Representative H & L Medical Negligence and Staff Privilege Cases

• Boales v. Blue Shield of California (2005) [unpublished].

Plaintiff’s action sought damages stemming from the adverse result of an unnecessary surgery. Plaintiff alleged that his former health care providers breached continuity of care duties under the Knox-Keene Act and Civil Code section 3428 by failing to continue to request follow-up EMGs and other noninvasive diagnostic tests, and by failing to inform plaintiff's subsequent providers about his need for such follow-up tests. These alleged duties also formed the basis of plaintiff's claim for violation of Civil Code section 3428. The trial court sustained demurrers by each defendant without leave to amend, and dismissed plaintiffs case.

The Court of Appeal affirmed, holding that plaintiff's former health care providers owed no continuity of care duties under either the Knox-Keene Act or Civil Code section 3428 because they were not health care service plans. The court also held that a health care provider could not be held liable for breach of those duties as an agent of a health care service plan because "an agent cannot be held liable to a third party for breach of a duty imposed only on the principal . . . ."

Horvitz & Levy represented one of the former health care defendants, whose judgment of dismissal was affirmed on appeal.

• Morohoshi v. Pacific Home (2004) 34 Cal.4th 482.

The parents of a developmentally disabled adult who died in a residential care facility sued the regional center responsible for coordinating his care. The Supreme Court reviewed a Court of Appeal decision holding the care facility and regional center jointly and severally liable for all wrongful death damages. The Supreme Court held that the regional center was not vicariously liable under the Lanterman Act for the day-to-day negligence of a health care provider with whom the regional center has contracted to provide services to an individual with developmental disabilities.

• Lathrop v. HealthCare Partners Medical Group (2004) 114 Cal.App.4th 1412.

The Court of Appeal held that a medical group is not a health care provider within the meaning of MICRA, but the group's vicarious liability for the negligence of a doctor is limited by MICRA in the same manner as it would be for the doctor. In other words, MICRA's $250,000 cap on noneconomic damages applies indirectly, but not directly, to a medical group. Horvitz & Levy LLP represented HealthCare Partners on appeal.

• Piedra v. Dugan (2004) 123 Cal.App.4th 1483.

This lawsuit claimed that Dr. Dugan failed to secure informed consent and then battered minor plaintiff Rey Piedra by administering medication against the express instructions Piedra's parents gave to the hospital's admissions personnel. The trial court granted nonsuit on the battery claim, and the jury returned a defense verdict on the informed consent claim. The Court of Appeal affirmed the defense judgment in a published decision, holding that a physician cannot be liable for an intentional battery based on his failure to comply with conditional consent instructions that were never communicated to him.

• Bynum v. Magno (2003) [unpublished].

The defendant, a cardiologist determined that plaintiff required urgent heart bypass surgery. Because of plaintiff's known pulmonary disease, the cardiologist consulted a pulmonologist, who examined plaintiff and assured the cardiologist it was safe to proceed with the bypass surgery. After the surgery, however, plaintiff suffered severe pulmonary complications that left him tethered to a mechanical ventilator for the rest of his life. Plaintiff sued both the cardiologist and the pulmonologist. Prior to trial, however, he inexplicably dismissed his claims against the pulmonologist, with prejudice. Then, at the close of evidence, he moved to dismiss the cardiologist's cross-claims for indemnity and contribution against the pulmonologist, and to exclude the pulmonologist's name from the verdict form. The trial court granted plaintiff's motion and the jury returned a verdict finding the cardiologist solely liable for plaintiff's damages. The Ninth Circuit reversed, ruling there was sufficient evidence to send the cardiologist's cross-claims against the pulmonologist to the jury, and that the pulmonologist's name should have been included on the verdict form so the jury could allocate fault to him.

• Baker v. Adventist Health, Inc. (9th Cir. 2001) 260 F.3d 987.

Action for violations of the Emergency Medical Treatment and Active Labor Act (EMTALA) and its state law counterpart, Health & Safety Code section 1317, alleging that defendant hospital failed to provide psychiatric evaluation and treatment to decedent. Decedent was examined in defendant hospital's emergency room and a determination was made that his complaints were purely psychiatric and had no physical causes. Because there were no psychiatric professionals on staff at the hospital, the hospital called in county mental health workers to assess decedent's condition. The county mental health workers determined that decedent was a not a threat to himself or others and the hospital discharged him based on their evaluation. Decedent was found dead by suicide two days later. The district court granted summary judgment in favor of defendant hospital. The Ninth Circuit affirmed, holding defendant hospital had no obligation to provide psychiatric evaluation of treatment beyond the hospital's capabilities.

• Jackson v. East Bay Hosp. (9th Cir. 2001) 246 F.3d 1248.

Action for violations of the Emergency Medical Treatment and Active Labor Act (EMTALA) and its state law counterpart, Health & Safety Code section 1317, alleging that defendant hospital provided inadequate medical screening examinations and failed to order additional tests when warranted. The district court granted summary judgment for defendant hospital. The Ninth Circuit affirmed, holding that a hospital does not violate EMTALA where it fails to diagnose the cause of a patient's emergency condition but treats the symptoms identified. A hospital satisfies EMTALA's medical screening requirement if it provides a patient with an examination comparable to the one offered other patients presenting similar symptoms. The court further held that Health & Safety Code section 1317's duty of reasonable care applies only when (a) the hospital does not provide a medical screening at all or (b) the hospital diagnoses an emergency condition and refuses to treat it.

• Parrino v. FHP et al. (9th Cir. 1998) 146 F.3d 699.

