On 07/23/2015 KATHY TODD filed a Personal Injury - Uninsured Motor Vehicle lawsuit against THICK CHOW MD. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are HOWARD L. HALM, ROLF M. TREU, DANIEL S. MURPHY, MARK A. BORENSTEIN and JOHN P. DOYLE. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
HOWARD L. HALM
ROLF M. TREU
DANIEL S. MURPHY
MARK A. BORENSTEIN
JOHN P. DOYLE
TODD DONALD SHERWIN
CHOW THICK MD.
GARFIELD MEDICAL CENTER
JOHN/JANE DOE'S (1-10)
PACIFIC ALLIANCE MEDICAL CENTER
JOHN/JANE DOE'S 1-10
DOBSON MITZIE L. ESQ.
MCMAHON RAYMOND J.
MCMAHON RAYMOND JOSEPH
DOBSON MITZIE LEGREID ESQ.
11/7/2018: Proof of Personal Service
11/16/2018: Notice of Continuance
7/23/2015: ORDER ON COURT FEE WAIVER
7/29/2015: PROOF OF SERVICE OF SUMMONS
8/18/2015: ORDER ON COURT FEE WAIVER AFTER HEARING (SUPERIOR COURT)
10/20/2015: NOTICE OF CASE MANAGEMENT CONFERENCE
12/3/2015: DEFENDANT THICK CHOW, M.D.'S NOTICE OF PLAINTIFFS' NON-OPPOSITION TO DEFENDANT'S MOTION TO THE DEPOSITIONS OF KATHY TODD AND DONALD SHERWIN TODD
12/3/2015: DEFENDANT THICK CHOW, M.D.'S NOTICE OF PLAINTIFFS' NON-OPPOSITION TO DEFENDANT'S MOTION TO COMPEL PLAINTIFFS' FURTHER RESPONSES TO FORM INTERROGATORIES, SET ONE
12/11/2015: NOTICE OF CONTINUANCE OF CASE MANAGEMENT CONFERENCE, DEFENDANTS' DEMURRERS, MOTIONS TO STRIKE, AND MOTIONS TO COMPEL
1/19/2016: DONALD SHERWIN TODD AND KATHY TODD'S SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT OR IN THE ALTERNATIVE, PARTIAL SUMMARY ADJUDICATION:
1/19/2016: PLAINTIFFS' DONALD SHERWIN TODD & KATHY TODDS' REQUEST THAT COURT TAKE JUDICIAL NOTICE PURSUANT TO (EVID. CODE 452)
2/2/2016: NOTICE OF NEW HEARING DATE OF DEFENDANT'S THICK CHOW, M.D.'S NOTICE OF MOTION AND MOTION TO DEEM ADMITTED DEFENDANT'S REQUESTS FOR ADMISSION, SET ONE; ETC
3/4/2016: DEFENDANT THICK CHOW, M.D.'S OPPOSITION TO PLAINTIFFS' MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES
3/10/2016: Minute Order
9/29/2016: NOTICE OF RULING RE: DEFENDANT, THICK CHOW, M.D.'S MOTION FOR SUMMARY JUDGMENT
1/5/2017: NOTICE OF RULING ON MOTION FOR SUMMARY JUDGMENT
2/9/2017: JUDGMENT GRANTING DEFENDANT PACIFIC ALLIANCE MEDICAL CENTER'S MOTION FOR SUMMARY JUDGMENT AND ALTERNATIVE MOTION FOR SUMMARY ADJUDICATION
2/14/2017: NOTICE OF ENTRY OF ORDER ON DEFENDANT PACIFIC ALLIANCE MEDICAL CENTER?S MOTION FOR SUMMARY JUDGMENT
Motion for Leave (To File Amended Declaration of Dr. Jennifer Lynn Cook, MD FAHA FACC); Filed by Donald Sherwin Todd (Plaintiff)Read MoreRead Less
at 08:30 AM in Department 58; Hearing on Motion for Summary JudgmentRead MoreRead Less
at 08:30 AM in Department 58; Hearing on Motion for Summary Judgment - HeldRead MoreRead Less
Order Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Thick, MD. Chow (Defendant); Garfield Medical Center (Defendant); John/Jane Doe's (1-10) (Defendant) et al.Read MoreRead Less
Minute Order ( (Hearing on Motion for Summary Judgment)); Filed by ClerkRead MoreRead Less
Objection (EVIDENTIARY OBJECTIONS); Filed by Pacific Alliance Medical Center (Defendant)Read MoreRead Less
Objection (EVIDENTIARY OBJECTIONS); Filed by Pacific Alliance Medical Center (Defendant)Read MoreRead Less
Reply (EVIDENTIARY OBJECTIONS); Filed by Pacific Alliance Medical Center (Defendant)Read MoreRead Less
Separate Statement; Filed by Donald Sherwin Todd (Plaintiff); Kathy Todd (Plaintiff)Read MoreRead Less
Response (To Pacific Alliance Medical Centers' Motion for Summary Judgment); Filed by Donald Sherwin Todd (Plaintiff); Kathy Todd (Plaintiff)Read MoreRead Less
PROOF OF SERVICE OF SUMMONSRead MoreRead Less
