Wicks v. Antelope Valley Healthcare Dist.

• Decision Date: 01 June 2020
• Docket Number: B297171
• Citation: 49 Cal.App.5th 866,263 Cal.Rptr.3d 397
• Court: California Court of Appeals Court of Appeals
• Parties: Marline WICKS et al., Plaintiffs and Appellants, v. ANTELOPE VALLEY HEALTHCARE DISTRICT, Defendant and Respondent.

49 Cal.App.5th 866

263 Cal.Rptr.3d 397

Marline WICKS et al., Plaintiffs and Appellants,

v.ANTELOPE VALLEY HEALTHCARE DISTRICT, Defendant and Respondent.

B297171

Court of Appeal, Second District, Division 8, California.

Filed June 1, 2020

Law Offices of Michels & Lew, Philip Michels and Steven B. Stevens, Los Angeles, for Plaintiffs and Appellants.

La Follette, Johnson, DeHaas, Fesler & Ames, Arthur E. Zitsow, Julie Pollock Birdt and David J. Ozeran, Los Angeles, for Defendant and Respondent.

GRIMES, Acting P. J.

SUMMARY

The trial court granted summary judgment to a hospital in a lawsuit brought by the family of an emergency room patient who was released from the hospital and died eight hours later. We conclude no evidence showed that the nursing staff caused or contributed to the patient's death; no evidence showed the hospital was negligent in the selection and retention of the two emergency room doctors who treated the patient; and the evidence conclusively established the emergency room doctors were not the ostensible agents of the hospital.

Accordingly, we affirm the judgment.

FACTS

1. The Parties and the Complaint

Plaintiffs Marline and Bethanie Wicks are the spouse and daughter, respectively, of decedent Matthew Wicks. They sued two emergency room (ER) doctors (Christopher Belfour and Lawrence Michael Stock); Antelope Valley Emergency Medicine Associates, Inc.; and Antelope Valley Healthcare District, doing business as Antelope Valley Hospital (the hospital), for medical negligence in connection with Mr. Wicks's death on October 26, 2016.

As relevant here, the complaint alleged the defendant hospital selected and assigned physicians to care for and treat Mr. Wicks, and those individuals were the ostensible agents of the hospital. The complaint alleged the hospital was negligent in the "selection, training, retention, supervision and hiring" of the two ER doctors, and its nursing personnel were negligent in the care and treatment of decedent. No details were alleged in the complaint.

2. Defendant's Motion for Summary Judgment

The hospital moved for summary judgment, contending (1) its employees, nurses and nonphysician personnel complied with the standard of care in their care and treatment of Mr. Wicks; (2) no act or omission of the hospital negligently caused or contributed to his death; (3) the hospital was not negligent in its appointment of Dr. Stock or Dr. Belfour to the medical staff; (4) neither doctor was an employee or agent of the hospital; and (5) the hospital did not control, direct or supervise either doctor in his care or treatment of decedent. Defendant relied on the following evidence.

a. The Holland declaration

A declaration from Dr. J. Paul Holland, who has actively practiced as an emergency physician since 1979, provided the sequence of events at the hospital on October 26, 2016. His recitation of these events was based on his review of decedent's medical records for that day. Those records were attached as an exhibit to a declaration from defendant's counsel (the Birdt declaration), and authenticated in a declaration from the hospital's custodian of records, Laurie Lee Dorsey. The Holland declaration correctly recites what is shown in the medical records, as follows.

Mr. Wicks came to the emergency department at the hospital at 4:03 a.m., complaining of "[s]tomach pain[,] tight chest." His vital signs (blood pressure, pulse, oxygen saturation, etc.) were recorded at 4:17 a.m., and included a pain level of 7 out of 10. At 4:19 a.m. (the noted "triage time"), nurse Krystal Crawford noted Mr. Wicks's height and weight (including a BMI (body mass index) of 33.9), and that he complained of neck pain, cough, sore throat and "chest congestion x tonight per patient ‘like a dull ache in my throat, like I'm getting strangled below my neck.’ " She noted the patient was alert, denying any chest pain or shortness of breath, speaking normally, and ambulating without difficulty. After the triage, he was placed in a bed at 4:22 a.m.

Mr. Wicks was then evaluated by nurse Amberlyn Aroneo Wildoner. Her detailed notes, recorded at 4:59 a.m., state, among other details, that Mr. Wicks was alert, oriented and cooperative, appeared to be in distress due to pain, and stated he had woken up with a pain in his upper chest/throat. He described the pain as something " ‘stuck’ " in his throat. He denied any shortness of breath or inability to swallow, and said "he feels like he needs to clear his throat but when he does it doesn't clear"; he said he also woke up with epigastric pain. Nurse Wildoner noted no respiratory distress, and "[c]hest pain present, upper, [s]ore throat present." Her notes at 5:03 a.m. show she placed him on a cardiac monitor, and her notes at 5:46 a.m. show she established an IV site, drew lab specimens and sent them to the lab.

