Opinion
F073193
09-07-2017
SAMANTHA WINSTON, Plaintiff and Appellant, v. COUNTY OF KERN, et al., Defendants and Respondents.
Douglas B. Malcolm; Tardiff Law Offices and Neil S. Tardiff for Plaintiff and Appellant. Hall, Hieatt & Connely, Jay A. Hieatt and Stephanie A. Bowen for Defendant and Respondent Navin Amin, M.D.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. S1500CV280158 )
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Lorna H. Brumfield, Judge. Douglas B. Malcolm; Tardiff Law Offices and Neil S. Tardiff for Plaintiff and Appellant. Hall, Hieatt & Connely, Jay A. Hieatt and Stephanie A. Bowen for Defendant and Respondent Navin Amin, M.D.
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On August 31, 2012, Samantha Winston awoke from surgery at Mercy Hospital (Mercy) to remove an epidural abscess caused by methicillin-resistant staph aureus (MRSA) to find herself paralyzed. Before her admission to Mercy, Winston had been treated at Kern Medical Center (KMC), a facility run by the County of Kern (County), for a MRSA infection. Dr. Navin Amin evaluated and treated Winston at KMC.
A year later, Winston served the County with a claim under the Government Claims Act (Gov. Code, § 810 et seq.) (the Claims Act) and initiated this action by filing a complaint for medical malpractice. The County rejected Winston's claim as untimely. In a subsequently filed first amended complaint against the County, Mercy, surgeon Dr. Timothy Wiebe, and Bakersfield Neuroscience & Spine Institute, Winston alleged the defendants were negligent in failing to diagnose her MRSA infection and in rendering surgical services. The trial court granted the County's motion for summary judgment on the ground that Winston's claim against the County was barred by her failure to timely file a claim under the Claims Act. Winston appealed from the resulting judgment in the County's favor, which we affirmed. (Winston v. County of Kern (Jun. 15, 2016, F071409) [nonpub. opn.].)
Shortly after the trial court granted the County's motion, Winston amended the complaint to add Dr. Amin as a defendant in place of a Doe defendant. Dr. Amin subsequently filed a motion for summary judgment, asserting he was entitled to judgment because, as a County employee, the statute of limitations and Winston's failure to comply with the Claims Act barred the action against him. The trial court granted the motion.
On appeal, Winston contends there are triable issues of fact as to whether Dr. Amin was an independent contractor or a KMC employee. We reject her contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Since the summary judgment motion involves only the assessment of Dr. Amin's employment status, there is no need to discuss the details of Winston's care and treatment at KMC and Mercy. The evidence presented in support of and in opposition to Dr. Amin's summary judgment motion established the following undisputed facts.
Dr. Amin has had an employment contract with the County since 1979, when he began County employment as an associate physician. In 1980, he became chairman of the Department of Family Practice and Pediatrics (the department). Dr. Amin entered into his most recent employment agreement with the County in June 2004, which remained in effect through June 2009. Thereafter, the agreement was amended multiple times, with the last amendment extending his employment term through September 20, 2013. The agreement was in place when Winston was treated at KMC.
As department chairman, Dr. Amin was responsible for the overall supervision of the administrative, teaching, and clinical activities within the department, and reported to KMC's chief medical officer. His patient care duties included providing management of the family practice inpatient service, documenting patient care and supervision, providing infectious disease consultations for pediatric and other services as needed, conducting infectious disease rounds and providing consultations when the chief of infectious disease was unavailable, participating in family practice service calls for one week every six weeks, and participating in infection control activities at KMC. KMC's chief executive officer (CEO) or chief medical officer could assign other duties to Dr. Amin.
Dr. Amin's contract with the County, entitled "Agreement for Professional Services Contract Employee" (the agreement) identified Dr. Amin as a "Core Physician" and a "contract employee." The agreement required Dr. Amin, as a Core Physician, to work full-time, no less than 40 hours per week, although a standard workweek as department chairman was 52 hours per week. While his standard hours could vary week to week according to the responsibility for call coverage and the family practice schedule, his objective was to achieve 2288 worked hours during a 12-month period. Dr. Amin was paid biweekly on the same schedule as regular full-time County employees.
