Walker v. Sonora Regional Med. Center 1/12/12 CA5

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State: California

Court: California Eastern District Court

Docket No: F060420

Case Date: 01/12/2012

Plaintiff: Walker

Defendant: Sonora Regional Med. Center 1/12/12 CA5

Preview:Filed 1/12/12

CERTIFIED FOR PARTIAL PUBLICATION* IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT PAYTON WALKER, a Minor, etc. et al., F060420 Plaintiffs and Appellants, (Super. Ct. No. CV53850) v. SONORA REGIONAL MEDICAL CENTER et al., Defendants and Respondents.

OPINION

APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge. Kirtland & Packard, Robert K. Friedl; Law Office of Michael W. Milward, Ellen D. Vogt and Michael W. Milward for Plaintiffs and Appellants. Porter Scott, Norman V. Prior, Jonathan A. Corr and Thomas L. Riordan for Defendants and Respondents.

*

Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts V. and VI.

Plaintiff Amber Walker gave birth to a child with cystic fibrosis approximately one year after her personal physician, defendant Donavon Teel, M.D., failed to inform her that she tested positive as a carrier of cystic fibrosis. The present appeal concerns the potential liability, if any, of defendant Sonora Regional Medical Center (the Hospital) for its limited role in the laboratory testing and reporting process. Amber went to the Hospital laboratory for her cystic fibrosis screening test that was ordered by Dr. Teels office. The Hospital took a blood specimen and sent it to an outside laboratory that performed the genetic testing. When the laboratory results of the genetic testing were received by the Hospital, it promptly transmitted them to Dr. Teel. Unfortunately, Dr. Teel failed to advise Amber of the results. Amber, along with her husband, Adam, and their child born with cystic fibrosis, Payton, filed a complaint for damages against both Dr. Teel and the Hospital, alleging theories of medical and corporate negligence.1 The Hospital moved for summary judgment primarily on the ground that it had no duty to directly notify Amber of the laboratory results.2 According to the Hospitals motion, its sole duty under the circumstances was to transmit the laboratory results to Dr. Teel, whose responsibility it was to inform and counsel his patient regarding the same. The trial court agreed with the Hospitals analysis on the issue of duty, concluded that the Walkers various claims of liability against the Hospital were without merit, and granted the motion for summary judgment. The Walkers appeal. We will affirm.

1

For convenience, we sometimes refer to members of the Walker family by first names. No disrespect is intended.
2

The motion for summary judgment was brought jointly by the Hospital and by codefendant, Adventist Health CA Medical Foundation (Adventist), who was allegedly the owner or operator of the Hospital. The Walkers appeal does not present any cogent argument or factual basis to challenge the summary judgment ruling in favor of defendant Adventist. We therefore deem any appeal regarding Adventist to be abandoned.

2.

FACTS AND PROCEDURAL HISTORY On August 31, 2004, Amber selected Dr. Teel, of Hillside Obstetrics & Gynecology Medical Group, Inc., to be her personal physician for the care of her pregnancy. She knew of Dr. Teel because he had been in practice a long time as an OB/GYN in Sonora, had delivered babies for friends of hers, and she understood that he was affiliated with and delivered babies at the Hospital, where she wanted her baby to be born. At that time, however, she suspected she was having a miscarriage, which Dr. Teel confirmed, and the miscarriage occurred days later. On January 27, 2005, Amber returned to Dr. Teels office for care of a new pregnancy. She was examined by Nurse Practitioner Cheryl Smith, an employee of Dr. Teel, who took Ambers history and confirmed the pregnancy. Routine prenatal laboratory tests were ordered. A cystic fibrosis screening test was also ordered. 3 The purpose of a cystic fibrosis screening test is to detect a persons genetic predisposition to having a child with cystic fibrosis. If a person is found to test positive for the cystic fibrosis mutation, they are deemed a "carrier" and the chances of that person having a child with cystic fibrosis will be one-in-four if his or her reproductive partner is also a carrier. Amber went to the Hospital outpatient laboratory for her cystic fibrosis screening test. A blood specimen was taken, but the Hospital laboratory did not actually perform the genetic testing. Instead, they sent the blood specimen to Associated Regional & University Pathologists (ARUP), a laboratory in Salt Lake City, Utah, for processing.
3

