Filed 8/1/17 Costa v. Kroes CA4/3





NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


SARA COSTA,

Plaintiff and Appellant,

v.

JEREMY KROES, et al.,

Defendants and Respondents.


G053188

(Super. Ct. No. 30-2014-00738723)

O P I N I O N

Appeal from judgments of the Superior Court of Orange County, Janet Christoffersen, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Verdi Law Group, Alfred Joseph Verdi for Plaintiff and Appellant.
Law, Brandmeyer & Packer, Yuk K. Law, and Elizabeth A. Evans for Defendant and Respondent, Jeremy Kroes.
Dummit Buchholz & Trapp, Kevin S. Tanaka for Defendant and Respondent, Los Alamitos Medical Center, Inc.
* * *
Plaintiff Sara Costa brought a negligence action against defendants Jeremy Kroes, M.D. and Los Alamitos Medical Center, Inc. (LAMC), arising from their care and treatment during an emergency room visit. The trial court granted defendants’ separate motions for summary judgment.
On appeal plaintiff argues the court improperly granted both motions. As to Kroes, her primary contention is the court erred in excluding the declaration of her medical expert on grounds he was unqualified to testify on the standard of care applicable to emergency room physicians under Health and Safety Code section 1799.110, subdivision (c). Plaintiff also makes several interrelated arguments concerning the applicability of section 1799.110 and the experts’ compliance or lack of compliance with its requirements. We conclude the court correctly excluded plaintiff’s expert declaration because he was not an emergency room physician and therefore, pursuant to section 1799.110, cannot offer testimony. Having failed to counter Kroes’s expert declaration with admissible evidence, plaintiff failed to establish there exist triable issues of material fact as to Kroes’s alleged negligence. Plaintiff has forfeited the remaining issues by failing to raise them in the trial court.
As to LAMC, plaintiff contends the trial court’s minute order contains multiple inconsistencies and it was therefore error for the court to enter judgment in LAMC’s favor. We agree there are inconsistencies in the poorly written minute order, but these inconsistencies do not warrant reversal. Because plaintiff does not argue the merits of LAMC’s summary judgment motion but attacks only the form of the minute order, she has waived her arguments on the merits.
Accordingly, we affirm.

FACTS

Plaintiff’s Treatment at LAMC
At 8:29 a.m., on August 8, 2013, plaintiff arrived at LAMC’s emergency department via ambulance. She complained of a headache, dizziness, nausea and vomiting for one day. Plaintiff was given anti-nausea medication and pain killers, and her pain significantly improved. Kroes examined plaintiff, ordered a CT scan, which was normal, and consulted with plaintiff’s primary care physician. Plaintiff’s echocardiogram was also normal. She was given a steroid to treat vertigo, and her symptoms improved. Kroes’s initial differential diagnosis was cardiac arrhythmia, transient ischemic attack, and vertigo. Kroes authorized plaintiff’s discharge with instructions on dizziness and vertigo. He also prescribed several medications. Plaintiff was told to follow up with her primary care physician.
Around 2:10 p.m., plaintiff said she felt better and wanted to go home. At 2:48 p.m., plaintiff’s employer, Wayne Orel, arrived and requested plaintiff be admitted for observation because she was still complaining of dizziness with a sense of spinning. At 3:14 p.m., Dr. Greg Moreno reassessed plaintiff; Kroes had left the hospital for the day. A neurologist, Dr. Omid Omidvar, evaluated plaintiff at 4:12 p.m. Plaintiff noted her headache was gone, but she was dizzy, unsteady, and having problems with coordination on the left side. Omidvar noted drooping of the left eyelid. Plaintiff also had lack of coordination of the left upper extremity and some heaviness of the left lower extremity. At this point, plaintiff had an MRI, which revealed “multiple small foci of acute nonhemorrhagic infarction in the left cerebellar hemisphere without significant mass effect.” In short, plaintiff had suffered a stroke.
Five days later, plaintiff was transferred to Long Beach Memorial Medical Center for rehabilitation. There she was diagnosed with patent foramen ovale, “‘a hole in the heart,’” and “potential paradoxical embolus from lower extremity deep vein thrombosis.”
Plaintiff asserts she was damaged from six hours of not being properly medicated in a stroke situation.

