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1 Brian L. Hoffman (State Bar No. 150824)
bhoffman@wshblaw.com
2 Michael G. Kline (State Bar No. 212758) 12/10/2020
mkline@wshblaw.com
3 Michael J. Choi (State Bar No. 322412)
mchoi@wshblaw.com
4 WOOD, SMITH, HENNING & BERMAN LLP
1401 Willow Pass Road, Suite 700
5 Concord, California 94520-7982
Phone: (925) 222-3400 ♦ Fax: (925) 356-8250
6
Attorneys for Defendant, PATIENTS' HOSPITAL OF REDDING
7
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 IN AND FOR COUNTY OF BUTTE
11
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 DEBRA GONZALEZ, Case No. 18CV03272
CONCORD, CALIFORNIA 94520-7982
13 Plaintiff, [Assigned for All Purposes to Honorable Robert A. Glusman,
Attorneys at Law
Dept. 10]
14 v.
MEMORANDUM OF POINTS &
15 SEAN STODDARD, SEAN STODARD LLC, AUTHORITIES FILED IN SUPPORT OF
NORCAL FOOT AND ANKLE, FOOT & MOTION OF DEFENDANT PATIENTS'
16 ANKLE CLINIC OF NORTHERN HOSPITAL OF REDDING FOR
CALIFORNIA, PATIENTS' HOSPITAL, and SUMMARY JUDGMENT/
17 DOES 1 TO 100, ADJUDICATION
18 Defendants. [Concurrently filed with Notice of Motion; Separate Statement
of Undisputed Material Facts; Table of Evidence; Declarations
19 of Cynthia Masters and Michael J. Choi and [Proposed] Order]
20 Date: February 24, 2021
Time: 9 a.m.
21 Dept.: 10
22 Action Filed: 10/05/2018
23 Trial Date: March 29, 2021
24 / / /
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15020736.2:10386-0188 Case No. 18CV03272
MEMORANDUM OF POINTS & AUTHORITIES FILED IN SUPPORT OF MOTION OF DEFENDANT
PATIENTS' HOSPITAL OF REDDING FOR SUMMARY JUDGMENT/ADJUDICATION
1 TABLE OF CONTENTS
Page
2
3 I. INTRODUCTION ..................................................................................................................1
4 II. SUMMARY OF UNDISPUTED FACTS..............................................................................1
5 A. The PHR Credentialing Process .................................................................................1
6 B. PHR Did Not Employ Dr. Stoddard ...........................................................................2
7 C. Plaintiff Knew That Dr. Stoddard Was Not An Actual PHR Employee....................2
8 D. Dr. Stoddard Controlled the TAR Surgery and all Post-Surgical Issues....................3
9 III. DEFENDANT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW ................3
10 A. Plaintiff Waived Her Right To Assert Vicarious Liability ........................................4
11 B. Dr. Stoddard Was Not PHR's Actual Employee ........................................................5
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 C. Dr. Stoddard Was Not PHR's Actual Agent ...............................................................6
CONCORD, CALIFORNIA 94520-7982
13 D. Dr. Stoddard Was Not PHR’s Ostensible Agent ........................................................7
Attorneys at Law
14 E. PHR Did Not Fall Below The Applicable Standard of Care......................................9
15 IV. CONCLUSION ...................................................................................................................11
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15020736.2:10386-0188 -i- Case No. 18CV03272
MEMORANDUM OF POINTS & AUTHORITIES FILED IN SUPPORT OF MOTION OF DEFENDANT
PATIENTS' HOSPITAL OF REDDING FOR SUMMARY JUDGMENT/ADJUDICATION
1 TABLE OF AUTHORITIES
2 Page
3
CASES
4
Aguilar v. Atlantic Richfield Company (2002) 25 Cal.4th 826 ......................................................... 3
5
Aguilar, supra, 25 Cal.4th at 849 ...................................................................................................... 4
6
Alvis v. County of Ventura (2009) 178 Cal.App.4th 536 .................................................................. 4
7
Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70 ....................................... 6
8
Conrad v. Medical Bd. of California (1996) 48 Cal.App.4th 1038 .................................................. 5
9
Diaz v. Carcamo (2011) 51 Cal.4th 1148 ......................................................................................... 9
10
Doe v. Roman Catholic Archbishop of Los Angeles (2016) 247 Cal.App.4th 953 ........................... 6
11
WOOD, SMITH, HENNING & BERMAN LLP
Elam v. College Park Hospital (1982) 132 Cal.App.3d 332......................................................... 4, 9
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12
CONCORD, CALIFORNIA 94520-7982
Johnson v. Ralphs Grocery Co. (2012) 204 Cal.App.4th 1097 ........................................................ 5
13
Attorneys at Law
Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291.................................... 5
14
Mallow v. Fong (1951) 37 Cal.2d 356 .............................................................................................. 5
15
Mann v. Cracchiolo (1985) 38 Cal.3d 18.......................................................................................... 3
16
Markow v. Rosner (2016) 3 Cal.App.5th 1027 ................................................................................ 7
17
Mayers v. Litow (1957) 154 Cal.App.2d 413 .................................................................................... 5
18
McGonnell v. Kaiser Gypsum Company, Inc. (2002) 98 Cal.App.4th 1098 ..................................... 4
