Opinion
B308407
04-08-2022
MARY ANDRENETTA ANDERSON, Plaintiff and Appellant, v. PIH HEALTH HOSPITAL-WHITTIER, Defendant and Respondent.
Law Office of Alaba Ajetunmobi and Alaba S. Ajetunmobi for Plaintiff and Appellant. Dummit, Buchholz & Trapp, Scott D. Buchholz and Nicholas D. Smith for Defendant and Respondent.
NOT TO BE PUBLISHED
Order Filed Date 05/02/22
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BC715361 Olivia Rosales, Judge. Affirmed.
Law Office of Alaba Ajetunmobi and Alaba S. Ajetunmobi for Plaintiff and Appellant.
Dummit, Buchholz & Trapp, Scott D. Buchholz and Nicholas D. Smith for Defendant and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING
THE COURT:
It is ordered that the opinion filed herein on April 8, 2022, be modified as follows:
1. On page 9, the first sentence of the first full paragraph, the word "three" is changed to "four" so the sentence reads:
Anderson seeks to avoid this result in four ways.
2. On page 10, after the first full paragraph ending with "did not abuse its discretion in denying Anderson's request for judicial notice" and before the second full paragraph beginning with "Next, Anderson argues summary judgment was improperly granted because," insert the following paragraphs:
Additionally, Anderson argues whether she was on notice that all physicians involved in the placement of her IVC filter were independent contractors rather than employees of the PIH was an issue of fact. Anderson is referring to ostensible agency. A hospital can be liable for medical malpractice if the hospital employs a physician as its ostensible agent. (Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 103-104.) Thus, to hold a hospital liable for a physician's negligence under the ostensible agency theory, (1) the hospital must have engaged in conduct that would cause a reasonable person to believe the physician was the hospital's agent, and (2) the patient must have relied on the apparent agency relationship. (Markow v. Rosner (2016) 3 Cal.App.5th 1027, 1038; Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1453.)
"In the physician-hospital-patient context, ostensible agency is a factual issue '[u]nless the evidence conclusively indicates that the patient should have known that the treating physician was not the hospital's agent, such as when the patient is treated by his or her personal physician' or received actual notice of the absence of any agency relationship." (Markow v. Rosner, supra, 3 Cal.App.5th at p. 1039.) "Ultimately, '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. 1038.)
In this case, PIH presented evidence establishing that Anderson had reason to know that all physicians providing her with services were not the hospital's employees. Specifically, PIH's consent of admission form, which Anderson signed, unequivocally advised her that all treating surgeons and physicians were independent contractors, not employees or agents of PIH. Anderson did not produce any evidence suggesting she received and signed the consent of admission form under circumstances in which she could not be expected to understand the information it contained. During her deposition, Anderson testified that (1) she did not know the doctors at PIH were independent contractors instead of employees, (2) she could not recall whether she read the consent of admission form before signing it, and (3) she sometimes signed documents without reading them. In her declaration, Anderson stated that signing the consent of admission form and other documents was "just routine procedure" and their "contents were never explained" to her. None of this evidence raises a triable issue of fact concerning ostensible agency. It does not counter PIH's evidence demonstrating that Anderson had reason to know the hospital's surgeons and physicians were not PIH's employees or agents because PIH supplied her with actual notice of this fact.
There is no change in the judgment.
Anderson's petition for rehearing is denied.
LUI, P. J.
Mary Andrenetta Anderson (Anderson) underwent surgery at PIH Health Hospital-Whittier (PIH) to implant a medical device that prevents a pulmonary embolism. She sued PIH for medical malpractice for failing to obtain her informed consent and causing her to suffer years of pain from the implantation. The trial court granted summary judgment, finding Anderson failed to create a triable issue of fact in response to PIH's expert opinions. Anderson appealed. Finding no error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
On December 30, 2009, Anderson went to PIH's emergency room, complaining of chest pain and shortness of breath. She also had a history of pulmonary emboli or blood clots obstructing blood flow to the lungs. Anderson was admitted to PIH the same day and signed a "consent of admission" form. The form stated that Anderson (1) consented to the performance of inpatient services, including surgical procedures, by her physician or surgeon; (2) acknowledged that all physicians and surgeons providing Anderson with services were independent contractors, not employees or agents of PIH; (3) acknowledged that she was under the care and supervision of her attending physician; and (4) acknowledged that it was the responsibility of PIH and its nursing staff to carry out the instructions of the physician.
