Todd v. Pacific Alliance Medical Center CA2/1 ( 2021 )


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  • Filed 11/18/21 Todd v. Pacific Alliance Medical Center CA2/1
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
    not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
    has not been certified for publication or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION ONE
    DONALD SHERWIN TODD et al.,                                          B307401
    Plaintiffs and Appellants,                                 (Los Angeles County
    Super. Ct. No. BC589068)
    v.
    PACIFIC ALLIANCE MEDICAL
    CENTER,
    Defendant and Respondent.
    APPEAL from judgment of the Superior Court of
    Los Angeles County, John P. Doyle, Judge. Affirmed.
    Donald Sherwin Todd and Kathy Todd, in pro. per., for
    Plaintiffs and Appellants.
    Doyle Schafer McMahon, Raymond J. McMahon and
    David Klehm for Defendant and Respondent.
    ____________________________
    Plaintiffs Kathy Todd and her husband Donald Todd (the
    Todds) sued, among others, Pacific Alliance Medical Center
    (Pacific Alliance) after Kathy’s brother, Larry Tucker, died in
    2014 from arteriosclerosis.1 The Todds contend that Pacific
    Alliance was aware Tucker had an abnormal electrocardiogram
    (ECG or EKG) test in 2010, and failed to take appropriate steps
    to notify Tucker and his physician. This appeal follows the trial
    court’s entry of summary judgment on Pacific Alliance’s amended
    motion for summary judgment. Pacific Alliance amended its
    motion after this court previously reversed an award of summary
    judgment in favor of Pacific Alliance.
    We reject the Todds’ argument that the trial court lacked
    authority to consider the amended motion for summary
    judgment. On the merits, we conclude the Todds fail to raise a
    triable issue of material fact. Although they submitted an expert
    declaration, the Todds’ expert relies on facts different from those
    alleged in the Todds’ operative pleading and purports to create a
    duty on the part of the hospital where, as a matter of law, none
    exists. Even though the Todds persuasively point out that Pacific
    Alliance has had a “second bit[e] at the apple” by filing two
    motions for summary judgment, we decline to apply the doctrine
    of collateral estoppel. Remanding the case to the trial court for
    further proceedings when it is clear that Pacific Alliance is
    entitled to judgment as a matter of law would be a futile act that
    1 The record refers both to “arteriosclerotic” and
    “atherosclerotic” heart disease. Arteriosclerosis is a disease
    characterized by hardening and thickening of the arterial walls.
    Atherosclerosis is a form of arteriosclerosis characterized by fatty
    deposits in the arteries. (American Heritage Dictionary of the
    English Language (4th ed. 2000) pp. 101, 113.)
    2
    the law does not require. We affirm the judgment in favor of
    Pacific Alliance.
    BACKGROUND
    Kathy Todd’s brother, Larry Tucker, was born in 1952.
    “Tucker[ ] died on July 24, 2014. According to the Los Angeles
    County Coroner’s investigation, Mr. Tucker fell down several
    stairs and sustained head injuries. A call was placed to 911 and
    Mr. Tucker was pronounced dead at the scene. The autopsy
    attributed Mr. Tucker’s death to ‘arteriosclerotic heart disease’
    and reported that his arteries were from 60% to 80% occluded.
    “Mr. Tucker had been a patient of Dr. [Thick] Chow’s since
    October 2007. Dr. Chow’s records for Mr. Tucker did not contain
    any complaints of chest pain or shortness of breath; nor did they
    report any diagnosis of heart disease. In the year before his
    death, Mr. Tucker presented with complaints of back, neck and
    shoulder pain, flea bites, rash, and a swelling on his hand.”
    (Todd v. Chow et al. (June 5, 2018, B278824, B280840) [nonpub.
    opn.], fn. omitted (Todd I).)
    “Mr. Tucker’s medical records included 2010 test results
    labeled as ‘Abnormal ECG’ (electrocardiogram) with a notation
    ‘probable inferior infarct, old.’ The records also included
    laboratory results showing high cholesterol.” (Todd I, supra,
    B278824, B280840.) The 2010 ECG was taken at Pacific Alliance
    in advance of a hernia repair operation. Dr. Felix Chi-Ming Yip
    performed the hernia operation on October 14, 2010. The
    operation occurred at Pacific Alliance, and the Todds allege no
    cause of action with respect to that operation.
    3
    1.    Operative complaint
    In their third amended complaint, the Todds alleged causes
    of action for medical malpractice and wrongful death. We
    summarize below those allegations pertinent to this appeal.
    Dr. Chow failed to diagnose arteriosclerotic heart disease,
    failed to perform appropriate diagnostic tests, and failed to
    consult with cardiac experts. Pacific Alliance is responsible for
    Dr. Chow’s negligent failure to diagnose, failure to perform
    appropriate tests, and failure to consult with experts.
    On February 11, 2010, someone at Pacific Alliance
    performed an ECG on Tucker. Pacific Alliance learned that
    Tucker’s ECG was abnormal. Dr. Chow also had notice of
    Tucker’s abnormal ECG. “Dr. Chow incorrectly diagnose[d] . . .
    ‘rotator cuff syndrome with DJD [degenerative joint disease] of
    the cervical spine’ after receipt of the deceased[’s] ‘abnormal ECG
    report.’ ” (Italics omitted.) Because they knew of the abnormal
    ECG, both Dr. Chow and Pacific Alliance “had constructive
    knowledge of the possible heart condition of Larry Tucker . . . .”