19
Mejia v. Community Hospital of San Bernadino (2002) 99 Cal.App.4th 1448 ............................ 5, 7
20
Mejia, supra, 99 Cal.App.4th 1448 ................................................................................................... 7
21
Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536 ................................................................ 3
22
Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549 ........................................................... 6
23
Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 571-572 ............................................ 6
24
Secci v. United Independent Taxi Drivers, Inc. (2017) 8 Cal.App.5th 846 ...................................... 6
25
Souza v. Squaw Valley Ski Corp. (2006) 138 Cal.App.4th 262 ........................................................ 4
26
West v. Guy F. Atkinson Construction Co. (1967) 251 Cal.App.2d 296........................................... 5
27
Whitlow v. Rideout Memorial Hospital (2015) 237 Cal.App.4th 631............................................... 7
28
15020736.2:10386-0188 -ii- Case No. 18CV03272
MEMORANDUM OF POINTS & AUTHORITIES FILED IN SUPPORT OF MOTION OF DEFENDANT
PATIENTS' HOSPITAL OF REDDING FOR SUMMARY JUDGMENT/ADJUDICATION
1 Wicks v. Antelope Valley Healthcare District (2020) 49 Cal.App.5th 866 ....................................... 1
2
3 STATUTES
4 B&P Code §2052 .............................................................................................................................. 1
5 Business and Professions Code section 2400 ................................................................................... 1
6 C.C.P. §437c ..................................................................................................................................... 4
7 C.C.P. §437c(o) ................................................................................................................................. 4
8 C.C.P. §437c(p)(2) ............................................................................................................................ 4
9 Civil Code Section 2300 .................................................................................................................... 7
10 Code of Civil Procedure section 437c............................................................................................... 3
11 Evidence Code § 1192 ..................................................................................................................... 11
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 Labor Code §2750.6 .......................................................................................................................... 5
CONCORD, CALIFORNIA 94520-7982
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Attorneys at Law
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15020736.2:10386-0188 -iii- Case No. 18CV03272
MEMORANDUM OF POINTS & AUTHORITIES FILED IN SUPPORT OF MOTION OF DEFENDANT
PATIENTS' HOSPITAL OF REDDING FOR SUMMARY JUDGMENT/ADJUDICATION
1 I. INTRODUCTION
2 Within her operative First Amended Complaint (the “1AC”), Plaintiff Debra Gonzalez
3 (“Plaintiff”) alleges that Defendant Sean Stoddard (“Dr. Stoddard”) negligently recommended and
4 performed total ankle replacement (“TAR”) surgery at surgical facilities owned by Defendant
5 Patients’ Hospital of Redding (“PHR”). Even if all of Plaintiff's substantive factual allegations
6 against Dr. Stoddard are presumed true, her lone cause of action for "General Negligence" against
7 PHR fails as a matter of law because :
8 1. PHR did not employ Dr. Stoddard;
9 2. There was no actual or ostensible agency relationship between PHR and Dr.
10 Stoddard; and
11 3. Pursuant to the California Supreme Court’s recently-published decision in Wicks v.
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 Antelope Valley Healthcare District (2020) 49 Cal.App.5th 866, 884, Plaintiff may not reasonably
CONCORD, CALIFORNIA 94520-7982
13 dispute the fact that PHR's hiring and retention policies with respect to Dr. Stoddard met or
Attorneys at Law
14 exceeded the applicable standard of care.
15 II. SUMMARY OF UNDISPUTED FACTS
16 A. The PHR Credentialing Process
17 Pursuant to California law (the "Corporate Practice of Medicine Doctrine"), hospitals in
18 California are prohibited from employing physicians and surgeons to practice medicine. Separate
19 Statement of Undisputed Material Facts, (the “SS”), ¶1; see also, B&P Code §2052 (“Any person
20 who practices or attempts to practice, or who holds himself or herself out as
21 practicing...[medicine] without having at the time of so doing a valid, unrevoked, or unsuspended
22 certificate...is guilty of a public offense.”) and B&P Code §2400 ("Corporations and other
23 artificial entities shall have no professional rights, privileges, or powers.").1 Accordingly, PHR
24 does not employ any physicians or surgeons to practice medicine; it is a general acute care hospital
25 that employs nurses and non-physician staff members to implement the orders of independent
26
1
The policy expressed in Business and Professions Code section 2400 against the
27
corporate practice of medicine is intended to prevent unlicensed persons from interfering with or
28 influencing the physician's professional judgment.