Following her admission, Anderson underwent at least one major surgery and extensive medical procedures before being transferred to PIH's rehabilitation center and ultimately discharged in March 2010. Pertinent here are the circumstances of the surgical placement of an inferior vena cava (IVC) filter in Anderson's groin on January 7, 2010. On that date, Anderson began having severe chest pain and shortness of breath. She then developed circulatory failure, and Dr. Hussein Nassr ordered the implantation of an IVC filter. By this time, Anderson was intubated, sedated, and unable to speak.
The inferior vena cava is a large blood vessel that transports deoxygenated blood from the abdomen and lower extremities to the heart. An IVC filter is a small device that can stop a pulmonary embolism, which occurs when blood clots in the inferior vena cava enter the lungs causing severe shortness of breath and even death. (See <https://www.hopkinsmedicine.org/ health/treatment-tests-and-therapies/inferior-vena-cava-ivc-filter-placement> [as of Mar. 29, 2022], archived at <https://perma.cc/M7TX-G45M>.) When the IVC filter is placed in the inferior vena cava, it acts like a sieve by catching any clots in the blood stream and preventing them from traveling to the heart and lungs. The IVC filter is inserted through a small incision in the neck or groin and then moved into the inferior vena cava. (Ibid.)
Prior to the implantation procedure, Timothy Austin, Anderson's husband, was notified of his wife's condition and the need for the procedure. Dr. Kenneth Lynch obtained Austin's written consent for the procedure, in which Austin acknowledged "the risks, hazards and complications of contrast venography and placement. The risks included, but were not limited to, the possibility of aggravated internal hemorrhage, sepsis and death." Thereafter, Dr. Lynch performed the implantation procedure on Anderson without incident. Before, during, and after the January 7, 2010 procedure, Anderson was continuously monitored, assessed, and cared for by her physicians and by PIH nurses and other nonphysician personnel.
In July 2017, Anderson consulted with a physician about her continued back and chest pain. The physician noted the presence of a "vascular implant" and referred Anderson to a specialist, who recommended that the IVC filter be removed. On July 28, 2017, a radiologist successfully removed the IVC filter. Anderson's pain, however, worsened until she underwent unrelated spinal surgery in September 2019.
II. Procedural Background
Anderson's operative complaint for medical malpractice alleged PIH's "nurses and other [nonphysician] medical personnel" were negligent in: (1) failing to obtain Anderson's consent for the placement of the IVC filter, including failing to disclose any risks associated with the procedure, (2) failing to inform Anderson that the IVC filter had been implanted; and (3) failing to remove the IVC filter after the risk of pulmonary emboli had subsided, thereby causing Anderson to suffer years of back and chest pain. Anderson also alleged that when it was removed, the IVC filter was found to have migrated from her "renal" veins to her "jugular" vein.
The complaint also named Dr. Hussein Nassr as a codefendant. However, the trial court granted Dr. Nassr's unopposed motion for terminating sanctions and dismissed him from the suit.
PIH moved for summary judgment. Along with the motion, PIH submitted declarations by nursing expert Dawn Padley, R.N., M.N., and vascular and interventional radiology expert Dr. John M. Moriarty. The two experts reviewed Anderson's medical records, her written discovery responses, Anderson's and Austin's deposition testimony, and Dr. Nassr's declaration. The experts summarized Anderson's pertinent medical history and the circumstances in which Austin was fully informed of and authorized the placement of an IVC filter because Anderson was mentally and physically unable to do so at the time.
Nurse Padley opined that the care and treatment rendered to Anderson by PIH's nurses and other nonphysician personnel had "complied with or exceeded the applicable standard of care" before, during, and after the placement of the IVC filter in Anderson. Padley also opined the care and treatment rendered by the nurses and other nonphysician personnel to Anderson was "in direct compliance with the physician's orders for such care and treatment." Dr. Moriarty opined that "to a reasonable degree of medical probability, no act or omission" of PIH's nurses or other nonphysician personnel involved in the care and treatment of Anderson "related to the deployment of the subject IVC filter was a direct or proximate cause of her alleged injuries" or contributed to any of her alleged harm. Dr. Moriarty further opined that the care provided to Anderson by the nurses and other nonphysician personnel was "appropriate and within the standard of care" at all relevant times.
