Ramirez v. Long Beach Mem.
Filed 3/20/13 Ramirez v. Long Beach Mem. Med. Center CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
HERMINIA RAMIREZ et al.,
Plaintiffs and Appellants,
v.
LONG
BEACH MEMORIAL MEDICAL
CENTER,
Defendant and Respondent.
B239125
(Los Angeles
County
Super. Ct.
No. NC051507)
APPEAL from a judgment of the Superior Court of
County.
Roy
L. Paul, Judge. Reversed.
Law Offices of Philip P. DeLuca, and
Philip P. DeLuca for Plaintiffs and Appellants.
Dummit, Briegleb & Trapp, Darren
W. Dummit and Craig S. Dummit for Defendant and Respondent.
__________________________________
This appeal
challenges a summary judgment in a
wrongful death action based on alleged medical malpractice in treating a
gunshot victim at Long Beach Memorial
Medical Center
(“the hospitalâ€). The trial court found the hospital immunized
itself against respondeat superior liability for any malpractice by the
treating physicians by having the patient’s mother sign a printed admission
form which included an express acknowledgement that the medical providers were
independent contractors and not employees or agents of the hospital. The trial court found no triable issue of
fact as to an emergency room nurse because a declaration submitted in
opposition to the hospital’s on the standard of care was ruled inadmissible.
The trial
court granted the hospital’s motion for summary judgment and entered judgment
accordingly. Though the trial court
properly found no triable issue of fact as to the emergency room nurse, we find
there are unresolved factual issues in determining whether the admission form
was binding so that it terminates the hospital’s liability. For that reason, we reverse the grant of
summary judgment.
FACTS
Background
An assailant shot Julio
Ramirez in the left thigh and lower leg.
After the shooting, paramedics transported Ramirez to the hospital. Ramirez arrived at the emergency room at about
11:45 p.m. Ramirez was agitated,
suffering a large amount of blood loss, and in extreme pain. Atul Gupta, M.D., the primary emergency room
doctor, and Frederick Stafford, M.D., a trauma surgeon, initially examined
Ramirez. Dr. Stafford then went into
surgery with another gunshot victim.
Ramirez remained in Dr. Gupta’s care in the emergency room. Based on a lack of pulse in Ramirez’s lower
leg and severe bleeding, Dr. Gupta ordered an on-call vascular surgeon to be
summoned to the hospital.
After Ramirez arrived at the hospital,
Ramirez’s mother, Herminia Ramirez, was presented with a three-page, printed
form entitled “CONDITIONS OF ADMISSION.â€
The Conditions of
Admission form included a consent to medical and surgical procedures during
hospitalization. Paragraph 4 of form stated
“LEGAL RELATIONSHIP BETWEEN HOSPITAL AND PHYSICIAN.†It reads:
“All
physicians and surgeons furnishing services to the patient, including
the . . . emergency department physician, and other
hospital-based physicians and the like, are independent contractors with the
patient and are not employees or agents of the hospital. The patient is under the care and supervision
of his/her attending physician and it is the responsibility of the hospital and
its nursing staff to carry out the instructions of such physician. It is the responsibility of the patient’s
physician or surgeon to obtain the patient’s consent or informed consent, when
required, to medical or surgical treatment, special diagnostic or therapeutic
procedures, or hospital services rendered to the patient under general and
special instructions of the physician.
The hospital-based physicians fees are billed separately and
independently of hospital charges, which means you will receive multiple bills.â€
Paragraph 14 of the Conditions of Admission form
reads: “If any provision of this
agreement is finally determined by a court to be unenforceable, the remainder
of this agreement shall remain in full force and effect. [¶]
This hospital admission agreement shall bind the parties herein, including . . . the
heirs, representatives, executors, administrators, successors, and assigns of
such parties . . . .â€
Ms. Ramirez signed the
Conditions of Admission form, with a notation that she was Ramirez’s
“mom.â€
Meanwhile, there was a significant delay in the arrival of the on-call
vascular surgeon to the hospital.
Ramirez was not taken from the emergency room to an operating room until
about 2:45 a.m., roughly three hours after he arrived at the
emergency room. Ramirez died during
surgery at about 7:00 a.m. the following morning.