    Pacific Alliance and Dr. Chow failed to “order additional test[s] to
    determine what was causing the deceased to have an abnormal
    ECG result[ ].”
    2.    Prior appeal
    In the prior appeal, we affirmed the entry of summary
    judgment in favor of Dr. Chow, who is no longer a party. We
    reversed the entry of summary judgment in favor of Pacific
    Alliance. We explained that Pacific Alliance failed to make a
    prima facie showing that the Todds could not establish liability.
    (Todd I, supra, B278824, B280840.)
    4
    First, we rejected Pacific Alliance’s argument that the
    grant of summary judgment in Dr. Chow’s favor was sufficient to
    carry its burden under a theory of issue preclusion to show
    Pacific Alliance could not be vicariously liable based on
    Dr. Chow’s negligence. At the time of our prior opinion, the
    judgment in Dr. Chow’s favor was also on appeal, thus not yet
    final for purposes of applying the doctrine of issue preclusion. As
    we held, “[t]he summary judgment in favor of Dr. Chow . . .
    afford[ed] no basis for affirming the summary judgment as to
    Pacific Alliance. (Todd I, supra, B278824, B280840.)
    Second, we held Pacific Alliance “failed to present evidence
    defeating the alleged direct liability and vicarious liability for
    actions or omissions by employees other than Dr. Chow—and
    therefore did not carry its initial burden of production on
    summary judgment.” (Todd, supra, B278824, B280840.) “In
    order to establish that plaintiffs could not establish a breach of
    the standard of care, Pacific Alliance was itself required to
    provide expert evidence of the applicable standard. It failed to do
    so.” (Ibid.) By merely relying on expert opinion proffered as to
    Dr. Chow’s conduct, Pacific Alliance did not carry its burden in
    moving for summary judgment based on the negligence of
    persons other than Dr. Chow or Pacific Alliance itself.
    3.    Amended motion for summary judgment and
    opposition
    Pacific Alliance filed an amended motion for summary
    judgment, arguing that there were no triable issues of material
    fact that Pacific Alliance breached a duty owed to Tucker or that
    Pacific Alliance caused Tucker’s death.
    Pacific Alliance argued now that the judgment in favor of
    Chow was final, Pacific Alliance could not be vicariously liable for
    5
    any negligence committed by Dr. Chow—a contention the Todds
    do not dispute on appeal. Pacific Alliance further argued a
    hospital’s duty does not include diagnosing, advising, or treating
    patients. Pacific Alliance contended the “medical standard of
    care required that the decedent’s physician, not [Pacific Alliance]
    which was the hospital where the ECG was performed,
    recommend any further cardiac studies if warranted.” Pacific
    Alliance also contended it did not cause or contribute to any of
    the decedent’s injuries.
    In a declaration in support of Pacific Alliance’s motion,
    Dr. Ryan Klein, a physician in California since 1978, stated:
    “Mr. Tucker’s only treatment at [Pacific Alliance] was for a pre-
    surgical EKG prior to an outpatient hernia procedure. The EKG
    was performed on October 11, 2010 and showed some minor
    abnormalities. However, these abnormalities were not even
    severe enough to prevent the hernia repair surgery from going
    forward and Mr. Tucker was cleared for surgery by his physician
    who was not acting as an agent of [Pacific Alliance].”
    “Larry Tucker died on July 24, 2014. The Coroner Report
    shows he suffered sudden death after a ground level fall down
    three steps. The only autopsy finding was atherosclerosis in
    three vessels but there was no finding of ischemic heart damage
    or that Mr. Tucker suffered a myocardial infarction (heart
    attack). It is common for atherosclerosis to be noted on an
    autopsy in patients who have never displayed symptoms for
    cardiac disease or atherosclerosis during their life because
    patients with atherosclerosis can live for decades without
    showing any symptoms of the disease.”
    “The standard of care does not require that [Pacific
    Alliance], as the hospital where the pre-operative EKG for an
    6
    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 [Pacific
    Alliance], 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.”
    Dr. Klein opined “to a reasonable degree of medical
    probability” that “no negligent act or omission by Pacific
    Alliance . . . caused or contributed to decedent’s death. To a
    reasonable degree of medical probability, [Tucker] died as a
    result of [a] process that would not have been detected even if a
    cardiology consult or cardiac testing had been ordered at or near
    the time of the EKG at [Pacific Alliance] in October, 2010.”
    4.    Opposition
    The Todds opposed the amended motion for summary
    judgment, relying heavily on the declaration of Jennifer Lynn
    Cook, M.D., FAHA, FACC. The Todds argued that based on
    Dr. Cook’s declaration, they raised triable issues of material fact
    supporting the inference that Pacific Alliance should have
    provided the ECG results to Dr. Chow and to Tucker.
    7
    Dr. Cook was licensed to practice medicine in Arizona and
    Ohio.2 Dr. Cook “treated patients with Arteriosclerosis Heart
    Disease in [her] professional duties.” Dr. Cook declared: “The
    Deceased underwent pre-operative screening on October 11, 2010
    at [Pacific Alliance] where an Electro Cardio Gram (‘ECG’) was
    performed with ‘abnormal results.’ The ECG revealed; a Q waves