Both experts stated that physicians and surgeons, as opposed to nurses or other nonphysician personnel, are responsible for determining and recommending the appropriate patient care, explaining to the patient any proposed treatment or procedure and its inherent risks, and obtaining the patient's informed consent for the treatment or procedure. Additionally, nurses and other nonphysician personnel do not supervise physicians and surgeons, who are "independent contractors" and maintain privileges to practice at hospitals, like PIH. Dr. Moriarty also stated that contrary to Anderson's allegation in her complaint, the IVC filter implanted in Anderson did not move or migrate from its original position as evidenced by the radiologist's postoperative report.
Anderson opposed the motion. She did not offer any expert testimony. Instead, Anderson submitted her own declaration stating that the "admission consent form" she signed on December 30, 2009, was not explained to her; Austin never told her about either the exact nature of the IVC filter implantation or the consent form he signed for the implantation procedure; no one at PIH told her about the inherent risks of the IVC filter implantation, that it had had been implanted, or when the device would be removed. Anderson further stated that after being discharged from PIH, she experienced increasing pain, which did not abate with the removal of the IVC filter in July 2017. The pain lessened following her September 2019 surgery. Anderson averred, "I strongly believe that the surgery I had in 2019 is linked to the IVC filter, which must have done damage to my body."
Accompanying her opposition to the summary judgment motion was Anderson's request for judicial notice of six exhibits. The exhibits were documents relating to the IVC filter-four from the Food and Drug Administration and two from medical journals.
In its reply to Anderson's opposition, PIH submitted the declaration of Robert Schroeder, the Director of Medical Staff Services at PIH. He stated that California law prohibits hospitals from employing physicians and surgeons, who instead practice as independent contractors, and that PIH is an acute care hospital that employs nurses and other nonphysician personnel to implement the orders of the independent contractor physicians and surgeons.
There was no appearance on Anderson's behalf at the hearing on the motion for summary judgment. The trial court sustained PIH's objections to those statements in Anderson's declaration relating what Austin purportedly failed to tell her and what she "strongly believe[d]" was the effect of the implanted IVC filter. The court denied Anderson's request for judicial notice and granted summary judgment to PIH, noting that Anderson's failure to submit competing expert testimony was fatal to her action. Following entry of judgment, Anderson filed a timely notice of appeal.
Anderson is not challenging these evidentiary rulings on appeal.
DISCUSSION
Anderson contends the trial court erred in granting PIH's motion for summary judgment.
Summary judgment is appropriate and the moving party (typically, the defendant) is entitled to judgment as a matter of law where (1) the defendant carries the initial burden of showing the nonexistence of one or more elements of the plaintiff's claim; and (2) after the burden shifts, the plaintiff fails to show the "existence of a triable issue of material fact" as to those challenged elements. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Code Civ. Proc. § 437c, subds. (a)(1), (c), (o)(1), (p).) If the plaintiff fails to meet this burden," 'no amount of factual conflicts upon other aspects of the case will affect the result and the motion for summary judgment should be granted.'" (Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 416.)
We independently review a trial court's grant of summary judgment, while "liberally construing the evidence supporting" the nonmoving party and "resolving any doubts" against summary judgment. (Patterson v. Domino's Pizza, LLC (2014) 60 Cal.4th 474, 499-500.)
"The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage." (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305; accord, Borrayo v. Avery (2016) 2 Cal.App.5th 304, 310.) Because "the conduct required of a medical professional is not within the common knowledge of laymen," expert testimony is typically required regarding the first element of a medical malpractice claim. (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 509; Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001; Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 969 [expert opinion testimony required to establish physicians' and nurses' respective standard of care].) Accordingly, a defendant who presents expert testimony "is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence." (Borrayo, at p. 310; cf. Hernandez v. KWPH Enterprises (2004) 116 Cal.App.4th 170, 176 [summary judgment not appropriate where there are "dueling expert opinions"].)
Under this precedent, the trial court properly granted summary judgment. PIH offered supporting declarations from Nurse Padley and Dr. Moriarty, qualified experts in their particular fields. The experts' opinions were sufficient to demonstrate there was no negligence by PIH nurses and other nonphysician personnel in the care and treatment of Anderson as directed by the attending physicians and surgeons. Of greater significance to Anderson's action, the declarations showed that physicians and surgeons, not PIH nurses and other nonphysician personnel, were charged with the duties of determining and directing the IVC filter implantation procedure and its aftermath and with obtaining Anderson's informed consent. Because Anderson submitted no conflicting expert evidence, summary judgment was proper.
Anderson seeks to avoid this result in three ways. She first contends the six exhibits, which were the subject of her request for judicial notice, were sufficient to refute the expert opinions of PIH's experts and thus raise triable issues of fact. Anderson argues judicial notice of the exhibits was appropriate pursuant to Evidence Code section 452, subdivisions (g) and (h).
