This case was last updated from Los Angeles County Superior Courts on 09/25/2020 at 00:57:29 (UTC).

FABIO YOUN ET AL VS CHA HOLLYWOOD PRESBYTERIAN MEDICAL CTR

Case Summary

On 05/02/2018 FABIO YOUN filed a Personal Injury - Medical Malpractice lawsuit against CHA HOLLYWOOD PRESBYTERIAN MEDICAL CTR. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ELAINE LU and STEPHEN I. GOORVITCH. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4597

  • Filing Date:

    05/02/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

ELAINE LU

STEPHEN I. GOORVITCH

 

Party Details

Plaintiffs and Petitioners

YOUN FABIO

CHUNG SOON HEE

CHUNG YOUNG MEE THE ESTATE OF

HEE CHUN

THE ESTATE OF YOUNG MEE CHUNG

Defendants and Respondents

PARK PETER M.D.

CHA HOLLYWOOD PRESBYTERIAN MEDICAL CENTER

DOES 1 TO 100 INCLUSIVE

RHEE CHANG M.D.

H. P. ANESTHESIA INC.

Others

HERZFELD & RUBIN LLP

SCHMID & VOILES

SCHAFER TERRENCE J. ESQ.

Attorney/Law Firm Details

Defendant, Plaintiff and Petitioner Attorney

LEBOVITS MOSES A. ESQ.

Defendant, Respondent and Petitioner Attorneys

SCHAFER TERRENCE J. ESQ.

SCHAFER TERRENCE JOSEPH ESQ.

HAYDEN-LAMBIRTH DENA JEAN

SAWKAR SUHASINI SHARAD

ZUK MICHAEL A.

LEBOVITS MOSES A. ESQ.

WEND CHRISTOPHER P

Defendant and Respondent Attorney

SCHAFER TERRENCE J. ESQ.

 

Court Documents

Notice - NOTICE NOTICE OF TAKING MOTION FOR SUMMARY JUDGMENT/ADJUDICATION OFF CALENDAR

9/18/2020: Notice - NOTICE NOTICE OF TAKING MOTION FOR SUMMARY JUDGMENT/ADJUDICATION OFF CALENDAR

Demand for Jury Trial

12/19/2019: Demand for Jury Trial

Order - ORDER AMENDED [PROPOSED] ORDER GRANTING DEFENDANT PETER H. PARK, M.D.'S MOTION FOR SUMMARY JUDGMENT

12/5/2019: Order - ORDER AMENDED [PROPOSED] ORDER GRANTING DEFENDANT PETER H. PARK, M.D.'S MOTION FOR SUMMARY JUDGMENT

Notice of Ruling

11/20/2019: Notice of Ruling

Reply - REPLY OF HOLLYWOOD PRESBYTERIAN MED CENTER TO OPPOSITION TO DEF'S MOTION FOR SUMMARY JUDGMENT

11/12/2019: Reply - REPLY OF HOLLYWOOD PRESBYTERIAN MED CENTER TO OPPOSITION TO DEF'S MOTION FOR SUMMARY JUDGMENT

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

11/18/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

10/21/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT)

Declaration - DECLARATION APPENDIX OF EXHIBITS VOLUME 1 OF 6

8/5/2019: Declaration - DECLARATION APPENDIX OF EXHIBITS VOLUME 1 OF 6

Case Management Statement

11/9/2018: Case Management Statement

Case Management Statement

12/5/2018: Case Management Statement

Case Management Statement

11/21/2018: Case Management Statement

PLAINTIFFS' NON-OPPOSITION TO DEFENDANT CHA HOLLYWOOD PRESBYTHERIAN'S MOTION TO STRIKE

9/17/2018: PLAINTIFFS' NON-OPPOSITION TO DEFENDANT CHA HOLLYWOOD PRESBYTHERIAN'S MOTION TO STRIKE

NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT, CHANG RHEE, M.D., TO PLAINTIFFS' FIRST AMENDED COMPLAINT; ETC.