15020736.2:10386-0188 -1- Case No. 18CV03272
MEMORANDUM OF POINTS & AUTHORITIES FILED IN SUPPORT OF MOTION OF DEFENDANT
PATIENTS' HOSPITAL OF REDDING FOR SUMMARY JUDGMENT/ADJUDICATION
1 contractor physicians with active medical staff privileges at PHR. SS, ¶¶2–3. As a result, and at all
2 times relevant, PHR maintained and followed procedures for not only the
3 appointment/credentialing of physicians/surgeons, but for its periodic review of their competence
4 thereafter, in order to ensure its compliance with the standard of care in California with regard to
5 its appointment of medical staff. Id., ¶4. To wit:
6 Each physician/surgeon applying for appointment/credentialing at PHR is required to
7 present an application, in writing, that includes the applicant’s qualifications, current California
8 licensure, current DEA registration, and proof of any specialty certifications applicable to the
9 clinic privileges to be exercised by the applicant at PHR. Id., ¶5. Medical Staff Services personnel
10 conduct primary source verification of the information contained within the physician’s written
11 application and evidence submitted in support thereof. Id., ¶6. PHR’s Chief of Service and
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 Medical Executive Committee will then review these credentials in order to determine whether the
CONCORD, CALIFORNIA 94520-7982
13 physician does, in fact, meet PHR’s minimum credentialing requirements. Id., ¶7. If so, they will
Attorneys at Law
14 eventually recommend the physician for appointment to PHR’s Board of Directors (its governing
15 body). Id., ¶8. Once credentialed, each active member of the Medical Staff at PHR is reviewed
16 every two years for reappointment in accordance with PHR’s Medical Staff Bylaws. Id., ¶9.
17 B. PHR Did Not Employ Dr. Stoddard
18 PHR is a general acute care hospital that employs nurses and non-physician staff to
19 implement the orders of those independent contractor physicians granted active medical staff
20 privileges pursuant to the process summarized above. Id., ¶3. At all relevant times, Dr. Stoddard
21 possessed active medical staff privileges at PHR, which he received and maintained pursuant to
22 the above-stated processes. Id., ¶10. PHR did not direct or supervise the professional physician
23 services of any independent contractor physicians appointed to its medical staff (including Dr.
24 Stoddard); it therefore did not direct or supervise the professional services that Dr. Stoddard
25 provided to Plaintiff at any point in time. Id., ¶11.
26 C. Plaintiff Knew That Dr. Stoddard Was Not An Actual PHR Employee
27 Plaintiff’s first appointment with Dr. Stoddard took place on September 15, 2017 at
28 Defendant Foot/Ankle Clinic of Northern California. Id., ¶12. During that visit, Dr. Stoddard
15020736.2:10386-0188 -2- Case No. 18CV03272
MEMORANDUM OF POINTS & AUTHORITIES FILED IN SUPPORT OF MOTION OF DEFENDANT
PATIENTS' HOSPITAL OF REDDING FOR SUMMARY JUDGMENT/ADJUDICATION
1 diagnosed Plaintiff with arthritis in her ankle, which he said he could remedy via a total ankle
2 replacement (hereinafter "TAR") surgery. Id., ¶13. Plaintiff agreed with Dr. Stoddard’s
3 recommendation and elected to move forward with the TAR surgery. Id., ¶14.
4 Between October 5 and 10, 2017 (prior to the TAR surgery itself), Plaintiff reviewed and
5 signed documents confirming that physicians and surgeons (like Dr. Stoddard) were not PHR
6 employees. Id., ¶15. At her deposition, Plaintiff not only confirmed that she understood the
7 foregoing at that time, but that her understanding was based on both her reading of the
8 aforementioned documents and because she had “seen Dr. Stoddard outside of the hospital
9 initially.” Id., ¶16.
10 D. Dr. Stoddard Controlled the TAR Surgery and all Post-Surgical Issues
11 Dr. Stoddard performed Plaintiff’s TAR surgery at PHR on October 10, 2017. Id., ¶17.
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 Following the surgery, multiple post-operation appointments were held by Dr. Stoddard with
CONCORD, CALIFORNIA 94520-7982
13 Plaintiff at his private office, not at PHR. Id., ¶18. Plaintiff never contacted PHR regarding her
Attorneys at Law
14 post-surgery ankle issues. Id., ¶19.
15 III. DEFENDANT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW
16 Code of Civil Procedure section 437c provides that "[a] motion for summary judgment
17 shall be granted if all the papers submitted show that there is no triable issue as to any material
18 fact and that the moving party is entitled to judgment as a matter of law." The purpose of the law
19 of summary judgment is to provide courts with a mechanism to cut through the pleadings to
20 determine whether, despite the parties' allegations, trial is necessary to resolve their dispute.
