Armato v. Baden

• Decision Date: 28 April 1999
• Docket Number: No. B121946,B121946
• Citation: 71 Cal.App.4th 885,84 Cal.Rptr.2d 294
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 3081, 1999 Daily Journal D.A.R. 3971 Ann ARMATO, Plaintiff and Appellant, v. Scott A. BADEN et al., Defendants and Respondents.

Page 294

84 Cal.Rptr.2d 294

71 Cal.App.4th 885, 99 Cal. Daily Op. Serv. 3081,

1999 Daily Journal D.A.R. 3971

Ann ARMATO, Plaintiff and Appellant, v. Scott A. BADEN et al., Defendants and Respondents.

No. B121946.

Court of Appeal, Second District, Division 7, California.

April 28, 1999.

Ray T. McCullough, Pasadena, for Plaintiff and Appellant.

Schmid & Voiles and Suzanne De Rosa, for Defendants and Respondents Scott A. Baden and Philip H. Conwisar.

Bonne, Bridges, Mueller, O'Keefe & Nichols and Mark B. Connely, San Luis Obispo, for Defendants and Respondents Stephen Kay and William Brien.

LILLIE, P.J.

Plaintiff appeals from summary judgment granted in favor of defendants Baden, Conwisar, Kay and Brien, all doctors who were working part-time as independent contractors for Managed Care Orthopedic Medical Group (Managed Care), but who did not treat plaintiff. Plaintiff was allegedly negligently treated for a broken wrist at Managed Care by its employee physician assistant Rick DeLeon; she sued DeLeon and Managed Care and settled with them for $100,000; plaintiff then filed another action against defendants asserting the theory that even though defendants never met or treated plaintiff or supervised DeLeon's treatment of her, their conduct in allowing their names and status as doctors to be used in connection with Managed Care led plaintiff to believe that DeLeon was a medical doctor; had plaintiff known that DeLeon was only a physician assistant, she would not have let him treat her. This case presents the issue, apparently one of first impression in California, whether an independent contractor of a professional service corporation which permits his name and status to be associated with the corporation creates an "ostensible partnership" so as to make him liable for the torts of the corporation's employee.

FACTUAL AND PROCEDURAL BACKGROUND

In September 1994, plaintiff fell and fractured her left wrist; she was initially seen at the Providence St. Joseph Hospital Emergency Room in Burbank; after her HMO, CIGNA Health Care of California, Inc. (CIGNA), would not authorize orthopedic treatment at St. Joseph, plaintiff was released and instructed by CIGNA to seek treatment from Robert Klapper, M.D., and/or Managed Care in Sherman Oaks. In 1994 and 1995, Managed Care was a medical corporation solely owned by Robert Klapper, M.D. None of the defendants were officers, directors, or employees of Managed Care; defendants worked as independent contractors for Managed Care, providing orthopedic services to Managed Care's patients assigned to them. None of the defendants have ever had an ownership or pecuniary interest in Managed Care. Defendants were paid by Managed Care a flat fee of $8,000 per month to see patients. In 1994 and 1995, Conwisar worked at Managed Care only on Monday or Friday afternoons; Baden worked only on Friday afternoons; Brien worked only on Monday mornings; and at the time Armato was treated at the Sherman Oaks office of Managed Care, Kay worked at the Burbank office and only on Thursday mornings. Brien was never licensed by the Medical Board of California to supervise physician assistants; Kay became licensed to supervise physician assistants only in March 1997.

At Managed Care, plaintiff was not seen by Dr. Klapper, but by Rick DeLeon, who, by his conduct, led plaintiff to believe he was an orthopedic surgeon; DeLeon did not correct her when she addressed him as "Dr. DeLeon." In deposition testimony, Armato admitted that she did not look at the board listing the suites in the lobby of the building where Managed Care had its offices; she recalled seeing names on the door of the Managed Care suite, but did not recall any specific names, testifying that "I think I looked at the number and opened the door and walked in." She "didn't look" to see if the names on the door had an "M.D." after them. According to Baden, the directory in the lobby of the building listed Managed Care but the names of the individual doctors and DeLeon were not listed on such directory at the time Armato was a Managed Care patient. According to Brien, in September 1994, the door to the Managed Care suite did not contain the names of any of the defendant doctors but only the name "Managed Care Orthopedic Group."