It is not entirely clear from the record whether the test was initiated by Dr. Teel or by his assistant, Nurse Practitioner Smith. That detail has no bearing on our opinion regarding the Hospitals duty regarding the laboratory results. What does matter is that the test was duly ordered by Dr. Teels office, Dr. Teel was Ambers physician, and therefore (as we explain below) the laboratory report had to be sent by the Hospital to Dr. Teels office. For the sake of brevity and ease of expression, we refer to the test as being ordered by Dr. Teels office or by Dr. Teel.

3.

The ARUP laboratory processed the blood specimen and determined that Amber had a genetic abnormality at "Allele 1," indicating that she was a carrier of cystic fibrosis. On February 3, 2005, the Hospital laboratory received the report from the ARUP laboratory showing the abnormal results of Ambers cystic fibrosis screening. On that same day, the Hospital laboratory electronically transmitted the laboratory results to Dr. Teel, and Dr. Teel personally reviewed the results at that time. In transmitting the laboratory results, the information was reformatted from the ARUP report. The Hospitals transmitted version of the laboratory results also included a note stating: "Heterozygous: One mutation was identified indicating this individual is at least a carrier of CF." When Dr. Teel saw the laboratory results transmitted by the Hospital laboratory on February 3, 2005, he recognized immediately that Amber tested positive for cystic fibrosis at Allele 1 and negative for cystic fibrosis at Allele 2. He made notations to that effect on the report--including a notation to review the chart and a circle around the test results--so that he would be sure to inform Amber of the results at her upcoming appointment.4 Amber had experienced another miscarriage and she had a follow-up appointment scheduled for February 15, 2005. However, Dr. Teel failed to inform her of the cystic fibrosis test results at that time. On February 22, 2005, Dr. Teels office received the laboratory report from the ARUP laboratory. The report clearly flagged the abnormal findings and disclosed that Amber was a carrier of cystic fibrosis. Dr. Teel also made a notation on that report to review it with his patient, but he failed to do so. On June 28, 2005, Amber returned to Dr. Teels office and he found that she was five to six weeks pregnant. During the subsequent course of her pregnancy, Amber had appointments at Dr. Teels office for prenatal care on July 13, 2005, August 9, 2005, September 6, 2005, October 3, 2005, November 7, 2005, December 9, 2005, January 6,
4

The circle encompassed both the negative and the positive cystic fibrosis results (i.e., Allele 1 and Allele 2).

4.

2006, January 20, 2006 and February 7, 2006. Dr. Teel did not inform Amber on any of these occasions that she tested positive for the cystic fibrosis mutation. At the July 13, 2005 office visit, when Amber was seven to eight weeks pregnant, Nurse Practitioner Smith filled out a new prenatal chart. On the first page of that chart, Smith wrote that Amber declined cystic fibrosis testing because "C.F. testing prev. neg." According to Smith, she offered the testing but Amber declined, saying it was previously negative. Amber denied that she ever told Smith that the prior test was negative. Amber gave birth to her daughter, Payton, on February 12, 2006. On October 10, 2007, Payton was officially diagnosed with cystic fibrosis by pediatric physicians at Childrens Hospital of Oakland. On July 9, 2008, the Walkers filed a complaint for damages setting forth four causes of action. According to the complaint, if Amber and Adam Walker had been advised of the risk that their offspring would have cystic fibrosis, they would not have conceived Payton. The named defendants in each cause of action included Dr. Teel and the Hospital. The first cause of action was by Payton Walker for medical negligence against all defendants. The second cause of action was by Amber and Adam Walker for medical negligence against all defendants. The basis of the first two causes of action was an alleged duty of care on the part of both Dr. Teel and the Hospital to notify and counsel Amber of the results of the cystic fibrosis screening test. The third cause of action was against the Hospital on a theory of corporate negligence. The third cause of action alleged that the Hospital, as a hospital, owed a duty to (1) directly inform and counsel Amber concerning the laboratory results, (2) invoke policies to ensure that Amber would be informed and counseled concerning the laboratory results, and (3) use reasonable care in selecting and supervising staff physicians such as Dr. Teel. Additionally, the third cause of action included a potential claim that Dr. Teel was the Hospitals ostensible agent. The fourth cause of action was against all defendants for negligent infliction of