Plaintiff Files Suit
Plaintiff filed her complaint for (1) medical/professional negligence against Kroes and LAMC; (2) negligence against LAMC; and (3) negligent hiring, supervision or retention of employee against LAMC. She alleged defendants were negligent in the examination of plaintiff and negligently failed properly to diagnose, prescribe medicine, treat and/or care for her medical conditions. As part of the alleged failure to exercise due care, plaintiff alleged defendants failed to provide emergency medical treatment, medication, procedures, medical devices, and assistance as manifested by their attempting to discharge plaintiff within five hours of admittance. She alleged as a result of the negligence, she suffered serious personal injuries which aggravated the disabling effects of the late-diagnosed stroke. Finally, plaintiff alleged LAMC was negligent in hiring, supervising or retaining Kroes as an employee.

Kroes’s Motion for Summary Judgment
Kroes filed a motion for summary judgment asserting he complied with the standard of care at all times in his treatment of plaintiff. In support of the motion, Kroes relied on the declaration of George Baskevitch, M.D. Baskevitch was a full-time active staff physician in the emergency room at West Anaheim Medical Center, served on the West Anaheim Medical Center Medical Executive Committee, and was a medical director of the South Coast Emergency Medical Group. He had been certified by the American Board of Emergency Medicine since 1994. He declared he has knowledge of the standard of care applicable to emergency medicine physicians in the Southern California area at all times relevant to the litigation.
After reviewing plaintiff’s medical records and deposition and the deposition of Orel, and taking into consideration his education, training and experience, it was Baskevitch’s opinion Kroes complied with the applicable standard of care at all times in his care and treatment of plaintiff. Baskevitch believed, to a reasonable degree of medical probability, plaintiff most likely had a small stroke before she woke up on the morning of August 8, which did not continue while she was in the emergency room because when she was examined by Kroes she did not exhibit signs of a stroke other than symptoms consistent with positional vertigo. Dizziness, nausea and vomiting are known symptoms of peripheral or positional vertigo. Then “plaintiff most likely had another stroke when a thrombus was thrown and traveled to the cerebellum between [2:10 p.m.] and [3:14 p.m.] while she was waiting to be picked up . . . . The source of the thrombus was most likely a deep vein thrombosis . . . .”
In opposition to Kroes’s motion, plaintiff relied on the declarations of Nader Armanious, M.D., and Justin Morgan. Plaintiff also requested judicial notice of a Los Angeles County Department of Health Services document outlining guidelines for transporting suspected stroke patients to the most accessible facility appropriate to their needs. Plaintiff’s memorandum of points and authorities in opposition to Kroes’s motion states it is based on additional declarations of plaintiff and Orel, but no such declarations were filed. Plaintiff also objected to Kroes’s numbering system of plaintiff’s medical records.
Armanious is a board certified neurologist in private practice. He has no experience as an emergency room physician. Armanious faulted LAMC for failing to acknowledge stroke-related signs or abnormalities and in diagnosing a simple case of vertigo. In his opinion, LAMC’s decision to discharge plaintiff after only five hours failed to meet the requisite standard of care to a reasonable medical certainty and resulted in a “delayed and ignored stroke condition” and “imposition of emergency stroke treatment to mitigate or erase the damage to [p]laintiff’s brain from the stroke.” He opined the emergency room staff at LAMC addressed plaintiff’s symptoms individually rather than collectively taking into account all of plaintiff’s symptoms, thereby “missing completely the big picture.” He believed it was clear from plaintiff’s records the symptoms presented to Moreno at 12:45 p.m. were the same symptoms presented to Kroes at 8:29 a.m., and there are no records indicating a sudden onset of stroke symptoms after Kroes left his shift. “The only changed circumstance was the different and correct reading of the same symptoms to Dr.’s Moreno and Omidvar.”
Morgan is a paramedic and prehospital care consultant, not a physician. Morgan had several criticisms in the way plaintiff’s care was handled, but plaintiff relies primarily on his opinion the mLAPSS (Modified Los Angeles Prehospital Stroke Screen), an evaluation tool for potentially neurologically compromised patients, was left blank on the report prepared by the paramedics. In Morgan’s opinion, the failure of LAMC to note the omitted mLAPSS data was a contributory or one of the primary causes of the emergency room not treating plaintiff as a critical stroke patient until neurological studies were undertaken far later in the day.
Kroes submitted evidentiary objections to the declarations of Armanious and Morgan. He objected on grounds both declarations were irrelevant and must be disallowed, because the witnesses were unqualified to opine on the standard of care of Kroes, a medical doctor who renders care in an emergency room, pursuant to section 1799.110, subdivision (c). He also objected to plaintiff’s request for judicial notice.

