California Court of Appeals, Third District, Yuba
[CERTIFIED FOR PARTIAL PUBLICATION [*]]
APPEAL from a judgment of the Superior Court of Yuba County, No. YCSCCVPO090000710 Dennis J. Buckley, Judge.
[Copyrighted Material Omitted]
Wilcoxen Callaham, William M. Lyons, Michelle C. Jenni and Drew M. Widders for Plaintiffs and Appellants.
Schuering Zimmerman & Doyle, Robert H. Zimmerman, Kia Jafari; Horvitz & Levy, Frederic D. Cohen and S. Thomas Todd for Defendant and Respondent.
RAYE, P. J.
The trial court granted defendant Rideout Memorial Hospital’s motion for summary judgment, finding that, as a matter of law, the emergency room physician who failed to diagnose and treat decedent’s brain hemorrhage was not an ostensible agent of the hospital. On appeal, the surviving children argue that, despite the hospital’s boilerplate admissions form and signage stating the emergency room physicians are independent contractors, they have presented triable issues of material fact whether their mother entrusted herself to the hospital, whether the hospital selected the physician, whether their mother reasonably believed the doctor was an agent of the hospital, and whether the form and signage could give notice of the employment status of the emergency room physician to a patient suffering acute pain at a meaningful time in a meaningful manner. Based on analogous cases in California and around the country, we agree and reverse the summary judgment of the children’s wrongful death action.
Decedent’s son, Dean Whitlow, submitted a declaration in opposition to the hospital’s motion for summary judgment in which he described his mother’s condition in the early morning hours of August 24, 2008. At approximately 1:00 a.m. his mother woke him up, screaming in pain that “she had the worst headache she had ever had in her life.” Inconsolable and in excruciating pain, she begged him to take her to the hospital’s emergency room. She vomited in the car en route to the hospital and again in the hospital restroom upon arrival. It was about 3:00 a.m. when they returned to the waiting room and she vomited yet again.
She complained of a headache with pain radiating to her neck. Initially she rated the pain at a 6 on a scale of 10, but within a short time she reported the pain at 10 of 10. She had high blood pressure, nausea, vomiting, and dizziness.
As she sat crying in horrible pain, a patient registration processor asked her to sign a “Conditions of Admission” form. Her son declared, “My mother
was still suffering horribly, she was crying and she was nauseous and was unable to read the document. At no time during the admission process was my mother capable of reading the admissions form, nor did she attempt to read the admissions form.” He attests that at no time did the registration processor explain the contents of the admissions form or read it to her. She instructed his mother to sign the form and to initial it in certain places.
His mother complied. The form provided that “[a]ll physicians and surgeons furnishing services to the patient, including the radiologist, pathologist, anesthesiologist and the like, are independent contractors and are not employees or agents of the hospital.” There was a sign on the wall of the registration area of the emergency department that stated: ...