DeLeon ordered plaintiff's arm in a cast and later prescribed physical therapy; DeLeon In March 1995, plaintiff sought care from her primary care physician, Dr. Doshi, because plaintiff was concerned her wrist had not healed properly; Dr. Doshi referred plaintiff to an orthopedic surgeon, a Dr. Stark, in August 1995; Dr. Stark opined that plaintiff's wrist had not healed properly because the fractures had not been set and plaintiff would require surgery to repair the damage to her wrist. Plaintiff underwent surgery, which was not successful.

treated plaintiff on six occasions over a period of five months until February 16, 1995; she was seen by DeLeon only on Wednesdays and Thursdays. DeLeon did not consult with defendants about his treatment of Armato and defendants did not supervise DeLeon's treatment of Armato.

In an underlying medical malpractice action filed in November 1995, plaintiff sued DeLeon as "Richard DeLeon, M.D.," Managed Care, and CIGNA. Armato and her counsel believed DeLeon was a physician until November 1996, when DeLeon's counsel disclosed to plaintiff's counsel that DeLeon was not a physician. In January 1997, the underlying action settled for $100,000 as to Managed Care, Dr. Klapper, and DeLeon.

On April 3, 1997, plaintiff filed the instant complaint against defendants. The first amended complaint asserted causes of action against defendants based on theories of battery, fraud and deceit, intentional misrepresentation, negligent misrepresentation, breach of fiduciary duty, negligent supervision, intentional infliction of emotional distress, medical malpractice and breach of contract. The first amended complaint alleged that defendants owed plaintiff a duty to supervise DeLeon's care and treatment of her, that they owed her a duty to disclose to her that DeLeon was not a physician, and that they are vicariously liable for DeLeon's actions.

On December 30, 1997, at a time when trial was set for March 9, 1998, Drs. Conwisar and Baden filed a motion for summary judgment or alternatively for summary adjudication of issues. ¹ The gravamen of their motion was that they had no physician-patient or contractual relationship with Armato and owed no duty of care to her; both Conwisar and Baden declared that they did not work at Managed Care on the days when Armato was seen by DeLeon, and Managed Care did not assign Armato's care to them; prior to being served with the pending action, they had no personal knowledge that DeLeon had ever held himself out or represented himself as a physician to any Managed Care patient. Baden and Conwisar further declared that Managed Care's contract with CIGNA to see CIGNA patients was negotiated by Dr. Klapper, who alone had authority to negotiate such agreement; Baden and Conwisar never have had authority over the assignment of Managed Care's patients, and on the days when they did not work at Managed Care, they had no patient responsibility or supervisory responsibility for physician assistants at Managed Care.

In opposition to Baden and Conwisar's motion, Armato argued that all of the defendant doctors held themselves out as practicing with Managed Care, which operated as an "ostensible partnership"; thus, all physician members of the "group" are jointly and severally liable to her for DeLeon's conduct and for failing to supervise DeLeon's care of her injury. Armato also offered the deposition testimony of Dr. Klapper, who testified that the Sherman Oaks office of Managed Care was located next to Dr. Baden's office; Klapper rented the Managed Care space from Dr. Baden because "it was already an office that existed which meant it had an x-ray machine which saved us that expense." Klapper also testified that it was advantageous to him to have an office in the Valley, and that DeLeon could contact the other doctors if he needed to. Dr. Conwisar also testified that he practiced with Dr. Baden, that Managed Care's office and Dr. Baden's private practice shared a common waiting room. According to Baden's deposition testimony, the common reception room had a sign-in desk with two DeLeon testified that Managed Care had appointment cards with a place to note the appointment on one side, and the reverse side was stamped with the names of Drs. Klapper, Conwisar, Baden, Kay and Brien, and his (DeLeon's) name; Managed Care's prescription pads also had the name Managed Care, along with the name of the individual physician, plus his name, title as physician assistant, and license number; however, DeLeon was not certain that the appointment cards and prescription pads were in use during the time Armato was a patient at Managed Care; there is no indication that Armato ever saw or received a Managed Care appointment card or a paper from one of its prescription pads.

front desk windows or sliding glass doors separated by a pillar of drywall; there were two separate front desk receptionists, one for Baden's and Conwisar's practice and one for Managed Care; the receptionist for Baden and Conwisar had no responsibility for scheduling of Managed Care patients.

On January 15, 1998, Kay and Brien filed a motion for summary judgment and/or summary adjudication based on similar facts and arguments raised by Baden and Conwisar; the hearing on the motion was set for the same date to which Baden's and Conwisar's motion had been continued--February 20, 1998. Armato filed opposition to Kay's and Brien's motion on its merits and also argued that the hearing date was untimely under Code of Civil Procedure section 437c, subdivision (a), as it was set for hearing within 30 days of trial and the prior ex parte order continuing Baden's and Conwisar's motion was solely for the purpose of...