Business Law
Charlie L. v. Kangavari (Jan. 2, 2025, B327714) __ Cal.App.5th __, 2025 WL 23756
Charlie L. v. Kangavari (Jan. 2, 2025, B327714) __ Cal.App.5th __, 2025 WL 23756
Statute imposing stricter expert witness qualifications in hospital emergency care situations applies to physicians who remotely consult in treatment of ER patients.
Charlie L. was brought to a hospital’s emergency department, where the attending physician issued “stat” orders for an X-ray and ultrasound of Charlie’s abdomen. Dr. Peyman Kangavari, an on-call radiologist working remotely, promptly reviewed the images and reported his conclusions to the attending physician, who then discharged Charlie with follow-up instructions. When Charlie’s condition worsened, he returned to the ER and was transported to another hospital for emergency surgery, which was not entirely successful. Charlie filed a medical malpractice lawsuit against numerous healthcare defendants including Dr. Kangavari, whom he claimed had negligently failed to timely diagnose bowel obstructions. Dr. Kangavari moved for summary judgment contending he adhered to the standard of care and did not cause any harm. His motion was supported by the declaration of Dr. John Lieu, a diagnostic radiologist. Charlie’s opposition was supported by declaration of Dr. Ravi Srinivasa, a medical school professor of clinical radiology. The trial court ruled that Health and Safety Code section 1799.110 applied, sustained Dr. Kangavari’s objection that Professor Srinivasa was unqualified under that statute, and granted summary judgment because Charlie lacked a standard-of-care expert. Charlie appealed.
The Court of Appeal reversed the summary judgment but accepted some of the trial court’s reasoning. Charlie had argued that section 1799.110 did not apply because Dr. Kangavari was working remotely and on call. The trial court disagreed, ruling that section 1799.110 applies to malpractice actions against physicians who remotely provide medical expertise on an expedited basis as part of an emergency department’s treatment of an emergency department patient. The Court of Appeal agreed: “this is the only conclusion consonant with section 1799.110’s purpose” of “ ‘promot[ing] “the development, accessibility and provision of emergency medical services.” ’ ” The Court of Appeal explained that section 1799.110 relaxed the standard of care for emergency physicians who face unique challenges when making urgent diagnosis and treatment decisions, often without time to review the patient’s medical history, seek consultations, study current medical literature, or reflect on their decisions. The Legislature did not want physicians to be discouraged from taking on emergency posts due to the cost of malpractice insurance based on malpractice claims supported by experts who had no familiarity with providing emergency care. The Court of Appeal concluded that section 1799.110 applies to on-call physicians remotely providing expertise as part of an emergency department because they operate under the same time pressures as emergency physicians and face the same threat of malpractice liability, and expressly disagreed with the contrary holding in Miranda v. National Services, Inc. (1995) 35 Cal.App.4th 894, which the court believed was based on a flawed Legislative history analysis and disregard for the statute’s intended purpose.
Having established that section 1799.110 applied, the Court of Appeal held that neither side had proffered an admissible expert declaration because Drs. Lieu and Srinivasa had failed to attest to substantial professional experience providing emergency medical coverage during the five years preceding the alleged malpractice as required by section 1799.110(c). That holding precluded summary judgment for Dr. Kangavari.
The bulletin describing this appellate decision was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson, Peder K. Batalden, and Lacey Estudillo at the appellate firm Horvitz & Levy LLP, and is republished with permission.
For more information regarding this bulletin, please contact H. Thomas Watson, Horvitz & Levy LLP, at 818-995-0800 or htwatson@horvitzlevy.com.