21 Aguilar v. Atlantic Richfield Company (2002) 25 Cal.4th 826, 843.
22 Although opponents of summary judgment previously argued summary judgment
23 “[denied] the right of the adverse party to a trial . . . and should be used with caution,” the 1992
24 and 1993 amendments to the summary judgment statutes effectively “liberalize[d] the granting of
25 [summary judgment] motions.” Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35; Perry v. Bakewell
26 Hawthorne, LLC (2017) 2 Cal.5th 536, 542 [quoting Aguilar, supra, 25 Cal.4th at 848]. As such, it
27 is no longer called a "disfavored" remedy. See Perry, supra, 2 Cal.3d at 542. “Summary judgment
28 is now seen as a ‘particularly suitable means to test the sufficiency’ of the plaintiff's or defendant's
15020736.2:10386-0188 -3- Case No. 18CV03272
MEMORANDUM OF POINTS & AUTHORITIES FILED IN SUPPORT OF MOTION OF DEFENDANT
PATIENTS' HOSPITAL OF REDDING FOR SUMMARY JUDGMENT/ADJUDICATION
1 case.” Id.
2 A defendant meets its burden of persuasion on a motion for summary judgment by
3 showing that a cause of action has no merit because one or more elements of the cause of action
4 cannot be established, or there is a complete defense thereto. C.C.P. §437c(o)(1); see also
5 McGonnell v. Kaiser Gypsum Company, Inc. (2002) 98 Cal.App.4th 1098, 1102–1103. Once
6 defendant's burden is satisfied, the burden shifts to the plaintiff to show a triable issue of material
7 fact exists as to the cause of action at issue. C.C.P. §437c(p)(2); Aguilar, supra, 25 Cal.4th at 849.
8 Of import to the instant motion is well-established precedent holding that it is the pleadings that
9 determine what issues are "material," and a defendant need only address issues raised in the
10 operative complaint. See, Souza v. Squaw Valley Ski Corp. (2006) 138 Cal.App.4th 262, 270; Alvis
11 v. County of Ventura (2009) 178 Cal.App.4th 536, 548.
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 Within the 1AC’s lone cause of action against PHR for “General Negligence,” Plaintiff
CONCORD, CALIFORNIA 94520-7982
13 identifies two specific theories of relief:
Attorneys at Law
14 • “[Dr.] Stoddard is an actual or ostensible agent or employee of [PHR], and as such, [PHR
15 is] liable for his negligent treatment and care.” SS, ¶20.
16 • “[PHR] negligently hired, negligently entrusted and/or negligently credentialed [Dr.]
17 Stoddard … [PHR] owed [and breached] a duty to [P]laintiff of selecting and reviewing
18 the competency of its staff, physicians, healthcare providers, employees, independent
19 contractors and agents.” Id., citing Elam v. College Park Hospital (1982) 132 Cal.App.3d
20 332.
21 The foregoing theories fail as a matter of law for the reasons set forth below.
22 A. Plaintiff Waived Her Right To Assert Vicarious Liability
23 At Plaintiff’s deposition taken on March 3, 2020, her counsel made the following
24 stipulation:
25 MR. SCHULTZ: If it will save some time, we will stipulate we are not making … a
claim [that Dr. Stoddard] is an agent of [PHR] … The only claim we're making as
26 to [PHR] is that they allowed [Dr.] Stoddard to engage in this pattern and practice
of defrauding elderly folks like [Plaintiff] at their hospital using their facilities.
27 We're not making any … That's the only claim. There's no claim here of any
agency. If that saves time …
28
15020736.2:10386-0188 -4- Case No. 18CV03272
MEMORANDUM OF POINTS & AUTHORITIES FILED IN SUPPORT OF MOTION OF DEFENDANT
PATIENTS' HOSPITAL OF REDDING FOR SUMMARY JUDGMENT/ADJUDICATION
1 MR. HOFFMAN: It does. It does. No Mejia2 claim is what you are saying?
2 MR. SCHULTZ: True. [SS, ¶21]
3 B. Dr. Stoddard Was Not PHR's Actual Employee
4 The doctrine of vicarious liability, or respondeat superior, allows an employer to be held
5 liable for the acts and omissions of its employee committed in the scope of his or her employment.
6 Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296. Often, the
7 determination of whether vicarious liability is proper is based on "[w]hether a person performing
8 work for another is an agent or an independent contractor." Mallow v. Fong (1951) 37 Cal.2d 356,
9 370. Absent excepting facts not present here, an employer is not liable for the negligence or other
10 torts of either an independent contractor or one of its employees. West v. Guy F. Atkinson