Pursuant to the agreement, Dr. Amin's total compensation was comprised of: (1) a base salary paid by the County; (2) professional fee payments from third-party payors; and (3) potential other income generated due to his status as a physician. The County withheld federal and state income taxes from Dr. Amin's earnings, and provided him with a Form W-2.
The agreement provided for the establishment of a County clearing account and KMC compensation budget unit to account for all funds generated and received to pay the total compensation and all expenses associated with the compensation plan. The compensation plan was administered by a KMC-retained plan administrator who reported to the faculty practice board. To support the administrative expenses of the compensation plan, an assessment was made on Dr. Amin's total compensation.
The base salary was paid to Dr. Amin as compensation for: (1) patient care for Medically Indigent Adults (MIA), as defined by Welfare and Institutions Code section 17000 et seq., and adults and juveniles incarcerated and detained in County facilities; (2) being a safety net provider, providing partial compensation for under-compensated and uninsured patients; (3) teaching; (4) administrative duties; and (5) other activities approved by KMC's CEO and faculty practice board. The base salary, less the assessment for administrative expenses, was reported as wages and subject to all appropriate federal and state taxes.
The agreement allowed Dr. Amin to bill KMC patients who have insurance to recover "professional fees," which included all professional fee collections or payments associated with direct patient care provided by Dr. Amin. If a patient was uninsured, Dr. Amin did not bill the patient. Dr. Amin was responsible for billing and collecting all professional fees for his services. When a Core Physician's practice group contracted with KMC for the provision of community clinic services, professional fees were required to be paid to the clearing account, from which an assessment for administrative expenses, as well as overhead and expenses, were deducted. Core Physicians who were sole practitioners, however, were "responsible for the cost of professional fee billing as negotiated by the Core Physician with the billing service company[,]" and "[s]ole practitioner overhead and business-related expenses will be paid by the sole practitioner." Dr. Amin, who was not part of a practice group, received both a paycheck from the County and remuneration from billing on insured patients.
The third component of Dr. Amin's total compensation was income from speaking engagements, expert witness fees, and other income generated due to Dr. Amin's status as a physician. Dr. Amin was permitted to keep this income.
Like other County employees of KMC, Dr. Amin was provided with health insurance. In addition, he received paid leave for holidays, vacation, sick leave and education leave, and was entitled to an unpaid leave of absence that is provided to other regular County employees of KMC. Dr. Amin was entitled to participate in the Kern County Pension Plan and Trust Agreement for Physician Employees, a qualified defined contribution pension plan (the pension plan). The agreement provided for reimbursement of Dr. Amin's approved and necessary expenditures related to continuing education, as well as education and training directed by KMC.
Dr. Amin could terminate the agreement, without cause, on 90 days' prior written notice to the County, while the County could terminate it at any time for cause. Cause was defined as a violation of the administrative policy of the County or KMC, unsatisfactory clinical performance, failure to meet department accountability or performance standards, or reduction of need. The County's termination would not necessarily affect medical staff membership, which was governed solely by the medical staff bylaws. The agreement stated that Dr. Amin "shall be employed by the County" pursuant to the terms of the agreement and KMC's medical staff bylaws, and Dr. Amin acknowledged he would not "be deemed a classified employee, or have any rights or protections under the County's Civil Service Ordinance, rules or regulations."
Separate from his County employment, Dr. Amin had a consulting practice with Rio Bravo. Dr. Amin saw patients one or two half days per week at the Rio Bravo Family Medical Group. Dr. Amin never saw Winston at his Rio Bravo practice.
Dr. Amin saw Winston at KMC on five dates in August 2012 after another physician admitted her. Dr. Amin billed Winston's Medi-Cal insurance under his own social security number separate from any billing by KMC. The insurance company's payments were sent directly to Dr. Amin at his home address, not to Rio Bravo. The vendor number on the billing was Dr. Amin's Kern Health provider number, and had nothing to do with Rio Bravo.
The agreement contained an indemnification provision. The County agreed to "assume liability for and indemnify and hold harmless" Dr. Amin "against all claims, losses, expenses, costs, actions, settlements, attorneys' fees and judgments" incurred by Dr. Amin or for which he became liable to pay "arising out of or in connection with or related to the services rendered or which a third party alleges should have been rendered by [Dr. Amin] pursuant to this Agreement . . . on behalf of KMC, for all inpatient and outpatient family medicine patients who are seen, diagnosed, treated or otherwise cared for by resident physicians of KMC as part of their training (the "Teaching Service"), incarcerated patients, whether adult or juvenile, medically indigent adult patients, uninsured patients, and self-pay juvenile patients. . . . The liability coverage of this paragraph shall not apply to services rendered to the private practice patients of [Dr. Amin] who are not part of the Teaching Service."
