Franklin v. Santa Barbara Cottage Hosp.

82 Cal.App.5th 395

297 Cal.Rptr.3d 850

Michael FRANKLIN, Plaintiff and Appellant,

v.SANTA BARBARA COTTAGE HOSPITAL, Defendant and Respondent.

2d Civil No. B311482

Court of Appeal, Second District, Division 6, California.

Filed August 8, 2022

YEGAN, J.

The issue in this appeal is whether respondent Santa Barbara Cottage Hospital (Hospital) can be held liable for the alleged negligence of its staff physician, Dr. John Park. Dr. Park's patient, Michael Franklin, appeals from the judgment entered after the trial court granted Hospital's motion for summary judgment. Appellant claimed that Dr. Park had negligently injured him during surgery performed at Hospital. Appellant settled his malpractice action against Dr. Park for $1 million, the maximum coverage under Dr. Park's professional liability insurance policy. Based on actual agency and ostensible agency theories, appellant sought to hold Hospital vicariously liable for Dr. Park's negligence. We affirm the judgment in Hospital's favor.

Factual and Procedural Background

Hospital "is a nonprofit public benefit corporation." In March 2013 Hospital, Dr. Park, and Neurological Surgery of Santa Barbara, Inc. (Neurological Surgery), entered into a "Physician Recruitment Agreement." Dr. Park signed the agreement on behalf of Neurological Surgery. The agreement stated, "It is the current understanding of the parties that [Dr. Park] will establish [a neurosurgical oncology] practice as an employee of [Neurological Surgery] and will provide services at Hospital ...." Dr. Park will "join Hospital's medical staff" and "establish a new private medical practice with [Neurological Surgery ] in the Geographic Area" served by Hospital.¹ In a section entitled "Independent Contractor," the agreement provided: "No relationship of employer and employee or joint venturers or partners between [Dr. Park] and Hospital or [Neurological Surgery] and Hospital is created by this Agreement. In performing the rights and duties identified in this Agreement, the parties are acting as independent contractors. In no event shall Hospital have or exercise control over the manner in which [Dr.Park] provide[s] professional services or other services required by this Agreement."

Dr. Cecilia O'Dowd, appellant's primary care physician, treated him for back pain. A magnetic resonance imaging (MRI) scan showed that appellant had a herniated disc. Dr. O'Dowd referred appellant to Dr. Park for further treatment.

Appellant looked up Dr. Park on the internet. The first article he found was a "Noozhawk article" about him.² The article was dated November 15, 2013. It was written by "Maria Zate[,] ... the manager of marketing and public affairs for Cottage Health System."³ (Italics omitted.) The article said that Dr. Park, "[a] board-certified neurosurgeon," had "joined the Santa Barbara Neuroscience Institute [(Institute)] at Cottage Health system." The article included a quotation from Dr. Thomas Jones, the medical director of the Institute. Dr. Jones said, " ‘The physicians and neurosurgeons of the ... Institute in collaboration with Cottage Health System have ... recruit[ed] a top-tier neurosurgeon and scientist with a subspecialty expertise in the treatment of brain tumors ....’ "

Appellant declared, "Based on my [internet] research including numerous webpages from Cottage's website that featured Dr. Park I thought that Dr. Park worked for and was part of Cottage Hospital." But in his opposition to another defendant's motion for summary judgment in the same lawsuit, appellant declared, "Before retaining counsel to bring this suit, I had never thought about and had no information regarding what the legal relationship was between Dr. Park and ... [Hospital] ...."

Dr. Park's office was in a building across the street from Hospital. On January 8, 2015, appellant saw Dr. Park at his office. Dr. Park wrote in his notes: "[Appellant] appears to have right leg pain due to a large right paracentral L5-S1 disc herniation. Because he does not currently have any weakness or numbness and given his young age [37 years old], I recommended that he try a course of physical therapy in an effort to avoid surgery." Based on his visit to Dr. Park's office, appellant believed that Dr. Park was "part of a group" but he "didn't know the name of the group."

On January 14, 2015, appellant saw Dr. Park again at his office. Dr. Park "recommended that [appellant] undergo a right L5-S1 discectomy." Appellant agreed to the surgical procedure. But his insurance company refused to authorize the surgery. Appellant understood that the insurance company "did not think I had done enough in the way of preventative measures, like enough physical therapy or other treatments, to warrant surgery."