11 Construction Co. (1967) 251 Cal.App.2d 296, 299; Johnson v. Ralphs Grocery Co. (2012) 204
WOOD, SMITH, HENNING & BERMAN LLP
TELEPHONE 925 222 3400 ♦ FAX 925 356 8250
1401 WILLOW PASS ROAD, SUITE 700
12 Cal.App.4th 1097, 1107.
CONCORD, CALIFORNIA 94520-7982
13 More to the point, it is well settled that a physician using hospital facilities in accordance
Attorneys at Law
14 with medical staff privileges, as Dr. Stoddard did here, is an independent contractor as a matter of
15 law, and that a hospital is not liable for its physicians' alleged malpractice under a respondeat
16 superior theory. Mayers v. Litow (1957) 154 Cal.App.2d 413, 418; see also, Labor Code §2750.6,
17 (creating a rebuttab
Preview
1 Brian L. Hoffman (State Bar No. 150824) bhoffman@wshblaw.com 2 Michael G. Kline (State Bar No. 212758) 12/10/2020 mkline@wshblaw.com 3 Michael J. Choi (State Bar No. 322412) mchoi@wshblaw.com 4 WOOD, SMITH, HENNING & BERMAN LLP 1401 Willow Pass Road, Suite 700 5 Concord, California 94520-7982 Phone: (925) 222-3400 ♦ Fax: (925) 356-8250 6 Attorneys for Defendant, PATIENTS' HOSPITAL OF REDDING 7 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR COUNTY OF BUTTE 11 WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 DEBRA GONZALEZ, Case No. 18CV03272 CONCORD, CALIFORNIA 94520-7982 13 Plaintiff, [Assigned for All Purposes to Honorable Robert A. Glusman, Attorneys at Law Dept. 10] 14 v. MEMORANDUM OF POINTS & 15 SEAN STODDARD, SEAN STODARD LLC, AUTHORITIES FILED IN SUPPORT OF NORCAL FOOT AND ANKLE, FOOT & MOTION OF DEFENDANT PATIENTS' 16 ANKLE CLINIC OF NORTHERN HOSPITAL OF REDDING FOR CALIFORNIA, PATIENTS' HOSPITAL, and SUMMARY JUDGMENT/ 17 DOES 1 TO 100, ADJUDICATION 18 Defendants. [Concurrently filed with Notice of Motion; Separate Statement of Undisputed Material Facts; Table of Evidence; Declarations 19 of Cynthia Masters and Michael J. Choi and [Proposed] Order] 20 Date: February 24, 2021 Time: 9 a.m. 21 Dept.: 10 22 Action Filed: 10/05/2018 23 Trial Date: March 29, 2021 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 15020736.2:10386-0188 Case No. 18CV03272 MEMORANDUM OF POINTS & AUTHORITIES FILED IN SUPPORT OF MOTION OF DEFENDANT PATIENTS' HOSPITAL OF REDDING FOR SUMMARY JUDGMENT/ADJUDICATION 1 TABLE OF CONTENTS Page 2 3 I. INTRODUCTION ..................................................................................................................1 4 II. SUMMARY OF UNDISPUTED FACTS..............................................................................1 5 A. The PHR Credentialing Process .................................................................................1 6 B. PHR Did Not Employ Dr. Stoddard ...........................................................................2 7 C. Plaintiff Knew That Dr. Stoddard Was Not An Actual PHR Employee....................2 8 D. Dr. Stoddard Controlled the TAR Surgery and all Post-Surgical Issues....................3 9 III. DEFENDANT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW ................3 10 A. Plaintiff Waived Her Right To Assert Vicarious Liability ........................................4 11 B. Dr. Stoddard Was Not PHR's Actual Employee ........................................................5 WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 C. Dr. Stoddard Was Not PHR's Actual Agent ...............................................................6 CONCORD, CALIFORNIA 94520-7982 13 D. Dr. Stoddard Was Not PHR’s Ostensible Agent ........................................................7 Attorneys at Law 14 E. PHR Did Not Fall Below The Applicable Standard of Care......................................9 15 IV. CONCLUSION ...................................................................................................................11 16 17 18 19 20 21 22 23 24 25 26 27 28 15020736.2:10386-0188 -i- Case No. 18CV03272 MEMORANDUM OF POINTS & AUTHORITIES FILED IN SUPPORT OF MOTION OF DEFENDANT PATIENTS' HOSPITAL OF REDDING FOR SUMMARY JUDGMENT/ADJUDICATION 1 TABLE OF AUTHORITIES 2 Page 3 CASES 4 Aguilar v. Atlantic Richfield Company (2002) 25 Cal.4th 826 ......................................................... 3 5 Aguilar, supra, 25 Cal.4th at 849 ...................................................................................................... 4 6 Alvis v. County of Ventura (2009) 178 Cal.App.4th 536 .................................................................. 4 7 Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70 ....................................... 6 8 Conrad v. Medical Bd. of California (1996) 48 Cal.App.4th 1038 .................................................. 5 9 Diaz v. Carcamo (2011) 51 Cal.4th 1148 ......................................................................................... 9 10 Doe v. Roman Catholic Archbishop of Los Angeles (2016) 247 Cal.App.4th 953 ........................... 6 11 WOOD, SMITH, HENNING & BERMAN LLP Elam v. College Park Hospital (1982) 132 Cal.App.3d 332......................................................... 4, 9 TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 CONCORD, CALIFORNIA 94520-7982 Johnson v. Ralphs Grocery Co. (2012) 204 Cal.App.4th 1097 ........................................................ 