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Sampson v. Ukiah Valley Medical Center

United States District Court, N.D. California

June 30, 2017

ALAN SAMPSON, et al., Plaintiffs,


          William H. Orrick United States District Judge

         One of three remaining defendants in this case, Ukiah Adventist Hospital, aka Ukiah Valley Medical Center (UVMC), moves for summary judgment.[1] UVMC argues that it is entitled to summary judgment on plaintiffs' claims for medical negligence and violation of the Emergency Medical Treatment and Labor Act (EMTALA) because it cannot be liable for the care provided to plaintiffs' son, Andrew, by Dr. Marks (who treated Andrew in the hospital's emergency room) or by UVMC's nurses. There are questions of fact concerning some of the Sampson's claims, primarily revolving around Marks's treatment of Andrew, and it has not been conclusively shown whether agency does or does not apply between UVMC and Marks. I GRANT in part and DENY in part the Sampson's motion.


         This case stems from the death of plaintiffs' son, Andrew, following a car accident. The accident occurred around 2:20 a.m. on January 11, 2014, and resulted in Andrew being thrown from his car and laying in a ditch for approximately two hours before first responders were dispatched to the scene. The circumstances surrounding the accident and Andrew's transfer by ground ambulance to UVMC are fully described in my prior Order. Dkt. No. 112. The only facts relevant to the determination of this motion concern what happened during the time between when Andrew arrived at UVMC and when he was discharged to the care of CALSTAR nurses for transportation to Santa Rosa Memorial Hospital (SRMH).

         Andrew arrived at UVMC in the CALSTAR ambulance at approximately 5:04 a.m. Declaration of Kathleen Humphrey [Dkt. No. 120] Ex. H. at 5. At 5:07 a.m., when the CALSTAR nurses thought that Andrew might be transferred directly to a waiting CALSTAR helicopter for transportation to SRMH, CALSTAR nurses assessed Andrew in the ambulance in the UVMC ambulance bay. Humphrey Decl., Ex. E, CALSTAR Records at 5. Based upon that assessment and according to CALSTAR's records, the UVMC Emergency Room (“ER”) physician on duty, Dr. Marks, “accepted” Andrew into the UVMC ER for stabilization at 5:08 a.m. Id. Andrew was wheeled into UVMC by the CALSTAR nurses and a MEDSTAR paramedic. Id.

         During all relevant times, Marks was assisted by UVMC ER charge nurse John Moffatt and nurse Taff Cheneweth. Moffatt was in the ambulance bay when Andrew arrived, observed the last CALSTAR assessment, and stayed with Andrew throughout his time in the UVMC ER. Humphrey Decl., Ex. I, Deposition Transcript of John Moffatt at 19:16-22, 21:13-17, 28:3-6. Marks “joined the patient” when he came through UVMC's doors into the ER. Humphrey Decl., Ex. G, Deposition Transcript of Debbie Marks at 45:11-46:4.[2] Andrew was placed on a “continuous” monitor displaying his vitals, and Marks relied on that monitor to assess Andrew's condition. Marks Depo. Tr. at 31:16-32:11, 34:9-20, 37:2-12.[3] Because, at first, the monitor showed no measureable blood pressure, Marks ordered saline for Andrew. After it was administered, she secured a blood pressure reading. Marks Depo. Tr. at 43:19-22, 44:20-45:4, 46:22-47:2. Marks ordered two units of blood, which nurse Cheneweth went to retrieve. Id. at 71:14-72:15. Andrew remained on the non-rebreather mask and according to Moffatt, Andrew's oxygenation was continuously monitored, including an assessment made without supplemental oxygen and on “room air.” Moffatt Depo. Tr. at 46:5-21, 52:20-53: 6.

         Marks ordered a portable chest x-ray from which she determined that Andrew had a left hemothorax. Humphrey Decl., Ex H at 3-4, 8-9, 39; Goldschmid Decl. ¶ 36. Based on that, Marks was concerned that Andrew had blunt chest trauma and would need a chest surgeon. Marks Depo. Tr. at 60:6-17.

