Corelis v. Tri-City Med. Ctr.

Filed 8/19/05 Corelis v. Tri-City Medical Center 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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ordered published for purposes of rule 977.

COURT OF APEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

D045236

(Super. Ct. No. GIN030335)

Plaintiff and Appellant,

THOMAS J. CORELIS,

TRI-CITY MEDICAL CENTER,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of San Diego County, Jacqueline M.

Stern, Judge. Affirmed.

Thomas J. Corelis appeals from a summary judgment in his medical malpractice

action against Tri-City Medical Center (Tri-City). Corelis contends the trial court

erroneously granted the motion because his evidence created a triable issue of fact as to

whether Tri-City breached its duties of care under the doctrine of corporate responsibility.

We disagree and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On June 21, 2001, Corelis broke his leg and underwent surgery the same day at Tri-

City. Satish A. Kadaba, M.D., an orthopedic surgeon with hospital privileges at Tri-City,

performed the surgery. Although not in the record, Corelis states in his opening brief that he

went to the Tri-City emergency room and Dr. Kadaba, the “on-call” physician, told him that

he needed an emergency operation.

Corelis discussed the surgery with Dr. Kadaba and believed he would use plates and

screws or a rod to repair his leg; they did not discuss the use of cerclage wires. He also

signed two consent forms listing the procedure as an internal fixation with plates and screws

and acknowledged that he discussed the procedure with the surgeon. During the surgery,

however, Dr. Kadaba decided to use cerclage wires to reduce the fracture because one bone

fragment was “flimsy.”

About one year after the surgery, Corelis saw another doctor because his leg was still

bothering him. The doctor told him that his leg was not healing properly and he became

suspicious about the way Dr. Kadaba performed the surgery. On September 20, 2002,

Corelis mailed notices of intent to sue to Dr. Kadaba and Tri-City that stated he became

aware of the negligence in June 2002. About a month later, Tri-City sent Corelis a letter

stating it considered his correspondence as a government tort claim and returned the

document as late because Corelis did not present it within six months after the surgery. The

letter further informed Corelis that Tri-City took “no action” on his claim and that his

recourse was to apply to Tri-City for leave to present a late claim. Corelis obtained counsel

months later and filed a complaint against Dr. Kadaba and Tri-City on June 4, 2003.

The complaint alleged causes of action against Dr. Kadaba and Tri-City for medical

negligence and lack of informed consent. Corelis asserted that Dr. Kadaba used an archaic

wire wrap procedure on his leg that was below the standard of care and caused his leg to heal

improperly. He alleged that Tri-City authorized the procedure, falsely held Dr. Kadaba out

as a board certified orthopedic surgeon and failed to investigate and inform patients of

known problems with Dr. Kadaba, including several lawsuits and lack of board certification.

Corelis also contends that Dr. Kadaba and Tri-City failed to obtain his informed consent for

the treatment and ignored his right to choose this treatment when they decided to use a wire

wrap to repair the bone in his leg.

According to Tri-City, Dr. Kadaba settled with Corelis and was dismissed from the

case. Thereafter, Tri-City moved for summary judgment on the ground Corelis could not

prove negligence, lack of informed consent or causation against it. It also argued that

Corelis failed to comply with the Tort Claims Act (Gov. Code, § 810 et seq.) by not filing his

complaint within six months after Tri-City “rejected” his claim. The trial court granted

summary judgment on the ground Corelis failed to show the existence of a triable issue of

material fact regarding Tri-City’s alleged negligence in credentialing Dr. Kadaba, obtaining

informed consent or causation. The trial court did not address Tri-City’s argument regarding

the Tort Claims Act. Corelis appeals.

DISCUSSION

I. Standard of Review

We review the trial court’s decision granting summary judgment de novo (Aguilar v.

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar)), applying the same three-step

analysis required of the trial court. (Bono v. Clark (2002) 103 Cal.App.4th 1409, 1431-

1432.) After identifying the issues framed by the pleadings, we determine whether the

moving party has established facts justifying judgment in its favor. If the moving party has

carried its initial burden, we then decide whether the opposing party has demonstrated the

existence of a triable, material fact issue. (Id. at p. 1432.) We must strictly construe the

moving party’s evidence and liberally construe the opposing party’s evidence (Binder v.

Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 838-839) and we may not weigh the evidence

or conflicting inferences. (Aguilar, supra, 25 Cal.4th at p. 856; Code Civ. Proc., § 437c,

subd. (c).) A triable issue of material fact exists if the evidence would allow a reasonable

trier of fact to find the underlying fact in favor of the party opposing the motion in

accordance with the applicable standard of proof. (Aguilar, supra, 25 Cal.4th at p. 850.)

