October California Case Law Update

Author: Kimberli Raines

Court Rules Proper Notice of Agency is an Issue of Fact

Whitlow v. Rideout Memorial Hospital
237 Cal. App.4th 631
June 9, 2015

The California Court fo Appeal recently held an whether a patient was on notice a phayscial was an independent contractor rather than an employee of hospital was a fact issue.

In Whitlow, the plaintiffs were the surviving children of their deceased mother. Plaintiffs’ mother visited the defendant hospital’s emergency room (“ER”) for treatment of an excruciating headache, which was diagnosed by the ER doctor as a muscle tension headache rather than its true diagnosis, a left temporal hemorrhage. The misdiagnosis resulted in the patient’s death two days later from brain hemorrhage.

While at the ER and “crying in horrible pain,” plaintiffs’ mother signed a “boilerplate” hospital admission form without reading it and allegedly without anyone from the hospital explaining its contents. Her signature was obtained while complaining of headache pain as 10 on a scale of 10 and suffering high blood pressure, nausea, vomiting and dizziness. The admission form included a statement that all physicians and surgeons furnishing services to patients at the hospital were “independent contractors” and not employees or agents of the hospital. A sign on the wall in the ER also stated ER physician services would be billed to patients separately from the hospital’s services. The ER doctor who treated plaintiff’s mother also was wearing clothing with an insignia that identified him as an employee of “California Emergency Physicians.”

The defendant hospital filed a motion for summary judgment on the basis the admissions form, sign, and ER doctor’s clothing made it clear the doctor was not an agent (express or ostensible) of the hospital. In opposition, plaintiff (son) submitted a declaration concerning his mother’s critical condition in the ER and also a declaration from a neurosurgeon who stated decedent’s condition made her “incapable of understanding the admissions form and/or incapable of understanding what was contained in the form.” The trial court granted summary judgment to the hospital, holding “as a matter of law” the emergency room physician who allegedly committed malpractice “was not an ostensible agent of the hospital.”
The Court of Appeal rejected the trial court’s finding defendant hospital successfully absolved itself of liability as a matter of law when a woman, writhing in pain and vomiting as a result of the worst headache she had had in her life, signed a boilerplate admissions form disclaiming the agency of the emergency room physician who treated her. Viewing the document in the light most favorable to the nonmoving party, the Court of Appeal concluded the mere existence of a boilerplate admissions form is not sufficient to “conclusively indicate that decedent should have known that the treating physician was not the hospital’s agent.” The addition of the posted signs and the insignia on the doctor’s clothing, as well as the Conditions of Admission form, were not persuasive to the Court.

The Court rejected the notion a signature on an admissions form conclusively constitutes notice to a patient seeking care in an emergency room that the treating physician, who she did not choose, is not an agent of the hospital.

No Duty to Protect Adult Student from Third Party Criminal Conduct

The Regents of the University of California v. Superior Court of Los Angeles
240 Cal.App.4th 1296
October 7, 2015

Katherine Rosen, a student at the University of California, Los Angeles (UCLA), suffered severe injuries after being attacked by another student, Damon Thompson, during a chemistry laboratory. Several months before the attack, the school treated Thompson for symptoms indicative of schizophrenia disorder, including auditory hallucinations and paranoid thinking. Rosen filed a negligence action against the Regents of the University of California and several UCLA employees alleging defendants had breached their duty of care by failing to adopt reasonable measures that would have protected her from Thompson’s foreseeable violent conduct. Defendants moved for summary judgment, arguing that public colleges and universities and their employees do not have a legal duty to protect adult students from third party criminal misconduct.

The trial court denied the motion, concluding defendants owed Rosen a duty of care based on her status as a student and, alternatively, as a business invitee onto campus property. The court further concluded there were triable issues of fact whether UCLA had voluntarily undertaken a duty to protect Rosen by providing mental health treatment to Thompson. Defendants filed a petition for writ of mandate. The Appellate Court granted defendants’ petition, and concluded a public university has no general duty to protect its students from the criminal acts of other students.

Specifically, the Court held: 1) the University did not owe a duty to protect the student from third party criminal conduct based on her status as a matriculated student; 2) the University did not owe a duty to protect the student based on her status as a person invited onto university premises; 3) summary judgment evidence that the University adopted policies intended to address threats of violence did not raise fact question as to whether the university owed its student a duty of care under negligent taking doctrine; 4) the University psychotherapist did not have a statutory duty to warn the student that another student had made serious threats; 5) the students’ implied contract with the University did not create a special relationship giving rise to a duty to protect the student from foreseeable criminal conduct, and; 6) the University had no duty to protect the student based on labor statutes requiring employers to provide a safe workplace.

Kimberli C. Raines specializes in the defense of personal injury, wrongful death, insurance bad faith and general liability matters. Ms. Raines is admitted to practice in all California state and federal courts. Contact her at kraines@tysonmendes.com.

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