Dougherty v. DanielFreemanMarinaHospital

Filed 3/16/07 Dougherty v. Daniel Freeman Marina Hospital CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County.

Valerie Baker, Judge. Affirmed.

Lon B. Isaacson Associates, Lon B. Isaacson, Larry Johnson for Plaintiff and Appellant.

Emmet Thornton & Associates, Emmet Thornton, Mark L. Hirschberg for Defendant and Respondent Daniel Freeman Marina Hospital.

Cassel Malm Fagundes, Joseph H. Fagundes. Floyd W. Cranmore; DAntony, Doyle & Moore, Geoffrey T. Moore for Defendant and Respondent Richard Hoffner.

___________________________________________________

Plaintiff Mary Dougherty sued defendants Richard Hoffner, M.D., an emergency room physician, and Daniel Freeman Hospital (hereinafter, the Hospital), alleging medical malpractice in failing to diagnose appendicitis, for which Dougherty was successfully treated at another hospital 10 days later. The trial court properly granted summary judgment against Dougherty because it correctly excluded the declarations of her medical expert witnesses for their failure to establish a proper foundation under Health and Safety Code section 1799.110.^[1]That statute specifies the requisite professional experience necessary for a physician to testify regarding a claim of negligence arising out of emergency room medical services.

FACTUAL AND PROCEDURAL SUMMARY

Underlying facts

On July 6, 2003, Dougherty went to the emergency department of the Hospital in Marina del Rey, complaining of recent moderate to severe abdominal pain and of constipation for two days. Hospital staff ran various tests, and she was evaluated by Dr. Hoffner. Doughertys stomach was distended, and there was some tenderness in her abdomen. Her white blood cell count was normal.

After Dougherty received some Maalox, her condition improved. A nurse noted a lot of diarrhea with good pain relief. By the time Dougherty was discharged from the Hospital several hours later, her blood pressure had significantly dropped from its elevated level. Dr. Hoffman discharged her with express instructions to promptly see her personal physician and to return to the emergency room if her pain continued.

During the following week, Dougherty suffered increasing distress and abdominal pain. She contacted her doctor by phone but never saw him in person. Based on the information Dougherty relayed to that doctor on the phone, he offered his telephonic diagnosis, which was constipation.

Several days later and approximately 10 days after Dougherty had gone to the emergency room at the Hospital, she contacted her father who was a retired physician. After she related her recent medical history and present condition to him, he suspected a burst appendix and advised her to go to the emergency room at St. Johns Hospital. By the time of this second emergency room visit, she had developed acute appendicitis with complications involving a perforated appendix, a large pelvic abscess, and edema. Dougherty required immediate appendectomy surgery and draining of the abscess. She was discharged from St. Johns Hospital after 13 days.

Summary judgment procedural history

Doughertys first amended complaint alleged a single cause action for medical malpractice, asserting that the staff at Daniel Freeman Hospital and its emergency room physician, Dr. Hoffner, provided medical care beneath the community standard. Dougherty claimed, in pertinent part, that the Hospital was liable under alternative theories of ostensible agency or respondeat superior.

The Hospital filed a motion for summary judgment, joined in by Dr. Hoffner. The motion was supported by the declaration of Dr. Jonathan Lawrence, who was board certified as an emergency room physician and who for 29 years practiced emergency medicine full time at St. Mary Medical Center in Long Beach, an acute care level 1 trauma center, where he treated over a thousand patients with conditions similar to Doughertys. Dr. Lawrence reviewed the medical records from both hospital emergency rooms and offered his opinion that at all times the Hospital and Dr. Hoffner met the appropriate standard of care and practice in the community in rendering care and treatment to Dougherty, and that to a reasonable medical probability nothing Dr. Hoffner or the Hospital staff did or omitted to do was a substantial factor in causing her to suffer any injury.