Dr. Amin invoked his right to have the County defend and indemnify him in this action pursuant to Government Code section 825, after certifying that his actions that resulted in the allegations against him were performed in the normal course and scope of his duties as a County employee.
The Summary Judgment Motion
In moving for summary judgment, Dr. Amin argued the undisputed facts showed he was a County employee, which made him immune from suit since the County was immune due to Winston's failure to comply with the Claims Act.
In opposition, Winston argued the motion should be denied because KMC allowed Dr. Amin to operate outside of the employment agreement as an independent contractor. Specifically, Winston claimed that while Dr. Amin may have been an employee of KMC, he operated as an independent contractor when he billed patients who had their own insurance for his services. Winston asserted that because she had insurance that paid for her treatment with Dr. Amin, he treated her in his capacity as an independent contractor and was therefore not immune from suit.
In support, Winston offered the declaration from a certified public accountant, Trent J. Benedetti, who claimed to be an expert on the differences between independent contractor and employee status. Benedetti asserted the financial records in this case revealed that Dr. Amin was able to bill third party insurance companies in his own name under identifying numbers specific to him, and get reimbursed personally for those billings without the County taking out deductions. Benedetti opined this meant that Dr. Amin was acting as an independent contractor and the factors the Internal Revenue Service (IRS) uses to determine independent contractor status all weighed in favor of finding that Dr. Amin was an independent contractor for purposes of the treatment he provided to Winston.
In reply, Dr. Amin argued the trial court should exclude Benedetti's declaration because his opinions were improper legal conclusions and contrary to law, and many of his opinions directly contradicted the agreement's plain and unambiguous terms. Dr. Amin further argued that regardless of whether the payment for the services he provided Winston went directly to him or through a clearing account, the payment clearly was intended as part of his compensation structure and did not change the nature of his employment status.
With his reply, Dr. Amin filed written objections to 24 of the 34 paragraphs and subparagraphs in Benedetti's declaration, and an objection to a document containing a Google search by Winston's attorney of Internet listings for Dr. Amin's services. Dr. Amin asserted multiple grounds for objecting to each paragraph or subparagraph, including a lack of foundation, speculation, improper legal conclusion, and relevancy.
Following argument on the motion, the trial court took the matter under submission and subsequently issued a minute order granting the motion. The trial court found that Dr. Amin met his burden of showing the existence of an affirmative defense, namely immunity from suit, by producing evidence that he was an employee of KMC. This shifted the burden of production to Winston. The trial court found the evidence Winston submitted - (1) that the agreement allowed Dr. Amin to pursue other activities that would pay him outside the course and scope of his duties to KMC; (2) that KMC did not pay Dr. Amin when he treated patients with third party insurance; and (3) that Dr. Amin separately billed those plans and received personal reimbursement from them without deduction - did not create a triable issue of fact. This was because the treatment Dr. Amin provided and his ability to bill insured patients were part of his compensation pursuant to the terms of the agreement. Since there was no issue of fact, the trial court granted the motion. The trial court ruled on Dr. Amin's objections, sustaining all except the objections to paragraph 10 of Benedetti's declaration.
DISCUSSION
The only issue on appeal is whether Dr. Amin established as a matter of law that he was an employee of KMC when he treated Winston. Winston argues a triable issue of fact exists as to whether Dr. Amin was an independent contractor because the agreement implies he is an independent contractor and his billing for the services he rendered to her was consistent with being an independent contractor. Winston also argues the trial court erred in striking her expert's declaration.
The Law
"[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) "Once the [movant] has met that burden, the burden shifts to the [other party] to show that a triable issue of one or more material facts exists as to that cause of action." (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 850.) A triable issue of material fact exists where "the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar, supra, 25 Cal.4th at p. 850.)
