Ermoian v. Desert Hosp.
| Decision Date | 22 June 2007 |
| Docket Number | No. E036982.,E036982. |
| Citation | 152 Cal.App.4th 475,61 Cal.Rptr.3d 754 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Amanda ERMOIAN, a Minor, etc., Plaintiff and Appellant, v. DESERT HOSPITAL et al., Defendants and Respondents. |
Law Offices of Baum and Baum and Ted Baum, Palm Springs, for Plaintiff and Appellant.
Helton Law Group, Ralph G. Helton, Long Beach, and Carrie S. McLain for Defendants and Respondents.
Plaintiff Amanda Ermoian (Amanda) was born with brain abnormalities that left her severely mentally retarded and unable to care for herself. Her conditions could not have been prevented, treated, or cured in utero. Through her guardian ad litem, she sued Desert Hospital (the Hospital) and Maria Sterling, a registered nurse, for wrongful life, breach of contract, and promissory estoppel. She claims that defendants were negligent in, among other ways, failing to inform her mother of her abnormalities prior to her birth. Their negligence, she contends, deprived her mother of the opportunity to make an informed choice to terminate the pregnancy. As a result, her mother did not have an abortion, and she was born. The court granted defendants' motion for summary adjudication on the breach of contract and promissory estoppel claims. The wrongful life cause of action was tried by the court, which found for defendants.
Amanda contends that we should conduct a de novo review of the trial court's findings and direct the trial court to enter judgment in her favor. In the published portion of this opinion, we explain that the applicable standard of review is the substantial evidence standard, and conclude that substantial evidence supports the express and implied findings necessary to support the judgment. In the unpublished portion of the opinion, we reject Amanda's arguments that the court erred in denying Amanda's motion to have certain request for admissions be deemed granted, in granting defendants' motion for summary adjudication, and that certain legal and evidentiary rulings by the trial court require reversal.
In 1994, the Hospital operated Desert Hospital Outpatient Maternity Services Clinic (the clinic), a comprehensive perinatal services program (CPSP) for Medi-Cal patients. Under this CPSP, and pursuant to Medi-Cal regulations, the Hospital provided psychosocial, nutrition, and health education services, and related case coordination to Medi-Cal patients during and after pregnancy. The Hospital contracted with a corporation controlled by Morton Gubin, M.D., which employed Masami Ogata, M.D., to provide obstetrical services to the clinic's patients.2 Drs. Gubin and Ogata, who had a private practice located elsewhere, saw the clinic's patients at the clinic's facility. The physicians are not employees of the Hospital.
In January 1994, Jackie Shahan (Shahan), Amanda's mother, went to the Hospital emergency room because of cramping, hives, headaches, and vomiting. Shahan did not have her own physician at that time. The emergency room physician informed Shahan that she was pregnant and referred her to Drs. Gubin and Ogata.
On January 13, 1994, Shahan went to the clinic and met with Carol Cribbs, a comprehensive perinatal health worker. Shahan filled out a questionnaire in which she answered "yes" to the question, "Do you want to continue this pregnancy?" In response to the question, "What are your hopes for this pregnancy?" Shahan stated, "To have a healthy baby." Nevertheless, she testified that she had "mixed feelings" about the pregnancy and was not sure if she would "keep Amanda or not."
Shahan was given a document titled, "patient rights and responsibilities." Among other "rights," this document states that Shahan has the right to "[r]eceive any explanations on any tests or office procedures and answer any questions [she] may have," "[r]eview [her] medical record with a doctor and/or nurse," and "[p]articipate in making any plans and/or decisions about [her] care, and that of [her] baby, during the pregnancy, labor, delivery and postpartum."3 Cribbs signed the document as a "witness."
Shahan also signed an "informed consent" form regarding alpha fetoprotein testing. According to the form, the alpha fetoprotein test is a blood test, the "major purpose" of which "is to detect fetuses with neural tube defects, such as spina bifida and anencephaly." The form states, among other things: "I understand that if the fetus is found to have a birth defect, the decision whether or not to continue the pregnancy will be entirely mine."4 Cribbs told Shahan that she would be notified if there were any problems with the pregnancy. The alpha fetoprotein test was negative, indicating "no increased risk of neural tube defects."