    in leads II, III and aVF suggesting the presence of an old inferior
    infarction. In addition the voltage in the precordial leads
    suggests the presence of left ventricular hypertrophy.” Dr. Cook
    averred that the ECG “raises concern for underlying coronary
    atherosclerosis.” “Larry Tucker should have had evaluation and
    treatment for coronary atherosclerosis after his ECG of
    2  Cook attested, “Based on my Certification in Advanced
    Heart Failure & Transplantation (2016); Cardiovascular Disease
    (2007); Internal Medicine (2001)—American Board of Internal
    Medicine, education, training and experience, I am familiar with
    the standard of care for hospitals[ ] . . . in the Southern California
    area currently and at all times relevant in this matter.”
    Although Pacific Alliance correctly states that Dr. Cook is
    not licensed to practice medicine in California, Pacific Alliance
    offers no legal authority supporting the proposition that Dr. Cook
    was unqualified to opine on the standard of care. Interpreting
    the evidence in the light most favorable to the party opposing
    summary judgment, we conclude that Dr. Cook was generally
    familiar with the local standard of care. (Avivi v. Centro Medico
    Urgente Medical Center (2008) 
    159 Cal.App.4th 463
    , 471 [Israeli
    doctor could opine on standard of care for treating fractures in
    the United States]; Borrayo v. Avery (2016) 
    2 Cal.App.5th 304
    ,
    310–311 [“Today ‘neither the Evidence Code nor Supreme Court
    precedent requires an expert witness to have practiced in a
    particular locality before he or she can render an opinion in an
    ordinary medical malpractice case.’ [Citation.]”].)
    8
    October 11, 2010. Doing so would have provided opportunity to
    restore perfusion to any remaining ischemic areas. In my opinion
    Larry Tucker . . . should have had a treadmill stress test with
    nuclear imaging.” “Larry Tucker relied upon the medical
    expertise of [Pacific Alliance] to notify both the patient (‘Larry
    Tucker’), and his primary care physician Dr. Thick Chow, M.D.,
    of the ECG abnormal result of October 11, 2010. The deceased,
    without knowledge and notice[ ] of his ECG’s abnormal result,
    [was] denied . . . his opportunity to seek further testing and care.”
    Dr. Cook opined that Pacific Alliance did not comply with the
    standard of care and that Pacific Alliance’s negligence “caused or
    contributed to Larry Tucker[’s] injuries.”
    5.    Prior writ proceeding
    The trial court initially denied Pacific Alliance’s amended
    motion for summary judgment. Pacific Alliance petitioned for
    writ of mandate on the ground that Dr. Cook’s declaration was
    not signed under penalty of perjury under California law.
    Following Pacific Alliance’s petition for writ of mandate, this
    court issued the following order: “[W]e agree with petitioner that
    the trial court erroneously denied petitioner’s motion for
    summary judgment based on a declaration not signed under the
    penalty of perjury under the laws of the State of California.
    (Kulshrestha v. First Union Commercial Corp. (2004) 
    33 Cal.4th 601
    , 618.) The court should either have granted the motion or
    reconsidered it after permitting the real parties to file a further
    amended declaration that complies with California law. [¶]
    Accordingly, the parties are notified of our intention to issue a
    peremptory writ in the first instance [citation], requiring
    respondent court to vacate its August 29, 2019 order denying
    petitioner’s motion for summary judgment.”
    9
    The trial court vacated its August 29, 2019 order denying
    Pacific Alliance’s motion for summary judgment. This court then
    dismissed the petition as moot. Dr. Cook filed an amended
    declaration executed under penalty of perjury under the laws of
    the State of California.
    6.    Judgment
    The trial court’s tentative order, later adopted as its ruling,
    explains that it exercised its discretion to allow Pacific Alliance to
    file the amended motion for summary judgment. The trial court
    rejected the argument that collateral estoppel barred the
    amended motion for summary judgment. The court concluded
    that Pacific Alliance did not have a duty to report the EKG
    results to Tucker.
    In a motion for reconsideration, the Todds argued that
    Dr. Cook’s declaration evidenced that Pacific Alliance had a duty
    to notify Tucker and Dr. Chow of the ECG results. The trial
    court denied the Todds’ motion for reconsideration. The court
    concluded Dr. Cook’s declaration conflicted with allegations in
    the third amended complaint that Dr. Chow was aware of the
    results of the ECG. On August 12, 2020, the court entered
    judgment in favor of Pacific Alliance. The Todds timely appealed
    from the judgment.
    DISCUSSION
    Our standard of review is familiar. “A moving party is
    entitled to summary judgment when the party establishes that it
    is entitled to the entry of judgment as a matter of law. (Code Civ.
    Proc., § 437c, subd. (c).) A defendant may make this showing by
    demonstrating that the plaintiff cannot establish one or more
    elements of all of his causes of action, or that the defendant has a
    10
    complete defense to each cause of action. (Id. subd. (o).) This
    court reviews an order granting a motion for summary judgment
    de novo. [Citation.] ‘We will affirm a summary judgment if it is
    correct on any ground, as we review the judgment, not its
    rationale.’ [Citation.]” (Marshall v. County of San Diego (2015)
    