8/17/2018: NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT, CHANG RHEE, M.D., TO PLAINTIFFS' FIRST AMENDED COMPLAINT; ETC.

NOTICE OF MOTION AND MOTION OF DEFENDANT HOLLYWOOD PRESBYTERIAN MEDICAL CENTER FOR AN ORDER

8/17/2018: NOTICE OF MOTION AND MOTION OF DEFENDANT HOLLYWOOD PRESBYTERIAN MEDICAL CENTER FOR AN ORDER

NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT CHA HOLLYWOOD PRESBYTERIAN MEDICAL CENTER TO PLAINTIFFS' COMPLAINT; SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF SUHASINI S. SAWKAR, ESQ

7/13/2018: NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT CHA HOLLYWOOD PRESBYTERIAN MEDICAL CENTER TO PLAINTIFFS' COMPLAINT; SUPPORTING MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF SUHASINI S. SAWKAR, ESQ

NOTICE OF MOTION AND MOTION OF DEFENDANT TO STRIKE PLAINTIFFS PRAYER FOR NON ECONOMIC DAMAGES UNDER THE SURVIVOR CAUSE OF ACTION;AND ETC.

7/5/2018: NOTICE OF MOTION AND MOTION OF DEFENDANT TO STRIKE PLAINTIFFS PRAYER FOR NON ECONOMIC DAMAGES UNDER THE SURVIVOR CAUSE OF ACTION;AND ETC.

PROOF OF SERVICE SUMMONS -

5/17/2018: PROOF OF SERVICE SUMMONS -

Complaint -

5/2/2018: Complaint -

98 More Documents Available

 

Docket Entries

  • 01/25/2021
  • Hearing01/25/2021 at 10:00 AM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 01/14/2021
  • Hearing01/14/2021 at 09:30 AM in Department 24 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 09/23/2020
  • Docketat 08:30 AM in Department 24; Hearing on Motion for Summary Judgment - Not Held - Taken Off Calendar by Party

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  • 09/18/2020
  • DocketNotice (NOTICE OF TAKING MOTION FOR SUMMARY JUDGMENT/ADJUDICATION OFF CALENDAR); Filed by H. P. Anesthesia, Inc. (Defendant)

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  • 09/09/2020
  • DocketOpposition (PLAINTIFFS' OPPOSITION TO DEFENDANT'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT/ADJUDICATION); Filed by Fabio Youn (Plaintiff)

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  • 09/08/2020
  • DocketSeparate Statement (PLAINTIFFS' SEPARATE STATEMENT OF MATERIAL FACTS AND SUPPORTING EVIDENCE IN SUPPORT OF THEIR OPPOSITION TO DEFENDANT HP ANESTHESIA'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION); Filed by Fabio Youn (Plaintiff)

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  • 09/08/2020
  • DocketSeparate Statement (OF MATERIAL FACTS AND SUPPORTING EVIDENCE IN SUPPORT OF THEIR OPPOSITION TO DEFENDANT HP ANESTHESIA'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION); Filed by Soon Hee Chung (Plaintiff); The Estate of Young Mee Chung (Plaintiff); Chun Hee (Plaintiff) et al.

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  • 09/08/2020
  • DocketOpposition (PLAINTIFFS' OPPOSITION TO H.P. ANESTHESIA, INC.'S MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY SUMMARY ADJUDICATION); Filed by Fabio Youn (Plaintiff)

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  • 09/08/2020
  • DocketDeclaration (of Moses Lebovits in Support of Opposition to MSJ); Filed by Fabio Youn (Plaintiff)

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  • 07/30/2020
  • Docketat 08:30 AM in Department 24; Hearing on Motion for Summary Judgment

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144 More Docket Entries
  • 06/05/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 06/05/2018
  • DocketProof of Service (not Summons and Complaint)

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  • 05/17/2018
  • DocketProof-Service/Summons; Filed by Fabio Youn (Plaintiff)

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  • 05/17/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 05/17/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 05/17/2018
  • DocketProof-Service/Summons; Filed by Fabio Youn (Plaintiff)

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  • 05/02/2018
  • DocketSummons; Filed by Soon Hee Chung (Plaintiff); The Estate of Young Mee Chung (Plaintiff); Chun Hee (Plaintiff) et al.