LAMC’s Motion for Summary Judgment
LAMC filed a motion for summary judgment or in the alternative for summary adjudication contending there is no triable issue of material fact as to (1) plaintiff’s first and second causes of action for negligence of the hospital’s nurses and non-physician staff; (2) plaintiff’s third cause of action regarding negligent hiring, supervision or retention of employee against the hospital; (3) actual agency between plaintiff’s treating physicians and the hospital; and (4) ostensible agency between plaintiff’s treating physicians and the hospital. In support of the motion, LAMC primarily relied on the declarations of Jonathan Lawrence, M.D., and Edwin C. Amos, M.D.
Lawrence had been board certified in emergency medicine since 1982 and had been in active practice as an emergency medicine physician at St. Mary Medical Center in Long Beach since 1975. Lawrence declared he was familiar with the standard of care for emergency physicians, nurses and other non-physician staff providing care to patients in Southern California. He opined the care and treatment provided to plaintiff complied with the applicable standard of care. He concluded the hospital nurses properly monitored plaintiff’s condition in all instances, timely and appropriately evaluated her, timely and accurately complied with physician orders, and kept the physician informed of all changes in her condition. He opined there was no delay in her care due to actions of the hospital nursing staff.
Amos was board certified in neurology and had an active practice as a neurologist at UCLA and Providence St. John’s Medical Center. Amos opined the care and treatment provided to plaintiff by LAMC nurses and other non-physician personnel complied with the applicable standard of care, and that no acts or omissions in their care and treatment caused or contributed to plaintiff’s alleged injuries. He noted plaintiff “presented with symptoms of severe vertigo and upon examination was identified with a NIHSS of 2,” which is a low score not indicative of a serious stroke. He also pointed out the “diagnosis of a stroke is made by a treating physician, not a nurse or non-physician.”
Plaintiff opposed LAMC’s motion again stating the opposition was based on the declarations of plaintiff, Orel, Armanious, and Morgan. Again, plaintiff did not file the declarations of plaintiff or Orel. Without filing separate versions tailored to each moving defendant, plaintiff relied on the declarations of Armanious and Morgan submitted in opposition to Kroes’s motion.
LAMC filed numerous objections to the declarations of Morgan and Armanious and to plaintiff’s request for judicial notice.

The Hearing and the Trial Court’s Rulings on the Motions
The court did not post a tentative ruling prior to or at the hearing. During oral argument Kroes’s counsel argued Baskevitch established the appropriate standard of care for Kroes and plaintiff had not met her burden in opposing the motion because she had not submitted an admissible expert declaration under section 1799.110. Plaintiff’s counsel did not counter with anything related to section 1799.110. Instead, counsel argued Baskevitch omitted from his declaration the effect of not doing a stroke analysis when plaintiff arrived at the hospital. Plaintiff’s counsel admitted Armanious was not criticizing Kroes’s handling of the emergency room function but instead criticized the fact he missed important indicators of a stroke. He argued LAMC is a certified stroke facility and Kroes was there for his expertise, and Kroes should have run a full scale stroke analysis when plaintiff arrived.
LAMC’s counsel argued the case against LAMC required a showing of negligence on behalf of the nurses and non-physician personnel who are employees of the hospital. As to standard of care, LAMC’s counsel argued its two experts, Lawrence and Amos, established the nurses properly carried out ordered treatment. Counsel noted plaintiff had not opposed the showing that the nurses are only responsible for carrying out doctor’s orders, not for ordering medications, diagnosing patients, or ordering discharge. Counsel argued plaintiff had not brought forth standard of care evidence as to what the nurses and non-physicians did wrong. Counsel argued Morgan provided causation statements and other opinions beyond his purview as a paramedic. He argued plaintiff signed conditions of admission upon entering the hospital acknowledging physicians are independent contractors and not employees or agents of the hospital. In response, plaintiff’s counsel argued the nurses are responsible for running the NIHSS scale for stroke victims, and though plaintiff was graded at 2, the reason for that is because the record omitted the mLAPSS.
Over one month following oral argument, the court issued its ruling. As to Kroes, the court granted the motion for summary judgment. The court found Kroes had met his initial burden of proof and, relying on section 1799.110, had met all the requirements to negate the essential element of breach of duty as to plaintiff’s claim for professional negligence. The court overruled plaintiff’s general objection to Kroes’s numbering system of plaintiff’s medical records. The court found plaintiff had not established a triable issue of material fact in that neither the declaration of Armanious nor the declaration of Morgan satisfied the requirements of section 1799.110. The court overruled Kroes’s evidentiary objections as moot, because even if all plaintiff’s evidence was considered, plaintiff failed to establish a triable issue of material fact due to the lack of a proper declaration.
As to LAMC, the ruling is far from a model of clarity. On the first issue addressing the first and second causes of action for professional negligence, the court found LAMC met its initial burden of proof as to any nursing and non-physician staff and plaintiff failed to meet her burden because she did not submit an expert declaration attesting to the standard of care for nurses and non-physician hospital staff. On the second issue addressing the cause of action for negligent hiring, supervision or retention of an employee, the minute order contradicts itself. The court first concluded LAMC had not met its initial burden of proof. In an inconsistent departure, the court then wrote, “Alternatively, given that there is evidence showing that Kroes was not employed by LAMC . . . , and given that there is evidence, shown below in Issues 3 and 4, that Kroes was not an actual or ostensible agent of LAMC, the Court may wish to find that LAMC met its initial burden of proof on this cause of action as it related to defendant Kroes. If Kroes is not an employee or agent of LAMC, LAMC cannot be held liable for negligent hiring, retention or supervision of Kroes.” (Italics added.)
On the third issue addressing actual agency between Kroes and LAMC, the court found LAMC met its initial burden of proof by establishing Kroes was an employee of California EM-1 Medical Services, and plaintiff failed to create a triable issue of material fact. On the fourth issue addressing ostensible agency between Kroes and LAMC, the court found LAMC met its initial burden of proof and plaintiff failed to create a triable issue of material fact. The court overruled LAMC’s evidentiary objections to plaintiff’s evidence.
After all this analysis manifesting the court’s intention to grant the motion, the court inconsistently included two wayward sentences on the minute order’s last page, which state LAMC’s motion for summary adjudication is denied and because it fails, the motion for summary judgment also fails.
Apparently assuming the minute order’s meaty content prevailed over its contradictory content, on December 11, 2015, LAMC submitted a proposed judgment in its favor. Four days later plaintiff served an opposition to LAMC’s proposed judgment in part arguing LAMC chose to ignore the court’s ruling and stated its own ruling in its place. However, the court signed and entered judgment in favor of LAMC on that same day without indicating one way or the other whether it received or considered plaintiff’s opposition.
On February 1, 2016, the court entered judgment in favor of Kroes. On February 11, 2015, plaintiff filed her notice of appeal from the judgments.