State law action against health plan for failure to timely process benefits. Defendants removed to district court, which denied plaintiff's motion to remand on procedural grounds and dismissed case on the basis of ERISA preemption. Court of Appeals affirmed, holding: (1) removal and dismissal were proper because plaintiff's claims were completely preempted by ERISA; (2) co-defendant Friendly Hills' late joinder did not warrant reversal and remand to state court because the procedural defect was cured prior to entry of judgment; and (3) the district court did not err in considering a document extrinsic to the complaint because the artful pleading doctrine permits federal courts to look beyond the face of the complaint to determine whether the claims alleged as state law causes of action are necessarily federal claims.

• Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291.

Action arising out of sexual molestation of patient by hospital ultrasound technician. Trial court granted hospital's motion for summary judgment. Court of Appeal reversed. Supreme Court reversed, holding that a hospital was not vicariously liable under the respondeat superior doctrine for an ultrasound technician's sexual molestation of a patient after an ultrasound examination.

• Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992.

Action for injuries sustained in fall from gurney where hospital failed to raise side rails. Trial court granted defendant's summary judgment motion. Court of Appeal reversed. Supreme Court reversed, holding Court of Appeal erroneously distinguished between "professional" and "ordinary" negligence in deciding whether hospital was entitled to summary judgment. On remand, the Court of Appeal affirmed summary judgment in an unpublished decision, holding that expert testimony is necessary to establish standard of care, and plaintiff had failed to controvert defendant hospital's expert evidence.

• College Hospital, Inc. v. Superior Court (Crowell) (1994) 8 Cal.4th 704.

Medical malpractice action arising out of extramarital affair between psychotherapy outpatient and respiratory therapist employed by hospital. Trial court allowed plaintiff to amend complaint to allege a punitive damage claim. Court of Appeal denied hospital's petition for writ of mandate to strike punitive damage claim. Supreme Court reversed, holding plaintiff was required by Code of Civil Procedure section 425.13 to demonstrate a legally sufficient claim supported by admissible evidence, and did not do so. The respiratory therapist was acting outside the scope of employment and denied any relationship with plaintiff when questioned by the hospital administrator. The hospital administrator did not act in willful and conscious disregard of plaintiff's safety by accepting the denial, nor did he act despicably, nor did he ratify the respiratory therapist's conduct.

• Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100.

Action for comparative equitable indemnity. In underlying action, injured employee sued employer and received large settlement. Employer then sued hospital and treating physician, seeking to recover portion of settlement. Physician settled out before trial. Jury found employer and health care providers negligent and apportioned liability. Trial court entered judgment against hospital in excess of the amount the employee would have been entitled to recover under MICRA had she sued the hospital and physician and won. Court of Appeal affirmed. Supreme Court reversed, holding that MICRA's $250,000 limit on recovery for noneconomic damages in an action for professional negligence against a health care provider applies in an action for equitable indemnity brought by a settling tortfeasor against a health care provider.

On remand, the Court of Appeal reversed the judgment, holding the hospital is entitled to an offset under MICRA for the co-defendant physician's settlement payment. The Court of Appeal then remanded the matter to the trial court to decide whether to allow a credit against the judgment for maintenance and cure benefits (the maritime equivalent of workers compensation) paid to the injured employee.

• Alexander v. Superior Court (Shaik Saheb) (1993) 5 Cal.4th 1218.

Medical malpractice action. Plaintiffs alleged defendant hospital negligently selected and reviewed its medical staff and sought to discover co-defendant doctors' applications and reapplications for staff privileges. Trial court declined to order discovery. Court of Appeal issued a writ compelling discovery. Supreme Court reversed, holding a physician's applications and reapplications for hospital staff privileges are protected from discovery by Evidence Code section 1157.

• Arato v. Avedon (1993) 5 Cal.4th 1172.

Action brought by wife and children of decedent patient arising out of physician defendant's alleged failure to inform patient fully and truthfully about his serious illness. The jury returned a defense verdict. The Court of Appeal reversed and remanded to the trial court for further proceedings. Supreme Court granted review and reversed the appellate decision, holding a doctor has no duty to provide patients with statistical life expectancy information to preserve and protect the financial and property interests of patients and their heirs, and has no duty to provide such information to obtain patients' informed consent to medical treatment unless the standard of care in the medical community requires such disclosure.

• Cedars-Sinai Medical Center v. Superior Court (Schwartz) (1993) 12 Cal.App.4th 579.

Action in which plaintiffs sought to discover the identities of the medical staff committee members who had evaluated the obstetrical privileges of two co-defendant physicians. The trial court refused to issue a protective order. The Court of Appeal issued a writ, holding Evidence Code section 1157 precludes the discovery sought.

• Austin v. McNamara (9th Cir. 1992) 979 F.2d 728.

Antitrust action against hospital and peer reviewers based on summary suspension of medical staff privileges. Trial court granted summary judgment, holding defendants immune from liability under the Health Care Quality Improvement Act of 1986. Ninth Circuit Court of Appeals affirmed.

• California Association of Psychology Providers v. Rank (1990) 51 Cal.3d 1.

Action against Department of Health Services to invalidate two administrative regulations. Trial court invalidated the regulations and ruled certain interested nonparties (associations of hospitals, physicians, and psychiatrists and individual psychiatrists) had no standing to challenge ruling. The Supreme Court held the nonparties did have standing to appeal because they were legally "aggrieved" by the trial court's order. However, the Supreme Court affirmed trial court's ruling that statutory law was inconsistent with administrative regulations that required psychiatrists, to the exclusion of psychologists, to be responsible for the diagnosis and treatment of patients in psychiatric wards or hospitals.

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