II. Evidentiary Objections and Tri-City’s Motion to Strike

Tri-City filed written evidentiary objections to Corelis’s separate statement of facts,

his exhibit number one consisting of portions of Corelis’s deposition testimony and portions

of the two expert witness declarations filed by Corelis in opposition to the motion. The trial

court overruled the objections as to the portions of Corelis’s deposition testimony and refused

to rule on the objections to Corelis’s separate statement. The trial court did not address Tri-

City’s objections to Corelis’s expert witness declarations in its written tentative ruling and its

statements at oral argument on the tentative ruling suggest it admitted the two declarations

and considered them inadequate to support his contentions.

Corelis filed no written evidentiary objections; however, at oral argument his counsel

objected to the two expert witness declarations filed by Tri-City in support of the motion.

The trial court did not expressly rule on the objections and had previously admitted them in

deciding the motion. Thus, the trial court impliedly overruled all objections to the expert

witness declarations and we shall consider these documents in our de novo review of the

court’s ruling.

Although not addressed by the parties, we note that in the trial court, Tri-City filed

additional evidence with its reply brief addressing Corelis’s lack of informed consent theory

of recovery. Corelis never objected to the inclusion of this new evidence and absent any

such challenge, the trial court was entitled to consider this evidence as within the record

before it when evaluating whether Tri-City met its initial burden of proof on the motion.

(Code Civ. Proc., § 437c, subds. (b)(5) & (p)(2); Gafcon, Inc. v. Ponsor & Associates (2002)

98 Cal.App.4th 1388, 1426.) We shall do the same.

Finally, Tri-City filed a motion to strike certain arguments made in Corelis’s opening

brief as not supported by the record. Specifically, Tri-City states that just before the oral

argument on the court’s tentative ruling, Corelis submitted a notice of errata that included

additional pages of deposition testimony erroneously omitted from his opposition based on a

pagination error when citing to the testimony. Although the court commented that the notice

was “a little late,” it never expressly ruled on the admissibility of these documents, file-

stamped the notice and accepted the documents. The trial court’s actions indicate it

impliedly overruled Tri-City’s objection and we shall consider this evidence in deciding the

appeal. Accordingly, the motion to strike is denied.

III. Analysis

As a threshold matter, we note that in his separate statement of facts Corelis presented

evidence suggesting Tri-City was negligent in testing his blood sugar levels and in removing

a catheter. The pleadings define the issues in a summary adjudication motion (Bostrom v.

County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663) and Corelis’s complaint does

not contain these factual allegations. Corelis’s failure to plead these theories precludes his

reliance on them to defeat Tri-City’s motion.

Physician Credentialing

A hospital such as Tri-City has a duty to use reasonable care in selecting and

reviewing the competency of its staff physicians to ensure the adequacy of medical care

rendered to patients at its facility, and it can be held liable for corporate negligence if it fails

to do so. (Elam v. College Park Hospital (1982) 132 Cal.App.3d 332, 346.) To establish a

prima facie case based on negligent credentialing, the plaintiff must prove that the hospital

breached its duty by granting privileges to an incompetent or unqualified physician and that

the physician caused harm to the patient. (Cf. 6 Witkin, Summary of Cal. Law (9th ed.

1990) Torts, § 732, p. 60.) Expert testimony is required to establish the appropriate standard

of care in an action alleging negligent credentialing of a hospital’s medical staff. (Flahavan,

Rea & Kelly, Cal. Practice Guide: Personal Injury (The Rutter Group 2004) ¶ 9:414, p. 9-

100.)

In support of its summary judgment motion, Tri-City submitted the declaration of

Arlene Becton, Tri-City’s Credentials Coordinator, who detailed the credentialing process at

Tri-City. Physicians are required to fill out an initial application packet, which includes an

application, privilege request form, Division/Department Rules and Regulations and Tri-

City’s Medical Staff Bylaws. After Tri-City obtains the completed packet, the medical staff

office verifies the information by mail and through database systems, including malpractice

claims history, and makes a recommendation to the board of directors. The completed file is

then presented to the Departmental/Division Committee, the Credentials Committee and the

Medical Executive Committee and the board of directors makes a final decision based on the

recommendations of these committees. After a physician is granted initial privileges, Tri-

City repeats the credentialing process every two years. Becton reviewed Dr. Kadaba’s

credentialing documents and verified that Tri-City initially granted him privileges in 1987

and re-credentialed him every two years based on these procedures.

Tri-City also submitted the declaration of Michael Lenihan, M.D., a board certified

orthopedic surgeon familiar with the standard of care in hospital credentialing and involved

in a supervisory committee overseeing the credentialing process at another local hospital.