Proof-Service/Summons; Filed by Kathy Todd (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
Summons; Filed by Kathy Todd (Plaintiff)Read MoreRead Less
ORDER ON COURT FEE WAIVERRead MoreRead Less
Order on Court Fee Waiver (Superior Court); Filed by ClerkRead MoreRead Less
Request to Waive Court Fees; Filed by Kathy Todd (Plaintiff)Read MoreRead Less
Complaint; Filed by Donald Sherwin Todd (Plaintiff); Kathy Todd (Plaintiff); Sherwin Todd (Plaintiff)Read MoreRead Less
PLAINTIFFS ORGINAL COMPLAINT 415.93.1 COMPLAINT FOR DAMAGES [CIV. CODE 3333] BASED ON MEDICAL NEGLIGENCE; ETCRead MoreRead Less
ORDER ON COURT FEE WAIVERRead MoreRead Less
Case Number: BC589068 Hearing Date: February 04, 2020 Dept: 58
Judge John P. Doyle
Hearing Date: February 4, 2020
Case Name: Todd, et al. v. Chow, et al.
Case No.: BC589068
Motion: Motion for Summary Judgment
Moving Party: Defendant Pacific Alliance Medical Center
Opposing Party: Plaintiffs Kathy Todd and Donald Sherwin Todd
Tentative Ruling: The Motion for Summary Judgment is granted.
This is an action in which Plaintiffs principally allege that Larry Tucker died because Defendants Thick Chow and Pacific Alliance Medical Center failed to inform him that his EKG indicated he suffered from atherosclerosis. Plaintiffs also allege that Defendants failed “to perform appropriate diagnostic tests [and] fail[ed] to consult with cardiac experts (failure to have the proper skill, training and experience to treat cardiac disease without bringing in a specialist) for the decedent . . . .” (Third Amended Complaint (“TAC”) ¶ 12.) On April 11, 2016, Plaintiffs filed the operative TAC asserting two causes of action for medical malpractice.
Defendant Alliance Medical Center moves for summary judgment.
Although the instant Motion is Defendant’s second attempt at summary judgment, the Court, in the exercise of its discretion, will allow the Motion.
Plaintiff argues the instant Motion is barred by collateral estoppel in that the court of appeal reversed this Court’s ruling granting Defendant’s initial motion for summary judgment.
Collateral estoppel precludes the relitigation of an issue only if (1) the issue is identical to an issue decided in a prior proceeding; (2) the issue was actually litigated; (3) the issue was necessarily decided; (4) the decision in the prior proceeding is final and on the merits; and (5) the party against whom collateral estoppel is asserted was a party to the prior proceeding or in privity with a party to the prior proceeding. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.)
Collateral estoppel does not apply because the court of appeal merely found that Defendant did not meet its burden for the initial motion because it had failed to provide admissible evidence. Such ruling does not preclude the instant Motion which is an attempt to remedy Defendant’s prior error. In fact, had collateral estoppel applied, it is unclear why the court of appeal would have recently issued an alternative writ allowing for the Court to grant the instant Motion.
Defendant argues it is entitled to summary judgment because (1) it cannot be vicariously liable for the actions of Dr. Chow as to which a final summary judgment order has been entered; (2) Defendant did not breach the standard of care; and (3) Defendant did not cause Tucker’s death.
As an initial matter, it is true that Defendant cannot be liable for Thick Chow’s actions because the Court granted Chow’s motion for summary judgment and that ruling was affirmed on appeal.
