DesertRegionalMedicalCenter v. Superior Court

Filed 7/25/08 Desert Regional Medical Center v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; writ of mandate. Harold W. Hopp, Judge. Petition granted.

Agajanian, McFall, Weiss, Tetreault & Crist, Scott McFall, Susan Heider; Greines, Martin, Stein & Richland, and Timothy T. Coates, for Defendant and Petitioner.

No appearance for Respondent.

Moldo Davidson Fraioli Seror & Sestanovich, David Bricker; Ely, Bettini, Ulman & Rosenblatt, Burt Rosenblatt; and Steven B. Stevens, for Real Parties in Interest.

The court has read and considered the record in this proceeding and has concluded that an alternative writ would add nothing to the presentation already made and would cause undue delay in bringing the action to trial. We therefore issue a peremptory writ in the first instance. (Code Civ. Proc., 1088; Palmav.U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178-179; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another groundin Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 724, fn. 4.)

A physician providing services in a hospital may generally be found to be an ostensible agent of the hospital for purposes of imposing liability on the hospital where there was conduct by the hospital that would cause a reasonable person to believe that the physician was an agent of the hospital and there was reliance on the apparent agency relationship by the patient. The first element is generally satisfied when the hospital holds itself out to the public as a provider of care. The element of reliance is established when the patient looks to the hospital for services, rather than an individual physician. The only relevant factual issue is whether the patient had reason to know that the physician was not an agent of the hospital.

Unless a patient had some reason to know of the true relationship between the hospital and the physiciani.e. because the hospital gave the patient actual notice or because the patient was treated by his or her personal physicianostensible agency is readily inferred. (Mejia v. CommunityHospital of San Bernardino(2002) 99 Cal.App.4th 1448, 1454-1455 (Mejia).)

Unless the evidence conclusively indicates that the patient should have known that the treating physician was not the hospitals agent . . . the issue of ostensible agency must be left to the trier of fact. (Meija, supra, 99 Cal.App.4th at p. 1458.)

Here, plaintiff did receive actual notice of Dr. Phams status a day after his admission and thereafter he received treatment from this physician. Based on the totality of circumstances, it must be concluded that the issue of ostensible agency raises a triable issue of fact.

Furthermore, we must conclude that the trial court erred in granting summary adjudication of the eighth and ninth affirmative defenses which allege the negligence of third parties. Since summary adjudication can be granted only when it completely disposes of a cause of action or affirmative defense, it was improper to grant summary adjudication of these affirmative defenses without a showing or concession that no party other than Dr. Pham contributed to real party in interest, Trent Hughess, injuries. Although this was not a point raised by petitioner in the trial court or in its petition, the parties were asked to address this issue in the response and reply. Real parties in interest contend that it was up to petitioner to show that third parties were or could have been liable. However, real parties in interest were the moving party and had the initial burden of production to make a prima facie showing that there are not triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

DISPOSITION

Let a peremptory writ of mandate issue directing the Superior Court of Riverside County to set aside its order granting summary adjudication and to issue a new order denying that motion.

Petitioner is DIRECTED to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.

Each party to bear their own costs.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

HOLLENHORST

J.

GAUT

J.

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