    238 Cal.App.4th 1095
    , 1107 (Marshall).) “As with an appeal from
    any judgment, it is the appellant’s responsibility to affirmatively
    demonstrate error and, therefore, to point out the triable issues
    the appellant claims are present by citation to the record and any
    supporting authority. In other words, review is limited to issues
    which have been adequately raised and briefed.” (Lewis v.
    County of Sacramento (2001) 
    93 Cal.App.4th 107
    , 116,
    disapproved on another ground as recognized in Kaufman &
    Broad Communities, Inc. v. Performance Plastering, Inc. (2005)
    
    133 Cal.App.4th 26
    , 41–42.)
    The Todds argue (1) the trial court erred in considering a
    second motion for summary judgment after this court reversed
    the trial court’s grant of Pacific Alliance’s prior motion; (2) the
    trial court should have considered the standard of care in the
    Todds’ expert’s declaration, which raised material issues of fact
    regarding Pacific Alliance’s breach of that standard of care and
    the cause of Tucker’s demise; and (3) the second motion for
    summary judgment was barred by the doctrine of collateral
    estoppel.
    I.    The Todds Failed To Demonstrate Error in the Trial
    Court’s Exercise of Its Inherent Discretion To
    Consider a Successive Motion for Summary
    Judgment
    The Todds challenge the trial court’s decision to permit
    Pacific Alliance to file an amended motion for summary
    11
    judgment. They rely on Code of Civil Procedure section 437c,
    subdivision (f)(2),3 which provides: “A motion for summary
    adjudication may be made by itself or as an alternative to a
    motion for summary judgment and shall proceed in all procedural
    respects as a motion for summary judgment. A party shall not
    move for summary judgment based on issues asserted in a prior
    motion for summary adjudication and denied by the court unless
    that party establishes, to the satisfaction of the court, newly
    discovered facts or circumstances or a change of law supporting
    the issues reasserted in the summary judgment motion.”
    In Marshall, the appellate court rejected the argument that
    section 437c, subdivision(f)(2) precludes a trial court from
    exercising its inherent authority to “permit a party to file a
    successive motion for summary judgment and/or adjudication”
    where the successive motion was based on “evidence that was not
    presented in connection with a prior motion.” (Marshall, supra,
    238 Cal.App.4th at pp. 1106, 1107.) In Marshall, the trial court
    allowed the filing of successive motions for summary judgment
    and later granted those motions; the appellate court affirmed.
    (Id. at p. 1104.) In doing so, the appellate court reasoned
    although section 437c, subdivision (f)(2) restricts a party’s ability
    to file a successive motion for summary judgment, it “does not
    restrict a court’s inherent authority in any manner.” (Marshall,
    at p. 1106.)
    Here, the trial court had inherent authority to entertain
    Pacific Alliance’s amended motion for summary judgment.
    (Marshall, supra, 238 Cal.App.4th at p. 1106; see also Meridian
    3 Undesignated statutory references are to the Code of
    Civil Procedure unless otherwise indicated.
    12
    Financial Services, Inc. v. Phan (2021) 
    67 Cal.App.5th 657
    , 700,
    fn. 13 [Prohibition in section 437c, subdivision (f)(2) may be
    overcome by “exercise of judicial discretion”].) The Todds
    demonstrate no error in the trial court’s exercise of its inherent
    authority to hear Pacific Alliance’s amended motion for summary
    judgment. This is especially true in light of our direction to the
    trial court in the writ proceedings to reconsider the amended
    summary judgment motion upon obtaining a properly attested
    declaration. (See Discussion, part III, post.)
    The Todds correctly point out that this court previously
    reversed the judgment in favor of Pacific Alliance finding that
    Pacific Alliance failed to establish its initial burden on summary
    judgment. The amended motion, however, was not based on the
    same evidence as the original motion. In its amended motion,
    Pacific Alliance offered Dr. Klein’s declaration to correct the
    deficiency this court identified with the original motion.
    Dr. Klein’s declaration was a declaration from a qualified expert
    and was sufficient to meet Pacific Alliance’s initial burden that
    the Todds could not establish one or more elements of their
    medical malpractice cause of action. Klein opined that Pacific
    Alliance complied with the standard of care “in all respects,
    including the management of decedent—and the EKG findings.”
    Klein further opined that “no negligent act or omission by Pacific
    Alliance . . . caused or contributed to decedent’s death.”
    Finally, the Todds’ reliance on Pender v. Radin (1994)
    
