Opinion
F049097
5-23-2007
DENNIS J. POWELL, Plaintiff and Appellant, v. WILLIAM WILSON, M.D., et al., Defendants and Respondents; ROY J. LEVIN, M.D., et al., Defendants and Appellants.
Law Offices of David J. St. Louis and Lynette D. Hecker for Plaintiff and Appellant. McCormick, Barstow, Sheppard, Wayte & Carruth, Mario L. Beltramo, Jr., Jerry D. Casheros, and Anil Pai for Defendants and Respondents William Wilson, M.D. and Karraine Richardson, N.P. J. Craig Jenkins for Defendants and Appellants Roy J. Levin, M.D. and Clovis Urgent Care Medical Center.
NOT TO BE PUBLISHED
Plaintiff Dennis J. Powell (Powell) and defendants Roy J. Levin, M.D. (Dr. Levin) and Clovis Urgent Care Medical Center (Clovis Urgent Care) (collectively codefendants) separately appeal from the summary judgment entered in favor of defendants Karraine Richardson, N.P. (Richardson) and William Wilson, M.D. (Dr. Wilson). The trial court granted summary judgment in Richardsons favor after it found Powells amendment substituting Richardson in place of a Doe defendant does not relate back to the filing of the original complaint. The trial court granted summary judgment in Dr. Wilsons favor after finding there was no triable issue of fact that he met the applicable standard of care and did not cause Powells injury. The trial court also found that codefendants, who had filed an opposition to the motion solely with respect to whether there was an issue of fact as to the moving parties negligence, did not have standing to oppose the moving parties motion.
On appeal, codefendants contend the trial court erred in finding they did not have standing to oppose the motion. Powell and codefendants both argue they successfully raised a triable issue of fact as to whether Dr. Wilson met the applicable standard of care and caused Powell injury. With respect to Richardson, Powell argues there is at least a triable issue of fact as to whether he was ignorant of the facts establishing Richardsons liability, therefore the trial court erred in finding his amendment substituting her for a Doe defendant did not relate back to the filing of the original complaint. As we shall explain, we find no merit to these arguments and consequently affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On September 17, 2001, Powell went to Clovis Urgent Care complaining of back pain. After Dr. Alan Kleinman saw Powell, he scheduled a follow-up visit for September 23, 2001. On September 19, Powell returned to Clovis Urgent Care, when he was seen by Dr. Levin. After examining Powell, Dr. Levin scheduled an MRI for September 27, 2001.
On September 23, 2001, Powell returned to Clovis Urgent Care for his follow-up visit and was seen by Dr. Kleinman, who sent Powell to Community Medical Center-Fresno (CMC) for further evaluation. Powell went to CMCs emergency room that day, where he was seen by Richardson. Upon completion of a neurological assessment and review of x-rays taken that day at CMC, Richardson diagnosed Powell with acute lower back pain and ordered treatment with analgesics. Powell was discharged with instructions to follow up with the previously scheduled MRI. Dr. Wilson, an emergency room physician, signed off on Powells chart.
On September 27, 2001, an MRI was performed on Powell, which revealed he had a spinal cord compression. Powell returned to Clovis Urgent Care on October 1, 2001 and again on October 8, 2001. At the October 8 visit, Dr. Kleinman referred Powell to Dr. Timothy Watson, who examined Powell and recommended surgery, which was performed on October 10.
This Lawsuit
On December 4, 2002, Powell filed this action, naming as defendants Drs. Kleinman and Levin, Clovis Urgent Care, and Does 1 through 100. The complaint contains a single cause of action for medical malpractice, which alleges that on or about September 11, 2001, and thereafter, the defendants negligently diagnosed, failed to diagnose and failed to treat an injury to Powells spine so as to cause him permanent injury and damages. Before he filed the complaint, Powell knew that while at CMC a nurse practitioner named Karraine Richardson had examined him.