5 13 Attorneys at Law Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291.................................... 5 14 Mallow v. Fong (1951) 37 Cal.2d 356 .............................................................................................. 5 15 Mann v. Cracchiolo (1985) 38 Cal.3d 18.......................................................................................... 3 16 Markow v. Rosner (2016) 3 Cal.App.5th 1027 ................................................................................ 7 17 Mayers v. Litow (1957) 154 Cal.App.2d 413 .................................................................................... 5 18 McGonnell v. Kaiser Gypsum Company, Inc. (2002) 98 Cal.App.4th 1098 ..................................... 4 19 Mejia v. Community Hospital of San Bernadino (2002) 99 Cal.App.4th 1448 ............................ 5, 7 20 Mejia, supra, 99 Cal.App.4th 1448 ................................................................................................... 7 21 Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536 ................................................................ 3 22 Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549 ........................................................... 6 23 Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 571-572 ............................................ 6 24 Secci v. United Independent Taxi Drivers, Inc. (2017) 8 Cal.App.5th 846 ...................................... 6 25 Souza v. Squaw Valley Ski Corp. (2006) 138 Cal.App.4th 262 ........................................................ 4 26 West v. Guy F. Atkinson Construction Co. (1967) 251 Cal.App.2d 296........................................... 5 27 Whitlow v. Rideout Memorial Hospital (2015) 237 Cal.App.4th 631............................................... 7 28 15020736.2:10386-0188 -ii- Case No. 18CV03272 MEMORANDUM OF POINTS & AUTHORITIES FILED IN SUPPORT OF MOTION OF DEFENDANT PATIENTS' HOSPITAL OF REDDING FOR SUMMARY JUDGMENT/ADJUDICATION 1 Wicks v. Antelope Valley Healthcare District (2020) 49 Cal.App.5th 866 ....................................... 1 2 3 STATUTES 4 B&P Code §2052 .............................................................................................................................. 1 5 Business and Professions Code section 2400 ................................................................................... 1 6 C.C.P. §437c ..................................................................................................................................... 4 7 C.C.P. §437c(o) ................................................................................................................................. 4 8 C.C.P. §437c(p)(2) ............................................................................................................................ 4 9 Civil Code Section 2300 .................................................................................................................... 7 10 Code of Civil Procedure section 437c............................................................................................... 3 11 Evidence Code § 1192 ..................................................................................................................... 11 WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 Labor Code §2750.6 .......................................................................................................................... 5 CONCORD, CALIFORNIA 94520-7982 13 Attorneys at Law 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15020736.2:10386-0188 -iii- Case No. 18CV03272 MEMORANDUM OF POINTS & AUTHORITIES FILED IN SUPPORT OF MOTION OF DEFENDANT PATIENTS' HOSPITAL OF REDDING FOR SUMMARY JUDGMENT/ADJUDICATION 1 I. INTRODUCTION 2 Within her operative First Amended Complaint (the “1AC”), Plaintiff Debra Gonzalez 3 (“Plaintiff”) alleges that Defendant Sean Stoddard (“Dr. Stoddard”) negligently recommended and 4 performed total ankle replacement (“TAR”) surgery at surgical facilities owned by Defendant 5 Patients’ Hospital of Redding (“PHR”). Even if all of Plaintiff's substantive factual allegations 6 against Dr. Stoddard are presumed true, her lone cause of action for "General Negligence" against 7 PHR fails as a matter of law because : 8 1. PHR did not employ Dr. Stoddard; 9 2. There was no actual or ostensible agency relationship between PHR and Dr. 10 Stoddard; and 11 3. Pursuant to the California Supreme Court’s recently-published decision in Wicks v. WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 Antelope Valley Healthcare District (2020) 49 Cal.App.5th 866, 884, Plaintiff may not reasonably CONCORD, CALIFORNIA 94520-7982 13 dispute the fact that PHR's hiring and retention policies with respect to Dr. Stoddard met or Attorneys at Law 14 exceeded the applicable standard of care. 15 II. SUMMARY OF UNDISPUTED FACTS 16 A. The PHR Credentialing Process 17 Pursuant to California law (the "Corporate Practice of Medicine Doctrine"), hospitals in 18 California are prohibited from employing physicians and surgeons to practice medicine. Separate 19 Statement of Undisputed Material Facts, (the “SS”), ¶1; see also, B&P Code §2052 (“Any person 20 who practices or attempts to practice, or who holds himself or herself out as 21 practicing...