The Litigation
Ms. Ramirez and Ramirez’s minor children (collectively Plaintiffs) filed a
wrongful death action. The operative
pleading is their second amended complaint.
It alleges Ramirez “unnecessarily bled to death†as a result of a
negligent delay in getting him into surgery.
Dr. Gupta, Dr. Stafford, Nurse Lynn Witte, the hospital, and others are
listed as defendants.
The hospital filed a motion for summary judgment
supported by evidence showing that Herminia Ramirez signed the printed
Conditions of Admission form with the language acknowledging that the doctors
at the hospital were independent contractors, and not employees, and by an
expert’s declaration stating that the hospital’s nursing staff did not act below
the standard of care. The hospital’s
motion argued there was no liability on its part because the nursing and
non-physician medical providers complied with the standard of care at all
times. As to the physicians, the
hospital’s argument relied wholly on Mejia
v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448 (
The hospital argued the Plaintiffs had reason to know the physicians
were not agents because the undisputed evidence established the existence of an
admission form with an acknowledgement that the physicians were independent
contractors, and not employees or agents of the hospital.
Plaintiffs filed their opposition, supported by a
declaration from a nursing expert who offered her opinion that the nurses at
the hospital acted below the standard of care during the time Ramirez was
treated in the hospital’s emergency room.
showing that the doctors who treated Ramirez acted below the standard of care.
On the issue of whether the doctors were acting as agents
of the hospital during Ramirez’s medical treatment, Plaintiffs argued: “[the
hospital] alleges that the patient was unable to go over the Conditions of
Admissions and as such, provided notice to the patient’s mother, Herminia
Ramirez, by making her sign the Conditions of Admissions. In fact, evidence exists that the
patient was alert and in stable condition upon his arrival to [the hospital] at
11:45
p.m. on July
28, 2007. The patient was a twenty one (21) year old adult,
[and] his mother has no authorization to sign on his behalf as [he] at all
times herein was an adult. Further, the
patient was not taken for tests until 12:00 a.m. and returned at 12:30 a.m. Herminia Ramirez was told that if she wanted
to go in and see her son, she had to sign a stack of papers. Herminia signed the papers at 12:42 a.m. on
July 29, 2007, fifty eight (58) minutes after Mr. Ramirez’ admittance to [the
hospital] and commencement of treatment.
The evidence illustrates that Mr. Ramirez was in immediate medical care
and [neither] him, nor his mother, could be expected to understand or act upon
signing a stack of papers so that she could see her injured
son. . . .
“The decedent had no primary care physician[;] he was
specifically seeking [emergency] medical care and treatment from at [the
hospital] . . . . In
fact, he was transported to the Emergency Department via ambulance. But the operation of a hospital emergency
room open to the public, where the public comes expecting medical care to be
provided through the normal operating procedures within the hospital, falls
within the limits for application of principles of ostensible agency and
apparent authority. . . .
“Hospitals spend enormous amounts of money advertising in
an effort to compete with each other for the health care dollar, thereby
inducing the public to rely on
them in their time of medical need. The
public, in looking to the hospital to provide such care, is unaware of and
unconcerned with the technical complexities and nuances surrounding the
contractual and employment arrangements between the hospital and the various
medical personnel operating therein.
Indeed, often the very nature of a medical emergency precludes choice. [Citation.]
“There
is no evidence stating that when Dr. Gupta, Dr. STAFFORD and/or Nurse WITTE
were attending to Julio Ramirez from the time of his admittance up until the
time his mother signed the Conditions of Admissions, fifty seven (57) minutes
later, provided actual notice to the patient, Julio Ramirez that they were
independent contractors, apart from [the hospital]. Testimony does exist from Dr. STAFFORD that
the patient was alert and awake at his initial examination. Not until an hour later, after Julio Ramirez
had been examined, diagnosed, taken for several tests and in the process of
receiving medication, did [the hospital] approach his mother to sign the
Conditions of Admission. In fact,
Herminia Ramirez was left with no option to sigh the Authorization . . . if
she wanted to see her son. From a
mother’s perspective, it can be deduced that Ms. Ramirez did not even read the
documents, because she was concerned for her son, who had been admitted into
the hospital from gunshot
wounds and she just wanted to see him. . . .