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  • 05/02/2018
  • DocketComplaint

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  • 05/02/2018
  • DocketComplaint; Filed by Soon Hee Chung (Plaintiff); The Estate of Young Mee Chung (Plaintiff); Chun Hee (Plaintiff) et al.

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  • 05/02/2018
  • DocketCivil Case Cover Sheet

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Tentative Rulings

Case Number: BC704597    Hearing Date: November 18, 2019    Dept: 24

Defendant CHA Hollywood Presbyterian Medical Center’s motion for summary judgment is GRANTED.

On May 2, 2018, Plaintiffs Fabio Youn (“Youn”), Chun Hee (“Hee”), Soon Hee Chung (“Chung”), and the Estate of Young Mee Chung aka Katie Chung (the “Estate”) (collectively “Plaintiffs”) filed the initial complaint against Defendants CHA Hollywood Presbyterian Medical Center (“CHA”), Peter Park M.D. (“Park”) and Chang Rhee M.D. (“Rhee”) (collectively “Defendants”). This action arises from the alleged negligent treatment of Katie Chung (“Decedent”) by Defendants, which led to her death in 2017.

Plaintiffs filed the First Amended Complaint (“FAC”), the operative pleading, on July 16, 2018. The FAC alleges on November 8, 2017, Decedent, aged 31, went to CHA for a hysteroscopy, removal of endometrial mass with morcellator, lysis of endometrial adhesion, and LEEP removal of cervical lesion. The procedure was performed by Park and Rhee. During the procedure, Rhee noticed that the patient was cyanotic and was having trouble with her ventilation. Decedent was transitioned from an LMA mask to intubation, but was intubated into the esophagus and not the airway, which Defendants failed to recognize for at least 10 minutes. She was ultimately stabilized, but suffered irreversible brain damage. She later died on November 20, 2017. The FAC alleges that that Youn is the surviving spouse of Decedent, and Hee and Chung are the surviving parents.

The FAC alleges three causes of action for 1) wrongful death, 2) negligent infliction of emotional distress; and 3) “surviver” [sic] cause of action. On January 22, 2019, the Court sustained Defendants’ demurrers to the second cause of action and struck specific damages requests.

On October 10, 2019, CHA moved for summary judgment. On November 4, 2019, Plaintiff filed an opposition. On November 13, 2019, CHA submitted a reply.

Summary Judgment Standard

A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed. (See CCP §437c(f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.) A cause of action has no merit if: (1) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action. (See CCP §437c(n); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.) Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action. (See CCP §437c(o)(2); Union Bank, supra, 31 Cal.App.4th at 583.)

In order to obtain summary judgment, “all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action.” (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853; see also Mitchell v. United National Ins. Co. (2005) 127 Cal.App.4th 457.) “Although he remains free to do so, the defendant need not himself conclusively negate any such element.” (Ibid.) “Once the defendant has made such a showing, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or as to a defense to the cause of action. If the plaintiff does not make such a showing, summary judgment in favor of the defendant is appropriate.” (See Mitchell, supra, 127 Cal.App.4th at 467.)

Until the defendant meets this evidentiary burden, the plaintiff has no burden to present evidence showing a triable issue of fact. (See Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 178; see also Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940, citing Duckett v. Pistoresi Ambulance Service, Inc. (1993) 19 Cal.App.4th 1525, 1533 [“[w]here the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff”].)

Evidentiary Rulings

The Court declines to rule of Plaintiffs’ evidentiary objections. (CCP § 437c(q).)

Request for Judicial Notice

Plaintiffs’ request for judicial notice is GRANTED. (Evid. Code § 452(d).)