DISCUSSION

Summary Judgment
The underlying purpose for summary judgment is to resolve litigation by avoiding needless trials. (Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147 Cal.App.3d 309, 313.) Code of Civil Procedure section 437c, subdivision (c) provides, “summary judgment shall be granted if 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.” “A party may move for summary adjudication as to one or more causes of action . . . if the party contends that the cause of action has no merit.” (Id. § 437c, subd. (f)(1).)
A defendant may bring a motion on the ground there is a complete defense to the action or the plaintiff cannot prove one of the required elements of the case. (Code Civ. Proc., § 437c, subds. (o)(1)-(2), (p)(2); Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.) If defendant meets that burden, the burden shifts to the plaintiff to produce evidence there is a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Caldwell, at p. 203.) “There is a triable issue of material fact if, and only if, 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 v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
We review a summary judgment de novo. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 860.) “[W]e liberally construe plaintiff’s evidentiary submissions and strictly scrutinize defendant’s own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff’s favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.)
We review rulings on the admissibility of expert declarations for abuse of discretion. (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 187.) “A court abuses its discretion if its ruling is ‘“so irrational or arbitrary that no reasonable person could agree with it.”’” (Ibid.) On appeal it is appellant’s burden to show the court’s ruling was erroneous. (Truong v. Glasser (2009) 181 Cal.App.4th 102, 119.)

Medical Malpractice Claims and The Expert Testimony Requirement
“Medical providers must exercise that degree of skill, knowledge, and care ordinarily possessed and exercised by members of their profession under similar circumstances. [Citation.] Thus, in ‘“any medical malpractice action, the plaintiff must establish: ‘(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.’”’” (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122 (Powell).)
“Whenever the plaintiff claims negligence in the medical context, the plaintiff must present evidence from an expert that the defendant breached his or her duty to the plaintiff and that the breach caused injury to the plaintiff.” (Powell, supra, 151 Cal.App.4th at p. 123.) “A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.” (Evid. Code, § 720, subd. (a).) “An expert may base his or her opinion on any matter reasonably relied upon by experts in forming opinions about the particular subject matter in question, except when the law precludes consideration of a particular matter.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) “If the expert has disclosed sufficient knowledge of the subject to entitle his or her opinion to go to the jury, the court abuses its discretion by excluding his or her testimony.” (Id. at pp. 467-468.)
In medical malpractice actions involving emergency room treatment, there is an additional requirement. Section 1799.110, subdivision (c) provides, “In 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. For purposes of this section, ‘substantial professional experience’ shall be determined by the custom and practice of the manner in which emergency medical coverage is provided in general acute care hospital emergency departments in the same or similar localities where the alleged negligence occurred.” (Italics added.)
“Section 1799.110 [subdivision, (c)] is part of a larger Good Samaritan statutory enactment [citation], the intent of which was ‘to promote the provision of emergency medical care by giving dedicated emergency room physicians a measure of protection from malpractice claims. [Citations.]’ [Citation.] Thus, the section requires that an expert testifying in a malpractice action as to the standard of care must be one who has ‘substantial professional experience’ in providing emergency medical services in an emergency room.” (Petrou v. South Coast Emergency Group (2004) 119 Cal.App.4th 1090, 1093.) “‘“When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting evidence.”’” (Powell, supra, 151 Cal.App.4th at p. 123.)