Where summary judgment has been granted, we review the trial court's ruling de novo. (Aguilar, supra, 25 Cal.4th at p. 860.) We consider all the evidence the parties presented in connection with the motion, except that which was properly excluded, and all the uncontradicted inferences the evidence reasonably supports. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
"The principal test of an employment relationship . . . is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired." (Torres v. Reardon (1992) 3 Cal.App.4th 831, 837 (Torres).) Courts, however, "have long recognized that the 'control' test, applied rigidly and in isolation, is often of little use in evaluating the infinite variety of service arrangements." (S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 350 (S.G. Borello).) Thus, although "the right to control work details is the 'most important' or 'most significant' consideration, the authorities also endorse several 'secondary' indicia of the nature of a service relationship." (Ibid.) While our Supreme Court has noted the right to discharge at will, without cause, is strong evidence in support of an employment relationship, the Court has recognized the following additional factors to consider: "(a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee." (S.G. Borello, supra, 48 Cal.3d at p. 351; see also Arzate v. Bridge Terminal Transport, Inc. (2011) 192 Cal.App.4th 419, 426 (Arzate).)
"The individual factors ' "cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations." ' " (Arzate, supra, 192 Cal.App.4th at p. 426; see also State Compensation Ins. Fund v. Brown (1995) 32 Cal.App.4th 188, 202 ["the process of distinguishing employees from independent contractors is fact specific and qualitative rather than quantitative"; right of control "retains significance, but is no longer determinative"].)
"The existence and degree of each factor of the . . . test for employment is a question of fact, while the legal conclusion to be drawn from those facts is a question of law. [Citation.] Even if one or two of the individual factors might suggest an [independent contractor] relationship, summary judgment is nevertheless proper when . . . all the factors weighed and considered as a whole establish . . . an [employment] and not an [independent contractor relationship]." (Arnold v. Mutual of Omaha Ins. Co. (2011) 202 Cal.App.4th 580, 590; see also Millsap v. Federal Express Corp. (1991) 227 Cal.App.3d 425, 431 [" 'Whether a person is an employee or an independent contractor is ordinarily a question of fact but if from all the facts only one inference may be drawn it is a question of law.' "].)
Evidentiary Issues
We begin with Winston's argument that the trial court erred by striking her expert's declaration.
Although our review of a summary judgment motion is de novo, we review a lower court's final ruling on evidentiary objections for abuse of discretion. (See, e.g., Great American Ins. Companies v. Gordon Trucking, Inc. (2008) 165 Cal.App.4th 445, 449; Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122; see also Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1122-1123 (conc. opn. of Turner, P.J.) [evidentiary issues in summary judgment proceedings reviewed for abuse of discretion under the majority rule].) The party challenging the ruling has the burden to establish abuse of discretion. (DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679.) We will interfere with the lower court's judgment only if the party can show that no judge could reasonably have made the same judgment. (Ibid.; see also Lockhart v. MVM, Inc. (2009) 175 Cal.App.4th 1452, 1456; Jennifer C. v. Los Angeles Unified School Dist. (2008) 168 Cal.App.4th 1320, 1332 [under abuse of discretion standard, court's decision left undisturbed unless it exceeds the bounds of reason].)
Here, Winston contends that the trial court abused its discretion when it struck Benedetti's declaration on the ground his opinions were improper legal conclusions. She asserts that Benedetti's opinions concerning whether the agreement, Dr. Amin's billing statements, and Dr. Amin's testimony fell within the parameters of the multi-factor IRS test would assist the trier of fact, and therefore were admissible under Evidence Code section 801, subdivision (a).
The trial court, however, did not sustain Dr. Amin's objections to Benedetti's declaration only on the ground that the declaration constituted an improper legal conclusion. Instead, it sustained separate objections to 23 paragraphs and subparagraphs of the declaration that were made on grounds besides improper legal conclusion, including lack of foundation, speculation and relevancy. Winston does not discuss each objection, or set forth legal argument or authority on these other grounds, each of which could equally support the trial court's rulings sustaining Dr. Amin's objections. (Cal. Rules of Court, rule 8.204(a)(1)(B) [each point must be supported by argument and, if possible, citation of authority].) Therefore, Winston has abandoned this issue. (See, e.g., Salas v. California Dept. of Transportation (2011) 198 Cal.App.4th 1058, 1074 [failure to demonstrate how each evidentiary ruling was erroneous constitutes a forfeiture of the challenge].)
