who were therefore held not to be agents or employees of the hospital.

Therefore, a triable issue of fact exists as to whether Defendant Providence cannot be liable for the conduct of Plaintiff’s treating physicians.

Failure to Name Doctors in Complaint

Finally, Defendant Providence contends that it cannot be vicariously liable for the conduct of a physician who has not been named or otherwise identified by Plaintiff as negligent in treating her and causing her injuries. In Lathrop v. Healthcare Partners Medical Group, the Court of Appeals held:

Under the doctrine of respondeat superior, the vicarious liability of an employer or principal is not based on fault. . . . The employer’s liability is wholly derived from the liability of the employee. The employer cannot be held vicariously liable unless the employee is found responsible. . . . That is not to say, however, that the employer and employee must be joined in the action as codefendants. The two may be sued separately, and the employer may be held vicariously liable without a judgment against the employee personally.

((2004) 114 Cal.App.4th 1412, 1423 (citations omitted)(emphasis added).)

While Defendant Provident correctly points out that Plaintiff fails to name specific doctors in the Complaint, instead naming Defendant Provident and Does 1 through 30, Plaintiff does allege that all of the defendants failed to properly administer, monitor or observe the IV lines administered to the plaintiff, as a result of which she suffered an IV extravasation of her left hand and further damage to her left hand tissues and nerves. (SAC ¶¶23-25.) These allegations are sufficient for purposes of giving notice to Defendant Provident and, more importantly, the declaration of Dr. Roback sets forth in detail the actions of specific doctors who treated Plaintiff while at Provident, but failed correctly to diagnose and treat her condition to avoid damage to her left hand and arm.

Defendant Providence also argues that Plaintiff cannot pursue a theory of negligence based on compartment syndrome because it is not specifically pled in the Complaint. However, as noted above, the Complaint does place Defendant Providence on notice that the failure properly to monitor or observe Plaintiff’s IV line while she was at the hospital resulted in damage to her left hand and wrist, which would include damage as a result of compartment syndrome.

Plaintiff is ordered to give notice.

DATED: September 9, 2014

_________________________
Hon. Gail Ruderman Feuer
Judge of the Superior Court