         Marks determined from her examinations that Andrew was unstable due to his critical head injury, multiple traumas including chest trauma and extremity trauma, and neurologic issues (including impaired consciousness) and that he required a higher level of care than UVMC could provide. Id. at 55:9-13, 63:8-14, 84:14-20. She called SRMH to determine whether it would accept Andrew. She spoke with Emergency Physician Tucker Bierbaum, disclosing her understanding of the accident, Andrew's vitals, and her conclusions based on her examinations and provision of the saline. Humphrey Decl., Ex. L (Transcript).[4]

         Bierbaum accepted the transfer. During that initial conversation, Bierbaum asked whether Andrew needed to be intubated, and then indicated that intubation was Marks' “call.” Id. Marks informed Bierbaum that Andrew had not been intubated and explained his good gag reflex, “Glasgow” score, and responsiveness. Id. Marks considered intubation but her judgment was that he did not require intubation for his breathing or oxygenation, based upon his clear airway, satisfactory breathing and chest sounds, and a good gag reflex. Marks Depo. Tr. at 64:24-65:7, 68:9-21, 147:11-14, 149:11-25. She also considered that intubation could cause further hypotension (which presents risk of further brain injury), could have caused delay in transporting Andrew to SRMH, and would have been difficult given Andrew's confusion and agitation. Id. at 68:23-69:6, 76:14-22, 151:12-20. If Andrew needed intubation during transport, Marks was aware that the CALSTAR nurses were capable of intubating him. Id. at 70:1-5, 76:2-22, 79:1-2.

         At 5:24 a.m., Andrew was transferred back to the care of CALSTAR. Marks discussed the anticipated patient care with the CALSTAR nurses prior to transport, including Andrew's possible ongoing neurologic deterioration and the possible need for intubation. Marks Depo. Tr. at 76:2-77:17. She provided the CALSTAR nurses with blood as the patient was being loaded into the ambulance. Id. at 133:12-134: 2. The ambulance departed UVMC to SRMH at 5:28 a.m. Humphrey Decl., Ex. E at 8. As detailed in my prior Order, Dkt. No. 112, shortly thereafter Andrew suffered cardiac arrest and the ambulance was diverted to Healdsburg District Hospital, where Andrew was pronounced as dead at 6:18 a.m.

         An autopsy was performed on January 14, 2014, by Arnold Josselson, M.D., a forensic pathologist with the Forensic Medical Group. Josselson determined Andrew's cause of death was blunt force chest injury due to a solo motor vehicle accident. His autopsy findings included multiple cutaneous abrasions and contusions, bilateral rib fractures, bilateral hemothoraces, aspiration of blood into lungs, contusion of left lung, hemorrhage of pancreas, subcapsular hemorrhage of left kidney, hemorrhage surrounding each adrenal, and hemorrhage of each side of the diaphragm. Humphrey Decl., Ex. M (Sonoma County Coroner/Sheriff Records) at 6-13.

         As part of the transfer process, Marks completed a UVMC Acute Transfer Form. She completed the form after Bierbaum accepted transfer and while Andrew was being loaded into the ambulance. Marks Depo. Tr. 90:25-91:4. On that form, she stated that she was transferring a patient who had an emergency medical condition, indicated that the patient was “stable, ” and described the benefits of the transfer. Humphrey Decl., Ex. H at 22. Marks did not check either the box indicating that Andrew was “unstable” or the box that “benefits outweigh risks.” Marks also did not fill out the section identifying the risks of transfer. Id.


         Summary judgment on a claim or defense is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In order to prevail, a party moving for summary judgment must show the absence of a genuine issue of material fact with respect to an essential element of the non- moving party's claim, or to a defense on which the non-moving party will bear the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this showing, the burden then shifts to the party opposing summary judgment to identify “specific facts showing there is a genuine issue for trial.” Id. The party opposing summary judgment must then present affirmative evidence from which a jury could return a verdict in that party's favor. Anderson v. Liberty Lobby, 477 U.S. 242, 257 (1986).

         On summary judgment, the Court draws all reasonable factual inferences in favor of the non-movant. Id. at 255. In deciding a motion for summary judgment, “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Id. However, conclusory and speculative testimony does not raise genuine issues of fact and is insufficient to defeat summary judgment. See Thornhill Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979).

         Generally, where a 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 the injury to the plaintiff. See, e.g., Sanchez v. Kern Emergency Med. Transportation Corp., 8 Cal.App. 5th 146, 153 (Cal.Ct.App. 2017), as modified (Feb. 16, 2017) (relying on Powell v. Kleinman (2007) 151 Cal.App.4th 112, 123 (2007)). Where a moving defendant supports a motion for summary judgment with expert declarations, plaintiff must come forward with conflicting expert evidence. Id.