Even if the issue is not forfeited, Benedetti's declaration inappropriately drew legal conclusions concerning Dr. Amin's employment status. It is for the trier of fact to determine whether an individual is an independent contractor or employee. " '[W]hen an expert's opinion amounts to nothing more than an expression of his or her belief on how a case should be decided, it does not aid the jurors, it supplants them.' " (Burton v. Sanner (2012) 207 Cal.App.4th 12, 20-21.) Winston asserts that Benedetti's opinion is needed because a lay person does not typically know how to determine whether an individual is an independent contractor or employee. The law and the arguments of counsel, however, are what assist the trier of fact in making this determination. (Kotla v. Regents of University of California (2004) 115 Cal.App.4th 283, 294.) Benedetti's opinions about the evidence - that Dr. Amin was acting as an independent contractor and not an employee when he provided care to Winston - did not offer anything more than what a lawyer could argue.
Since Winston has not shown that the trial court abused its discretion in sustaining objections to the majority of Benedetti's declaration, we examine only the evidence the trial court admitted for purposes of this appeal.
Employment Status
Although Winston asserts the trial court was obligated to apply the multi-factor test to determine Dr. Amin's employment status, she does not analyze those factors herself in her opening brief. Instead, she contends there is a triable issue of fact as to whether Dr. Amin was acting as an independent contractor when he treated her because he carried on a private practice and received a separate check from her insurance company under his own social security number. In addition, she asserts the agreement itself contains indicia of an independent contractor relationship and lists 13 such "examples" from the agreement. It is not until her reply brief that Winston discusses the multiple factors used to assess an individual's employment status.
While we perform a de novo review of summary judgments, that does not mean we engage in an analysis of the summary judgment motion independent of arguments made in Winston's opening brief because, even on review of a summary judgment, "[t]he appellant has the burden of showing error occurred." (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1140.) "[D]e novo review does not obligate us to cull the record for the benefit of the appellant in order to attempt to uncover the requisite triable issues. As with an appeal from any judgment, it is the appellant's responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed." (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116 (Lewis).)
"When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as [forfeit]ed." (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) Adherence to this rule is not only necessary in light of Winston's burden to demonstrate error on appeal (see Lewis, supra, 93 Cal.App.4th at p. 116), but is also an issue of fairness to Dr. Amin who, in the absence of a specific argument and identification of the evidence Winston contends created a triable issue of fact, is deprived of a reasonable opportunity to respond. For the same reason, we ordinarily will not consider points raised for the first time in a reply brief. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.) " 'Obvious considerations of fairness in argument demand that the appellant present all of his points in the opening brief. To withhold a point until the closing brief would deprive the respondent of his opportunity to answer it or require the effort and delay of an additional brief by permission. Hence the rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.' " (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)
Winston's conclusory opening argument is bereft of any discussion of the evidentiary showing in Dr. Amin's moving papers, the contents of his separate statement of undisputed facts, or any analysis of the relationship between the facts she claims create a triable issue of fact and the various factors used to determine employment status. While she argues the factors in her reply brief, we need not consider her argument, as it is raised for the first time there. It is not our role to act as backup appellate counsel for Winston in the prosecution of this appeal. (In re Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 1164.)
Nevertheless, the trial court did not err in finding that Dr. Amin was a County employee as a matter of law. In light of the multi-factored test, it appears to us the undisputed evidence shows the following. The County entered into a written agreement with Dr. Amin by which it hired him to be the chairman of KMC's Department of Family Practice and Pediatrics. In his position, Dr. Amin was responsible for administration of the department, teaching, and patient care, and was required to work an average of 52 hours per week. His compensation was comprised of (1) a base salary, which covered his teaching and administrative duties, and patient care for medically indigent adults, incarcerated and detained adults and juveniles, and under-compensated and uninsured patients, (2) professional fees associated with direct patient care that Dr. Amin provided, and (3) other income generated due to Dr. Amin's status as a physician. The County paid Dr. Amin his base salary at regular intervals; the salary was based on time on the job without reference to particular patients or duties. Dr. Amin was entitled to health insurance, paid vacation, sick and educational leave, and a pension. Income taxes were withheld from his earnings, and the County provided him with a Form W-2.
