Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court for the County of Los Angeles, No. KC048021, Robert A. Dukes, Judge.
Stephen L. Belgum for Plaintiffs and Appellants.
Gittler & Bradford and Scott F. Bradford for Defendant and Respondent Kee Wong.
Lewis Brisbois Bisgaard & Smith, L. Susan Snipes and Judith M. Tishkoff for Defendant and Respondent Citrus Valley Health Partners.
COOPER, P. J.
SUMMARY
Margie Stoltz, a 77-year-old woman who had just undergone surgery for a fractured hip, fell from the operating table to the floor while medical personnel were waiting for authorization from the anesthesiologist to move her from the table to a gurney. Stoltz sued the hospital, the surgeon, and the anesthesiologist for negligence. The surgeon sought summary judgment on the ground he breached no duty to the patient and nothing he did or failed to do was causally related to Stoltz’s injuries, if any. The hospital filed a joinder to the surgeon’s motion. The trial court granted summary judgment to both the surgeon and the hospital. We affirm the grant of summary judgment to the surgeon, and reverse the grant of summary judgment to the hospital.
FACTUAL AND PROCEDURAL BACKGROUND
After she fell and fractured her hip, Margie Stoltz was taken to Citrus Valley Medical Center Inter-Community Campus, a facility of Citrus Valley Health Partners (Citrus Valley). She was admitted for surgery, which was performed successfully by Dr. Kee Wong on March 20, 2005. After the surgery was completed, Wong, Dr. Wei-Ji Xu (the anesthesiologist) and two nurses were preparing to transfer Stoltz from the operating (or fracture) table to a gurney (or bed). Ordinarily, Wong (the surgeon) would not have been present, but, because the surgery was performed on a weekend when there was “no one else around,” Wong remained after the surgery to assist in the patient’s transfer. Wong and the nurses were waiting for the anesthesiologist to confirm that Stoltz (who was unconscious) was ready to be moved, when Stoltz slid from the operating table onto the floor. Apparently the safety strap that would hold the patient to the table was not in place. At the time of Stoltz’s fall, Wong was positioned on the opposite side of the bed to which Stoltz was to be transferred, and was at least three or four feet away from Stoltz.
Stoltz and her husband filed a complaint against Citrus Valley, Wong, and Doe defendants, alleging causes of action for negligence and loss of consortium. The complaint alleged Stoltz “suffered and will suffer pain, suffering and physical injury,” was compelled to employ services of health care providers for the treatment and care of her injuries, and had incurred and would incur medical and other expenses for her care and treatment. Stoltz later amended her complaint to substitute the anesthesiologist (Xu) for one of the Doe defendants. Xu moved for summary judgment, but his motion was denied.
While Xu’s motion was pending, Wong moved for summary judgment on the ground there was “no evidence of any breach in the applicable standard of care on the part of [Wong] which can be causally related to [Stoltz’s] injuries, if any.” Wong presented evidence, in the form of a declaration from an expert, Dr. Thomas Grogan, as follows:
· Grogan described, based on his review of the medical records and deposition transcripts, the circumstances of the surgery and Stoltz’s fall from the fracture table. He then stated that X-rays taken after the incident disclosed no injuries as a result of Stoltz’s fall. There were no new fractures and no change in the position of the hip after surgery. Stoltz was able to move all extremities well and had no complaints after she was awakened from the general anesthesia.
· At the time Stoltz fell, Wong was positioned (according to his deposition testimony) on the opposite side of the bed to which Stoltz was to be transferred. Wong was therefore at least three or four feet away from Stoltz, and was not in a position, as a matter of physical proximity, to have been able to prevent her fall.
· As the surgeon, Wong was not in control of the transfer, or of the patient during the preparation for the transfer, and the standard of care does not require an orthopedic surgeon to control, order or participate in the transfer of patients from the fracture table.
· It is outside the area of responsibility of an orthopedic surgeon to fasten, unfasten, or otherwise deal with any safety belts placed on a patient.
· Based on his review of the records, “it appears that [Stoltz] suffered no injury or residuals as a result of her fall from the fracture table.” Grogan observed Stoltz had a pre-operative history of neck pain and headaches; the family reported bruising, but the medical records did not reflect such an injury, “and bruising can be expected from the fall that lead to the hospitalization preceding the surgery.”
· “To a reasonable degree of medical probability, there was no negligent act or failure to act on the part of Dr. Wong which can be causally related to any of the injuries claimed by Margie Stoltz in this action.”
