Elam v. College Park Hospital

Decision Date27 May 1982
Citation183 Cal.Rptr. 156,132 Cal.App.3d 332
PartiesSophia ELAM, Plaintiff and Appellant, v. COLLEGE PARK HOSPITAL, Defendant and Respondent. Civ. 24479.
CourtCalifornia Court of Appeals Court of Appeals

Wesley H. Harris, APC and George W. Hauer, San Diego, for plaintiff and appellant.

Rhoades & Hollywood and Daniel S. Belsky, San Diego, for defendant and respondent.

Musick, Peeler & Garrett, James E. Ludlam, Charles F. Forbes, Los Angeles, Horvitz & Greines, Ellis J. Horvitz and Kent L. Richland, Encino, as amicus curiae for defendant and respondent.

WORK, Associate Justice.

The pivotal question presented by this appeal is whether a hospital is liable to a patient under the doctrine of corporate negligence for negligent conduct of independent physicians and surgeons who, as members of the hospital staff, avail themselves of the hospital facilities, but who are neither employees nor agents of the hospital. We answer this question in the affirmative and reverse the judgment.

Factual and Procedural Background

After Sophia Elam filed a complaint alleging medical malpractice against doctors Martin J. Schur, Merrill F. Cahn and Samuel Markarian, and College Park Hospital (Hospital), 1 Hospital was granted summary judgment.

Elam complains Schur, a licensed podiatrist, performed negligent podiatric surgery at Hospital to correct bilateral bunions and bilateral hammer toes. She was admitted to Hospital for surgery by Schur and Markarian, a medical doctor, pursuant to a hospital co-admission procedure requiring concurrence of a medical doctor before admitting a podiatric patient and the physician's assumption of responsibility for the overall medical care of that patient, including the taking of a medical history and the performance of a physical examination to insure podiatric surgery is not contraindicated. 2 The surgery was performed by Schur and Cahn.

Schur was always an independent contractor with Hospital and never an employee or agent. He was never paid by Hospital, as he operated his own office and billed Elam directly. She had personally selected him for medical treatment. In June 1974 he applied for appointment to Hospital's medical staff. After verifying his Doctor of Podiatric Medicine degree, state podiatric license, and podiatric surgery privileges at Hillside and Heartland Hospitals in San Diego, Hospital's governing board granted Schur podiatric surgery privileges on April 25, 1975.

Between April 25, 1975 and the date of surgery, Hospital's Medical Care Evaluation Committee (later renamed Patient Care Evaluation Committee), was responsible for evaluating and improving the quality of care rendered to patients treated at Hospital. The Committee met monthly, reviewing the medical charts of doctors and podiatrists treating patients at Hospital. On this routine basis, Schur's medical charts were reviewed along with the charts of other doctors and podiatrists. The Committee constituted a peer review mechanism designed to continually monitor, evaluate and improve the quality of medical care furnished patients at Hospital in compliance with the standards of the Joint Commission of Accreditation to Hospitals. The Committee never complained or reported to the Hospital's administration it considered or had reason to consider Schur incompetent or unqualified to practice podiatric surgery.

Elam's counsel has handled three other cases against Schur, including Perez v. Schur, No. 354963, filed June 17, 1974; Earlywine v. Schur, No. 359278, filed October 22, 1974; and Bailey v. Schur, No. 383533, filed June 17, 1976. Each case involved Schur's first seeing the patient less than a week before the operation. In its answers to interrogatories, Hospital admits it learned of the Bailey malpractice suit against Schur approximately four and one-half months before Elam's surgery. 3

The Doctrine Of Corporate Hospital Liability

Elam asserts Hospital breached its duty to her of insuring the competence of its staff physicians. 4 In other words, she contends a hospital owes a duty to the patient of selecting and reviewing the competency of its staff physicians carefully. California case precedent establishes a hospital may be held liable for a doctor's malpractice when the physician is actually employed by the hospital or is ostensibly the agent of the hospital (see Quintal v. Laurel Grove Hospital, 62 Cal.2d 154, 166-168, 41 Cal.Rptr. 577, 397 P.2d 161; Seneris v. Haas, 45 Cal.2d 811, 829-832, 291 P.2d 915; Rice v. California Lutheran Hospital, 27 Cal.2d 296, 304, 163 P.2d 860), but not absent such a relationship (see Meier v. Ross General Hospital, 69 Cal.2d 420, 435, 71 Cal.Rptr. 903, 445 P.2d 519; Mayers v. Litow, 154 Cal.App.2d 413, 417-418, 316 P.2d 351; Konnoff v. Fraser, 62 Cal.App.2d 788, 791, 145 P.2d 368; compare, Hedlund v. Sutter Med. Serv. Co., 51 Cal.App.2d 327, 124 P.2d 878 (hospital may be held liable for tortious acts of physicians where it has contracted to furnish medical services) ). However, we find no appellate decision of this state addressing precisely this application of the doctrine of corporate hospital liability (Comm., Piercing The Doctrine of Corporate Hospital Liability (1980) 17 San Diego L.Rev. 383, 386, fn. 16), nor "considering tort liability of a hospital for negligent selection or retention of staff practitioners" (Matchett v. Superior Court, 40 Cal.App.3d 623, 629, fn. 4, 115 Cal.Rptr. 317; Comm., The Hospital's Responsibility for its Medical Staff: Prospects for Corporate Negligence in California (1977) 8 Pac.L.J. 141, 142.) 5 Thus, we treat this matter as one of first impression. 6