The 2003 Depositions
At his June 19, 2003 deposition, Powell testified that when he left CMC on September 23, 2001, he could "remember still just being in a tremendous amount of pain. I know it seemed like I didnt gain anything. I can remember the sense that I was no different,..." When asked if Dr. Kleinman told him why he was sending him to the hospital, Powell responded "[f]or them to examine me, I guess, basically to examine me. I dont know." Powell further testified Dr. Kleinman told him he wanted him examined "mainly just to get the area where I was having most of the pain, to have it like x-rayed, and I think, if Im not mistaken, I think he might have wanted to have an MRI done, too, then[,]" at the hospital, "[b]ut that Im not 100 percent, so." Powell did not read the slip of paper Dr. Kleinman gave him before sending him to CMC. Powell said Dr. Kleinman never told him it was a "life and death or life-threatening, emergency type of thing[,]"and Dr. Kleinman told him "[b]asically just to go up there to get more testing done."
Powells wife testified at her June 30, 2003 deposition that she felt the attention Richardson gave her husband "maybe wasnt up to par, but she did send him in for x-rays at the hospital, and he had additional x-rays." Mrs. Powell testified Richardson told them to make sure they kept the MRI appointment scheduled for the following Wednesday. Mrs. Powell agreed that when they left CMC on September 23, 2001, they felt dissatisfied with the services.
The Doe Amendment
On June 28, 2004, Powell filed an application to substitute Richardson, Dr. Wilson and Community Emergency Medical Associates (CEMA) for Does 4 through 6, respectively, which the trial court approved.
On September 26, 2003, Powell filed an amendment to the complaint, substituting Matthew Iwamoto, M.D., Woodward Park Radiology, and CMC for Does 1 through 3, respectively. Neither these defendants, nor Dr. Kleinman, are parties to this appeal.
The 2005 Depositions
A second deposition of Powell was taken on January 5, 2005. At this deposition, Powell testified he told Richardson he was at CMC because Dr. Kleinman sent him there to have an MRI performed since Clovis Community did not have anyone on staff to do an MRI that day, and Dr. Kleinman wanted an MRI done right away because he had a possible spinal cord injury. When asked if he was disgusted with the care, or lack or care, he received at CMC when he left there, Powell responded he "would have to say yes." Powell agreed: (1) he was sent to CMC to get an MRI and he told Richardson he was supposed to get one, but he never got one; (2) he asked Richardson when he was going to see a doctor, but he never saw one; and (3) he knew when he left the emergency room that he had not seen a doctor or been given an MRI, although he thought both should have occurred. Powell further testified that one month after his surgery, he still had limitations and impairments, which the doctor told him would continue for the remainder of his life, and he believed he wouldnt have been "as bad" if Richardson had treated him differently.
A second deposition of Mrs. Powell was taken the same day. Mrs. Powell testified that Richardson ran a cotton swab along Powells legs to see if he could tell the difference between the cotton or stick ends and performed a rectal examination. Mrs. Powell stated Richardson told them she thought Powell could not walk because of the pain. Mrs. Powell admitted her memory of the visit to CMC was not very good. She could not "recall exactly" whether Dr. Kleinman was sending her husband to CMC to have an MRI. She testified Dr. Kleinman "wanted him to look at him, I remember to see if they could do like a possible MRI. He probably mentioned it, but — " Mrs. Powell did not remember her husband asking Richardson for an MRI. Mrs. Powell also did not remember whether she and her husband discussed if he would have been better off had he received an MRI and been evaluated by a doctor while at CMC, whether he told Richardson he was there to have an MRI or asked her if he could see a doctor, or whether he ever told her he asked Richardson for an MRI, but she did not give him one. Mrs. Powell testified they told Richardson an MRI was scheduled that week and Richardson told them to keep the appointment. Richardson also told them she did not see anything on the x-ray. Mrs. Powell testified that after she and Powell left the emergency room, they discussed the care Powell received and "felt like they didnt help us."
The Summary Judgment Motion
Richardson, Dr. