Opinion
B154717.
11-4-2003
CONTINENTAL HOSPITAL SUPPLY CORPORATION et al., Cross-complainants and Appellants, v. NORA KUBOTA and NORTHRIDGE HOSPITAL MEDICAL CENTER, Cross-defendants and Respondents.
Pivo, Halbreich, Martin, Wilson & Amo, LLP, and Thomas L. Wilson for Cross-complainants and Appellants. La Follette, Johnson, De Haas, Fesler, Silberberg & Ames, Louis H. De Haas, Gillian N. Pluma, and David J. Ozeran for Cross-defendants and Respondents.
This case has its genesis in an accident incurred by Wilma G. Wood (Wood) when using a Quickie 2 wheelchair. Appellant Continental Hospital Supply Corporation (Continental) sold and distributed the wheelchair, which had been prescribed by physical therapist respondent Nora Kubota (Kubota). Respondent Northridge Hospital Medical Center (Northridge Hospital) was Kubotas employer. Continental appeals from a summary judgment entered in favor of Kubota and Northridge Hospital. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Preliminary facts.
Wood, a polio victim since 1948, became primarily wheelchair dependent in 1961. Wood had been suffering from recurring shoulder pain.
Wood was seen by Kubota, a physical therapist. Kubota was employed by Northridge Hospital. On March 23, 1998, Kubota evaluated Woods wheelchair and cushion needs in a wheelchair clinic. Jeff Detman from Continental was present to assist with the wheelchair order. At the clinic, Wood reported her history of polio and that she had developed pain on the left side, which was intermittent. She also reported that another medical facility had determined she overused her upper left extremity. Wood, who was using a Breezy wheelchair, requested a new wheelchair. Kubota prescribed the Quickie 2 manual wheelchair as the one best suited to Woods needs. On the Quickie 2 order form, Kubota ordered 70 degree hangers and 8-inch casters.
Based upon the prescription, Continental ordered a Quickie 2 for Wood. The wheelchair was designed, manufactured, and assembled by Quickie Design, Inc. (Quickie Design) and Sunrise Medical HHG, Inc. (Sunrise) pursuant to the prescription. Without further adjustments, Continental sold, and thereafter delivered, the wheelchair to Wood. Wood took delivery of the Quickie 2 wheelchair on June 22, 1998. The front casters on the Quickie 2 were mounted in a rearward-facing position upon 70 degree hangers recommended and 8-inch casters. Kubota did not know that given her recommendations, the front casters would be mounted in the rearward-facing position.
On June 26, 1998, while using the Quickie 2, Wood was thrown from the wheelchair and injured. As a result of the accident, Wood sustained physical injuries requiring hospitalization and surgery.
2. Procedure.
a. Preliminary procedure.
Wood filed a products liability and negligence lawsuit against Continental, Quickie Design and Sunrise. Wood alleged that the Quickie 2 wheelchair had been defectively designed, manufactured, assembled, distributed and sold. Wood alleged that the Quickie 2 was defective because the wheelbase (the distance between the main (rear) wheels and the caster (front) wheels) was too short, resulting in inherent unsteadiness. Wood also asserted that the wheelchair was improper for her particular use, and there was a failure to warn of the defect.
Kubota and Northridge Hospital were not named by Wood in her complaint. These parties were brought into the action by Continental through a cross-complaint for indemnity, apportionment, and contribution. Continental maintained it was not negligent nor responsible for Woods injuries. Continental alleged that if it were found liable, any liability was constructive, imputed, secondary, passive, or solely as the result of the negligence of the active tortfeasors.
The cross-complaint also named Sunrise as a cross-defendant. Neither Sunrise, nor Quickie Design are parties to this appeal.
b. The motion for summary judgment.
(1) The moving papers.
Kubota and Northridge Hospital filed a motion for summary judgment. They argued Continental could not present competent evidence that they were negligent. Kubota and Northridge Hospital contended that Kubota had met the standard of care in recommending the Quickie 2 wheelchair for Wood. This contention was based upon the theory that Kubota would not have known that by recommending 70 degree hangers, the front casters would be mounted in the rearward-facing direction, thereby shortening the wheelbase.
The declaration of Eirik Blydt-Hansen (Hansen), a physical therapist, was attached to the summary judgment motion. Hansen had been employed at Rancho Los Amigos Medical Center for approximately 10 years. Since 1992, he worked in the seating center, a center devoted to treating patients with wheelchair and seating needs. As part of his duties, Hansen evaluated patients wheelchair needs. Hansen had experience in evaluating and recommending patients for Quickie 2 wheelchairs. Hansen reviewed Woods medical records and the pertinent deposition testimony. He opined the following: (1) Kubota met the standard of care in prescribing the Quickie 2, which was appropriate for Wood, given her medical history and the characteristics of the Quickie 2, including that it was lighter in weight and had more options and adjustability than the Breezy; (2) the recommendation for 70 degree hangers complied with the standard of care because this allowed "the lower legs to rest more perpendicular to the floor and allow[ed] more maneuverability"; (3) the recommendation for eight-inch casters met the standard of care as they provided more stability than six-inch ones; and (4) Kubota was not required by the standard of care to (a) discuss with Wood the balance characteristics of the Quickie 2 because Kubota would not have known the casters would be mounted in the rearward-facing position; (b) make a determination regarding the distance between the front casters (wheels) and rear wheels (wheel base); (c) make a recommendation regarding the distance between the front and rear wheels and casters; or (d) discuss with Wood the difference in balance characteristics and seat height between the Breezy and the Quickie 2.
The declarations of Edward W. Karnes, Ph.D. (Karnes) and Jai Singh (Singh) were also submitted in support of the motion for summary judgment. Karnes was an expert in human factors engineering. He declared that by placing the caster plates in rearward-facing direction, the wheel base was shortened three to three and one-half inches. He also declared the following. He had reviewed the Quickie 2 instruction manual and the pertinent deposition testimony. Neither the manual nor the Quickie 2 order form warned that installing the front casters in a "rearward facing position [shortens the wheelbase therefore] making the wheelchair less stable . . . ." Karnes opined that Sunrise had given inadequate warnings to Wood and those who participated in recommending or prescribing the Quickie 2 regarding the wheelchairs stability and characteristics.
Singh, a biomechanical engineer, had examined Woods residence and Quickie 2 wheelchair. He declared that had the front caster plates been placed in the forward facing position, rather than in the rearward-facing direction, the wheelbase would have been three to three and one-half inches longer. Singh opined that the Quickie 2s configuration was defectively designed and manufactured as the placement of the front caster plates in the rearward-facing direction resulted in instability. Singh further opined that a person of Woods general size could not safely operate the Quickie 2 through Woods front door, as the Quickie 2 was configured with the forward wheels in the rear direction; although such a person could do so if the front caster plates had been in the front facing position.
Kubota and Northridge Hospital also submitted Continentals responses to interrogatories. Continental had answered "Not at this time[]" to the following question: "Do you contend that the care and treatment rendered to plaintiff Wilma G. Wood by [Kubota and Northridge Hospital] was below the standard of care?" This supported an additional theory that Continental could not prove it was entitled to indemnification.
The next question in the series of interrogatories was the following: "If your response to the preceding interrogatory is anything but an unqualified no, state each act or omission on the part of defendants that you contend was below the standard of care."
Continental answered this question as follows: "[Continental] has been sued by . . . Wood for personal injuries purportedly resulting from the use of a wheelchair manufactured by . . . [Sunrise] and prescribed . . . by . . . [Kubota,] a physical therapist. [Wood] alleges that the wheelchair was improperly designed, manufactured and prescribed for her. As to the latter allegation, the subject wheelchair was in fact prescribed by [Kubota. Continental] has denied plaintiffs allegations. However, if liability results to [Continental], its Cross-Complaint requests that the liability of [Northridge Hospital/Kubota] be determined as well."
(2) The opposition papers.
Continental contended there were triable issues of fact as to whether Kubota had met the standard of care of a physical therapist, and thus, whether it was entitled to indemnification. Continental contended that Kubota was negligent in failing to assess Woods needs, in failing to examine the environment in which the Quickie 2 was to be used, in making the recommendations for 70 degree hangers and 8-inch casters, in failing to make a determination of the wheelbase length, and in failing to discuss the characteristics of the Quickie 2 with Wood.
Continental submitted the declaration of Jerome T. Anderson, who declared the following. He was a "principal in Biomedical Consulting Services, and a Certified Clinical Engineer specializing in clinical engineering, biomedical equipment technology, and the appropriate management and maintenance of medical and technical equipment. [He provided] consultation in clinical facility and equipment planning, accreditation and licensing compliance, and risk management. [He was] formerly the Director of Biomedical Engineering for St. Joseph Hospital and Childrens Hospital of Orange County in Orange, California, during which time [he] developed and managed a medical equipment maintenance and support program involving the selection of appropriate medical equipment for purchase, including wheelchairs, and evaluation of home environments for home-care patients. [He was] quite familiar with, and considered an expert in, the Safe Medical Devices Act. [He had] qualified on numerous occasions as an expert regarding the appropriate recommendation of and application of medical equipment, including wheelchairs. [He was] also experienced in establishing and evaluating DME (Durable Medical Equipment) operations for hospitals, and did so for Eisenhower Medical Center. . . . [He was] quite familiar with the work of physical therapists in a hospital and home care context, their duties in connection with prescribing medical equipment (including wheelchairs), assessing home environment for patients, and the standard of care applicable to such issues. [¶] . . . [¶] [He was] familiar with the duties attendant to a physical therapist conducting a `wheelchair clinic as was conducted for Plaintiff Wood in this case. [He regarded himself] as an expert concerning the duties and applicable standard of care in connection with the participants in such a `wheelchair clinic. [He was] familiar with patient assessments, and the equipment often prescribed as a result of those assessments. Such equipment includes wheelchairs, and specifically the Quickie 2 . . . ." He reviewed Woods complaint, the pertinent deposition transcripts, and the declarations submitted in support of Continentals summary judgment motion. "Based upon [his] education, training and experience, and [his] review of the records in this case . . . [he was] of the opinion that . . . Kubota . . . had a duty to assess the appropriateness of [the Quickie 2] for . . . Wood, and to do any necessary assessment of the home environment, which would include assessing the need for a threshold ramp at [Woods] front door. If [Wood] is alleging that some sort of negligence or breach of duty resulted in a failure to prescribe a needed threshold ramp, it [was his] opinion that this was a breach of duty, and beneath the appropriate standard of care . . . . [¶] . . . [¶] The standard of care applicable to . . . Kubota required her to discuss with . . . Wood the difference in balance characteristics between the . . . Breezy wheelchair and the Quickie 2 wheelchair [and] . . . the differences in seat height and balance characteristics. [It] was . . . Kubotas duty . . . to assess . . . Wood, [the Breezy wheelchair, the Quickie 2 wheelchair,] and the relationship between . . . Wood and her new wheelchair." The failure to do so was a breach of Woods duty.
Kubota and Northridge Hospital objected to Continentals evidence on the grounds that Andersons declaration lacked foundation and provided improper opinion testimony. It was argued that "Andersons Declaration fails to set forth the facts with particularity which demonstrates that he has the required professional knowledge, education, training, learning and skill as well as the familiarity with the standards required of physical therapists in order to render opinions regarding the care and treatment of [Wood]." In their reply brief, Kubota and Northridge Hospital repeated the argument that Anderson had failed to establish his expertise to render an expert opinion as to the standard of care of physical therapists.
(3) The ruling.
The trial court granted the summary judgment motion on the following grounds: (1) Andersons declaration lacked foundation because he was a "clinical engineer and not a physical therapist and [his] declaration failed to establish how [he had] specific knowledge of the duty of care for a physical therapist[,]"and because it "provided a conclusionary opinion regarding the issue of the duty to discuss seat height and balance characteristics." (2) Andersons declaration "failed to state specifically that [Kubota] breached the standard of care." and, (3) Andersons "declaration was irrelevant on the issue of the duty to recommend a threshold ramp, as [Wood] has not alleged that the failure to prescribe a threshold ramp was negligent."
Judgment on the cross-complaint was entered against Continental in favor of Kubota and Northridge Hospital. Continental timely appealed.
According to Continental, it settled with Wood after the summary judgment was entered against it on the cross-complaint.
DISCUSSION
1. Standard of review — summary judgment.
"Following the applicable standard, we review the moving papers independently to determine whether there is a triable issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. [Citations.]" (Galanty v. Paul Revere Life Ins. Co. (2000) 23 Cal.4th 368, 374; Code Civ. Proc., § 437c.)
2. Andersons declaration failed to raise a triable issue of fact.
Continental contends that Andersons declaration raised triable issues of fact as to whether Kubota met the standard of care of a physical therapist. This contention is not persuasive.
In its motion for summary judgment, Kubota and Northridge Hospital contended they were not liable for Woods injuries because Kubota had met the standard of care for physical therapists. The declarations of Hansen, Karnes, and Singh supported this contention. In opposition to the motion, the only declaration submitted by Continental was Andersons. However, Andersons declaration did not illustrate that he was qualified to render an opinion as to the standard of care of physical therapists.
Ordinarily, experts are required to render a judgment on the duty of care of a medical professional as "the average judge or juror does not possess the necessary level of knowledge about medical practice and procedure . . . ." (Barton v. Owen (1977) 71 Cal.App.3d 484, 493; Landeros v. Flood (1976) 17 Cal.3d 399, 410.) "Qualifications other than a license to practice medicine may serve to qualify a witness to give a medical opinion. [Citation.]" (People v. Catlin (2001) 26 Cal.4th 81, 131.) However, persons professing an expertise in evaluating the duty of care of a medical professional, like other experts, must set forth his or her special knowledge, skill, credentials, education, training, and familiarity with the standards of the medical provider that has been alleged to have been negligent. (Huffman v. Lindquist (1951) 37 Cal.2d 465, 478; Evid. Code, § 720.) This is required so the court can conclude that the person proffering an opinion has sufficient expertise and knowledge to render it. (Seneris v. Haas (1955) 45 Cal.2d 811, 833; Evans v. Ohanesian (1974) 39 Cal.App.3d 121, 128.)
Anderson was not a physical therapist, nor did his declaration attest to experience nor education that would have qualified him to evaluate the professional judgment of a physical therapist. Anderson called himself an "expert regarding the appropriate recommendation of an application of medical equipment, including wheelchairs." He also stated he was "familiar with the work of physical therapists in a hospital and home care context" and that he had previously qualified as an expert regarding the recommendation of wheelchairs. However, Anderson presented no credentials, education, or training to establish how he was familiar with the work of physical therapists or what qualified him as an expert. Anderson did not state that he had experience as a physical therapist, that he had any training, education, or experience regarding the responsibilities of physical therapists activities, or that he had actually participated in the prescription of a wheelchair along with a physical therapist. He did not state the factual basis for his knowledge regarding the standard of care required by physical therapists involved in wheelchair assessments. Anderson did not describe the extent of his past experience in working with physical therapists or how he was "familiar with patient assessments." Anderson stated that he developed and managed a medical maintenance and support program involving the selection of wheelchairs. He did not explain what this involved and he did not explain how this background provided him with the expertise to evaluate a physical therapists professional judgment rendered in prescribing a wheelchair.
Andersons declaration was required to set forth sufficient facts to demonstrate that he had the expertise to render an expert opinion as to the standard of care of physical therapists. (Cf. Code Civ. Proc., § 437c, subd. (b); Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 468-469 [requirements of affidavits].) Anderson did not establish that he had the education, background, training, or experience to evaluate Kubotas professional services in prescribing a wheelchair. Andersons declaration did not show he was competent to render an expert opinion on the standard of care issues presented.
The trial court did not weigh opposing declarations. Rather, it correctly concluded that Andersons declaration lacked the foundation to establish that Anderson had knowledge and expertise to render an opinion on the standard of care of physical therapists.
At oral argument, Continental argued that because non-physical therapists could conduct wheelchair clinics, Andersons declaration was sufficient to raise a triable issue of fact. However, Continental never provided evidence in the trial court to prove that non-physical therapists were qualified to conduct wheelchair clinics.
DISPOSITION
The judgment is affirmed. Kubota and Northridge Hospital are awarded costs on appeal.
We concur: KLEIN, P. J., KITCHING, J.