Dr. Belfour evaluated Mr. Wicks at 5:10 a.m., ordered an electrocardiogram (ECG) and reviewed the ECG results at 5:34 a.m. Dr. Belfour also ordered a chest X-ray, and the records show radiologist Dr. Kellie Greenblatt reviewed it and noted, at 6:10 a.m., "[n]o radiographic evidence of acute cardiopulmonary disease"; "[n]o significant interval change"; and "[m]ild cardiomegaly" (enlarged heart).

Nurse Shelly Macias took over the care of Mr. Wicks from nurse Wildoner at 6:19 a.m. Her notes show he was "[s]tanding at bedside for comfort" at 6:29 a.m., she recorded his vital signs at 6:53 a.m., and at 7:05 a.m. a person from the lab was at bedside for another blood draw.

Dr. Stock took over Mr. Wicks's care after Dr. Belfour's shift ended at around 6:00 a.m. According to Dr. Holland and the medical records, over the next several hours, in addition to the chest X-ray, various tests were performed, including another ECG, two troponin tests and other blood work.

Dr. Stock met and examined Mr. Wicks at 8:42 a.m., but testified he had no independent memory of the interaction. His custom and practice was "obtaining history, understanding the context of how [the patient] got there, doing an exam, and reviewing risk factors ... for the conditions, and then reviewing any of the lab data or any [test] results" done since the patient's arrival. Although he had no independent memory of treating Mr. Wicks, Dr. Stock testified it was his custom and practice then and now to look at the electronic records system to see if Mr. Wicks had been treated at the hospital previously. His custom and practice was to look through such documents for "a discharge summary, an old EKG, something to that effect that might be very useful." (The term ECG is synonymous with EKG.) When asked if part of his custom and practice would be "to look at the patient's past medical history," he responded, "Yes, I would talk to the patient, I'd read the chart and—and generally would look in the electronic medical record."

At around 11:00 a.m., Dr. Stock decided to discharge Mr. Wicks. He had seen Mr. Wicks a second time and noted he had "improved"; by this time a second ECG and a second troponin test had been performed. (Vital signs recorded by the nurses at 6:53 a.m., 7:53 a.m. and 9:53 a.m. (blood pressure, pulse, oxygen saturation, etc.) were normal and stable, with pain reduced to 4 out of 10 at 6:53 a.m. and the same thereafter.) The time on Dr. Stock's discharge order is 11:06 a.m. Mr. Wicks was given discharge instructions; these included a diagnosis of "chest pain of unclear etiology," and a referral to a cardiologist, as well as a follow-up with his primary care physician in one day. (Decedent's wife testified that one of the doctors (she said Dr. Belfour) told them he wanted Mr. Wicks to see a cardiologist the next day, and that he thought the cardiologist listed in the instructions "will see you tomorrow.") Mr. Wicks left the emergency department at 11:16 a.m., and died less than eight hours later. The cause of death was "acute dissection of aorta."

Dr. Holland opined that the care and treatment provided by the hospital's nursing and ancillary personnel "were within the standard of care at all times to a reasonable medical probability," and that no actions or inactions by nursing or ancillary personnel caused or contributed to Mr. Wicks's death. Among other things, Dr. Holland stated that "[i]t is not required by the standard of care for the nurses to go back and review prior records of a patient in the circumstance where the patient is alert and oriented."

b. The Lutgen declaration

Defendant presented a declaration from Regina Lutgen, the hospital's manager of medical staff services. Ms. Lutgen was in charge of "the oversight of the practices of Medical Staff Services" at the hospital. She has been a "Certified Professional in Medical Staff Practices" since 2015.

Ms. Lutgen explained that hospitals in California are prohibited from employing physicians and surgeons to practice medicine under the Corporate Practice of Medicine Doctrine. Defendant therefore does not employ any physicians or surgeons and only employs nurses and nonphysician staff to implement the orders of the independent contractor physicians. She had personal knowledge that the ER doctors who treated Mr. Wicks were independent contractors with staff privileges at defendant hospital and were not employed by defendant.

She stated that at all relevant times, the hospital "had appropriate procedures for appointment of medical staff members and periodic review of the competence of the physicians comprising the medical staff of the hospital, including appropriate procedures for the evaluation of medical staff applications and assignment of clinical privileges." Ms. Lutgen described the application and approval procedure; stated that each active member of the medical staff is reviewed for reappointment every two years; and stated that both Dr. Stock and Dr. Belfour had active privileges, were deemed competent by the procedure she described, and had active medical licenses without restriction by the state of California. She stated the hospital "complied with...