January 10, 2025

Charlie L. v. Kangavari (Jan. 2, 2025, B327714) __ Cal.App.5th __, 2025 WL 23756

Health & Safety Code section 1799.110, subdivision (c), provides that “[i]n any action for damages involving a claim of negligence against a physician and surgeon providing emergency medical coverage for a general acute care hospital emergency department, the court shall admit expert medical testimony only from physicians and surgeons who have had substantial professional experience within the last five years while assigned to provide emergency medical coverage in a general acute care hospital emergency department.”

Plaintiff was brought to a hospital’s emergency department, where the attending physician ordered an X-ray and ultrasound. Defendant, an on-call radiologist working remotely, promptly reviewed the images and reported his conclusions to the attending physician, who then discharged plaintiff. When plaintiff’s condition worsened, he returned to the ER and underwent emergency surgery.

Plaintiff sued defendant, claiming he had negligently failed to timely diagnose bowel obstructions. Defendant moved for summary judgment contending he adhered to the standard of care and did not cause any harm. His motion was supported by the declaration of a diagnostic radiologist. Plaintiff’s opposition was supported by the declaration of a medical school professor of clinical radiology. The trial court ruled that Health and Safety Code section 1799.110 applied, sustained defendant’s objection that plaintiff’s expert was not qualified under section 1799.110, and granted summary judgment because plaintiff lacked a qualified standard-of-care expert. Plaintiff appealed.

The Court of Appeal reversed the summary judgment but ruled that section 1799.110 applies to malpractice actions against physicians who remotely provide medical expertise on an expedited basis as part of an emergency department’s treatment of an emergency department patient. The Court of Appeal concluded that section 1799.110 applies to on-call physicians remotely providing expertise as part of an emergency department because they operate under the same time pressures as emergency physicians and face the same threat of malpractice liability, “[T]his is the only conclusion consonant with section 1799.110’s purpose” of “ ‘promot[ing] “the development, accessibility and provision of emergency medical services.” ’ ”

The court then held that summary judgment could not be granted because neither side had proffered an admissible expert declaration. Neither plaintiff’s nor defendant’s expert had documented the substantial professional experience providing emergency medical coverage required by section 1799.110(c).

Horvitz and Levy represented Dr. Kangavari on appeal.