The essential elements of actionable negligence include: (1) a defendant's legal duty to use due care; (2) a breach of that duty; and (3) the breach as the proximate or legal cause of the resulting injury. (United States Liab. Ins. Co. v. Haidinger-Hayes, Inc., 1 Cal.3d 586, 594, 83 Cal.Rptr. 418, 463 P.2d 770; George A. Hormel & Co. v. Maez, 92 Cal.App.3d 963, 966, 155 Cal.Rptr. 337; Valdez v. J. D. Diffenbaugh Co., 51 Cal.App.3d 494, 504, 124 Cal.Rptr. 467.) Hospital argues it does not owe its patients a legal duty to exercise reasonable care in selecting, reviewing and periodically evaluating the competency of the physicians and podiatrists it permits to treat patients within its facilities. Therefore, even if its unreasonable actions were a proximate cause of Elam's injuries, it may not be held liable on a negligence theory. Accordingly, in order to determine whether the doctrine of corporate hospital liability should be applied, we must determine whether the cited legal duty of care exists--"an essential precondition to liability founded on negligence." (Hooks v. Southern Cal. Permanente Medical Group, 107 Cal.App.3d 435, 443, 165 Cal.Rptr. 741.) 7 The threshold determination of whether a duty is owed the plaintiff constitutes primarily a question of law within the exclusive province of the court. (Weirum v. RKO General, Inc., 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36; Kane v. Hartford Accident & Indemnity Co., 98 Cal.App.3d 350, 355, 159 Cal.Rptr. 446.) "Duty, however, is a rather ephemeral concept: It may be imposed by statute or the terms of a contract; it may arise from the character of particular activities or from the nature of human society itself--and its ascertainment and definition in any specific factual context is an imprecise task at best." (Valdez v. J. D. Diffenbaugh Co., supra, 51 Cal.App.3d 494, 505, 124 Cal.Rptr. 467.) Consequently, its existence or absence "cannot be determined by mechanical or formal tests. Rather, 'judicial recognition of such duty ... is initially to be dictated or precluded by considerations of public policy.' " (Smith v. Alameda County Social Services Agency, 90 Cal.App.3d 929, 935, 153 Cal.Rptr. 712, quoting Peter W. v. San Francisco Unified Sch. Dist., 60 Cal.App.3d 814, 822, 131 Cal.Rptr. 854.) In other words, " ' "duty" is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.' " (Dillon v. Legg, 68 Cal.2d 728, 734, 69 Cal.Rptr. 72, 441 P.2d 912, quoting Prosser, Law of Torts (3d ed. 1964) at p. 333; Weirum v. RKO General, Inc., supra, 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36; Smith v. Alameda County Social Services Agency, supra, 90 Cal.App.3d 929, 935, 153 Cal.Rptr. 712.)

Our analysis of whether Hospital owed the disputed duty to Elam commences with the fundamental policy embodied in Civil Code section 1714, providing liability for injuries to another caused by one's failure to exercise ordinary care under the circumstances. (See Hooks v. Southern Cal. Permanente Medical Group, supra, 107 Cal.App.3d 435, 443, 165 Cal.Rptr. 741; George A. Hormel & Co. v. Maez, supra, 92 Cal.App.3d 963, 967, 155 Cal.Rptr. 337.) "Duty" is thus presumed, as "no ... exception should be made unless clearly supported by public policy." (Rowland v. Christian, 69 Cal.2d 108, 112, 70 Cal.Rptr. 97, 443 P.2d 561.) Such

"[a] departure from this fundamental principle involves the balancing of a number of considerations; the major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." (Id., at pp. 112-113, 70 Cal.Rptr. 97, 443 P.2d 561.)

However, the primary consideration is the foreseeability of the risk. 8 (Weirum v. RKO General, Inc., supra, 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36; Dillon v Legg, supra, 68...

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