United States District Court, N.D. California
ORDER ON UKIAH VALLEY MEDICAL CENTER'S MOTION FOR
SUMMARY JUDGMENT RE: DKT., 119
William H. Orrick United States District Judge
three remaining defendants in this case, Ukiah Adventist
Hospital, aka Ukiah Valley Medical Center (UVMC), moves for
summary judgment. 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.
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).
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.
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. 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. 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,
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.
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).
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.
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.
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)
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.
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).
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).
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.
UVMC'S LIABILITY FOR MEDICAL NEGLIGENCE
assert that UVMC is liable for Dr. Mark's negligent
treatment of Andrew under a theory of agency. 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)).
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.
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
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. 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
these circumstances, and absent apposite case law to support
its position, UVMC cannot secure summary judgment on the
medical negligence claim on this ground.
Breach of Standard of Care and Causation
Standard of Care
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].
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 ...