While Dr. Amin was not subject to the County's control at least as far as the manner of treating patients is concerned, he was employed to provide care to KMC's patients, to look out for their interests, and to exercise skill and professionalism in treating them. The County had an interest in insisting that Dr. Amin provide competent patient care, and the agreement provides that Dr. Amin was subject to discipline, including termination, if he violated the County's or KMC's administrative policy, his clinical performance was unsatisfactory, or he failed to meet department accountability or performance standards. In this broader perspective, the County could exercise control over Dr. Amin's treatment of patients, as it had control over hiring and assuring that Dr. Amin provided competent and professional care to KMC's patients. (See, e.g., Briggs v. Lawrence (1991) 230 Cal.App.3d 605, 617-618 (Briggs) [salaried full-time public defender engaged in representing an assigned client is an employee; county exercised control over public defenders by ensuring public defenders satisfied skill and performance standards].)
KMC's lack of control over Dr. Amin's physical activities, including patient care, does not mean there was not an employment relationship. "To the contrary, '[i]t does not follow that because there is a certain amount of freedom inherent in the nature of the work one is called upon to do that one becomes an independent contractor rather than an employee.' " (Briggs, supra, 230 Cal.App.3d at p. 618.) It is the principal's right to exercise control, and not necessarily the exercise of that right, that determines whether the individual is an employee or an independent contractor. (Greenaway v. Workmen's Compensation Appeals Bd. (1969) 269 Cal.App.2d 49, 55.) Here, the County had the right to exercise control by taking corrective action against Dr. Amin, requiring him to comply with all applicable KMC and County policies and procedures, and requiring him to conform to department policy and routine. (See Chavez v. Sprague (1962) 209 Cal.App.2d 101, 109-112 [volunteer surgeon at county hospital was acting as county employee when he supervised plaintiff's surgery; plaintiff, who was indigent, was not the surgeon's private patient, the surgeon was subject to the superintendent's direction and control, and the surgeon could be disciplined for disobedience and suspended or removed for cause].)
While providing care to KMC patients such as Winston, Dr. Amin was not engaged in a distinct business; he provided his services as part of KMC's regular business of treating patients. It is apparent from the agreement that the County and Dr. Amin believed they were creating an employer-employee relationship, as shown by the reasonably regular work hours, the range of employee benefits and perquisites, and the identification of the relationship in the agreement as one of employment. Moreover, the County agreed to defend and indemnify Dr. Amin against all claims asserted against him that arose from his duties rendered on behalf of KMC, and Dr. Amin had invoked his right to such a defense in this action.
While Dr. Amin saw patients at his private practice, this practice was separate from his employment at KMC. Dr. Amin never saw Winston at his private practice; all of her treatment was through KMC.
Winston asserts that Dr. Amin is not identified as an employee in the agreement, other than being called a "contract employee" in the heading and first paragraph. The agreement, however, uses the words "employment" and "employed" to identify the relationship between Dr. Amin and the County in connection with Dr. Amin's entitlement to benefits. It also states that Dr. Amin "shall be employed by the County of Kern pursuant to the terms of this Agreement and the medical staff bylaws of KMC." After this sentence, the agreement states that Dr. Amin "acknowledges" he "will not be deemed a classified employee" or be protected under the County's civil service ordinance, rules or regulations. Contrary to Winston's assertion that this means Dr. Amin was not a County employee, the sentence means only that Dr. Amin is not a classified employee.
Although KMC does not have the right to terminate the agreement at will, the inability to terminate without cause does not compel a finding of independent contractor status. (See, e.g., Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 665 [noting that, while Labor Code section 2922 provides a presumption of at-will employment when employment is for no specified term, "[t]his presumption may be superseded by a contract, express or implied, limiting the employer's right to discharge the employee"].) Neither does the requirement that Dr. Amin give the County 90 days' notice before terminating the agreement without cause. Given Dr. Amin's position as chairman of the department, it is understandable that the County would want to be given sufficient time to find a replacement should Dr. Amin wish to terminate the agreement. Moreover, in light of the other evidence that Dr. Amin was an employee, these facts are not sufficient to support a finding that Dr. Amin was an independent contractor.