Dr. Lenihan reviewed Tri-City’s medical records, Becton’s declaration, Tri-City’s initial

application procedure and re-credentialing procedure, and all documents pertaining to Tri-

City’s credentialing and privilege procedures. Based on his review of these documents, Dr.

Lenihan concluded that Tri-City met the standard of care in terms of its involvement with

Corelis and concluded that Tri-City did not breach the standard of care in its credentialing

and privilege procedures.

With this evidence, Tri-City met its initial burden of showing that its credentialing

and re-credentialing of Dr. Kadaba was not below the standard of care for a hospital, shifting

the burden to Corelis to show the existence of a triable issue of material fact on this issue.

(Code Civ. Proc., § 437c, subd. (p)(2).) To satisfy his burden, Corelis was required to

present expert testimony regarding the standard of care for hospital credentialing and

showing how Tri-City breached the standard. The expert must demonstrate sufficient

knowledge of a subject so that his or her opinion is helpful to the jury. (Evid. Code, § 801,

subd. (a).) If the expert passes this threshold, the question of the degree of the witness’s

knowledge goes to the weight of the testimony rather than to its admissibility. (Brown v.

Colm (1974) 11 Cal.3d 639, 646; Jeffer, Mangels & Butler v. Glickman (1991) 234

Cal.App.3d 1432, 1443.)

Here, Corelis presented the declaration of Peter Bastone, the Chief Executive Officer

of a medical center, with Masters degrees in Public Health, Corporate Management and

Business Administration. Bastone did not indicate that he has ever been involved in hospital

physician credentialing and was familiar with the relevant standard of care; nor did he

comment upon the procedures utilized by Tri-City in credentialing Dr. Kadaba. He also

failed to indicate how his employment and educational background qualified him to render

an expert opinion on the standard of care in hospital credentialing. (Evid. Code, § 720.)

Thus, after considering Bastone’s declaration, the trial court concluded it was not sufficient

to meet Corelis’s burden of proof. The trial court did not abuse its discretion because

Bastone’s declaration did not disclose sufficient knowledge of the subject area. (Mann v.

Cracchiolo (1985) 38 Cal.3d 18, 39.)

Even if we assumed that Bastone was qualified to present an expert opinion on the

standard of care in hospital physician credentialing, he presented insufficient facts to support

his conclusion that Tri-City breached the standard of care when it initially granted Dr.

Kadaba privileges and then re-credentialed him over the years. Bastone reviewed Corelis’s

medical records and concluded that Tri-City fell below the standard of care in continuing to

grant privileges to Dr. Kadaba based on (1) the number of malpractice actions against Dr.

Kadaba and (2) the fact that Tri-City’s own bylaws and Orthopedic Rules and Regulations

state that a doctor must be board certified or have comparable training.

Bastone did not state the number of malpractice actions against Dr. Kadaba or

indicate how the existence of these actions should have caused Tri-City to refuse to

credential him. Although Corelis presented evidence showing that as of the date of his

surgery four medical malpractice complaints had been filed in San Diego County against Dr.

Kadaba, he presented no evidence regarding the outcome of these actions. Corelis also failed

to present any expert testimony showing how four lawsuits in fourteen years rendered Dr.

Kadaba unfit for credentialing.

Bastone also stated that credentialing a non board-certified physician for an

“urgent/emergent [sic] trauma call list” fell below the “current standard of care in San Diego

County;” he admitted, however, that “[s]ome years prior, allowing non board-certified

doctors to be on an urgent/emergent [sic] trauma call list was acceptable . . . .” Thus,

Corelis’s own evidence does not negate that at the time of his surgery the standard of care

allowed non board-certified physicians. Corelis also submitted a document showing that in

2003 Tri-City’s orthopedic surgery division consisted of physicians that were board-certified,

actively pursuing board-certification or possessing comparable ability, training and

experience. He presented no evidence, however, showing Dr. Kadaba did not have

comparable ability, training or experience or the makeup of this division when Dr. Kadaba

performed the surgery in 2001. Finally, although Tri-City’s web site listed Dr. Kadaba’s

specialty as orthopedics, it did not represent that he was board-certified in this specialty.

Because Corelis provided no adequate showing of negligence by Tri-City in the

selection and review of its staff, his claim of negligent credentialing fails.

Lack of Informed Consent

A physician has a duty to disclose to a patient “the available choices with respect to

proposed therapy and . . . the dangers inherently and potentially involved in each.” (Cobbs v.

Grant (1972) 8 Cal.3d 229, 243; see Arato v. Avedon (1993) 5 Cal.4th 1172, 1182-1183.)