    23 Cal.App.4th 1807
    , 1812 is misplaced. In Pender, the trial
    court denied the defendant’s original motion for summary
    judgment. (Id. at p. 1811.) The trial court then allowed the
    defendant to file a second motion for summary judgment. (Ibid.)
    Applying section 437c, subdivision (f)(2), the appellate court
    13
    concluded the trial court did not err in considering the second
    motion based on newly discovered facts, which also made a
    “relatively new case” applicable. (Pender, at p. 1812.) “Because
    there was new information, the trial court did not abuse its
    discretion under the statute in allowing [the defendant] to renew
    her motion.” (Ibid.)
    Pender does not consider whether a trial court has inherent
    discretion to permit successive summary judgment motions even
    absent new facts or a change in the law. The case is not
    authority for a proposition not considered. (Los Angeles County
    Metropolitan Transportation Authority v. Yum Yum Donut Shops,
    Inc. (2019) 
    32 Cal.App.5th 662
    , 673.) Pender therefore does not
    support the Todds’ argument that the trial court lacked
    discretion to hear Pacific Alliance’s amended motion for summary
    judgment.
    II.   The Todds Failed To Demonstrate a Triable Issue of
    Material Fact
    A wrongful death cause of action requires showing a tort,
    the resulting death, and damages. (Lattimore v. Dickey (2015)
    