The Trial Court Properly Granted Kroes’s Motion for Summary Judgment
In plaintiff’s opposition to Kroes’s motion, plaintiff made one argument on the merits: There were triable issues of fact as raised in the declarations of plaintiff, Orel, Armanious, and Morgan, all of which disclose “very credible evidence from which a reasonable inference can be drawn that [Kroes] knew or should have known that [p]laintiff was suffering in extremis at the time of arrival in the LAMC Emergency Room.” Plaintiff contended Kroes misdiagnosed her upon arrival at LAMC. She argued Kroes is “guilty of not reviewing the EMS report, or if he reviewed it he did not comprehend the meaning of the omission of the mLAPSS testing and the absence of multiple vital signs entries and proper time stamping of events.” She argued these “omissions would have alerted a reasonably prudent medical team . . . that a full mLAPSS protocol must be activated and performed in full scale.”
At the hearing in the trial court, rather than attack the applicability of section 1799.110, plaintiff argued Baskevitch omitted the effect of not doing a stroke analysis when plaintiff arrived at the hospital. Plaintiff’s counsel admitted Armanious was not criticizing Kroes’s handling of the emergency room function but instead criticized the fact he missed important indicators of a stroke. Counsel argued LAMC is a certified stroke facility and Kroes was there for his expertise, and Kroes should have run a full scale stroke analysis when plaintiff arrived.
On appeal plaintiff veers off course from her trial court argument and advances several new interrelated arguments. Plaintiff argues for the first time the trial court erroneously ruled the appropriate standard of care for treating plaintiff was governed by section 1799.110. Plaintiff contends Kroes never identified the applicable standard of care in his summary judgment moving papers and therefore he should be barred from asserting in his summary judgment reply papers that section 1799.110 governs the sufficiency of Armanious’s declaration. She complains Baskevitch’s declaration makes no mention in his opinion about a standard of care being based on performance of Kroes as an emergency room doctor and that it fails to satisfy the requirements of section 1799.110. Finally, plaintiff argues Kroes presented no evidence he was acting as an emergency room physician when he treated plaintiff.
There are several problems with plaintiff’s about-face on appeal. First, plaintiff forfeited each of these issues, because she did not raise them below. In the trial court plaintiff argued only that triable issues of material fact exist surrounding Kroes’s alleged failure to diagnose plaintiff with a stroke. She was silent on the standard of care and section 1799.110’s applicability to the case. “‘Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider. [Citation.] In our adversarial system, each party has the obligation to raise any issue or infirmity that might subject the ensuing judgment to attack. [Citation.]’ [Citation.]” (Natkin v. California Unemployment Ins. Appeals Bd. (2013) 219 Cal.App.4th 997, 1011.) “‘“The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected.”’” (Ibid.) “Issues presented on appeal must actually be litigated in the trial court — not simply mentioned in passing.” (Ibid.) Hence, a “party who fails to alert the trial court to an issue that has been left unresolved forfeits the right to raise that issue on appeal.” (Araiza v. Younkin (2010) 188 Cal.App.4th 1120, 1127.) So it is here.
Even if plaintiff had not forfeited the interrelated standard of care issues on appeal, her arguments still fail. Plaintiff’s complaint governs the scope of relevant issues in the case, including the applicable standard of care. It is not for defendant to establish which standard of care applies to plaintiff’s case. The standard of care is framed by plaintiff’s pleadings and the facts of the case. (See Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 750 [issues to be addressed in summary judgment motion framed by pleadings].) As part of the alleged failure to exercise due care, plaintiff’s complaint alleges defendants failed to provide emergency medical treatment, medication, procedures, medical devices and assistance as manifested by their attempting to discharge plaintiff within five hours of admittance.
The evidence, including plaintiff’s medical records, confirms plaintiff arrived at LAMC’s emergency room by ambulance. She was treated in the LAMC emergency room by Kroes. In her response to LAMC’s separate statement, plaintiff did not dispute that Kroes was an employee of California EM-1 Medical Services at the time he treated plaintiff. We reasonably infer “EM” refers to emergency medicine given Kroes was working in an emergency room. Plaintiff never disputed these facts in the trial court. In addition to her complaint referencing emergency medical treatment, plaintiff’s opposition papers are sprinkled with references to LAMC’s emergency room and ER department. In plaintiff’s separate statement, plaintiff admitted she arrived at the ER of LAMC and that Kroes, her attending ER physician, ordered a CT scan. Plaintiff’s opposition to Kroes’s motion for summary judgment also states, “[Kroes] knew or should have known that [p]laintiff was suffering in extremis at the time of arrival in the LAMC Emergency Room.” (Italics added.) Plaintiff also argues in her opposition, “LAMC is surely not blameless as LA County policy dictates that the ER function in any hospital has the immediate responsibility to review the EMS reports . . . before the ER physician arrives to treat.” (Italics added.) Plaintiff further argues, “LAMC personnel, including highly experienced ER nurses, either failed to read the EMS report, or if they did, they failed to appreciate the consequences of their inaction, including informing [Kroes] of [p]laintiff’s true condition . . . .” These are but a few examples in the record.
