Covarrubias v. Kady

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

D046529

(Super. Ct. No. GIS12877)

Plaintiffs and Appellants,

RUBEN COVARRUBIAS, a minor, etc., et
al.

TAREK KADY,

Defendant and Respondent.

Filed 3/15/06 Covarrubias v. Kady CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.

APPEAL from a judgment of the Superior Court of San Diego County, William S.

Cannon, Judge. Affirmed.

The record in this case shows that under the prevailing interpretation of our “Good

Samaritan” statute, the defendant pediatrician is immune from liability for emergency

care he provided to the plaintiff shortly after his birth following a Cesarean section

performed on his mother. Accordingly, we affirm the order granting the defendant’s

motion for summary judgment.

SUMMARY

Plaintiff and appellant Ruben Covarrubias (Ruben) was born on February 28,

2002. Prior to Ruben’s birth, his mother received prenatal care from defendant Dr. Kofi

Sefa-Boayke. On the morning of his birth, Ruben’s mother arrived at defendant Sharp

Coronado Hospital (Sharp Coronado) at some point before 7:00 a.m. The initial fetal

heart tracing showed “poor variability.” At 7:00 a.m. Dr. Sefa-Boyake evaluated Ruben’s

mother and did not detect any fetal movement. In the early afternoon the fetal heart

monitor indicated fetal distress and at 1:46 p.m. Dr. Sefa-Boakye ordered a Cesarean

section “STAT.”

In the early afternoon of February 28, 2002, defendant and respondent Dr. Tarek

Kady was in the nursery at Sharp Coronado checking on one of his pediatric patients. He

was not on call at the hospital and had no agreement to attend to Dr. Sefa-Boakye’s high-

risk deliveries. According to Dr. Kady at approximately 12:30 p.m. he was advised by a

nurse that a baby in distress was going to be delivered and his assistance with the baby

might be needed. Instead of leaving the hospital and returning to his office, Dr. Kady

remained at the hospital.

At 2:53 p.m. a Cesarean section was performed on Ruben’s mother and at 2:54

p.m. he was delivered. Dr. Kady and others immediately began three hours of

resuscitative efforts on Ruben. Ruben was eventually transferred to the neonatal

intensive care unit at the Sharp Mary Birch Hospital on an emergency basis.

Initially, Ruben’s parents filed a complaint against Sharp Coronado and Dr. Sefa-

Boakye on his behalf. Dr. Kady was deposed by Ruben’s attorney and appeared without

counsel at his deposition. Following his deposition, Dr. Kady was added as a defendant

and served with the complaint as amended.

Dr. Kady moved for summary judgment. Dr. Kady argued he was responding to

an emergency and is therefore immune from liability under the Good Samaritan statute,

Business and Professions Code1 sections 2395 and 2396. Ruben argued that because Dr.

Kady had a longstanding relationship with Dr. Kofi Sefa-Boayke and regularly attended

at Dr. Kofi Sefa-Boayke’s deliveries and because Dr. Kady was asked to attend Ruben’s

delivery two to three hours before it occurred, Dr. Kady was not responding to an

emergency. According to Ruben, Dr. Kady was doing what was expected in light of his

pre-existing relationship with Dr. Kofi Sefa-Boayke.

The trial court rejected Ruben’s arguments and granted Dr. Kady’s motion. A

judgment in favor of Dr. Kady was entered and Ruben filed a timely notice of appeal.

DISCUSSION

A “party moving for summary judgment bears the burden of persuasion that there

is no triable issue of material fact and that he [or she] is entitled to judgment as a matter

of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant

satisfies this burden by showing ” ‘one or more elements of’ the ’cause of action’ in

question ‘cannot be established,’ or that ‘there is a complete defense’ ” to that cause of

1
All further statutory references are to the Business and Professions Code unless
otherwise specified.

action. (Ibid.) ” ‘Once the defendant . . . has met that burden, the burden shifts to the

plaintiff . . . to show that a triable issue of one or more material facts exists as to that

cause of action or a defense thereto.’ ” (Id. at p. 849.) But “if the showing by the

defendant does not support judgment in his favor, the burden does not shift to the plaintiff

and the motion must be denied without regard to the plaintiff’s showing.” (Crouse v.

Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1534.) In determining

whether these burdens have been met, we review the record de novo. (Rubenstein v.