    239 Cal.App.4th 959
    , 968.) The underlying tort the Todds alleged
    was medical malpractice. “ ‘The elements of a cause of action for
    medical malpractice are: (1) a duty to use such skill, prudence,
    and diligence as other members of the profession commonly
    possess and exercise; (2) a breach of the duty; (3) a proximate
    causal connection between the negligent conduct and the injury;
    and (4) resulting loss or damage.’ [Citation.]” (Ibid.)
    “Although hospitals do not practice medicine in the same
    sense as physicians, they do provide facilities and services in
    connection with the practice of medicine, and if they are negligent
    in doing so they can be held liable.” (Leung v. Verdugo Hills
    14
    Hospital (2012) 
    55 Cal.4th 291
    , 310.) Under California law, a
    hospital has a duty to prevent harm to its patients. (Elam v.
    College Park Hospital (1982)
    132 Cal.App.3d 332
    , 340–341
    (Elam).) “A hospital is required to exercise the degree of care,
    skill and diligence used by other hospitals in similar
    circumstances.” (Osborn v. Irwin Memorial Blood Bank (1992)
    
    5 Cal.App.4th 234
    , 285.)
    The Todds argue that Dr. Cook’s declaration establishes
    Pacific Alliance “breached the standard of car[e] by not informing
    decedents’ (‘Larry Tucker’) or his primary care physician
    (‘Dr. Thick Chow, M.D.[ ]’)[,] of the abnormal ECG results of
    October 11, 2010.” The Todds maintain that Dr. Cook’s
    declaration raises a triable issue of material fact as to whether
    Pacific Alliance breached that standard of care.
    A.    Even if Pacific Alliance had a duty to advise
    Dr. Chow of the results of the ECG, the Todds
    cannot demonstrate causation
    The Todds’ principal argument is that Dr. Cook raised a
    triable issue of material fact supporting the inference that Pacific
    Alliance violated a duty to advise Dr. Chow of the ECG results.
    Even if Pacific Alliance breached that asserted standard of care,
    the Todds cannot demonstrate the breach caused damages
    because they expressly allege Dr. Chow had notice of the
    abnormal ECG. The Todds alleged in their operative complaint:
    Dr. Chow also had notice of Tucker’s abnormal ECG. “Dr. Chow
    incorrectly diagnose[d] . . . ‘rotator cuff syndrome with DJD of the
    cervical spine’ after receipt of the deceased ‘abnormal ECG
    report.’ ” (Italics omitted.) Because they knew of the abnormal
    ECG, both Dr. Chow and Pacific Alliance “had constructive
    knowledge of the possible heart condition of Larry Tucker . . . .”
    15
    Pacific Alliance and Dr. Chow failed to “order additional test[s] to
    determine what was causing the deceased to have an abnormal
    ECG result[ ].”
    In her declaration, Dr. Cook incorrectly states, “[N]either
    Larry Tucker or his primary physician received notice of the ECG
    abnormal results.” This declaration contradicts an admission in
    the operative pleading, and as such, cannot create a triable issue
    of material fact. “Facts established by pleadings as judicial
    admissions ‘ “are conclusive concessions of the truth of those
    matters, are effectively removed as issues from the litigation, and
    may not be contradicted by the party whose pleadings are used
    against him or her.” [Citations.] “ ‘[A] pleader cannot blow hot
    and cold as to the facts positively stated.’ ” [Citation.]’
    [Citation.]” (Myers v. Trendwest Resorts, Inc. (2009)
    