It is preposterous for plaintiff to assert she did not know she would need an emergency room physician expert to testify on the standard of care. Based on plaintiff’s theory of the case as pleaded in her complaint, the evidence before the court, and common sense, plaintiff’s lawsuit requires compliance with section 1799.110, because she filed an “action for damages involving a claim of negligence against a physician providing emergency medical coverage for a general acute care hospital emergency department.” (§ 1799.110, subd. (c).)
“In determining whether a witness is qualified to testify as a medical expert concerning a claim of negligent treatment rendered by an emergency room physician, the trial court must determine as a ‘preliminary fact’ whether the treatment given constituted ‘emergency medical coverage.’ [Citations.] This is consistent with the general rule conferring upon the trial court the duty to determine whether a witness qualifies as an expert. [Citation.] Evidence Code section 405 was designed to allow the trial judge to withhold evidence from the jury where the rule mandating its exclusion is based on public policy considerations.” (Jutzi v. County of Los Angeles (1987) 196 Cal.App.3d 637, 647 (Jutzi), fn. omitted.)
Kroes submitted the declaration of Baskevitch on the standard of care for emergency room physicians. Plaintiff never objected to the Basketvitch declaration in the trial court. In addition to forfeiting the issue by failing to raise it in the court below, on summary judgment, evidentiary objections not made at the hearing are deemed waived. (Code Civ. Proc., § 437c, subd. (b)(5).)
Baskevitch was a full-time active staff physician at West Anaheim Medical Center Emergency Department, served on the West Anaheim Medical Center Medical Executive Committee, and was a medical director of the South Coast Emergency Medical Group. He has been certified by the American Board of Emergency Medicine since 1994. He declared he has “knowledge of the standard of care applicable to emergency medicine physicians in the Southern California area at all times relevant to the litigation.” Given his background, experience, and current position, Basketvitch is qualified to offer his opinion on the standard of care for an emergency room physician within the meaning of section 1799.110.
After reviewing plaintiff’s medical records and deposition and the deposition of Orel, and taking into consideration his education, training and experience, it was Baskevitch’s opinion Kroes complied with the applicable standard of care at all times in his care and treatment of plaintiff. Baskevitch believed, to a reasonable degree of medical probability, plaintiff most likely had a small stroke before she woke up in the morning of August 8 which did not continue while she was in the emergency department, because when she was examined by Kroes she did not exhibit signs of stroke other than symptoms consistent with positional vertigo. “Dizziness, nausea and vomiting are known symptoms of peripheral or positional vertigo.” Then “plaintiff most likely had another stroke when a thrombus was thrown and traveled to the cerebellum between [2:10 p.m.] and [3:14 p.m.] while she was waiting to be picked up. . . . The source of the thrombus was most likely from a deep vein thrombosis . . . .”
In light of this evidence, Kroes met his initial burden to establish plaintiff cannot prove breach of duty, one of the required elements of plaintiff’s case. (Code Civ. Proc., § 437c, subds. (o)(1)-(2), (p)(2); Powell, supra, 151 Cal.App.4th at p. 122.)
In an effort to raise a triable issue of material fact, plaintiff submitted the declarations of Armanious and Morgan, neither of whom are emergency room physicians. The court excluded the declarations on grounds they were insufficient to address the standard of care for an emergency room physician.
Armanious is a neurologist, not a physician who has had substantial professional experience within the last five years while assigned to provide emergency medical coverage in a general acute care hospital emergency department. Though he is not an emergency physician, Armanious touched on the standard of care of emergency room personnel when he declared LAMC’s decision to discharge plaintiff after only five hours failed to meet the standard of care to a reasonable degree of medical certainty and resulted in a delayed stroke diagnosis. Morgan is not a physician at all. He is a paramedic and prehospital care consultant.