On January 25, 1994, Shahan met with Dr. Gubin. Dr. Gubin explained that he was in charge of the clinic. Shahan told Dr. Gubin that she might want to have an abortion. Dr. Gubin said he did not perform abortions at the clinic and she "would have to go somewhere else" for that. Dr. Gubin examined Shahan and let Shahan hear the fetus's heartbeat. Upon hearing the heartbeat, Shahan decided she would not have an abortion.
After meeting with Dr. Gubin, Shahan met with Sterling. Sterling was a registered nurse and Shahan's CPSP case coordinator. Sterling scheduled an ultrasound for January 28. Sterling told Shahan that Shahan would get the results of the ultrasound and be provided with all the information she needed.
After her visit to the clinic, Shahan returned home, where she lived with Amanda's father, Martin Ermoian (Ermoian). She told Ermoian that she was not going to get an abortion. According to Shahan, Ermoian agreed, but "he wasn't sure still."
On January 28, Shahan underwent the scheduled ultrasound at the Hospital. The ultrasound technician told Shahan that "Amanda was fine." After the ultrasound, Shahan told Ermoian that she was "not going to have an abortion." The two of them "decided then that [they] were going to keep Amanda."
The radiologist's report regarding the January 28 ultrasound indicates that the gestational age of the fetus was 20.1 weeks, plus or minus 1.4 weeks. The report does not indicate any abnormalities.
Dr. Ogata met with Shahan on February 22 and talked with her about the January 28 ultrasound. Dr. Ogata told Shahan that the fetus was healthy. Shahan also spoke with Cribbs, who told her that everything was normal and that the baby was healthy. Cribbs noted in Shahan's chart that she and Shahan discussed the visit with the physician, and that the ultrasound was normal.
On March 21, Shahan called Sterling and complained of abdominal pain and hallucinations. Sterling told Shahan to go to the labor and delivery department of the Hospital. Sterling wrote in Shahan's medical chart that Shahan was sent to the Hospital "for evaluation." At the Hospital, Shahan underwent an ultrasound due to a possible abruption of the placenta. Sterling testified that she "had nothing to do with that ultrasound," and was not aware that an ultrasound "was being done."5 Neither Dr. Gubin nor Dr. Ogata saw Shahan that day.
The radiologist's written report regarding the March 21 ultrasound states that the fetus is "viable" and is 25.8 weeks old, plus or minus 1.8 weeks. It further states: Under the heading, "Impression," the report states: [¶].... (Capitalization omitted.) The report is addressed to Dr. Ogata, and concludes: "[R]eport called to Dr. Ogata at 1145 hours on [March 21]."6 (Capitalization omitted.) According to Dr. Gubin, the fetus was viable as of March 21,7 and they "had no feeling there was any abnormality."
The next day, March 22, Shahan was examined by Dr. Ogata at the clinic. As of that date, the clinic had not received the written report of the March 21 ultrasound. According to Shahan, Dr. Ogata discussed the ultrasound with her and told her that the ultrasound indicated that the head of the fetus might be small, but that it was not a concern. He told her that the baby was healthy, and they would repeat the ultrasound in four to six weeks to check the head.
Sterling talked with Dr. Ogata about "the heart tones that [Shahan] heard, the measurements that the doctor had gotten." She made a note in Shahan's medical chart to "`repeat ultrasound next visit.'" The note also states, "size vs dates."
Sterling then talked with Shahan. Sterling was apparently unaware of the results of the ultrasound performed the night before or of any problem with the fetus at that time.8 Sterling "opened up the chart and copied for [Shahan] exactly what the doctor told her...." In her notes regarding her meeting with Shahan, Sterling indicated that she talked to Shahan about bed rest and the "signs and symptoms of labor and pre-term labor." According to Shahan, Sterling told her that "everything was fine" and that they would let her know if there was any problem with the ultrasound. This was the last time Sterling saw Shahan in the clinic.
By this time, Shahan and Ermoian were in agreement that Shahan would have the baby, and the "issue of abortion ... no longer existed."
Shahan's next visit to the clinic took place on March 29. An ultrasound was not performed at that time. At trial, Sterling explained the apparent inconsistency between her March 22 note to "repeat ultrasound next visit" and the failure to obtain an...
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...of fact, and a finding of negligence is reviewed on appeal under the substantial evidence standard. ( Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 500-501, 61 Cal.Rptr.3d 754.) Similarly, the application of a reasonableness standard in other situations is deemed a question of fact......
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