[medicine] without having at the time of so doing a valid, unrevoked, or unsuspended 22 certificate...is guilty of a public offense.”) and B&P Code §2400 ("Corporations and other 23 artificial entities shall have no professional rights, privileges, or powers.").1 Accordingly, PHR 24 does not employ any physicians or surgeons to practice medicine; it is a general acute care hospital 25 that employs nurses and non-physician staff members to implement the orders of independent 26 1 The policy expressed in Business and Professions Code section 2400 against the 27 corporate practice of medicine is intended to prevent unlicensed persons from interfering with or 28 influencing the physician's professional judgment. 15020736.2:10386-0188 -1- Case No. 18CV03272 MEMORANDUM OF POINTS & AUTHORITIES FILED IN SUPPORT OF MOTION OF DEFENDANT PATIENTS' HOSPITAL OF REDDING FOR SUMMARY JUDGMENT/ADJUDICATION 1 contractor physicians with active medical staff privileges at PHR. SS, ¶¶2–3. As a result, and at all 2 times relevant, PHR maintained and followed procedures for not only the 3 appointment/credentialing of physicians/surgeons, but for its periodic review of their competence 4 thereafter, in order to ensure its compliance with the standard of care in California with regard to 5 its appointment of medical staff. Id., ¶4. To wit: 6 Each physician/surgeon applying for appointment/credentialing at PHR is required to 7 present an application, in writing, that includes the applicant’s qualifications, current California 8 licensure, current DEA registration, and proof of any specialty certifications applicable to the 9 clinic privileges to be exercised by the applicant at PHR. Id., ¶5. Medical Staff Services personnel 10 conduct primary source verification of the information contained within the physician’s written 11 application and evidence submitted in support thereof. Id., ¶6. PHR’s Chief of Service and WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 Medical Executive Committee will then review these credentials in order to determine whether the CONCORD, CALIFORNIA 94520-7982 13 physician does, in fact, meet PHR’s minimum credentialing requirements. Id., ¶7. If so, they will Attorneys at Law 14 eventually recommend the physician for appointment to PHR’s Board of Directors (its governing 15 body). Id., ¶8. Once credentialed, each active member of the Medical Staff at PHR is reviewed 16 every two years for reappointment in accordance with PHR’s Medical Staff Bylaws. Id., ¶9. 17 B. PHR Did Not Employ Dr. Stoddard 18 PHR is a general acute care hospital that employs nurses and non-physician staff to 19 implement the orders of those independent contractor physicians granted active medical staff 20 privileges pursuant to the process summarized above. Id., ¶3. At all relevant times, Dr. Stoddard 21 possessed active medical staff privileges at PHR, which he received and maintained pursuant to 22 the above-stated processes. Id., ¶10. PHR did not direct or supervise the professional physician 23 services of any independent contractor physicians appointed to its medical staff (including Dr. 24 Stoddard); it therefore did not direct or supervise the professional services that Dr. Stoddard 25 provided to Plaintiff at any point in time. Id., ¶11. 26 C. Plaintiff Knew That Dr. Stoddard Was Not An Actual PHR Employee 27 Plaintiff’s first appointment with Dr. Stoddard took place on September 15, 2017 at 28 Defendant Foot/Ankle Clinic of Northern California. Id., ¶12. During that visit, Dr. Stoddard 15020736.2:10386-0188 -2- Case No. 18CV03272 MEMORANDUM OF POINTS & AUTHORITIES FILED IN SUPPORT OF MOTION OF DEFENDANT PATIENTS' HOSPITAL OF REDDING FOR SUMMARY JUDGMENT/ADJUDICATION 1 diagnosed Plaintiff with arthritis in her ankle, which he said he could remedy via a total ankle 2 replacement (hereinafter "TAR") surgery. Id., ¶13. Plaintiff agreed with Dr. Stoddard’s 3 recommendation and elected to move forward with the TAR surgery. Id., ¶14. 4 Between October 5 and 10, 2017 (prior to the TAR surgery itself), Plaintiff reviewed and 5 signed documents confirming that physicians and surgeons (like Dr. Stoddard) were not PHR 6 employees. Id., ¶15. At her deposition, Plaintiff not only confirmed that she understood the 7 foregoing at that time, but that her understanding was based on both her reading of the 8 aforementioned documents and because she had “seen Dr. Stoddard outside of the hospital 9 initially.” Id., ¶16. 10 D. Dr. Stoddard Controlled the TAR Surgery and all Post-Surgical Issues 11 Dr. Stoddard performed Plaintiff’s TAR surgery at PHR on October 10, 2017. Id., ¶17. WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 Following the surgery, multiple post-operation appointments were held by Dr. Stoddard with CONCORD, CALIFORNIA 94520-7982 13 Plaintiff at his private office, not at PHR. Id., ¶18. Plaintiff never contacted PHR regarding her Attorneys at Law 14 post-surgery ankle issues. Id., ¶19. 15 III. DEFENDANT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW 16 Code of Civil Procedure section 437c provides that "[a] motion for summary judgment 17 shall be granted if all the papers submitted show that there is no triable issue as to any material 18 fact and that the moving party is entitled to judgment as a matter of law." The purpose of the law 19 of summary judgment is to provide courts with a mechanism to cut through the pleadings to 20 determine whether, despite the parties' allegations, trial is necessary to resolve their dispute. 