Neither of plaintiff’s declarations submitted in opposition to Kroes’s motion meets the qualifications of section 1799.110, subdivision (c). “[T]he legislative exclusion of expert testimony by physicians who do not have substantial recent experience working in a hospital emergency room is based at least in part on the public policy of encouraging the provision of emergency medical services by insulating the providers of such services from assertions of negligence made by expert witnesses who lack expertise in hospital emergency room care.” (Jutzi, supra, 196 Cal.App.3d at p. 648.) Thus, even construing plaintiff’s evidence liberally as we must (Johnson, supra, 43 Cal.4th at p. 64), plaintiff’s evidence fails.
The trial court did not make an express finding whether emergency medical care was provided to plaintiff. Nor did the court make an express finding Baskevitch had substantial professional experience within the last five years while assigned to provide emergency medical coverage in a general acute care hospital emergency room. (§ 1799.110, subd. (c).) But we infer these facts. (See Jutzi, supra,196 Cal.App.3d at p. 648 [trial judge did not make express finding whether emergency medical care provided but court’s ruling excluding expert testimony implied finding the necessary preliminary fact of emergency medical care did exist, and a formal finding was unnecessary].) “A component of emergency medical care is that the patient’s condition, ‘if not immediately diagnosed and treated, could lead to serious physical or mental disability or death.’” (Ibid.; see Zavala v. Board of Trustees (1993) 16 Cal.App.4th 1755, 1762-1763 [physician “‘providing emergency medical coverage’” described as “a physician whose ‘field of activity’ is the provision of emergency medical services in a hospital’s emergency department. Such a physician is usually described as an emergency room physician”].) Here, plaintiff’s stroke condition could have led to serious physical or mental disability or death and therefore the care she sought was emergency medical care. As to Baskevitch, we have no trouble inferring he qualifies as an emergency room physician under section 1799.110 given his professional history includes he is presently working full-time in an emergency room.
There was no abuse of discretion in the court’s refusal to consider plaintiff’s expert declarations. Plaintiff could have requested a continuance of the hearing to allow her time to find a new expert who could testify in accordance with section 1799.110, or to conduct additional discovery. Code of Civil Procedure section 437c, subdivision (h) provides, “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” Plaintiff never requested relief under this subdivision.
Finally we address plaintiff’s repeated insistence that because Kroes did not include in his moving papers that the applicable standard of care is governed by section 1799.110, Kroes violated the socalled “Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist.” (See United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337.) Plaintiff faults Baskevitch for failing to mention in his opinion that the standard of care rendered to plaintiff was based on the performance of Kroes as an emergency room physician. We have already inferred this fact from the undisputed evidence and plaintiff fails to offer any other fact or theory that suggests Kroes should be held to any standard other than that applicable to an emergency room physician.
Further, we previously rejected a mechanical application of the Golden Rule in San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308. There, a different panel of this court held “in ruling on a motion for summary judgment, a trial court must consider all the evidence submitted, except the court may ignore evidence not disclosed in moving party’s separate statement of undisputed facts. But we also reject the absolute prohibition against consideration of nonreferenced evidence, which seems to be the substance of the ‘Golden Rule’ . . . .” (Id. at p. 315, italics added; see Code Civ. Proc., § 437c, subd. (b)(1) [“The failure to comply with this requirement of a separate statement may in the court’s discretion constitute sufficient ground for denial of the motion,” italics added.]) Hence, while it is true Baskevitch could have been more clear in his declaration, the record is sufficient to establish Kroes was acting as an emergency room physician when he treated plaintiff, and therefore the standard of care is governed by section 1799.110 as it relates to expert testimony.
Having failed to submit admissible evidence on whether there was any deviation from the standard of care attributable to Kroes, plaintiff did not meet her burden to show a triable issue of one or more material facts exists as to her negligence cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); see also Zavala, supra, 16 Cal.App.4th at p. 1763 [trial court may not allow witness to give expert testimony unless party offering witness makes showing witness is qualified; plaintiff did not make showing and therefore court did not err in excluding plaintiff’s expert testimony].) The court properly granted summary judgment in Kroes’s favor.