Discussion

CHA moves for summary judgment on the grounds that the two proffered theories of recovery fail against it: 1) on CHA’s independent negligence (the “Elam claim”); and 2) on a respondeat superior theory based on agency with the treating physicians Rhee and Park. The two causes of action essentially embrace a medical malpractice cause of action.

A prima facie case for medical malpractice consists of (1) a duty to conform to the relevant standard of care; (2) a breach of that duty, i.e., the negligent conduct; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting damage. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.) In particular, a healthcare provider is negligent if he or she fails to use the level of skill, knowledge, and care in diagnosis and treatment that other reasonably careful healthcare providers of the same type would use in the same or similar circumstances. (Landeros v. Flood (1976) 17 Cal.3d 399, 408; see Elam v. College Park Hospital (1982) 132 Cal. App. 3d 332 [every hospital is responsible for acting with due care to investigate and confirm the competency of physicians who are allowed to treat patients at their facility and to monitor those physicians to assure that patients receive the proper care].) As the practice of medicine is not within the common knowledge of lay persons, expert opinion testimony is necessary to establish the standard of care. (Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844.) Whether the healthcare provider committed a breach of duty by failing to meet the standard of care, and whether the breach proximately caused the injury, may or may not require expert opinion testimony depending on the facts of the case.

Here, Plaintiffs abandon their Elam claim. (Opp. p. 9:3-8.) Plaintiffs also only contend that Rhee was the negligent physician, since he was responsible for the neglgigent intubation. Therefore, the Court will only address the pled agency theory as to Rhee. (FAC ¶ 6.)

Actual Agency

First, Plaintiffs rely on a theory of actual agency, i.e. that Rhee was employed by CHA.

“A hospital is liable for a physician’s malpractice when the physician is actually employed by or is the ostensible agent of the hospital.” (Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 103.) Subject to a few public policy exceptions, hirers cannot be held vicariously liable for the wrongdoing of their independent contractors. (Johnson v. Ralphs Grocery Co. (2012) 204 Cal.App.4th 1097, 1107.) The courts have disregarded formal documents purporting to create an independent contractor relationship “whenever the acts and declarations of the parties are inconsistent” with independent contractor status. (Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864, 877.)

“For purposes of determining independent contractor status, under the common law courts must examine several factors, the most important of which is whether the hirer had the right to control the detailed manner and means by which the work was to be performed: ‘Under this rule, the [employer's] right to exercise complete or authoritative control must be shown, rather than mere suggestion as to detail. A worker is an independent contractor when he or she follows the employer's desires only in the result of the work, and not the means by which it is achieved.’ ” (Jackson v. AEG Live, LLC (2015) 233 Cal.App.4th 1156, 1179.)

Plaintiffs submit that the Court should analyze this claim under the test articulated by the recent California Supreme Court decision Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal.5th 903 “(Dynamex”). As a preliminary matter, the Court does not find that Dynamex applies to the instant proceedings for this purpose. Plaintiffs cannot establish Rhee was the Hospital's employee under the Dynamex “ABC” test because this test only applies to wage order claims. The Supreme Court expressly limited the holding in Dynamex to the specific context of “whether workers should be classified as employees or as independent contractors for purposes of California wage orders.” (Dynamex, supra, 4 Cal.5th at 914.) There are no wage order claims at issue in this case. Thus, the Dynamex test cannot apply.

In any event, the Court finds that CHA meets its initial burden on this point. CHA submits that Decedent signed the Conditions of Services document and further initialed the paragraph regarding “Legal Relationship Between Hospital and Physician.” (UMF 15.) In doing so, Decedent acknowledged that the physicians who will be treating were independent contractors and not employees of CHA. (Ibid.; see Zuk Decl., Ex. B pp. 1-3.) Further, CHA submits evidence that Rhee provided anesthesia services at Hollywood Presbyterian Medical Center through Dr. Suh’s group, H. P. Anesthesia, Inc. (UMF 11.) Thus, Decedent presents prima facie evidence that Rhee was not an employee, but an independent contractor.