         A. Agency

         Plaintiffs assert that UVMC is liable for Dr. Mark's negligent treatment of Andrew under a theory of agency.[5] In my December 2015 Order denying motions to dismiss, I concluded that plaintiffs had adequately alleged agency where they alleged defendant Pacific Redwood Medical Group (PRMG) was Marks' employer and that PRMG held an exclusive contract to provide Emergency Department Services to UVMC and Adventist Health. Id. at 6-7. I noted that under California law, “the issue of whether an emergency room doctor can be considered an actual or ostensible agent of a hospital is ‘a quintessential question of fact, '” and I allowed the claim to proceed where plaintiffs had alleged that Marks' provision of care was negligent. Id. (quoting Whitlow v. Rideout Mem'l Hosp., 237 Cal.App.4th 631, 635 (2015)).

         Under California law, a hospital is liable for a physician's malpractice when the physician is “actually employed by or is the ostensible agent of the hospital.” Whitlow, 237 Cal.App.4th at 635. No one contends that Marks was an employee of UVMC, so the only question is whether she was its ostensible agent. Though agency is “a quintessential question of fact, ” usually precluding summary judgment, UVMC contends that agency should be decided in its favor because there is no evidence that Andrew - having suffered a traumatic brain injury and barely conscious when he arrived at UVMC, without having had any input on where he would receive medical treatment - believed Marks was UVMC's employee. Mot. 2; Reply. 10.

         In Mejia v. Cmty. Hosp. of San Bernardino, 99 Cal.App.4th 1448 (2002), the California Court of Appeal set out the test for holding hospitals liable for the actions of doctors who were contracted with, not employed by, the hospital. Under that standard, ostensible agency can be inferred “from the mere fact that the plaintiff sought treatment at the hospital without being informed that the doctors were independent contractors.” Id. at 1457. As the Mejia court noted:

When this standard is applied to the case law governing ostensible agency in the hospital context, it appears difficult, if not impossible, for a hospital to ever obtain a nonsuit based on the lack of ostensible agency. Effectively, all a patient needs to show is that he or she sought treatment at the hospital, which is precisely what plaintiff alleged in this case. Unless the evidence conclusively indicates that the patient should have known that the treating physician was not the hospital's agent, such as when the patient is treated by his or her personal physician, the issue of ostensible agency must be left to the trier of fact.

Id. at 1458. UVMC cites no cases explaining how this standard applies in a case like this one where an incapacitated plaintiff is taken to an emergency room by others and, because of his condition and subsequent death, the evidence cannot establish the patient's belief concerning the role of the doctor treating him.[6] But the evidence certainly does not conclusively indicate that Andrew could have known (much less should have known) that the treating physician was not the hospital's agent. Cf. Mejia, 99 Cal.App.4th at 1454, 1459 (“Many courts have even concluded that prior notice [of contractor status] may not be sufficient to avoid liability in an emergency room context, where an injured patient in need of immediate medical care cannot be expected to understand or act upon that information” and agreeing with other courts “that emergency room patients cannot be expected to inquire as to whether treating physicians are independent contractors.”).

         In these circumstances, and absent apposite case law to support its position, UVMC cannot secure summary judgment on the medical negligence claim on this ground.

         B. Breach of Standard of Care and Causation

         1. Dr. Marks

         a. Standard of Care

         Plaintiffs' expert Goldschmid opines that Marks did not meet the applicable standard of care because: (i) the “documentation” for Marks' examinations were “inexact” and “imprecise” and she likely made the wrong assessment of Andrew's Glasgow Coma Score (GCS); (ii) Marks should have intubated Andrew in order to stabilize him and ensure adequate oxygen prior to transportation to SRMH; (iii) Marks should have measured Andrew's blood gases, which would likely have confirmed the need for intubation/assured oxygen supply; (iv) Marks was incorrect when she believed Andrew was “stable” for transportation, as given his injuries and presentation he was likely to materially deteriorate in the hour it would take to get to SRMH; and (v) Marks failed to follow UVMC policies in violation of EMTALA because Andrew's blood pressure and oxygen levels were not constantly monitored under UVMC's own policies. See generally Goldschmid Decl. [Dkt. No. 130-4].

         UVMC's expert, Dr. James Joseph Hershon opines that: (i) Andrew's major head, chest, and internal injuries required immediate care and assistance of a specialist trauma surgeon and a neurosurgeon, who were not available at UVMC; (ii) Marks “stabilized” Andrew with saline and there was no need to intubate because there was no hemothorax and Andrew's blood pressure improved with the saline; (iii) rapid transfer outweighed risks of transfer without intubation; and (iv) there was no intervention of stabilizing care that an ER physician at a UVMC-level of hospital with the lack of specialists onsite ...

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