With respect to Defendant’s duty, in Elam v. Coll. Park Hosp. (1982) 132 Cal.App.3d 332, 339–40 it was said,
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 Cal.2d 728, 739, 69 Cal.Rptr. 72, 441 P.2d 912.)
Although not involving the determination of whether a hospital can be directly liable for the negligence of its staff physicians, case precedent establishes a hospital has a duty of reasonable care to protect patients from harm (Rice v. California Lutheran Hospital, supra, 27 Cal.2d 296, 299, 163 P.2d 860), including the discovery and treatment of their medical conditions. (See Guilliams v. Hollywood Hospital, 18 Cal.2d 97, 114 P.2d 1; and Comm., The Hospital's Responsibility for its Medical Staff: Prospects for Corporate Negligence in California, supra, 8 Pac.L.J. 141, 149.) In Rice v. California Lutheran Hospital, supra, 27 Cal.2d 296, 163 P.2d 860, the Supreme Court held a “ ‘ “hospital owes its patients the duty of protection, and must exercise such reasonable care toward a patient as his known condition may require.” ’ ” (Id., at p. 299, 163 P.2d 860; Murillo v. Good Samaritan Hospital, 99 Cal.App.3d 50, 55, 160 Cal.Rptr. 33; Valentin v. La Societe Francaise, 76 Cal.App.2d 1, 6, 172 P.2d 359.) Moreover, the Court held a hospital is “under a duty to observe and know the condition of a patient. Its business is caring for ill persons, and its conduct must be in accordance with that of a person of ordinary prudence under the circumstances, a vital part of those circumstances being the illness of the patient and incidents thereof.” (Rice v. California Lutheran Hospital, supra, 27 Cal.2d 296, 302, 163 P.2d 860; Murillo v. Good Samaritan Hospital, supra, 99 Cal.App.3d 50, 55, 160 Cal.Rptr. 33.)
Defendant argues that it did not breach the applicable standard of care and/or there was no duty to report EKG results directly to Tucker. Defendant has met its burden by providing, “there was no reason for PAMC to make a referral to a cardiologist, or for further cardiac testing, based on the slightly abnormal EKG reading of the pre-operative EKG taken on October 11, 2010, prior to the out-patient hernia repair procedure which decedent was cleared for and underwent without complication. The standard of care does not require that PAMC, as the hospital where the pre-operative EKG for an out-patient hernia repair procedure is performed, to make a referral to a cardiologist or for additional cardiac testing unless a patient reports cardiac symptoms prior to the hernia procedure. The standard of care requires that referrals for additional medical care and treatment after medical testing, such as an EKG, are made by the patient’s physician, not by the hospital where the testing was performed. Mr. Tucker did not have cardiac related symptoms that would have alerted PAMC, its employees, or any of its agents, that Mr. Tucker may have been suffering from atherosclerotic heart disease at the time the pre-operative EKG was taken prior to the hernia repair procedure. . . . Based upon my education, training, experience, as well as my review of the above-referenced records and materials, it is my opinion that the medical care and treatment rendered to decedent, Larry Tucker, at Pacic Alliance Medical Center complied with the applicable standard of care in all respects, including the management of decedent- and the EKG findings.” (Klein Decl. ¶¶ 12-13, 16.)
Plaintiffs present evidence to the contrary as to the applicable standard of care. Specifically, that (1) Tucker had abnormal EKG results indicating an old inferior infarction and left ventricular hypertrophy; (2) review of the EKG should have prompted ischemic evaluation; (3) neither Tucker nor his physician Dr. Chow received notice of the abnormal EKG results; (4) Tucker relied on Defendant for such notice; and (5) that the foregoing constituted a beach of the standard of care by Defendant. (Cook Decl. ¶¶ 8-16.)
Defendant objects to Cook’s declaration as follows: “Lacks foundation, hearsay, speculative, improper proof of facts, improper basis for expert opinion, and is vague and ambiguous and is an overbroad legal conclusion because Dr. Cook presents an opinion that conflicts with California and Federal law both of which state a hospital does NOT have a duty to report laboratory test results directly to the patient. Walker v. Sonora Regional Medical Center, (2012) 202 Cal.App.4th 948, 961-964.”