    178 Cal.App.4th 735
    , 746.) Because Dr. Chow had notice of the
    ECG results, any breach of Pacific Alliance’s duty to inform
    Dr. Chow of the results, as a matter of law, did not cause
    Tucker’s death.
    B.    Pacific Alliance had no duty to advise Tucker of
    the ECG results
    The remaining question is whether Pacific Alliance had a
    duty to notify Tucker of abnormal EKG results in the first place.
    The Todds argue the trial court erred in relying on Walker v.
    Sonora Regional Medical Center (2012) 
    202 Cal.App.4th 948
    (Walker) to conclude Pacific Alliance did not have a duty to
    provide the test results to Tucker.
    Walker considered whether a hospital that performed a
    cystic fibrosis screening test ordered by the plaintiff’s doctor owed
    a duty to disclose the test results directly to the plaintiff. The
    purpose of the cystic fibrosis test was to detect the plaintiff’s
    16
    genetic predisposition to having a child with cystic fibrosis.
    (Walker, supra, 202 Cal.App.4th at p. 953.) The plaintiff gave
    birth to a child with cystic fibrosis after her physician and the
    hospital failed to tell her she tested positive as a cystic fibrosis
    carrier. (Id. at p. 952.) In a motion for summary judgment, the
    hospital argued that it did not have a duty to disclose the results
    directly to the plaintiff. (Id. at p. 955.)
    Walker affirmed the summary judgment entered in the
    hospital’s favor, concluding that to the extent the hospital was
    providing only clinical laboratory services to perform a test
    ordered by the plaintiff’s doctor, it owed a duty to send the
    laboratory results to the doctor only. The hospital had no
    affirmative duty to release the laboratory test results directly to
    the patient. (Walker, supra, 202 Cal.App.4th at p. 962.)
    In addition to citing regulations and statutes relevant only
    to clinical laboratories, Walker relied on the following reasoning
    for holding the hospital did not have a duty to report test results
    to the patient: “[T]he 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.” (Walker,
    supra, 202 Cal.App.4th at p. 962.) “[W]hen a laboratory test is
    ordered by a patient’s physician, there is an existing patient-
    physician relationship with respect to the subject matter of the
    17
    laboratory test. Hence, a direct disclosure of laboratory results to
    the patient might unwisely interfere in that relationship.” (Ibid.)
    Derrick v. Ontario Community Hospital (1975)
    
    47 Cal.App.3d 145
     is also instructive. There, plaintiffs alleged
    they were exposed to a contagious disease by a minor, who had
    allegedly contracted that disease while a patient at the defendant
    hospital. Plaintiffs further alleged the hospital and attending
    physician knew about the patient’s contagious condition. In
    reviewing a demurrer ruling, the appellate court declined to
    impose a duty on the hospital to inform the minor patient or her
    mother that the minor had a contagious disease because “that
    duty might substantially interfere with the relationship between
    the patient and her attending physician.” (Id. at p. 154.)
    Turning to this case, Pacific Alliance cites no evidence and
    makes no argument that it served merely as a clinical laboratory
    when Tucker underwent a hernia operation there in 2010.4 Even
    if Pacific Alliance was not merely a clinical laboratory, we find
    Walker’s rationale persuasive, particularly its discussion that
    disclosure of test results directly to the patient might unwisely
    interfere in the doctor patient relationship. Tucker had a
    relationship with Dr. Yin who successfully performed the hernia
    4 A “ ‘[c]linical laboratory’ means any place used, or any
    establishment or institution organized or operated, for the
    performance of clinical laboratory tests or examinations or the
    practical application of the clinical laboratory sciences. That
    application may include any means that applies the clinical
    laboratory sciences.” (Bus. & Prof. Code, § 1206, subd. (a)(8).)
    In contrast, to the definition of clinical laboratory in the
    Business and Professions Code, Health and Safety Code
    section 1250 provides definitions of different types of hospitals.
    18
    procedure in 2010, and with Dr. Chow, his doctor since 2007, who
    knew of Tucker’s 2010 abnormal ECG. Pacific Alliance had no
    duty under these circumstances to disclose the ECG results
    directly to Tucker where it is undisputed that at the time the
    ECG was taken, Tucker had existing patient-physician
    relationships with Dr. Yin and Dr. Chow, and the Todds have
    admitted Dr. Chow knew about the ECG results.5
    We reject the Todds’ argument that Walker is “completely
    contradictory” to the evidence that they presented by way of
    Dr. Cook’s declaration. Duty is a question of law for the court to
    decide, not a question of fact subject to resolution by way of
    expert declarations. (Walker, supra, 202 Cal.App.4th at p. 958;
    Elam, supra, 132 Cal.App.3d at p. 339 [duty is “question of law
    within the exclusive province of the court”].) Dr. Cook’s
    declaration cannot raise a triable issue of material fact as to
    Pacific Alliance’s duty to Tucker. The Todds do not otherwise
    challenge the application of Walker to this case.
    In sum, the Todds raise no triable issue of material fact
    showing that Pacific Alliance breached any duty to report to
    Dr. Chow causing Tucker’s death and, as a matter of law, Pacific
    Alliance did not have a duty to report the ECG test result to
    Tucker. The trial court did not err in granting summary
    judgment in favor of Pacific Alliance.
    5  We do not opine on whether a hospital may have a duty
    to disclose test results when obtaining a patient’s informed
    consent. Tucker’s informed consent with respect to his hernia
    operation is not at issue in this appeal, and the Todds have made
    no argument based on obtaining informed consent.
    19
    III.   Principles of Collateral Estoppel Do Not Require the
    Reversal of the Judgment
    The trial court rejected the Todds’ argument that collateral
    estoppel precluded consideration of Pacific Alliance’s amended
    summary judgment motion: “Collateral estoppel does not apply
    because the court of appeal merely found that Defendant [Pacific
    Alliance] 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.” On appeal, the Todds assert this was error.
    Collateral estoppel, also known as issue preclusion,
    “prevents ‘relitigation of issues argued and decided in prior
    proceedings.’ [Citation.] The threshold requirements for issue
    preclusion are: (1) the issue is identical to that decided in the
    former proceeding, (2) the issue was actually litigated in the
    former proceeding, (3) the issue was necessarily decided in the
    former proceeding, (4) the decision in the former proceeding is
    final and on the merits, and (5) preclusion is sought against a
    person who was a party or in privity with a party to the former
    proceeding. [Citation.]” (Castillo v. City of Los Angeles (2001)
    
