Business Law

Wicks v. Antelope Valley Healthcare District (June 1, 2020, No. B297171) __ Cal.App.5th __ [2020 WL 2832563]

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Medical malpractice plaintiff’s ostensible agency theory rebutted by hospital’s independent contractor notice.

Matthew Wicks went to Antelope Valley Hospital’s emergency room for stomach, chest, and neck pain. Hospital nurses and two independent contractor ER doctors evaluated him. He was then discharged with instructions to see a cardiologist the next day, but he died eight hours later from an acute aorta dissection. His family sued the hospital, alleging its nurses provided negligent care, it negligently credentialed the ER doctors, and the ER doctors were its ostensible agents.

The hospital moved for summary judgment. In opposition, plaintiffs offered expert testimony that if the nurses had gathered Wicks’s complete medical history, they likely would have alerted the ER doctors, who probably would have consulted with a cardiologist, who probably would have ordered a CT scan with IV contrast that probably would have revealed the aortic dissection, leading to a cardiothoracic surgery consult that probably would have resulted in Wicks receiving a timely diagnosis and treatment. Plaintiffs also argued the hospital’s expert declarations of adequate treatment and supervision were conclusory and hearsay, and whether a hospital is responsible for negligent ER physicians is always a triable issue of fact. The trial court granted summary judgment for the hospital.

The Court of Appeals affirmed. The hospital properly relied on authenticated business records and an expert’s review of those records. In contrast, plaintiffs’ theory of causation was too speculative to create a triable issue of causation.  In addition, the hospital granted the ER doctors staff privileges using appropriate procedures for the appointment and evaluation of independent contractor physicians.  Further, the hospital proved that Wicks was alert in the ER and could have conveyed any important medical information to the ER doctors when they took his history, and understand the admission forms he executed and initialed. Finally, the ER doctors were not ostensible agents of the hospital because the hospital admissions forms provided clear notice that the ER physicians were independent contractors.

The bulletin describing the Court of Appeal’s decision was originally prepared for the California Society for Healthcare Attorneys (CSHA) by H. Thomas Watson and Peder K. Batalden, 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

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