The evidence Winston offered does not create a triable issue of fact. This is because Dr. Amin treated Winston as a KMC patient, rather than as one of his private practice patients, and the treatment he provided Winston, and his ability to bill her insurance, were part of his compensation pursuant to the agreement.
The elements of the agreement that Winston claims create an issue of fact as to whether Dr. Amin was an independent contractor are either inaccurate representations of the agreement or are of little or no value on the issue. That the agreement does not dictate Dr. Amin's schedule, other than to state that he is required to work full-time, does not make Dr. Amin an independent contractor, as it establishes only that Dr. Amin has the freedom inherent in the nature of his work. (Briggs, supra, 230 Cal.App.3d at p. 618.) The clearing account, assessment for administrative expenses, and Dr. Amin's responsibility for billing and collecting his professional fees, while not typical of an employer-employee relationship, do not transform Dr. Amin into an independent contractor in light of the parties' intent to create an employment relationship and the other factors that establish such a relationship.
Winston points to several aspects of the agreement that provide specific benefits to physician employees and exclude them from benefits available to other County employees. For example, Dr. Amin could not receive retirement benefits as a "normal County employee," he was not protected by the civil service rules, and the County could terminate the agreement without the layoff and seniority protections available to other County employees if it ran out of funds to pay him. That different benefits or rules apply to physician employees than other County employees, however, does not make them independent contractors. Instead, it makes them a different class of employees.
Finally, Winston asserts that the indemnification agreement does not cover claims from insured patients, which shows the County treats services to insured patients as being provided by an independent contractor. As Dr. Amin points out, the agreement unambiguously states that the County assumes liability for and indemnity against all claims "incurred by Core Physician or for which Core Physician becomes liable to pay, arising out of or in connection with or related to the services rendered or which a third party alleges should have been rendered by Core Physician pursuant to this Agreement, . . . " It is undisputed that this action arose in connection with Dr. Amin's treatment of Winston as a Core Physician for KMC. The indemnity provision further refers to "all inpatient and outpatient family medicine patients who are seen, diagnosed, treated or otherwise cared for by resident physicians of KMC as part of their training." It is undisputed that Dr. Amin oversaw resident physicians who participated in Winston's care. Therefore, the indemnity provision applies here and does not support Winston's assertion that the County intended Dr. Amin to provide services to her as an independent contractor.
For the first time in her reply brief, Winston asserts (1) it would be illegal for KMC to control the manner in which Dr. Amin treated his patients, (2) Dr. Amin was required by law to provide his services through his private office at least as to his insured patients, and (3) it would be illegal for the County to practice medicine as to insured patients. In support, Winston cites Business and Professions Code section 2400 and Conrad v. Medical Bd. of California (1996) 48 Cal.App.4th 1038, 1041, in which the appellate court held that local hospital districts cannot legally employ physicians, but must contract with them as independent contractors.
Business and Professions Code section 2400 provides: "Corporations and other artificial legal entities shall have no professional rights, privileges, or powers. However, the Division of Licensing may in its discretion, after such investigation and review of such documentary evidence as it may require, and under regulations adopted by it, grant approval of the employment of licensees on a salary basis by licensed charitable institutions, foundations, or clinics, if no charge for professional services rendered patients is made by any such institution, foundation, or clinic."
We decline to consider arguments raised for the first time in a reply brief. In addition, we note that a County may use employed physicians to treat all patients, including paying patients, as Welfare and Institutions Code section 14000.2 expressly authorizes county hospitals to serve paying patients. (Community Memorial Hospital v. County of Ventura (1996) 50 Cal.App.4th 199, 205-206 [employing physicians to treat paying and non-paying patients at a county hospital does not violate the rule against the corporate practice of medicine; moreover, laws prohibiting the corporate practice of medicine do not apply to counties].)
In sum, considering all the factors as whole, they establish, as a matter of law, that Dr. Amin was acting in his capacity as a County employee when he treated Winston. Since Winston's action against the County is barred by the statute of limitations and her failure to comply with the Claims Act, the action against Dr. Amin, as a County employee, is also barred. (Govt. Code, § 950.2.) Accordingly, the trial court did not err when it granted Dr. Amin's summary judgment motion and entered judgment in his favor.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to Dr. Amin.
/s/_________
GOMES, Acting P.J. WE CONCUR: /s/_________
MEEHAN, J. /s/_________
BLACK, J.
Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.