In response, Plaintiffs suggest that it is undisputed that Rhee was not free from the control and direction of the CHA in connection with his work. In particular, they claim that Rhee was told which surgeries he would participate in, which floor and operating room the surgery would take place, when the surgery would begin, when he would be expected to begin and end his shift and so forth. (Park Depo., Ex. E., pp. 18-19:24-3 [p. 19 is omitted from the evidence]; pp. 65-66:24-3., p. 72:3-6; Rhee Depo., Ex. F., pp. 50-52:5-8.) However, Plaintiffs overstate their evidence. Examining the depositions cited, the testimony does not support Plaintiffs’ assertions. The evidence only shows that CHA “assigned” the surgery to Rhee on short notice, that Park does not decide who his anesthesiologist is, and Rhee met Decedent approximately 15-20 minutes prior to the surgery. (Ibid.) The fact that Rhee was “assigned” the surgery does not suggest that CHA had any control over Rhee’s conduct. This Court is mindful of its obligation to “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) However, this evidence is not specific and substantial in nature to create a triable issue of material fact on the issue of agency. (See Huitt v. Southern California Gas Co., (2010) 188 Cal.App.4th 1586; Trujillo v. First American Registry, Inc. (2007) 157 Cal.App.4th 628.)

Accordingly, the Court does not find a dispute of material fact as to this issue.

Ostensible Agency

Plaintiffs submit that Rhee was the ostensible agent of CHA. CHA complains that this was not put at issue by Plaintiffs during discovery. However, the operative complaint controls the issues presented by the suit and at MSJ. The FAC clearly pleads an agency theory. (FAC ¶ 6.) Thus, CHA cannot reasonably say that they were blind-sided by the issue. If they chose not to perform discovery on that issue, then that is their error.

“An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.” (Civ. Code, § 2300.) “A principal is bound by acts of his agent, under a merely ostensible authority, to those persons only who have in good faith, and without want of ordinary care, incurred a liability or parted with value, upon the faith thereof.” (Civ. Code, § 2334.) “Before recovery can be had against the principal for the acts of an ostensible agent, three requirements must be met: The person dealing with an agent must do so with a reasonable belief in the agent's authority, such belief must be generated by some act or neglect by the principal sought to be charged[,] and the person relying on the agent's apparent authority must not be negligent in holding that belief.” (J.L. v. Children's Institute, Inc. (2009) 177 Cal.App.4th 388, 403–404.)

Where a patient seeks to hold a hospital liable for the negligence of a physician, the doctrine of ostensible agency is expressed as having two elements: “(1) conduct by the hospital that would cause a reasonable person to believe that the physician was an agent of the hospital, and (2) reliance on that apparent agency relationship by the plaintiff.” (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1453 (“Mejia”).)

Generally, the first is element is satisfied “when the hospital ‘holds itself out’ to the public as a provider of care,” “unless it gave the patient contrary notice.” (Mejia, supra, 99 Cal.App.4th at 1453–1454 [emphasis added].) A hospital's “contrary notice” may be insufficient “to avoid liability in an emergency room context, where an injured patient in need of immediate medical care cannot be expected to understand or act upon that information.” (Id. at 1454.) Reliance upon an apparent agency is demonstrated “when the plaintiff ‘looks to’ the hospital for services, rather than to an individual physician.” (Ibid.) Ultimately, “there is really only one relevant factual issue: whether the patient had reason to know that the physician was not an agent of the hospital. As noted above, hospitals are generally deemed to have held themselves out as the provider of services unless they gave the patient contrary notice, and the patient is generally presumed to have looked to the hospital for care unless he or she was treated by his or her personal physician. Thus, unless the patient had some reason to know of the true relationship between the hospital and the physician—i.e., because the hospital gave the patient actual notice or because the patient was treated by his or her personal physician—ostensible agency is readily inferred.” (Id. at 1454–1455.)