“Unless 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,
the issue of ostensible agency must be left to the trier of fact.â€
The hospital filed objections to Nurse Reigers’s declaration submitted in
support of Plaintiffs’ oppositions. The
hospital argued that, while Nurse Reigers was a qualified nurse, she was not a qualified
emergency room nurse. Thus, she was
not competent to offer an expert opinion on the standard of care in rendered to
Ramirez in an emergency room setting.
At the trial court’s direction, the parties submitted
further briefing and supporting evidence, addressed to the issue of the nurse’s
duty of care. Thereafter, the court
sustained the hospital’s evidentiary objection to Nurse Reigers’s declaration
in its entirety and then granted the hospital’s motion insofar as Plaintiff’s
claims were based on Nurse Witte’s actions.
The court also granted the hospital’s motion on the issue of lack of
agency. The court entered summary
judgment in favor of the hospital.
Plaintiffs filed a timely
DISCUSSION
Standard
of Review
Summary
judgment is appropriate where “all the papers submitted show that there is no
triable issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.†(Code
Civ. Proc., § 437c, subd. (c).) A
defendant moving for summary judgment meets this burden by presenting evidence
demonstrating that one or more elements of the cause of action cannot be
established or that there is a complete defense to the action. (Code Civ. Proc., § 437c, subd. (p)(2);
25 Cal.4th 826, 853-854 (Aguilar).) Once the defendant makes this showing, the
burden shifts to the plaintiff to show the existence of a triable issue of
material fact as to that cause of action or defense. (Code Civ. Proc., § 437c, subd. (p)(2); see
To
determine whether the parties have met their respective burdens, the court
considers “‘all of the evidence set forth in the [supporting and opposition]
papers, except that to which objections have been made and sustained by the
court, and all [uncontradicted] inferences reasonably deducible from the
evidence.’ [Citation.]†(Artiglio
v. Corning Inc. (1998) 18 Cal.4th 604, 612.) A plaintiff opposing summary judgment cannot
rely upon the mere allegations or denials of its pleadings, but “shall set
forth the specific facts†based on admissible evidence showing a triable issue
exists. (Code Civ. Proc., § 437c, subd.
(p)(2); Borders Online v. State Bd. of
Equalization (2005) 129 Cal.App.4th 1179, 1188.) When a moving party makes the required prima
facie showing, failure to comply with this requirement may, in the court’s
discretion, constitute a sufficient ground for granting the motion. (See
Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 734-735;
Casualty Co. (2009) 170 Cal.App.4th 554, 568.)
However,
the court may not grant the motion unless it first determines that the moving
party has met its initial burden of proof.
(See Thatcher v. Lucky Stores, Inc.
(2000) 79 Cal.App.4th 1081, 1086 [“[U]nless the moving party has met its
initial burden of proof, the court does not have discretion under subdivision
(b) of section 437c to grant summary judgment based on the opposing party’s
failure to file a proper separate statement.â€]; Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 106 [trial court
must consider all of the papers submitted before exercising its discretion to
grant a summary judgment based on the failure to file an adequate separate
statement]; Villa v. McFerren (1995)
35 Cal.App.4th 733, 746.) When the facts
are undisputed, the court may grant summary judgment on issues that otherwise
could have been submitted to the jury because “[a]n issue of fact becomes one
of law and loses its ‘triable’ character if the undisputed facts leave no room
for a reasonable difference of opinion.â€
(Ostayan v. Serrano Reconveyance
Co. (2000) 77 Cal.App.4th 1411, 1418.)
Thus, the defendant is entitled to summary judgment if the record
establishes as a matter of law that none of plaintiffs’ asserted causes of
action can be maintained. (
58 Cal.App.4th 254, 270.)
An
appellate court independently reviews an order granting summary judgment. (Aguilar,
supra, at p. 860.) We determine
whether the court’s ruling was correct, not its reasons or rationale. (Salazar
v. Southern Cal. Gas Co. (1997) 54 Cal.App.4th 1370, 1376.) “In practical effect, we assume the role of a
trial court and apply the same rules and standards which govern a trial court’s
determination of a motion for summary judgment.†(Zavala
v. Arce (1997) 58 Cal.App.4th 915, 925.)