Doughertys initial opposition to the motion for summary judgment relied on the declaration of Dr. Leon Wallace, a physician experienced in internal medicine and cardiology. Dr. Wallace did not relate any experience whatsoever in emergency room medicine or as an emergency room physician. In the reply by Dr. Hoffner and the Hospital, they objected to Dr. Wallaces declaration because he was not an emergency room physician, and he thus failed to comply with the statutory mandate of section 1799.110, subdivision (c).

Dougherty then belatedly submitted, in pertinent part, a declaration from Dr. Joseph Moza, who opined that the medical care provided to Dougherty by Dr. Hoffner and the Hospital fell below the standard of care in the Los Angeles community.

Regarding Dr. Mozas qualifications, he declared as follows: I am a medical doctor licensed to practice medicine and surgery in the State of California. I have continuously held a license to practice medicine in the State of California since 1988, and I have continuously practiced medicine, studied medicine, and performed surgery over my entire career. Within the last fifteen years I have substantial experience being assigned to provide emergency medical coverage in a general acute care hospital emergency department. Dr. Mozas declaration was signed by him on May 12, 2005, in Visalia, California.

Dr. Hoffner and the Hospital objected both to the untimeliness of Dr. Mozas declaration and to the substance of the declaration. They complained that Dr. Mozas declaration was filed nine days late (see Code Civ. Proc.,  437c, subd. (b)(2)), and that the declaration failed to specify that Dr. Moza had substantial emergency department medical experience in Los Angeles or a similar geographic area within the last five years, so as to know the local standard of care, as required by section 1799.110.

At the hearing on the motion for summary judgment, the trial court sustained the objections to the declaration of Dr. Wallace and found no triable issue of material fact. Apparently, the court did not consider the declaration of Dr. Moza because it was untimely filed.

Dougherty then moved for reconsideration. She argued that Dr. Mozas declaration constituted new facts warranting a hearing (Code Civ. Proc.,  1008, subd. (a)), or alternatively that counsels failure to submit a declaration consistent with the statutory foundational requirements ( 1799.110) amounted to excusable neglect (Code Civ. Proc., 473, subd. (b)). The Hospital and Dr. Hoffner opposed the motion for reconsideration, and they had previously argued that Dr. Mozas declaration failed to specify that he had substantial emergency department experience in the same or similar geographic area within the last five years so as to know the standard of care, as required by section 1799.110.

In reply, Dougherty filed a supplemental declaration by Dr. Moza. The declaration added, in pertinent part, the following information: When I said in my previous declaration I had substantial experience being assigned to provide emergency medical coverage in a general acute care hospital emergency department within the past fifteen years, I meant that to include within the past five years. I am currently assigned to provide emergency medical coverage in a general acute care hospital emergency department, and did so in the year 2003. He summarily asserted that he was familiar with the standard of care for an emergency room physician practicing medicine in the Los Angeles area in the year 2003. The declaration was signed by Dr. Moza on July 5, 2005, in Visalia, California.

After the trial court granted Doughertys motion to reconsider its prior summary judgment ruling, it held a continued hearing on the motion. The court noted that Dr. Mozas initial declaration stated only that within the last 15 years he had substantial experience, and did not declare that he had provided emergency medical coverage for the last five years, as required by section 1799.110. Also, Dr. Moza did not establish where he was practicing or his familiarity with the standard of care in the locale. This was in distinct contrast to the declaration by Dr. Lawrence, who specifically identified the local area he practiced and his familiarity with the local standard of care.

The trial court concluded that the objections to Dr. Mozas declaration should be sustained, particularly the objection on the locality issue. The court indicated that it was aware that the declaration should be construed as liberally as possible, but it sustained the objections raised because of the deficiencies as to time frame and locality.

The trial court declined to draw an inference that familiarity with the standard of care anywhere in California was sufficient to establish familiarity with the standard of care in Los Angeles, and specifically declined to take judicial notice that someone practicing in Visalia necessarily would be familiar with the standards of care in Los Angeles. Moreover, the court remarked that even if it did consider Dr. Mozas supplemental declaration--which was belatedly submitted with Doughertys reply to her motion for reconsideration--this supplemental declaration did not even state [whether Dr. Moza was] familiar with the standard of care in Los Angeles County, let alone state a factual basis for such a conclusion.