    92 Cal.App.4th 477
    , 481.)
    “ ‘Importantly, “collateral estoppel is not mechanically
    applied, and in each case the court must determine whether its
    application will advance the public policies which underlie the
    doctrine. [Citation.] Those policies are ‘(1) to promote judicial
    economy by minimizing repetitive litigation; (2) to prevent
    inconsistent judgments which undermine the integrity of the
    20
    judicial system; and (3) to provide repose by preventing a person
    from being harassed by vexatious litigation.’ ” [Citations.]’
    [Citation.]” (Mooney v. Caspari (2006) 
    138 Cal.App.4th 704
    , 717;
    see also Vandenberg v. Superior Court (1999) 
    21 Cal.4th 815
    , 829
    [“[E]ven where the minimal prerequisites for invocation of the
    doctrine are present, collateral estoppel ‘ “is not an inflexible,
    universally applicable principle; policy considerations may limit
    its use where the . . . underpinnings of the doctrine are
    outweighed by other factors.” ’ [Citation.] [Citations.]”.)
    Even if arguably, Pacific Alliance’s amended summary
    judgment motion is based on the same issue as the prior motion,
    we decline to apply collateral estoppel because that doctrine’s
    underlying purposes would not be served. Although the trial
    court initially denied the amended motion for summary
    judgment, this court created confusion, at least on the part of the
    trial court, when we ordered the trial court to reconsider the
    amended motion. After the trial court did precisely what we
    ordered—reconsidering the amended summary judgment motion
    after receiving a properly attested declaration—it granted that
    motion, finding no triable issue of material fact. On appeal, the
    Todds identify no triable issue of material fact.
    Under these circumstances, reversing the grant of
    summary judgment on issue preclusion grounds and returning
    the case to the trial court would be a futile act because there is
    nothing left to decide in a trial. The law does not require a futile
    act. (See generally, Civ. Code, § 3532 [“The law neither does nor
    requires idle acts”].) Permitting a trial on the merits where the
    Todds have demonstrated no triable issue of material fact would
    undermine the policy of promoting judicial economy by
    minimizing repetitive litigation. For these reasons, even
    21
    assuming the Todds could demonstrate the elements of collateral
    estoppel, we decline to apply that doctrine here. (Cf. Pacific
    Lumber Co. v. State Water Resources Control Bd. (2006)
    
    37 Cal.4th 921
    , 945 [declining to apply collateral estoppel where
    application of doctrine is not supported by policy reasons].)
    Although we recognize the tragic nature of Tucker’s death, after
    review, we conclude the Todds have not demonstrated any error
    on appeal.
    DISPOSITION
    The judgment in favor of Pacific Alliance Medical Center is
    affirmed. The parties shall bear their own costs on appeal.
    NOT TO BE PUBLISHED.
    BENDIX, J.
    We concur:
    ROTHSCHILD, P. J.
    CHANEY, J.
    22
    

Document Info

Docket Number: B307401

Filed Date: 11/18/2021

Precedential Status: Non-Precedential

Modified Date: 11/18/2021