Defendant’s objection premised on Walker v. Sonora Regional Medical Center (2012) 202 Cal.App.4th 948 (“Walker”) is sustained as Walker holds that a hospital has no duty to report laboratory results directly to a patient. Indeed, “to the extent the Hospital was providing clinical laboratory services to carry out a test ordered by Dr. [Chow’s] office, it owed a duty of care to send the laboratory results to Dr. [Chow] only, because the law limited the authorized persons to whom the results may be sent. (Bus. & Prof. Code, § 1288.)” (Walker, supra, 202 Cal.App.4th at p. 962.) “The above stated rule (regarding the reporting of laboratory results) makes sense when it is considered that the physician who ordered a medical test is likely to be the professional who can best explain the meaning and significance of the test results to the patient in the context of that patient's individual circumstances. Conversely, a requirement that a hospital laboratory or its employees send reports directly to a patient or attempt to communicate complex, problematic test results directly to a patient, independently of the patient's physician who ordered the test, would appear to pose a considerable risk of confusion or misunderstanding.” (Ibid.) The “conclusion that there was no duty on the part of the Hospital to directly disclose laboratory results to [the patient] comports with the policy that it is physicians or other licensed medical practitioners, not hospitals as corporate entities, who actually practice medicine. (Bus. & Prof.Code, §§ 2032, 2400; Ermoian v. Desert Hospital (2007) 152 Cal.App.4th 475, 501 [61 Cal.Rptr.3d 754] (Ermoian ); Conrad v. Medical Bd. of California (1996) 48 Cal.App.4th 1038, 1042–1043 [55 Cal.Rptr.2d 901].) That includes such medical practices as interpretation of laboratory results and provision of advice and counsel to a patient regarding the same.” (Id. at p. 965 fn. 19.) Further, it is unwise to impose a duty under the circumstances to report lab results directly to a patient or to otherwise consult with specialists/initiate further evaluation as such might interfere with the physician-patient relationship. (Derrick v. Ontario Community Hospital (1975) 47 Cal.App.3d 145, 154.)
Plaintiff, citing Leung v. Verdugo Hills Hosp. (2012) 55 Cal.4th 291, argues that a hospital’s duty is more expansive than that provided by Walker and that a hospital can be liable for its failure to notify a patient that he or she suffered from a medical condition. In Leung, a newborn suffered irreversible brain damage soon after birth. The plaintiff newborn's mother repeatedly expressed concerns to the pediatrician and nurses regarding the baby's troubles with breastfeeding, yellowish eyes, chapped lips, and bruises on the head. She was told that the symptoms did not indicate an emergency, and to wait for the next scheduled appointment with the pediatrician. Before the next appointment, the plaintiff developed kernicterus, resulting in severe brain damage. The Leung court agreed that “ ‘ “Present-day hospitals, as their manner of operation plainly demonstrates, do far more than furnish facilities for treatment. They regularly employ on a salary basis a large staff of physicians, nurses and internes [sic], as well as administrative and manual workers, and they charge patients for medical care and treatment, collecting for such services, if necessary, by legal action. Certainly, the person who avails himself of ‘hospital facilities' expects that the hospital will attempt to cure him, not that its nurses or other employees will act on their own responsibility.” ’ ” (Leung v. Verdugo Hills Hosp. (2012) 55 Cal.4th at p. 310.)
However, “[w]hatever may be the scope of a hospital's duty under other circumstances, we must focus our inquiry on the particular facts before us. “ ‘ “The extent and character of the care that a hospital owes its patients depends on the circumstances of each particular case.” ’ ” (Rice, supra, 27 Cal.2d at p. 299, 163 P.2d 860.)” (Walker, supra, 202 Cal.App.4th at p. 963.) Leung is distinguishable from the case at bar because the patient in Leung had been admitted to a hospital for care. In contrast, here, Tucker merely received an outpatient EKG at Defendant’s facility for the purposes of screening as to a future hernia operation. Plaintiffs fail to explain how else Defendant was involved with Tucker’s care. Indeed, “ ‘[p]erforming a single discrete outpatient lab test ... does not invoke the full panoply of hospital duties regarding every aspect of the patient's health care treatment’ . . . .” (Ibid.)
Because there was no duty for Defendant to report Tucker’s EKG results directly to him or otherwise initiate a consultation or further evaluation, Defendant’s Motion for Summary Judgment is granted.
 Cook seems to assert that Chow also did not receive Tucker’s EKG results, but this is contrary to the TAC’s allegations. (See, e.g., TAC ¶ 20.)
 The Court notes that 42 C.F.R. § 493.2 defines a “laboratory” as including a facility which performs biophysical testing.