The purpose of judicial notice is to expedite the production and introduction of otherwise admissible evidence. (Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 578.) Judicial notice may not be taken of any matter, unless authorized or required by law. (Evid. Code, § 450.) Evidence Code section 452 provides in discretionary terms that certain designated matters may be judicially noticed. (See Evid. Code, §452, subds. (a)-(h)). Subdivision (g) allows a court to take judicial notice of "[f]acts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute." Subdivision (h) allows a court to take judicial notice of "[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy." However, these provisions are subject to the qualification that the matter to be judicially noticed must be relevant. (Evid. Code, §§ 350, 450.)" 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.)
The six exhibits Anderson offered were not relevant. True, all the exhibits concerned IVC filters. Included in each exhibit was information on the purpose, design, and placement of the device and risk factors associated with the removal and potential migration of the device. But none raised triable issues relating to whether the PIH nurses and other nonphysician personnel were negligent in caring for Anderson or that they, rather than the physicians and surgeons, were tasked with obtaining Anderson's informed consent. The trial court did not abuse its discretion in denying Anderson's request for judicial notice.
Next, Anderson argues summary judgment was improperly granted because PIH presented no evidence to negate Anderson's claim of the hospital's "corporate negligence." Because Anderson did not make this argument in opposing PIH's motion for summary judgment before the trial court, it has been forfeited on appeal. (Jackpot Harvesting Co., Inc. v. Superior Court (2018) 26 Cal.App.5th 125, 155 ["arguments not raised in summary judgment proceedings" are forfeited]; Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1056.) [by not making an argument in opposition to a motion for summary judgment, the appellants forfeited the argument on appeal].)
Finally, as she did before the trial court, Anderson invokes the doctrine of res ipsa loquitur, arguing that she produced evidence from which laypersons could readily infer negligence.
The doctrine of res ipsa loquitur supports an inference of negligence when an injury" 'was probably the result of negligence by someone and [the] defendant was probably the person who was responsible.'" (Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1540.) As an evidentiary presumption, it allows a jury to infer a defendant's negligence caused whatever injury is at issue. (Evid. Code, § 646.) But the presumption applies only when there is evidence the injury was (1)"' "of a kind which ordinarily does not occur in the absence of someone's negligence," '" (2) caused by something within the defendant's exclusive control, and (3) not due to any voluntary act or contribution by the plaintiff. (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825-826.)
In the context of medical malpractice actions, the doctrine of res ipsa loquitur comes into play in those rare instances where negligence can be assessed by laypersons in its most overt forms-such as a foreign object having been sewn inside a postoperative patient. (See, e.g., Gannon v. Elliot (1993) 19 Cal.App.4th 1, 7 [small gray rubber surgical cap]; Ales v. Ryan (1936) 8 Cal.2d 82, 88 [sponge]; Armstrong v. Wallace (1935) 8 Cal.App.2d 429, 431 [same].)
According to Anderson, the res ipsa loquitur doctrine applies here. Referring to her complaint, she maintains that PIH's failure to challenge her allegation that the IVC filter was left in her body for seven years without her knowledge supports an inference of negligence "that should be obvious to laypersons." In pressing her point, Anderson argues the opinions of PIH's experts should be rejected.
Anderson's argument reveals a fundamental misunderstanding of the relationship between a theory of liability and the procedural requirements for opposing a summary judgment motion. Once the burden shifted to Anderson to show a triable issue of fact as to the negligence of PIH's nurses and other nonphysician personnel, she could rely on the res ipsa loquitor doctrine as a theory for the hospital's liability. However, that did not mean she was excused from providing a direct, factual response in the form of admissible evidence to the summary judgment motion. Anderson cannot overcome her failure to provide such admissible evidence by attacking PIH's experts or by transferring her burden to them. Her own declaration that she experienced increasing pain following her discharge from PIH was insufficient to meet her burden. (See Elcome v. Chin (2003) 110 Cal.App.4th 310, 318.)
Based on PIH's expert opinions that PIH nurses and other nonphysician personnel were not negligent, and their duty of care did not encompass placing and removing the IVC device and obtaining informed consent, and, in the absence of any contrary expert opinion, PIH was entitled to summary judgment. (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.)
DISPOSITION
The judgment is affirmed. PIH Health Hospital-Whittier is to recover its costs on appeal.
We concur: ASHMANN-GERST, J., HOFFSTADT, J.