“‘In performing our de novo review, we must view the evidence in a light
favorable to plaintiff as the losing party [citation], liberally construing
[his or] her evidentiary submission while strictly scrutinizing [defendant’s]
own showing, and resolving any evidentiary doubts or ambiguities in plaintiff’s
favor.’ [Citations.]†(United
Parcel Service Wage & Hour Cases (2010) 190 Cal.App.4th 1001, 1009;
accord, Aguilar, supra, 25 Cal.4th at
p. 843.) We apply these standards as
follows.
The
Hospital’s Liability Arising from Nursing Care
Plaintiffs’ argue the trial court improperly
granted summary judgment because there were conflicting expert declarations
regarding the nursing care provided.
Specifically, the hospital’s motion on the standard of care of the
nursing services provided to Ramirez motion was based on the expert declaration
of Nurse McConnell, and the Plaintiff’s submitted an opposing declaration from
Nurse Reigers. According to Plaintiffs,
this created a triable issue of fact, making this is an inappropriate case for
granting summary judgment. We disagree.
It is true,
as the Plaintiff’s assert, that when ruling on a motion for summary judgment a trial
court may not weigh evidence as a fact-finder and must liberally construe
opposition papers. We also agree with
Plaintiffs that a trial court may not grant a motion for summary judgment where
there is “valid, conflicting expert testimony†on the issues of duty, breach or
causation. The problem with the rules
relied on by Plaintiffs is that the trial court found Nurse Reigers’s expert
declaration entirely inadmissible. As a
result, there was no evidence admitted in opposition to the hospital’s motion
and there is no conflicting expert testimony.
The motion was appropriately granted as to the hospital’s nursing
staff.
Liability
as to the Doctors’ Care ––Respondeat Superior Liability and Ostensible Agency
Plaintiffs
next contend the trial court erred in granting summary judgment in favor of the
hospital based upon the lack of ostensible agency of the treating
physicians. Plaintiffs argue the record
discloses the existence of disputed issues of material fact which must be
resolved in determining whether the Conditions of Admission form signed by
Ramirez’s mother is enforceable so as to preclude Plaintiffs’ claims against
the hospital. We agree.
The Governing Law
The
respondeat superior liability and ostensible agency arguments on both sides in
the current case rely upon Mejia, supra,
99 Cal.App.4th 1448. In
District Court of Appeal traced the history, principles, and law of respondeat
superior liability and ostensible agency as it involves hospitals and medical
professionals. The court reviewed
authorities in both California and in other states, and then applied its
understanding of the law as it exists today in reversing a judgment of nonsuit
in favor of a hospital based on the lack of ostensible agency. We find the following discussion instructive:
“Although the cases discussing ostensible agency use various
linguistic formulations to describe the elements of the doctrine, in essence,
they require the same two elements: (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, e.g.,
Hosp. (Wis. 1988) 423 N.W.2d 848, 854, 856 (Pamperin).]
“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. (Butler
v. Domin (Mont. 2000) 15 P.3d 1189, 1196-1197 (Butler); Sword, supra,
714 N.E.2d at p. 151.) In order to prove
this element, it is not necessary to show an express representation by the
hospital. (Butler, at p. 1198; Sword,
at p. 151; Clark [
Hosp. & Family Health Ctr. (Ohio 1994) 628 N.E.2d 46, 52-53 (
have held itself out as the provider of care, unless it gave the patient
contrary notice. (Butler, at p. 1197; Sword,
at p. 152; see also Pamperin, at pp.