21 Aguilar v. Atlantic Richfield Company (2002) 25 Cal.4th 826, 843. 22 Although opponents of summary judgment previously argued summary judgment 23 “[denied] the right of the adverse party to a trial . . . and should be used with caution,” the 1992 24 and 1993 amendments to the summary judgment statutes effectively “liberalize[d] the granting of 25 [summary judgment] motions.” Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35; Perry v. Bakewell 26 Hawthorne, LLC (2017) 2 Cal.5th 536, 542 [quoting Aguilar, supra, 25 Cal.4th at 848]. As such, it 27 is no longer called a "disfavored" remedy. See Perry, supra, 2 Cal.3d at 542. “Summary judgment 28 is now seen as a ‘particularly suitable means to test the sufficiency’ of the plaintiff's or defendant's 15020736.2:10386-0188 -3- Case No. 18CV03272 MEMORANDUM OF POINTS & AUTHORITIES FILED IN SUPPORT OF MOTION OF DEFENDANT PATIENTS' HOSPITAL OF REDDING FOR SUMMARY JUDGMENT/ADJUDICATION 1 case.” Id. 2 A defendant meets its burden of persuasion on a motion for summary judgment by 3 showing that a cause of action has no merit because one or more elements of the cause of action 4 cannot be established, or there is a complete defense thereto. C.C.P. §437c(o)(1); see also 5 McGonnell v. Kaiser Gypsum Company, Inc. (2002) 98 Cal.App.4th 1098, 1102–1103. Once 6 defendant's burden is satisfied, the burden shifts to the plaintiff to show a triable issue of material 7 fact exists as to the cause of action at issue. C.C.P. §437c(p)(2); Aguilar, supra, 25 Cal.4th at 849. 8 Of import to the instant motion is well-established precedent holding that it is the pleadings that 9 determine what issues are "material," and a defendant need only address issues raised in the 10 operative complaint. See, Souza v. Squaw Valley Ski Corp. (2006) 138 Cal.App.4th 262, 270; Alvis 11 v. County of Ventura (2009) 178 Cal.App.4th 536, 548. WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 Within the 1AC’s lone cause of action against PHR for “General Negligence,” Plaintiff CONCORD, CALIFORNIA 94520-7982 13 identifies two specific theories of relief: Attorneys at Law 14 • “[Dr.] Stoddard is an actual or ostensible agent or employee of [PHR], and as such, [PHR 15 is] liable for his negligent treatment and care.” SS, ¶20. 16 • “[PHR] negligently hired, negligently entrusted and/or negligently credentialed [Dr.] 17 Stoddard … [PHR] owed [and breached] a duty to [P]laintiff of selecting and reviewing 18 the competency of its staff, physicians, healthcare providers, employees, independent 19 contractors and agents.” Id., citing Elam v. College Park Hospital (1982) 132 Cal.App.3d 20 332. 21 The foregoing theories fail as a matter of law for the reasons set forth below. 22 A. Plaintiff Waived Her Right To Assert Vicarious Liability 23 At Plaintiff’s deposition taken on March 3, 2020, her counsel made the following 24 stipulation: 25 MR. SCHULTZ: If it will save some time, we will stipulate we are not making … a claim [that Dr. Stoddard] is an agent of [PHR] … The only claim we're making as 26 to [PHR] is that they allowed [Dr.] Stoddard to engage in this pattern and practice of defrauding elderly folks like [Plaintiff] at their hospital using their facilities. 27 We're not making any … That's the only claim. There's no claim here of any agency. If that saves time … 28 15020736.2:10386-0188 -4- Case No. 18CV03272 MEMORANDUM OF POINTS & AUTHORITIES FILED IN SUPPORT OF MOTION OF DEFENDANT PATIENTS' HOSPITAL OF REDDING FOR SUMMARY JUDGMENT/ADJUDICATION 1 MR. HOFFMAN: It does. It does. No Mejia2 claim is what you are saying? 2 MR. SCHULTZ: True. [SS, ¶21] 3 B. Dr. Stoddard Was Not PHR's Actual Employee 4 The doctrine of vicarious liability, or respondeat superior, allows an employer to be held 5 liable for the acts and omissions of its employee committed in the scope of his or her employment. 6 Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296. Often, the 7 determination of whether vicarious liability is proper is based on "[w]hether a person performing 8 work for another is an agent or an independent contractor." Mallow v. Fong (1951) 37 Cal.2d 356, 9 370. Absent excepting facts not present here, an employer is not liable for the negligence or other 10 torts of either an independent contractor or one of its employees. West v. Guy F. Atkinson 11 Construction Co. (1967) 251 Cal.App.2d 296, 299; Johnson v. Ralphs Grocery Co. (2012) 204 WOOD, SMITH, HENNING & BERMAN LLP TELEPHONE 925 222 3400 ♦ FAX 925 356 8250 1401 WILLOW PASS ROAD, SUITE 700 12 Cal.App.4th 1097, 1107. CONCORD, CALIFORNIA 94520-7982 13 More to the point, it is well settled that a physician using hospital facilities in accordance Attorneys at Law 14 with medical staff privileges, as Dr. Stoddard did here, is an independent contractor as a matter of 15 law, and that a hospital is not liable for its physicians' alleged malpractice under a respondeat 16 superior theory. Mayers v. Litow (1957) 154 Cal.App.2d 413, 418; see also, Labor Code §2750.6, 17 (creating a rebuttab