According to appellant, his back condition "was getting worse." His wife telephoned Dr. Park's office. Dr. Park said that, if appellant would come to Hospital's emergency room (ER) on Friday morning, January 30, 2015, "[Dr. Park] would be able to do the surgery that day." Appellant understood that he "had to go through the ER in order to expedite getting the surgery performed."

In her deposition appellant's wife testified: "[Dr. Park] told us to go to the emergency room on January 30th because he would be on call and can do the surgery then." "So we didn't go to the ER because of worsening pain. We went to the ER because Dr. Park told us to go .... And that's how we could get insurance to pay for the surgery."

As directed by Dr. Park, appellant went to the ER on Friday morning, January 30, 2015. Nursing staff reported that, although appellant "appears[ ] in distress due to pain ," he is "cooperative, alert. Oriented to person, place and time ...."

Appellant signed a three-page consent form authorizing the surgery. The form consisted of 16 paragraphs. The third paragraph was entitled, "Legal Relationship Between Hospital and Physicians." The paragraph stated, "All physicians and surgeons providing services to me ... are not employees or agents of the hospital .... They have been granted the privilege of using the hospital for the care and treatment of their patients ...." Except for the title, nothing about the third paragraph distinguished it from the other 15 paragraphs.

Appellant declared: "I only have a vague recollection of the Cottage [Hospital] person coming to my bedside [at the ER before the surgery] and discussing [the consent form] .... At that time, I was in so much pain and anxious to get the surgery approved ... that my only thought was to do whatever was necessary to proceed." "The only subjects I recall going over were the financial arrangements and that I was consenting to have surgery with Dr. Park."

Rosa Pinedo was a patient financial counselor at Hospital. She witnessed appellant's signing of the consent form, but she had no recollection of appellant. She testified that, before a patient signed the form, she would tell the patient "[t]hat the physician that is treating the patient is not a Cottage Hospital employee. They are independent contractors that have privileges here at the hospital."

In opposition to the motion for summary judgment, appellant submitted the declaration of Dr. Joshua Prager, who specializes in pain medicine and complex pain syndromes. Dr. Prager declared: "As a result of [appellant's] severe pain in addition to the medications he was previously taking and those administered in the emergency room shortly before he was presented with the [consent] form, it is my opinion, to a reasonable degree of medical certainty that he would have had significant difficulty in concentrating upon reading the documents, and understanding and appreciating the significance of the content of the form. It would be especially difficult to comprehend the complex legal discussion in the provision addressing the legal relationship between the hospital and the physicians." "A patient in extremis will do anything in his/her means to receive treatment, including signing documents without comprehending them."

Hospital records show that at 9:29 a.m. appellant's pain level was a "10." But at 10:10 a.m. his pain level had declined to a "2." The consent form was signed at 10:45 a.m.

During the surgery, an "unintended durotomy" occurred. It was "likely caused by puncture of the lateral thecal sac with [a] probe." After the surgery, appellant developed serious neurological problems allegedly caused by the durotomy.

Trial Court's Summary Judgment Ruling

The trial court ruled that Dr. Park was not Hospital's actual agent. The court explained, "Because [Hospital] did not control the course of treatment rendered by Dr. Park in this case, [Hospital] cannot be held liable for Dr. Park's alleged negligence.... Dr. Park's status as a member of [Hospital's] medical staff does not compel the conclusion that he was an agent or employee of [Hospital] ...."

As to whether Dr. Park was Hospital's ostensible agent, the trial court ruled that there was no triable issue of material fact because appellant had been "treated by his personally selected physician, not by someone chosen by Hospital." Furthermore, appellant failed to show that he had relied on the allegedly ostensible agency relationship between Hospital and Dr. Park.

Law of Summary Judgment and Standard of Review

"The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]" ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 107 Cal.Rptr.2d 841, 24 P.3d 493 ( Aguilar ).) A motion for 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." ( Code Civ. Proc., § 437c, subd. (c).) A triable issue of material fact exists only if "the evidence would allow a reasonable trier of fact to find the...