Citrus Valley filed a joinder to Wong’s motion for summary judgment, “with regard to causation on the grounds that the arguments contained therein apply equally to this defendant.” Citrus Valley also filed a joinder to Wong’s separate statement of undisputed material facts, “specifically numbers 1, 2, 5 and 6, on the grounds that these undisputed facts likewise entitle joining defendant to summary judgment with regard to causation.” Numbers 1, 2 and 5 describe Stoltz’s allegations, the surgical procedure, and the fall; number 6 refers to Grogan’s declaration that post-incident x-rays disclosed no injuries as a result of the fall.
Stoltz’s opposition argued that Grogan’s declaration was insufficient to carry Wong’s burden on summary judgment, and that even if Wong’s burden were deemed to have been met, the declaration of Dr. Kendall S. Wagner established that there were triable issues of material fact “regarding standard of care and causation.” Wagner’s declaration stated that:
· Wagner examined Stoltz in December 2006, spoke with her husband, and reviewed the medical records relating to Stoltz’s surgery as well as portions of various deposition transcripts.
· Wagner opined (paragraph 6 of his declaration), based on the documentation and his education and experience, that:
“Upon completion of the surgery, Drs. Wong and Xu and two hospital nurses were preparing to transfer Ms. Stoltz from the operating table to a gurney. Dr. Wong and the hospital nurses were waiting for Dr. Xu to confirm that she was ready to be moved. Suddenly, Ms. Stoltz slid from the operating table onto the floor. It is a shared responsibility by all the personnel present to keep an unconscious patient from falling onto the operating room floor.”
· Wagner also opined (paragraphs 7 and 8 of his declaration) that (a) the fact that the patient fell to the floor meant that “there was a violation of the standard of care by each and every healthcare professional present at the time of the fall,” and (b) as a result of her fall from the operating table, “Ms. Stoltz sustained probable soft tissue injuries to her neck and back.”
As to Citrus Valley, Stoltz argued that, assuming without conceding that a “joinder” was proper, Wong’s causation argument did not “apply equally” to Citrus Valley. Wong’s argument, Stoltz pointed out, “was essentially that he was not negligent, or liable for the negligence of any other defendant, and therefore no negligence or liability on his part was the proximate cause of any injury,” and Citrus Valley failed to argue or establish that it (Citrus Valley) was not negligent.
Wong objected to the substance of Wagner’s declaration (paragraphs 6, 7 and 8) as “incompetent to create an issue of fact as to Dr. Wong” and as lacking foundation. Citrus Valley objected and moved to strike paragraph 8 (on Stoltz’s “probable soft tissue injuries”) as speculative, uncertain and equivocal. On the day before the July 12, 2007 hearing, the trial court posted its tentative ruling on the objections, and also indicated its desire to hear argument on whether, under the res ipsa loquitur doctrine, Wong had met his burden of showing no triable issue of his breach of duty or of any standard of care. “Further, although moving party also argues lack of causation, is the position not also a lack of evidence of any damage or harm?”
After argument the following day, the trial court granted summary judgment in favor of both Wong and Citrus Valley. The court’s July 12 minute order stated that (1) Wong “met the burden showing lack of breach of duty and established lack of causation and damages,” and (2) “Citrus Valley established lack of causation and damages.” The trial court overruled the objection to paragraph 6 of Wagner’s declaration (on the shared responsibility of all present to prevent an unconscious patient from falling off the operating table), and sustained the objections to paragraphs 7 (opining there was a violation of the standard of care by everyone present) and 8. The court also observed that even if paragraph 8 (opining Stoltz sustained “probable soft tissue injuries” as a result of the fall) were admissible, “it does not reach the standard to show that there was in fact either causation or damage to this patient as used in the law.”
Judgments were entered in favor of Wong and Citrus Valley, and the Stoltzes appealed.
DISCUSSION
We conclude Wong was entitled to summary judgment, but Citrus Valley was not. We briefly review the applicable law, and then turn to the respective motions of Wong and Citrus Valley.
The “well-known elements of any negligence cause of action” are “duty, breach of duty, proximate cause and damages.” (Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614.) A defendant moving for summary judgment must show that one or more elements of the plaintiff’s cause of action cannot be established:
“The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence – as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, 855 (Aguilar).)
Once the defendant has presented evidence that plaintiff cannot establish an element of his or her cause of action, “‘the burden shifts to the plaintiff to present evidence showing there is a triable issue of material fact.’” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780.) Our review of the trial court’s ruling is de novo. (Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26, 35 (Village Nurseries).)