Rubenstein (2000) 81 Cal.App.4th 1131, 1143.)

Section 2395 states in pertinent part: “No licensee, who in good faith renders

emergency care at the scene of an emergency, shall be liable for any civil damages as a

result of any acts or omissions by such person in rendering the emergency care.” Section

2396 states: “No licensee, who in good faith upon the request of another person so

licensed, renders emergency medical care to a person for medical complication arising

from prior care by another person so licensed, shall be liable for any civil damages as a

result of any acts or omissions by such licensed person in rendering such emergency

medical care.”

“The legislative purpose behind sections 2395 and 2396 ‘is to induce physicians to

render medical assistance to persons in need of such care.’ [Citation.] The provisions are

‘ “directed towards physicians who, by chance and on an irregular basis, . . . are called to

render emergency medical care.” ‘ [Citation.] The statutory purpose is best served by

‘discouraging even the commencement of an action against a health care professional who

has rendered emergency medical assistance.’ [Citation.].” (Reynoso v. Newman (2005)

126 Cal.App.4th 494, 499 (Reynoso).)

“[T]he ‘test for determination of the existence of an emergency is objective:

whether the undisputed facts establish the existence of an exigency of “so pressing a

character that some kind of action must be taken.” ‘ . . . ‘[A]bsent a duty of professional

care preexisting the emergency, the Good Samaritan law is applicable to protect a

physician who renders emergency assistance in a hospital to the patient of another doctor.

[Citation.] ‘The heart of the application of the Good Samaritan statutes is the inquiry

whether a duty of professional care pre-existed the emergency.” ‘ [Citation.] The ‘Good

Samaritan statutes . . . provide immunity for any acts or omissions of a medical volunteer

who in good faith renders emergency medical assistance.’ [Citation.]” (Reynoso, supra,

126 Cal.App.4th at p. 500; see also Kearns v. Superior Court (1988) 204 Cal.App.3d

1325, 1328 (Kearns); Burciaga v. St. John’s Hospital (1986) 187 Cal.App.3d 710, 716

(Burciaga); McKenna v. Cedars of Lebanon Hospital (1979) 93 Cal.App.3d 282, 286

(McKenna).)

In Reynoso a dentist who had performed oral surgery at an outpatient clinic called

an internist to examine a patient who was having difficulty recovering from anesthesia.

When he arrived, the internist examined the patient and advised that the patient needed to

be transported promptly to the nearest hospital.

At the time his deposition was taken in the later medical malpractice action, the

internist had no recollection as to whether, when he had been called by the dentist, he had

been told the situation was urgent. Nonetheless, relying on the Good Samaritan statute,

the internist moved for summary judgment. The patient argued that because the internist

could not show he subjectively believed he was responding to an emergency, he could

not show he was protected by the statute. The trial court granted the internist’s motion

and we affirmed.

We found that because the patient’s theory of liability against the medical

professionals was based on the existence of an emergency, there was no dispute an

emergency existed. We also found there was no dispute the internist was a volunteer.

Because there was an emergency in fact and because the internist responded on a

volunteer basis, we concluded the internist’s “subjective belief as to the existence of a

medical emergency when [the dentist] contacted him and while he was on the way to the

[outpatient surgery center] is irrelevant.” (Reynoso, supra, 126 Cal.App.4th at p. 500.)

Our holding in Reynoso was consistent with the earlier holding in Bryant v.

Bakshandeh (1991) 226 Cal.App.3d 1241, 1247 (Bryant). In Bryant a urologist

responded to a “stat” call from operating room surgeons who were attempting to

commence elective surgery on an infant. The urologist was needed because the surgeons

had been unable to insert a catheter into the infant’s urethra and the surgery could not

commence without the catheter. Upon his arrival in the emergency room, the urologist

was advised as to the elective nature of the surgery and the need for a catheter. The

urologist then attempted to insert the catheter, but failed. The surgery was postponed.

Unfortunately in attempting to insert the catheter, one of the physicians had ruptured the

infant’s rectal pouch. As a result the child contracted an infection and died.