Plaintiff Has Not Demonstrated Error in the Court’s Granting of LAMC’s Motion for Summary Judgment
In its motion, LAMC asserted there was no triable issue of material fact as to (1) plaintiff’s first and second causes of action for negligence of the hospital’s nurses and non-physician staff; (2) plaintiff’s third cause of action regarding negligent hiring, supervision or retention of employee against the hospital; (3) actual agency between plaintiff’s treating physicians and the hospital; and (4) ostensible agency between plaintiff’s treating physicians and the hospital. In opposition plaintiff argued LAMC is liable for negligence in failing to properly review the emergency medical technicians’ (EMTs) reports in order to treat and immediately stabilize plaintiff even before the emergency room physician arrived. Plaintiff argued LAMC should have observed the EMS report showed no mLAPSS was performed by the EMTs, sufficient vital signs were not taken, and LAMC staff failed to document that fact or to perform their own full scale mLAPSS on intake. Plaintiff also made a cursory argument unsupported by legal authority that the contractual release signed by plaintiff was void and that in any case, LAMC and Kroes had duties to keep each other informed and cooperate with each other. Plaintiff relied upon the declarations of Armanious and Morgan, even though they were only filed in opposition to Kroes’s motion. Plaintiff stated she relied on her declaration and the declaration of Orel, but neither declaration was filed.
At the hearing in the trial court, plaintiff argued the nurses are responsible for running the NIHSS scale for stroke victims, and though plaintiff was graded at 2, the reason was the record omitted the mLAPSS evaluation.
But in her opening brief on appeal, plaintiff makes only one argument: that the court’s incongruous ruling as reflected in its minute order is at odds with itself and does not support the judgment in LAMC’s favor. Plaintiff points out with regard to LAMC’s second issue (third cause of action for negligent hiring, supervision or retention of employee), the court first stated LAMC had not met its burden of proof to show certain exceptions do not apply. Then the court “takes a 180 degree turn on its own and reverses its own decision without explaining on what basis it is reversed, but rather takes on the mantle of [LAMC’s] advocate, instead of being neutral” by stating, “Alternatively, given that there is evidence showing that Kroes was not employed by LAMC [citation], and given that there is evidence, shown below in Issues 3 and 4, that Kroes was not an actual or ostensible agent of LAMC, the Court may wish to find that LAMC met its initial burden of proof on this cause of action as it related to defendant Kroes. If Kroes is not an employee or agent of LAMC, LAMC cannot be held liable for negligent hiring, retention or supervision of Kroes.” Finally, plaintiff points out, the court granted LAMC’s motion.
We appreciate the voluminous workload superior court judges and temporary judges are expected to shoulder. Nevertheless, a lack of attention to detail is reflected in the court’s minute order. It appears to us a portion of the minute order may have been cut and pasted from a recommendation in a confidential bench memorandum from the superior court’s legal research department. We find no other explanation for the phrase, “alternatively . . . , the Court may wish to find that . . . .” It lends no meaning to the minute order and obfuscates the issues the court was called upon to decide.
Even so, plaintiff correctly appeals from the judgment, not the minute order. (Code Civ. Proc., § 904.1, subd. (a)(1).) While the court’s reasoning as reflected in the minute order makes curious reading, in the end it is irrelevant to our task. “We owe the superior court no deference in reviewing its ruling on a motion for summary judgment; the standard of review is de novo.” (Coral Construction, Inc. v. City and County of San Francisco (2010) 50 Cal.4th 315, 336.)
Given the totality of the minute order, the final two sentences and other inconsistencies appear to be scrivener’s error not reflective of the court’s overall ruling on the merits. After all, the court later signed the judgment in LAMC’s favor. The error of which plaintiff complains is not legal error. Plaintiff, for example, presents no argument as to why there exist triable issues of material fact as to LAMC’s alleged negligence. We understand plaintiff’s theories as argued below, but having failed to raise legal error concerning one of the four issues raised in LAMC’s moving papers, the arguments are waived on appeal. (See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [appellant’s failure to support contention with meaningful legal analysis waives issue on appeal]; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 [“Since plaintiffs have not addressed the court’s summary adjudication of their causes of action that do not sound in negligence . . . we do not address the merits of those causes of action. Although our review of a summary judgment is de novo, it is limited to issues which have been adequately raised and supported in plaintiff’s brief”].)

DISPOSITION

The judgments are affirmed. Defendants shall recover their costs on appeal.



IKOLA, J.

WE CONCUR:



FYBEL, ACTING P. J.



THOMPSON, J.