5.

emotional distress and was based on the same negligence allegations set forth in the first three causes of action. The Hospital filed its motion for summary judgment, or, in the alternative, summary adjudication, on May 29, 2009. In essence, the Hospital asserted that it was not negligent because it did not have a duty to directly disclose the laboratory results to Amber. Its duty was to faithfully transmit the laboratory results to Dr. Teel, which it did. Additionally, the Hospital set forth facts indicating that it was not corporately negligent for its selection or evaluation of Dr. Teel as a member of the Hospitals medical staff. Further, the Hospitals motion set forth facts showing that it was not vicariously liable for Dr. Teels acts or omissions (i.e., no ostensible agency). On July 30, 2009, the Walkers filed their opposition to the motion. They argued that under the concept of the corporate negligence, the Hospital owed a duty to disclose the cystic fibrosis results to Amber and/or it owed a duty to invoke policies that ensured such disclosure. The Walkers opposition also asserted that the manner in which the Hospital reformatted the laboratory results may have misled Dr. Teel into believing the results were negative. Finally, the Walkers argued there was a triable issue of fact whether Dr. Teel was an ostensible agent of the Hospital. On August 7, 2009, the Hospital filed its reply. Each party also filed written objections to portions of the evidence presented by the other party. Oral argument was heard by the trial court on August 14, 2009. On November 2, 2009, the trial court issued its written order granting the Hospitals motion for summary judgment. In that order, the trial court first discussed the Walkers particular claims of "Direct Negligence" against the Hospital. One such claim was that when the Hospital reformatted the laboratory results that arrived from the ARUP laboratory, the Hospital may have presented the results in a manner that failed to alert Dr. Teel that Amber tested positive. The trial court found that argument failed because, under the undisputed facts, (1) the Hospitals reformatted results clearly indicated that 6.

Amber was a carrier of cystic fibrosis, (2) Dr. Teel received both the reformatted results from the Hospital and the report from the ARUP laboratory, and (3) Dr. Teels deposition testimony confirmed that he understood the reformatted results to mean that Amber was a carrier of cystic fibrosis and he even marked the results and made notations because he intended to discuss them with Amber at her next office visit. Thus, the trial court concluded that the manner in which the information was presented to Dr. Teel by the Hospital was "not a factor in Ambers not being informed that she was a carrier." As to the Walkers assertion that the Hospital owed a duty to Amber to directly inform her of the cystic fibrosis test results, the trial court explained that the Walkers position was contrary to both state and federal law governing how and to whom laboratory results are to be released. According to the trial court, those laws provide that such laboratory results may only to be released to the authorized health care professional who ordered the test. While a patient may make a special request to directly obtain laboratory results, that was not done here. Thus, the trial court held the Hospital did not breach a duty owed to Amber when it provided the laboratory results solely to Dr. Teel. Finally, the trial court found the undisputed facts established that Dr. Teel was not an actual or ostensible agent of the Hospital, and therefore vicarious liability was also negated. Since the Hospital succeeded in showing that each of these claims against it were without merit, the trial court granted the Hospitals motion for summary judgment. In separate orders, the trial court also ruled on each of the evidentiary objections made by the Walkers and the Hospital. On December 4, 2009, dismissals were entered of the remaining defendants, including the dismissals of Dr. Teel, Hillside Obstetrics & Gynecology Medical Group and Nurse Practitioner Smith. On April 29, 2010, the trial court entered a judgment against the Walkers and in favor of the Hospital and Adventist. The Walkers timely appeal followed.

7.

DISCUSSION I. Standard of Review Summary judgment is appropriate when all of the papers submitted show there is no triable issue of any material fact and the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc.,

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