856-857.) 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. (Simmons
[ v. Tuomey Regional Medical Center (S.C. 2000) 533 S.E.2d 312, 322-323
(Simmons)]; Sword, at p. 152; Clark,
“The second element, reliance, is established when the
plaintiff ‘looks to’ the hospital for services, rather than to an individual
physician. (Butler, supra, 15 P.3d at p. 1196; Simmons, supra, 533 S.E.2d at p. 322; Pamperin, supra, 423 N.W.2d at p. 857; Jackson [ v. Power
(Alaska 1987) 743 P.2d 1376, 1380 (Jackson)].) However, reliance need not be proven by
direct testimony. (Clark, supra, 628 N.E. at pp. 52-53; Jackson, at p. 1382, fn. 10; see also Pamperin, at p. 857 . . . .) In fact, many courts presume reliance, absent
evidence that the plaintiff knew or should have known the physician was not an
agent of the hospital. (
“As should be apparent to an astute observer, there is
really only one relevant factual issue:
the physician was not an agent of the hospital. As noted above, hospitals are generally
deemed to have held themselves out as the provider of services unless they gave
the patient contrary notice, and the patient is generally presumed to have
looked to the hospital for care unless he or she was treated by his or her
personal physician. Thus, unless the patient had some reason to know of the true
relationship between the hospital and the physician –– [e.g.], because the
hospital gave the patient actual notice or because the patient
personal physician –– ostensible agency is readily inferred.†(Mejia,
supra, 99 Cal.App.4th at pp. 1453-1455, italics added, fn. omitted.)
Analysis
If the decedent, Ramirez, had gone to the hospital for
Admission form acknowledging that the physician doing the surgery was not an
agent or employee of the hospital, and if he
were suing the hospital, then we might find that Mejia, supra, 99 Cal.App.4th 1448 applied, immunizing the hospital
against respondeat superior liability based upon Ramirez’s own express
acknowledgement of the absence of agency.
If undisputed evidence shows a patient in a non-emergency treatment
situation expressly acknowledged a lack of agency between a physician and
hospital, we might conclude the patient was bound by the acknowledgement. However, the scenario we described is not
what happened between Ramirez and the hospital.
Here, Ramirez was the patient
and he was undisputedly an adult. He did
not sign the Conditions of Admission form acknowledging that there was no
agency relationship between the hospital and the treating physicians. On the contrary, the patient’s mother signed the form.
In the absence of evidence showing that Ramirez authorized his mother to
act on his behalf, it cannot definitively be found that the patient
acknowledged the non-agent status of the doctors. We see two agency issues in the current case
– the ostensible agency between the hospital and the doctors in the emergency
room, and the possible agency relationship between Ramirez and his mother. We do not believe this is a proper case for
summary judgment under Mejia in the
absence of evidence showing that the patient, personally or by an authorized
agent, acknowledged a non-agency relationship between hospital and doctor. Even if Ramirez had survived, we think his
mother’s acknowledgement of non-agency might not prevent Ramirez from seeking
to impose liability on the hospital. At
least not until evidence showed Ms. Ramirez had authority to bind her son to
the acknowledgement of non-agency.
It also makes a difference that this is a wrongful death
action brought by Ms. Ramirez and Ramirez’s children, rather than a malpractice
claim by Ramirez himself. In the
context of summary judgment, for the reasons stated above, we find there are
factual questions about Ms. Ramirez’s authority to bind her grandchildren to
the acknowledgement of non-agency to defeat the hospital’s motion for summary
judgment. We also find the motion for summary judgment should not
have been granted as to Ms. Ramirez. She
did not, as a matter of law, bind herself to the express acknowledgment of
non-agency. Where the evidence shows an
acknowledgement of non-agency was signed in a stressful situation, with
overtones of duress, it is a question of fact whether the acknowledgement is
enforceable against the signator. While
we do not see a declaration from Ramirez’s mother in the plaintiffs’ opposition
to the hospital’s motion, there are excerpts from her deposition
testimony. Ms. Ramirez’s deposition
testimony shows the following: “[The
hospital staff] left me there sitting down for 30 minutes. And then after that, a woman from there came
out, and she told me that if I wanted to go in and see [my son], I had to sign
a stack of papers.†A jury reasonably
could infer that Ms. Ramirez did not understand, or freely accept, the
acknowledgement that the doctors in the emergency room were not the hospital’s
agents or employees.
The existence of a non-agency acknowledgement form,
standing on its own as it largely does here, not signed by the patient
receiving treatment or shown to be signed by a person who was an authorized
agent for medical decisions, is insufficient to establish as a matter of law
that the hospital is immune from respondeat superior liability via a
DISPOSTIION
The summary
judgment entered in favor of the hospital is reversed. Appellants to recover their costs on appeal.
BIGELOW,
P. J.
We concur:
FLIER,
J.
GRIMES, J.
name="_ftn1" title="">[1]
nursing expert was Patricia Reigers, R.N.