The trial court ruled that upon reconsideration, the motion for summary judgment should be granted, and it reinstated its order and judgment filed June 9, 2005, in favor of the Hospital and Dr. Hoffner.

DISCUSSION

I. The standard of review

We review this matter de novo and determine the appeal in accordance with the customary rules of appellate review following summary judgment. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1358; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843-857.) The general rule is, of course, that 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).)

We consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all [uncontradicted] inferences reasonably deducible from the evidence . . . . (Code Civ. Proc.,  437c, subd. (c).) Evidentiary rulings made on summary judgment are generally reviewed for abuse of discretion. (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169.)

We view the properly admitted evidence and inferences in the light most favorable to the opposing party (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843), liberally construing the declarations of the opposing party to determine the existence of triable issues of fact (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1556), while strictly scrutinize the moving partys papers. (Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 549.) All doubts as to whether any material, triable issues of fact exist are to be resolved in favor of the party opposing summary judgment. (Id. at p. 553; Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.)

However, to avoid summary judgment, admissible evidence presented to the trial court, not merely claims or theories, must reveal a triable, material factual issue. (Torres v. Reardon (1992) 3 Cal.App.4th 831, 836.) Also, the opposition to summary judgment will be deemed insufficient when it is essentially conclusionary, argumentative or based on conjecture and speculation. (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 487; Joseph E. Di Loreto, Inc. v. ONeill (1991) 1 Cal.App.4th 149, 161; Baron v. Mare (1975) 47 Cal.App.3d 304, 309, 311.)

In the present case, exercising our independent judgment to determine as a matter of law the construction and effect of the facts presented (Spitler v.Childrens Institute International (1992) 11 Cal.App.4th 432, 439), we find the trial court properly granted summary judgment.

II. Dr. Mozas declarations failed to set forth facts sufficient to establish a foundation to qualify him as an expert witness in the area of emergency medical care, since there was no indication that he practiced in acute care hospital emergency departments in the same or similar localities where the alleged negligence occurred. ( 1799.110.)

Apart from the trial courts arguable lack of jurisdiction to entertain Doughertys motion for reconsideration because of the undisputed fact that she failed to give notice within 10 days of the original order (Code Civ. Proc.,  1008, subds. (a) and (e); see Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 383, 389-391), neither of Dr. Mozas declarations satisfy a fundamental statutory prerequisite for admission.

Section 1799.110, subdivision (c) mandates that a 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 . . . . in the same or similar localit[y] where the alleged negligence occurred. (Italics added.)^[2] This subdivision is part of a Good Samaritan statutory scheme (James v. St. Elizabeth Community Hospital (1994) 30 Cal.App.4th 73, 81), the purpose of which is to promote the provision of emergency medical care by giving dedicated emergency room physicians a measure of protection from malpractice claims. (Miranda v. National Emergency Services, Inc. (1995) 35 Cal.App.4th 894, 904.) The protection applies to hospitals as well as physicians. (Baxter v. Alexian Brothers Hospital (1989) 214 Cal.App.3d 722, 725-726.)^[3]

In the present case, Dr. Mozas two declarations never stated where his emergency room experience occurred. Dr. Mozas first declaration merely stated, Within the last fifteen years I have substantial experience being assigned to provide emergency medical coverage in a general acute care hospital emergency department. His second declaration added, I am currently assigned to provide emergency medical coverage in a general acute care hospital emergency department, and did so in the year 2003.

Since Dr. Moza failed to reveal in what locale he practiced emergency medical care and the alleged negligence occurred in Los Angeles (specifically, at the Hospital in Marina del Rey), he thus failed to establish that he had been assigned to provide emergency medical coverage in a general acute care hospital emergency department. . . . in the same or similar localities where the alleged negligence occurred. ( 1799.110, subd. (c).) We note that both of Dr. Mozas declarations were signed by him in Visalia, California. Even making a generous and unwarranted factual leap and inferring that Dr. Mozas emergency department experiences were in Visalia, there is no basis for Doughertys self-serving assumption that Visalia is a similar locale to Los Angeles.