The California Code of Regulations governing hospital licensing similarly provides that prior

to commencing surgery, the anesthesiologist or surgeon must verify the existence of a

written informed consent for the contemplated surgical procedure. (Cal. Code Regs., tit. 22,

§ 70223, subd. (d)(3).)

A physician’s duty of disclosure rests on the assumption that patients are generally

persons unlearned in the medical sciences and thus they rely on medical information

obtained from a physician when deciding to consent to a particular medical treatment.

(Arato v. Avedon, supra, 5 Cal.4th at p. 1183.) While a hospital may have a duty to ensure

that a patient has signed a written consent form before any surgery is performed, we are

unaware of any standard of care requiring a hospital to obtain informed consent from a

patient, which inherently requires medical knowledge. Tri-City apparently assumed for the

purposes of this motion that it had a duty to ensure that it obtained a signed consent form and

challenged the claim on the ground it was not negligent because it obtained signed consent

forms and had no duty to obtain informed consent from Corelis.

The record shows that Corelis discussed the surgery with Dr. Kadaba and signed two

Tri-City consent forms listing the procedure as an internal fixation with plates and screws.

Although Dr. Kadaba ultimately used cerclage wires to reduce the fracture, he made this

decision during surgery based on the condition of the bone fragments. Tri-City presented

the deposition testimony of three physicians confirming that Dr. Kadaba, not the nurses, was

responsible for making such medical decisions during surgery. Dr. Lenihan concluded that

Tri-City “met the community standard” of care for a hospital regarding obtaining informed

consent and explained during his deposition that because the surgeon makes the

determination regarding how to repair a particular fracture, it is mistake for a hospital,

hospital personnel or nonmedical doctors to discuss treatment options with a patient because

they are not qualified to do so.

This evidence is sufficient to met Tri-City’s initial burden of showing that the

procedures it followed in obtaining Corelis’s informed consent did not fall below the

standard of care for a hospital, shifting the burden to Corelis to show the existence of a

triable issue of material fact on this issue.

Bastone presented no explanation as to how his employment and educational

background qualified him to render an expert opinion on the standard of care for a hospital in

obtaining informed consent or any facts showing his knowledge on this topic and the trial

court properly rejected his conclusions on this ground. (Evid. Code, § 720.) Even assuming

Bastone was qualified to address this issue, he did not explain how Tri-City could have

obtained Corelis’s consent for a technique that Dr. Kadaba decided to use during the

operation based on the condition of the bone. Thus, Bastone’s conclusion that Tri-City

breached the standard of care because the signed consent forms do not indicate the use of

cerclage wires is not supported by any facts and is devoid of evidentiary value. (Bushling v.

Fremont Medical Center (2004) 117 Cal.App.4th 493, 510.)

Corelis also presented the declaration of Drucie Dupree, a registered nurse with 30

years of operating room experience. Dupree criticized Dr. Kadaba’s use of cerclage wires

and concluded that Tri-City did not meet the standard of care because: (1) there was no

evidence of an informed consent discussion from the surgeon with Corelis; (2) the surgical

consent form only mentioned plates and screws; and (3) the operative report did not state that

Dr. Kadaba attempted to apply plates and screws before using cerclage wires.

Dupree did not state any familiarity with the standard of care for a hospital in

obtaining patient consent forms and the trial court apparently rejected her conclusions on this

ground. (Evid. Code, § 720.) Even assuming Dupree’s training and experience qualified her

to express an opinion on this issue, she did not explain how Tri-City was responsible for the

scope of Dr. Kadaba’s pre-surgical discussion with Corelis or his mid-surgery decision to

change the procedure. Corelis discussed the surgery with Dr. Kadaba and then signed two

consent forms, witnessed by two different nurses, acknowledging that Dr. Kadaba explained

the intended procedure and that he received all information he desired about the procedure.

Dupree did not explain how Tri-City was properly charged with the knowing all possible

treatments and risks and was in a position to dictate to a surgeon the scope of any pre-

surgical discussion or how to perform the surgery. In contrast, Tri-City presented physician

testimony stating that the surgeon makes the decisions during surgery and that a hospital and

its personnel are not qualified to discuss treatment options with a patient.

A liberal construction of the evidence presented by Corelis fails to show the existence

of a triable issue of material fact; as such, the trial court did not err in granting summary

judgment. In light of our conclusion, we do not address Tri-City’s alternative argument that

Corelis failed to comply with the Tort Claims Act.

DISPOSITION

The judgment is affirmed. Respondent is entitled to its costs on appeal.

WE CONCUR:

McINTYRE, Acting P. J.

O’ROURKE, J.

IRION, J.