A. Dr. Wong was entitled to summary judgment.
Dr. Wong sought summary judgment on the ground there was “no evidence of any breach in the applicable standard of care on the part of [Wong] which can be causally related to [Stoltz’s] injuries, if any.” His evidence showed that he was waiting to assist in a transfer that had not yet been authorized by the anesthesiologist; he was not in control of the transfer, or of the patient during the preparation for the transfer; that an orthopedic surgeon has no obligation to control or participate in a patient transfer, and thus no duty to be in any particular position at the time of the transfer; he had no responsibility for fastening or unfastening the patient’s safety belt; and he was not in fact in a position to prevent Stoltz’s fall. In short, Wong’s evidence showed both that he breached no duty to Stoltz and that nothing he did, or failed to do, caused Stoltz to fall from the fracture table to the floor.
Once Wong made his showing, Stoltz was required to present evidence of a triable issue of material fact on those elements of her claim: breach of duty and causation. The only admissible evidence she presented, however, was Dr. Wagner’s opinion that it was “a shared responsibility by all the personnel present to keep an unconscious patient from falling onto the operating room floor.” Dr. Wagner’s statement is, in essence, merely an expression of a claim of res ipsa loquitur. Certainly Stoltz’s fall from the fracture table to the floor while unconscious must have been the result of a lack of due care by one or more of the medical personnel in the room. And certainly we can agree that if Stoltz’s fall had occurred while Wong was participating in her transfer from the fracture table to the bed, issues of fact on breach of duty and causation would likely exist. But Wong presented uncontroverted evidence that he was merely waiting for Xu to authorize the patient to be moved; had no control, and no duty to control, the transfer; and was not in a position (and had no duty to be in a position) to prevent the fall. Nothing in Wagner’s opinion on “shared responsibility” rebuts Wong’s evidence that he did not breach his duty to Stoltz and did not cause the fall.
Stoltz claims that the evidence Wong was standing three to four feet away from Stoltz when she fell was contradicted by testimony from Nurse Mueller (the scrub nurse) that Wong and Nurse Moodyman (the circulating nurse) were changing positions when Stoltz fell. But Nurse Mueller also testified that when Stoltz started to slide off the operating table, “both Moodyman and Wong were on the other side of the bed.” We can see no contradiction.
Stoltz insists that Wong “did not negate the effect of the res ipsa loquitur doctrine.” The doctrine of res ipsa loquitur, when it is applicable, merely establishes a presumption of negligence requiring a defendant to come forward with evidence to disprove it. (Baumgardner v. Yusuf (2006) 144 Cal.App.4th 1381, 1389.) The presumption that an accident was caused by a defendant’s lack of due care arises only when the accident (1) is of a kind that ordinarily would not occur unless someone was negligent; (2) was “caused by an agency or instrumentality within the exclusive control of the defendant;” and (3) was not due to any fault of the plaintiff. (Ibid.) Here, Wong established that he was not in control and had no duty to control Stoltz’s transfer from the fracture table to the bed; in other words, the harm did not occur while Stoltz was under Wong’s control. Consequently, the doctrine of res ipsa loquitur does not apply against Wong. (See O'Connor v. Bloomer (1981) 116 Cal.App.3d 385, 391-392 [res ipsa loquitur doctrine was not applicable against assisting surgeons, where a different replacement heart valve than plaintiff requested was installed, because defendant doctors had no responsibility or control over the availability of the correct valve].) In any event, even if the doctrine applied, Wong’s evidence disproved any inference he was negligent, and Stoltz presented no evidence showing a triable issue of material fact on the point.
Stoltz argues summary judgment for Wong was improper for several other reasons. None has merit.
First, Stoltz argues that even though the surgery had ended, Wong had a continuing duty to his unconscious patient “while the patient is still on the operating table.” But the case she cites for this proposition merely states that a special relationship exists between patient and surgeon “during surgery,” and here it is undisputed that the surgery had ended and had proceeded without incident. (Baumgardner v. Yusuf, supra, 144 Cal.App.4th at pp. 1394-1395 [holding surgeon had nondelegable duty to remove foreign objects which have been placed in the patient’s body during surgery].)
