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Though the decision in Ermoian v. Desert Hospital (June 22, 2007) 07
C.D.O.S. is extremely long, I commend it to anyone who currently has
a case (or an appellate matter) involving the following issues:
standard of review; whether patient “rights and responsibilities”
and informed consent forms constitute a contract or promise;
doctrine of “implied findings;” vicarious liability by a hospital
for the actions of independent contractor physicians’ negligence;
substantial evidence to support court’s rulings in finding for
defendants in a wrongful life case; evidentiary rulings; requests
for judicial notice; expert testimony; order denying motion for
discovery sanctions, as well as a few other subjects not listed
herein. I found the decision well-written, refreshingly devoid of
footnotes and a virtual encyclopedia of issues that may arise in
medical negligence actions. To keep this memo brief, however, I will
just offer concise summaries of the court’s discussion of and
holdings on these issues.
Factual Summary
Plaintiff Amanda Ermoian was born with severe brain abnormalities
that left her mentally retarded and unable to care for herself. The
court observed that “her conditions could not have been prevented,
treated or cured in utero. Through her guardian ad litem (her
mother) she sued Desert Hospital (which operated an outpatient
clinic where her mother received prenatal care) and one of its
nurses for wrongful life, breach of contract and promissory estoppel.
Amanda contended that as a result of defendants’ negligence, her
mother was not fully informed of the risks of her condition and
thereby deprived of the opportunity to have an abortion; as a result
she was born. The trial court granted defendants’ motion for summary
adjudication of the breach of contract and promissory estoppel
claims. The wrongful life cause of action was tried to the court,
which found for defendants.
Whether patient “rights and responsibilities” and informed
consent forms constitute a contract or promise
The court began its analysis of whether plaintiff’s causes of action
for breach of contract and promissory estoppel were viable. In order
to be viable, the court would have to find that the “patient rights
and responsibilities” and informed consent forms “constitute an
enforceable contract or promise.” The court concluded they do not.
The court reasoned that neither document promises any particular
result for the treatment of Amanda’s mother’s pregnancy, but merely
set forth 1) the regulatory rights and protections conferred upon
the patient by law and, 2) in the case of the informed consent form,
a list of acknowledgements regarding the patient’s understanding of
information given to her about prenatal testing. Since neither
document supports a breach of contract or promissory estoppel action
as a matter of law, the appellate court affirmed.
Sufficiency of the evidence and the doctrine of “implied
findings”
A child can bring a medical malpractice action for “wrongful life,”
the gravamen of which is that “a child afflicted with a genetic
defect ‘alleges that but for the defendant’s negligence he or she
would not have been born and thus would not have had to suffer the
defect.’” The “resulting injury” is not the disease or defects
themselves, but rather the birth of the plaintiff with the defect.
The court found there was no dispute here that Amanda was born and
suffered a genetic defect for purposes of her wrongful life claim;
defendants dispute the elements of duty, negligence and causation.
At trial the court made express findings that Amanda failed to meet
her burden of proof to support her claim for wrongful life. However,
the court’s statement of decision did not address certain factual
issues. Because of this, the appellate court looked at the record to
determine “whether we can infer findings favorable to the judgment
on such issues under the doctrine of implied findings.”
The doctrine of implied findings comes into play when a trial
court’s statement of decision is ambiguous or omits material
findings; the reviewing court is then called upon “to infer any
factual findings necessary to support the judgment.” In so doing,
the appellate court applies the fundamental principles of appellate
review—that the judgment is presumed correct, that all presumptions
are indulged in favor of correctness, and the appellant bears the
burden of showing the trial court erred. Here, the court felt
appellant did not meet her burden and applied the doctrine of
implied findings to affirm.
Standard of review
Amanda urged the court of appeal to review the entirety of the case
de novo, which the court declined to do. “In both jury and nonjury
trials, factual findings made by the trier of fact are generally
reviewed for substantial evidence.” It went on to explain that
“[u]nder the substantial evidence standard of review, our review
begins and ends with the determination as to whether, on the entire
record, there is substantial evidence, contradicted or
uncontradicted, which will support the trial court’s factual
determinations….The substantial evidence standard of review applies
to both express and implied findings of fact made by the court in
its statement of decision.”