Because the urologist was aware the surgery was elective, the court held he was

not entitled to the protection of the Good Samaritan Statute as a matter of law. The court

found that although the existence of an emergency was an objective matter, “it is for the

trier of fact to determine whether the [urologist] had a reasonable, good faith belief that

he was responding to an emergency situation when he performed the requested

procedures; or whether, under these circumstances, a physician acting in good faith

would have reasonably concluded his immediate assistance was not required because no

emergency existed.” (Bryant, supra, 226 Cal.App.3d at p. 1247.) However, as this court

explained in Reynoso, “Bryant does not suggest the Good Samaritan statutes are

inapplicable when a physician unquestionably renders emergency care, but was unaware

until he or she reached the patient that the situation was an emergency.” (Reynoso, supra,

126 Cal.App.4th at p. 500.)

As the foregoing indicates, in addition to showing he was responding to an

emergency, a physician must also show he had no pre-existing duty to the patient.

(Burciaga, supra, 187 Cal.App.3d at p. 716; McKenna, supra, 93 Cal.App.3d at pp. 286-

288.) In Burciaga a pediatrician was in a hospital examining some of his patients when

he was asked to go to a delivery room and provide care to an infant who had been born

with his umbilical cord wrapped around his neck. Although there was evidence it was the

custom and practice of physicians who were on the hospital’s staff to treat newborns, the

court found the custom and practice was not sufficient to establish any pre-existing duty

to provide care. Rather, the court found the pediatrician’s declaration that the child was

not his patient was sufficient to establish he acted as a volunteer. (Burciaga, supra, 187

Cal.App.3d at p. 717.)

A similar result was reached in McKenna. There the chief resident physician at a

hospital responded to a call for help with a patient who was suffering from a seizure. The

chief resident treated the patient, who later died. The court found the chief resident was

protected by the statute because he was not the patient’s physician and because

responding to such emergencies was not part of the chief resident’s regular duties.

Importantly, the court found the fact that he was employed by the hospital as chief

resident did not deprive him of immunity under the statute. (McKenna, supra, 93

Cal.App.3d at p. 286.)

III

Here there is no dispute Ruben’s condition was an emergency within the meaning

of the Good Samaritan statute. At the time of his delivery he needed to be resuscitated.

Indeed, his theory of liability against both Dr. Sefa-Boayke and Dr. Kady is that they

failed to react promptly enough to his condition both before and after he was delivered.

Thus as in Reynoso, Ruben’s theory of liability presupposes the existence of an

emergency.

Contrary to Ruben’s argument, the fact that Dr. Kady was given notice at

approximately 12:30 p.m. his assistance would be needed, did not alter the fact that upon

delivery Ruben’s condition was “so pressing a character” that some kind of action had to

be taken. (See Kearns, supra, 204 Cal.App.3d at p. 1328.) The record is undisputed that

at delivery Ruben was in such grave condition that unlike the infant in Bryant, who was

undergoing an elective procedure and did not need care in order to avoid harm or death,

Ruben needed urgent and heroic pediatric care. The notice Dr. Kady was given of the

potential emergency did not alter the fact that at birth Ruben in fact needed emergency

care within the meaning of the statute. (See Reynoso, supra, 126 Cal.App.4th at pp. 499-

500.)

The record is also clear Dr. Kady was a volunteer. Ruben was not Dr. Kady’s

patient and Dr. Kady was not on call or otherwise obligated to respond to the request to

assist Dr. Sefa-Boayke at the delivery. (See Burciaga, supra, 187 Cal.App.3d at p. 717;

McKenna, supra, 93 Cal.App.3d at p. 286.) Ruben argues that because Dr. Sefa-Boayke

had previously referred patients to Dr. Kady, their pre-existing relationship created some

duty to care for Ruben. We have not been cited to any case which holds that such an

informal, noncontractual understanding among physicians will deprive the responding

physician of the immunity provided by the Good Samaritan statute. (See McKenna,

supra, 93 Cal.App.3d at p. 286.) Because such informal relationships and understandings

are ubiquitous in the medical profession, any such holding would no doubt seriously

undermine the statute’s goal of encouraging physicians to render emergency assistance to

the patients being care for by other physicians.

In sum because Ruben needed emergency care and because Dr. Kady voluntarily

provided it, Dr. Kady is immune from liability.

Judgment affirmed. Respondent to recover his costs of appeal.

BENKE, Acting P. J.

WE CONCUR:

NARES, J.

IRION, J.