Clarke v. Hoek

• Citation: 219 Cal.Rptr. 845,174 Cal.App.3d 208
• Court: California Court of Appeals
• Decision Date: 08 November 1985
• Parties: Frances M. CLARKE, Plaintiff and Appellant, v. Kenneth J. HOEK, M.D., Defendant and Respondent. AO24548.

Page 845

219 Cal.Rptr. 845

174 Cal.App.3d 208

Frances M. CLARKE, Plaintiff and Appellant, v. Kenneth J. HOEK, M.D., Defendant and Respondent.

AO24548.

Court of Appeal, First District, Division 3, California.

Nov. 8, 1985.

Scott D. Righthand, Bostwick & Tehin, San Francisco, for plaintiff and appellant.

James E. Ludlam, Musick, Peeler & Garrett, David E. Willett, Catherine I. Hanson, Hassard, Bonnington, Rogers & Huber, San Francisco, for amici curiae on behalf of California Medical Ass'n and California Hosp. Ass'n in support of respondents Mendocino Community Hosp. et al.

Stuart M. Gordon, Nancy E. Hudgins, Thomas A. Packer, Bradford W. Lomas, Gordon & Rees, San Francisco, for defendant and respondent.

SCOTT, Associate Justice.

The issue raised here is whether a physician who, on behalf of a hospital and without compensation, acts as a proctor in observing a surgical operation for the sole and express purpose of assessing and reporting on the competence of a candidate for membership of a hospital medical staff, owes a duty of care to the patient in the operation which would render the proctor subject to liability for failing to intervene in that surgery in order to prevent malpractice by the proctored surgeon. The question is posed in the context of an appeal from an order granting summary judgment in favor of a physician who served as the proctor on behalf of two hospitals in two separate operations on the same patient. We conclude that the respondent proctor had no duty of care to the patient. We therefore affirm the order of summary judgment.

I

There is no dispute as to any of the material facts. At all relevant times, Kenneth J. Hoek, M.D. (Dr. Hoek) was a physician and surgeon licensed since 1968 to practice in California, and certified since 1976 by the American Board of Orthopedic Surgery. Dr. Hoek acted as proctor during two separate orthopedic surgeries performed on appellant Frances M. Clarke by Drs. Frank LoBianco (Dr. LoBianco) and William Mason (Dr. Mason), during the course of which appellant was allegedly injured as a result of the negligence of the two surgeons.

Dr. Hoek was an active medical staff member of both the Ukiah Adventist Hospital and the Mendocino Community Hospital. ¹ On or about October 19, 1979, Dr. Hoek was appointed by the joint credentials committee of Ukiah General and Ukiah Adventist Hospitals to be a proctor for Dr. LoBianco, who was an applicant for medical staff privileges at Ukiah Adventist Hospital. Dr. Hoek was never asked to proctor Dr. Mason. In accordance with the by-laws of the Ukiah Adventist Hospital, Dr. Hoek was asked to observe 10 surgeries performed by Dr. LoBianco and then to submit a written report to the credentials committee. On February 8, 1980, Dr. Hoek was present at and observed an operation performed on appellant by Drs. LoBianco and Mason at Ukiah Adventist Hospital.

Sometime thereafter, Dr. Hoek was again asked to proctor Dr. LoBianco, this time at Mendocino Community Hospital. The by-laws of the Mendocino Community Hospital, like those of the Ukiah Adventist Hospital, provided that proctors were to prepare written reports after observing and evaluating all aspects of an applicant's management of a case. Dr. Phranklin Apfel, Chief of Staff at Mendocino Community Hospital, asked Dr. Hoek to observe 10 surgeries performed by Dr. LoBianco and to submit a report. On May 21, 1980, Dr. Hoek was present at and observed surgery performed on appellant by Drs. LoBianco and Mason at Mendocino Community Hospital.

Prior to each of the two operations, Dr. Hoek reviewed appellant's X-rays and discussed the operative plan with Dr. LoBianco. Otherwise, Dr. Hoek did not take any part in the care and treatment of appellant. During the actual operations, he did not participate in the surgeries; nor was he ever asked to do so by appellant, any medical personnel, or any hospital official. Dr. Hoek did not believe that such intervention was warranted. He did not "scrub in" for the surgeries; rather, he simply observed them from a position outside "the sterile field."

As of the times of the subject surgeries, Dr. Hoek had never met appellant; neither had he entered into any contractual relationship with her. He did not request, receive or expect any payment from any source for proctoring the two operations. His only direct contact with appellant was on February 4, 1981, many months after the two surgeries, at which time appellant consulted him for an evaluation of the condition of her feet. Appellant had been referred to Dr. Hoek by her family physician. She did not enter into any contract or agreement with Dr. Hoek in connection with her treatment, and she has not made any allegations that his evaluation of her condition was performed negligently.