Second, Stoltz claims the evidence that Wong was not in a position to prevent Stoltz’s fall was inadmissible as speculative and as improper opinion testimony. However, Stoltz filed no written objections to Grogan’s declaration. (See Cal. Rules of Court, rule 3.1354 (a) & (b) [requiring written objections to evidence to be served and filed separately from other opposition papers].) Moreover, Stoltz did not object to Grogan’s declaration at the hearing on the motion for summary judgment, and Code of Civil Procedure section 437c, subdivision (b)(5) specifies that evidentiary objections not made at the hearing “shall be deemed waived.” Consequently, because Stoltz waived her objection at trial, she cannot raise it on appeal. In any event, there was nothing speculative about Grogan’s testimony. While he was not a percipient witness, he relied on Wong’s uncontradicted deposition testimony as to his [Wong’s] location. As an orthopedic surgeon, Grogan was necessarily familiar with the dimensions of the fracture table and the gurney to which Stoltz was to be transferred; he could legitimately opine that Wong was not in a position (and had no duty to be in a position) to prevent the fall.
Similarly, Stoltz argues on appeal that Grogan’s declaration cannot support summary judgment because it did not show the basis for his opinion that Dr. Wong complied with the applicable standard of care, citing Kelley v. Trunk (1998) 66 Cal.App.4th 519, 524 [declaration was not admissible because it did not disclose the matter relied on in forming the opinion expressed]. Again, however, Stoltz failed to object to the admissibility of Grogan’s declaration, and therefore waived the claim. (Code Civ. Proc., § 437c, subd. (b) (5); see Kelley v. Trunk, supra, 66 Cal.App.4th at p. 524 [deficiency in defendant’s expert declaration was waived by plaintiff’s failure to object, but court “point[ed] it out for the benefit of other litigants confronting these issues”].) In any event, we see no substantive merit in Stoltz’s claim that Grogan’s declaration failed to disclose the basis for his opinions.
Wong filed a motion to augment the record on appeal with the transcript of Wong’s deposition, which had been lodged with the trial court in support of his motion for summary judgment. Stoltz opposed the motion. We grant the motion, since the transcript was a part of the trial court record, but we note that copies of the pertinent parts of Wong’s deposition were already included in the appellate record as exhibits to declarations filed in the trial court.
Finally, Stoltz argues Wong as surgeon was vicariously liable for the acts of those under his supervision and control under the “captain of the ship” doctrine. Again, however, it was undisputed that the surgery had been completed. The “captain of the ship” doctrine “imposes liability on a surgeon under the doctrine of respondeat superior for the acts of those under the surgeon’s special supervision and control during the operation.” (Baumgardner v. Yusuf, supra, 144 Cal.App.4th at p. 1396, emphasis added.) Summary judgment for Wong was properly granted.
B. Citrus Valley was not entitled to summary judgment.
While surgeon Wong was entitled to summary judgment, Citrus Valley was not. At least one case has held that it was error to grant summary judgment to a party based on his joinder in motions for summary judgment filed by other parties. (Village Nurseries, supra, 101 Cal.App.4th at pp. 46-47 [a defendant’s notices of joinder “failed to constitute a motion for summary judgment in his favor pursuant to Code of Civil Procedure section 437c”].) This case is a vivid demonstration of the wisdom of that holding. In any event, even if one party’s joinder in another party’s summary judgment motion is assumed to be permissible, in this case Citrus Valley failed to establish its entitlement to summary judgment.
First, a plaintiff facing a summary judgment motion is entitled to notice of the ground on which summary judgment is sought – that is, what element or elements of the plaintiff’s claim does the defendant contend cannot be established? As we have seen, the “well-known elements of any negligence cause of action” are “duty, breach of duty, proximate cause and damages.” (Artiglio v. Corning Incorporated, supra, 18 Cal.4th at p. 614.) In this case, Citrus Valley’s notice of joinder stated only that it “joins the Motion for Summary Judgment filed by defendant Kee Wong, M.D., with regard to causation on the grounds that the arguments contained therein apply equally to [Citrus Valley].” Likewise, Citrus Valley’s joinder to Wong’s separate statement of undisputed facts states only that it joins Wong’s separate statement “on the grounds that these undisputed facts likewise entitle [Citrus Valley] to summary judgment with regard to causation.” Nowhere in these one-sentence joinder notices did Citrus Valley state that it was seeking summary judgment on the ground that Stoltz could not establish any damages.