Vicarious liability by a hospital for the actions of independent
contractor physicians’ negligence
The question of vicarious liability arose in this case because the
patient received prenatal care at an outpatient clinic that was
owned by the hospital. The patient was referred there by the staff
at the hospital emergency department. The court went through a
detailed analysis of why it would be reasonable for the patient to
believe the independent contractor physicians were actually
employees of the hospital and said “it was objectively reasonable
for [Amanda’s mother] to believe that Drs. Gubin and Ogata were
employees of the hospital.”
The court noted that agency might be actual or ostensible;
ostensible agency “may be implied from the facts of a particular
case, and if a principal by his acts has led others to believe that
he has conferred authority upon an agent, he cannot be heard to
assert, as against third parties who have relied thereon in good
faith, that he did not intend to confer such power.” The court said
“the issue of ostensible agency does not deal with whether an
individual is in fact an actual employee, but rather, what the
alleged ‘principle by his acts has led others to believe.’”
(Emphasis in original.) The court stressed that “whether a physician
is an agent of the hospital for purposes of vicarious liability is a
question of fact” and whether the doctors were agents of the
hospital was open for review under the substantial evidence
standard. “The burden of proving ostensible agency is upon the party
asserting that relationship.” Here, the court felt appellant carried
her burden and that there was not substantial evidence to support
the hospital’s position—or the court’s implied finding—that the
doctors were not its ostensible agents.
Substantial evidence supported the court’s rulings in finding for
defendants in a wrongful life case
The court again reviewed the express and implied findings of the
trial court on the wrongful life/medical negligence cause of action.
In reviewing all of the facts and evidence, the court held there was
“substantial evidence to support the court’s express finding
concerning the absence of negligence by the Hospital and [nurse] in
failing to advise” the patient, and that there were also implied
findings that defendants were not negligent as to the acts and
omissions alleged by appellant. It affirmed the trial court’s
finding of no negligence by defendants.
Evidentiary rulings
The appellate court agreed with the trial court that a letter
appellant sought to introduce was hearsay and inadmissible.
Excluding it from trial was not an abuse of discretion.
Requests for judicial notice
The types of documents of which the court may take judicial notice
are defined by statute (Evidence Code section 452(a) or (c)). The
documents sought to be introduced by appellant (“Women’s Rights
Handbook” published by the Attorney General’s office; a copy of a
Senate Bill that did not become law; a written statement to a U.S.
House of Representatives subcommittee; a statement to the U.S.
Senate Committee on the Judiciary) did not fall within the statutory
parameters, so the trial court did not err in excluding them.
Expert testimony
Appellant contended her expert was precluded from the trial court
from testifying to certain matters and that such preclusion was
error. The court of appeal disagreed. For example, appellant’s
expert radiologist was permitted to testify to his interpretations
of the ultrasounds, but “not as to the responsibilities of treating
physicians or nurses with respect to advising patients or referring
patients to specialists.” Appellant’s ob/gyn expert could testify as
to the standard of care of a physician who treats patients in an
outpatient clinic like that of defendant’s, but could not testify as
to the “administrative aspects of the program.” Such limitations on
expert testimony were appropriate and not error.
Order denying motion for discovery sanctions
The court found appellant’s statements regarding the prejudice she
experienced as a result of the way defendants answered her discovery
requests were too general and did not establish prejudice. As a
result, the court of appeal found the trial court appropriately
denied Amanda’s motion to strike Hospital’s answer and to enter
judgment against it by default.
Conclusion
From a practice standpoint, I found a lot of good substantive law in
this decision that is relevant to all medical malpractice
litigation, and appellate practice, generally. For example, the
discussion about ostensible agency is quite good. If you have a case
that is up on appeal and the statement of decision is not as precise
or explicit as you’d like, the discussion about the doctrine of
implied findings might be helpful. Also, there are several sections
of the decision that deal with discovery answers and motions for
failure to respond in a thorough or timely way which might be useful
if you are in the midst of a discovery battle.
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