Dougherty urges that even if Dr. Moza did not have first hand experience working as an emergency room physician in Los Angeles County, he had access to and had reviewed the relevant data, medical literature and continuing medical education, to know the standard of care in Los Angeles. Although such alternative qualifications may be laudable, they simply do not satisfy the specific demands of section 1799.110.

Dougherty also relies on Brown v. Colm (1974) 11 Cal.3d 639, for the proposition that a professional physician may rely upon medical literature as the basis of his opinion and may testify if he has disclosed sufficient knowledge of the subject to entitle his opinion to be considered by a jury (id. at pp. 644, 646-647). However, reliance on Brown is misplaced, since that case did not involve an emergency room physician, a situation that requires the special application of section 1799.110.

The present case is not one where Dr. Mozas qualifications to serve as an expert merely go to the weight of the evidence. (Compare People v.Chavez (1985) 39 Cal.3d 823, 828-829; Jordan v. Allstate Ins. Co. (2004) 116 Cal.App.4th 1206, 1216-1217.) Rather, [w]hen a party to an action governed by [section 1799.110, subdivision (c)] objects to expert testimony on the ground that the witness does not qualify under that [provision], the trial court may not allow that witness to give expert testimony unless the party offering the witness makes a showing that the witness is qualified under that statute. (Zavala v. Board of Trustees (1993) 16 Cal.App.4th 1755, 1763.) Thus, the failure to meet the specific and mandatory provisions of section 1799.110 (ibid.) properly resulted in the trial courts disregarding all of the expert opinion of Dr. Moza. (Sigala v. Goldfarb (1990) 222 Cal.App.3d 1450, 1454-1456.)^[4] Similarly, the court properly disregarded the entire declaration of Dr. Wallace, who had absolutely no emergency room experience.

Absent the medical opinions proffered in the declarations of Doughertys medical experts, the only medical opinion on the relevant issue was that presented by Dr. Lawrence, who established his emergency room expertise and supported the position of the Hospital and Dr. Hoffner. Accordingly, since there was no conflicting expert evidence on the only relevant material fact--whether the medical care complained of came within the community standard of care--summary judgment was properly granted. (See Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 984-985.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS.

BOREN, P.J.

We concur:

DOI TODD, J.

ASHMANN-GERST, J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line Lawyers.

^[1] Unless otherwise indicated, all statutory references are to the Health and Safety Code.

^[2] Section 1799.110, subdivision (c) provides, in its entirety, as follows: 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.

^[3] We note that Dougherty raised for the first time at oral argument on appeal (and not at trial or in her opening brief) the notion of whether the Hospital had a general acute care hospital emergency department ( 1799.110), and thus whether the statutory scheme applies at all. Apart from the dubious nature of this untested claim, since Dougherty was treated at a hospital by an emergency room physician, the issue was waived. (See People v. Freeman (1994) 8 Cal.4th 450, 487-488, fn. 3; Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 281-282, fn. 29.)

^[4] In view of the above discussion, it is unnecessary to address other grounds which the Hospital and Dr. Hoffman also assert preclude consideration of Dr. Mozas declarations.

For example, we need not determine whether the requirement that the expert medical witness have substantial professional experience within the last five years ( 1799.110, subd. (c)) is satisfied by Dr. Mozas vague statement that he was currently assigned (as of the July 2005) to provide emergency medical coverage and did so in the year 2003 for an unspecified period of time. Nor is it necessary to resolve whether Dr. Mozas being assigned to such emergency medical coverage, without specifying if he was actually on duty or merely on call is sufficient to satisfy the statutory mandate. (See Miranda v. National Emergency Services, Inc., supra, 35 Cal.App.4th at pp. 906-907.)