Second, the only basis upon which Citrus Valley could reasonably expect to obtain summary judgment would be to show that Stoltz incurred no damages as a result of her fall from the fracture table. Stoltz can obviously show, as to Citrus Valley, the other three elements necessary to establish liability for negligence: that Citrus Valley, as the hospital, had a duty of due care to Stoltz while she was lying unconscious on an operating table, and that a breach of that duty by one or more of Citrus Valley’s employees caused Stoltz’s fall from the table. (See 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 986, p. 246 [a hospital may be held liable for its employees’ negligent conduct on principles of respondeat superior].) Citrus Valley’s failure to articulate the true ground for its motion – lack of damages, not lack of causation – deprived Stoltz of any notice that she should come forward with evidence of her damages, rather than with evidence that Wong’s conduct was the proximate cause of her injuries, “if any.” The only reference to Stoltz’s injuries in Wong’s separate statement cited Grogan’s declaration that post-incident x-rays disclosed no new fractures and no change in the position of Stoltz’s hip, and that Stoltz had no complaints when she awoke from anesthesia. This was simply not enough to alert Stoltz that either Wong or Citrus Valley were claiming no liability on the ground Stoltz wasn’t hurt by the fall.
Grogan’s declaration also stated (paragraph 18) that, based on his review of the records, “it appears that this patient suffered no injury or residuals as a result of her fall from the fracture table.” But this evidence from Dr. Grogan was not relied upon in Wong’s separate statement of undisputed facts, and in any event is insufficient to alert Stoltz that Citrus Valley was seeking judgment on the ground there were no damages.
In short, Citrus Valley (and the trial court) improperly conflated the elements of causation and damages. Wong’s motion was expressly grounded on the lack of evidence “of any breach in the applicable standard of care on the part of [Wong] which can be causally related to [Stoltz’s] injuries, if any.” One cannot read Wong’s motion as putting Stoltz on notice that he sought judgment on the basis that, even if he breached a duty to Stoltz which caused her fall to the operating room floor, he had no liability because Stoltz wasn’t hurt by the fall. Indeed, he did not seek judgment on that basis. The thrust of Wong’s motion was plainly that he breached no duty of care to Stoltz and did not cause her injuries, “if any.” As stated in his reply to Stoltz’s opposition below, “Wong’s Motion shows through admissible evidence that … the patient’s fall from the fracture table was not the result of any negligence on behalf of [sic] Dr. Wong.” Consequently, it is clear Stoltz had no notice, either from Wong’s motion or Citrus Valley’s joinder, that Citrus Valley was claiming it had no liability because Stoltz could show no damages.
Finally, even if we assume that Stoltz was on notice of the true basis for Citrus Valley’s joinder, Citrus Valley did not carry its burden of showing that Stoltz could not establish the damages element of her negligence cause of action. Citrus Valley’s burden was either to conclusively negate the damages element or to “present evidence that [Stoltz] does not possess, and cannot reasonably obtain” any evidence that she incurred any damages from her fall. (Aguilar, supra, 25 Cal.4th at p. 855.) Citrus Valley did neither. Grogan’s own declaration (paragraph 18) states that Stoltz’s family reported bruising, and he then opines that “[t]he medical records … do not reflect such an injury, and bruising can be expected from the fall that lead to the hospitalization preceding the surgery.” This is a far cry from negating any damages, conclusively or otherwise, nor does it purport to claim that Stoltz does not have and cannot obtain any evidence of damages. Indeed, Grogan’s declaration on its face refers to evidence of injury – the family’s reports of bruising – and on its face raises a question of fact: was the bruising the family reported caused by the fall from the operating table, or by the fall preceding Stoltz’s surgery? Grogan says the medical records don’t show bruising from the fall, but, as Stoltz points out, the medical records also don’t show bruising from the fall that preceded Stoltz’s surgery. While Stoltz’s damages from the fall from the operating table may turn out to be minimal, Citrus Valley has not established there were none, or that Stoltz has no evidence of any damages. So, even assuming Stoltz should have understood from Grogan’s declaration that Citrus Valley was claiming she could not show any damage, Citrus Valley did not produce sufficient evidence of the absence of damages to require Stoltz to come forward with evidence on the point. Consequently, it was error to grant summary judgment in favor of Citrus Valley.
DISPOSITION
The judgment in favor of Kee Wong is affirmed. The judgment in favor of Citrus Valley is reversed, and the cause is remanded to the trial court with directions to vacate its order of July 12, 2007, to the extent it granted summary judgment to Citrus Valley Health Partners, and to enter a new order denying summary judgment. Kee Wong is entitled to recover his costs on appeal, and Margie Stoltz is entitled to recover her costs from Citrus Valley Health Partners.
We concur: RUBIN, J., FLIER, J.