Generally, the existence of an agency relationship is a question of fact. However, it “becomes a question of law when the facts can be viewed in only one way.” (Metropolitan Life Ins. Co. v. State Bd. of Equalization (1982) 32 Cal.3d 649, 658.) In the physician-hospital context, ostensible agency is a factual issue “[u]nless the evidence conclusively indicates that the patient should have known that the treating physician was not the hospital's agent, such as when the patient is treated by his or her personal physician” or received actual notice of the absence of any agency relationship. (Mejia, supra, 99 Cal.App.4th at 1454, 1458.)

At issue here is CHA’s disclaimer that the treating physicians were not employees or agents of the hospital. As discussed above, Decedent signed the Conditions of Services document and further initialed the paragraph regarding “Legal Relationship Between Hospital and Physician.” In doing so, Decedent acknowledged that the physicians who will be treating were independent contractors and not employees of CHA. (UMF 15; see Zuk Decl., Ex. B pp. 1-3.) Thus, Decedent had actual notice of the fact that Rhee was not an agent of CHA. This fact is essentially undisputed and meets CHA’s burden on this theory.

Plaintiff cites to authority that explains that in the emergency room context, that such disclaimers do not provide sufficient notice. Here, it is undisputed that the instant surgery was regularly scheduled and not an emergency. The lack of emergency takes this case outside the ambit of Whitlow v. Rideout Memorial Hospital (2015) 237 Cal.App.4th 631 (“Whitlow”), where the Court of Appeal “reject[ed] the notion that a signature on an admissions form conclusively constitutes notice to a patient seeking care in an emergency room that the treating physician, whom she did not choose and did not know, is not an agent of the hospital.” (Id. at 641 [emphasis added].)

This issue was discussed at-length in Markow v. Rosner (2016) 3 Cal.App.5th 1027 (“Markow”). There, the Second District discussed Mejia and Whitlow and a similar disclaimer as here, in the context of non-emergency room operations. The Markow court held that the plaintiff had received actual notice by signing and initialing similar Conditions of Admissions forms multiple times throughout the course of his treatment. (Id. at 1039-1040.) The Markow court emphasized that the Mejia and Whitlow decisions were based on the fact-specific circumstances and public policy considerations of emergency room visits. (Id. at 1041-1042.) The court noted that the decisions which held there to be a dispute of fact regarding ostensible agency were where the patient either did not have actual notice from a disclaimer or sought care in an emergency room context where “an injured patient in need of immediate medical care cannot be expected to understand or act upon that information.” (Id. at 1042.) For example, in Mejia, there was no notice and in Whitlow the patient was suffering excruciating pain from a brain hemorrhage and was unable to read the Conditions of Admissions form. (Ibid.) These were the critical facts those courts relied on to determine that there was a question in fact as to agency, despite the disclaimer in the admissions forms.

Plaintiffs point to no circumstances that would disrupt Decedent’s actual notice of the lack of an agency relationship. (See Bolanos v. Khalation (1991) 231 Cal.App.3d 1586, 1590 [a reasonable person is generally charged with knowledge of instruments she signs].) The fact that Rhee was assigned the surgery on short notice would not reasonably impact Decedent’s understanding of the explicit disclaimer she signed indicating that Rhee (or any physician) was not an agent or employee of CHA. (See PAMF 4-13.) There is no evidence on the record that Decedent would have been unable to understand this disclaimer. Thus, actual notice of the legal relationship between CHA and Rhee defeats the first element of ostensible agency regardless of any fact cited. Further, while the decisions did discuss the fact that the patient did not know the negligent physician, this does not appear dispositive. Again, the decisions finding a dispute of fact were discussing how the context of an emergency room visit, despite signing such a disclaimer, would defeat actual notice. Those facts are simply not present here.

A reasonable person in Decedent’s place would have knowledge of the document she signed and would therefore not have believed that Rhee was an agent of CHA. The record does not indicate that she was not competent or that she signed the agreement in an emergency context. Thus, it is undisputed that Decedent had actual knowledge of the lack of an agency relationship.

Accordingly, CHA’s motion is GRANTED.

Moving party is ordered to give notice.