In declarations filed by respondent in connection with his motion for summary judgment, Drs. Phranklin Apfel and James T. Alexander, the respective chiefs of staff of the two hospitals at the times of appellant's operations, declared that their hospitals, like all others, are required to evaluate the competence of physicians who are applicants for medical staff privileges. In the case of a surgeon, competency is determined by the physician's application, credentials, references, reports of prior surgeries, and observation by proctors of the candidate at work. According to the hospital chiefs of staff, proctors are responsible only to the medical staff credentials committee of the hospital charged with peer review. Proctors are only required to observe the candidate for medical staff membership at work and report back to the credentials committee; they are not expected to supervise the physicians being proctored or to intervene in proctored surgeries. Furthermore, Drs. Apfel and Alexander declared that imposition of tort liability on individual proctors for the alleged malpractice of the physicians being proctored would inhibit and stifle effective peer review by proctors, who perform their proctoring duties as unpaid volunteers. These statements were also supported by the declarations of two other physicians.

The only evidence that appellant submitted to the court in connection with her opposition to respondent's motion for summary judgment consisted of the declarations of two medical consultants, Drs. Joshua Gerbert and Edward T. Kelley, and excerpts from the deposition of Dr. Mason. In their declarations, Drs. Gerbert and Kelley opined that any proctor to a surgical operation owes a duty to the patient "to ensure that the patient receives proper surgical treatment within the standard of care," and to intervene in the surgery he is proctoring if he determines that the surgical procedure "falls below the standard of care" or is being "improperly performed." In his declaration, Dr. Gerbert further stated that a proctor has a duty to review applicable intraoperative X-rays; "to instruct the surgeons to remedy difficulties perceived" thereby; to intervene himself if the operating surgeons fail to remedy the difficulties; and "to ensure" both that the operative procedures performed are those consented to by the patient on his or her consent form, and that they are competently performed. Although Dr. Gerbert does not set forth the practical means whereby a proctor is to carry out these alleged duties "to ensure" that the operative procedures were consented to and are performed competently, he does state that, in his opinion, Dr. Hoek "breached the standard of care" by not doing so.

In the excerpts taken from his deposition, Dr. Mason testified that he had "proctored many people many times" and had never intervened in a surgery; nor had he ever heard of a proctor intervening in a surgery. He could envision "extreme cases of poor surgical judgment or poor surgical performance" in which "it would be my job as a proctor to intervene and try to give the surgeon appropriate advice that he or she needs"; however, "the proctor is usually not scrubbed into the case so you can't get your hands involved in the surgery.... And the patient is under a general anesthetic and unless under [sic ] a situation where the patient is under a local anesthetic, you certainly wouldn't want to stop the surgery cold. Most physicians tend to be reasonable."

II

The question of the existence of a legal duty of care in a given factual situation presents a question of law which is to be determined by the courts alone. (Elam v. College Park Hospital, supra, 132 Cal.App.3d at p. 339, 183 Cal.Rptr. 156; Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal.App.3d 814, 822, 131 Cal.Rptr 854; 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 493, p. 2756.) Since the existence of a duty of care is an essential element in any assessment of liability for negligence (United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 594, 83 Cal.Rptr. 418, 463 P.2d 770; Hooks v. Southern California Permanente Medical Group (1980) 107 Cal.App.3d 435, 443, 165 Cal.Rptr. 741; Peter W. v. San Francisco Unified Sch. Dist., supra, 60 Cal.App.3d at p. 822, 131 Cal.Rptr. 854; 4 Witkin, op. cit. supra, Torts, § 488, p. 2749), entry of summary judgment in favor of the defendant in a negligence action is proper where the plaintiff is unable to show that the defendant owed such a duty of care. ( Rainer v. Grossman (1973) 31 Cal.App.3d 539, 542, 107 Cal.Rptr. 469.) In this case, if respondent's declarations in support of the motion for summary judgment demonstrate an absence of an essential element of appellant's case, and appellant's declarations submitted in reply do not show that a triable issue of fact exists with respect to that essential element, "no amount of factual conflicts upon other aspects of the case will affect the result and the motion for summary judgment should be granted." ( Frazier, Dame, Doherty, Parrish & Hanawalt v. Boccardo, Blum, Lull, Niland, Teerlink & Bell (1977) 70 Cal.App.3d 331, 338, 138 Cal.Rptr. 670.)

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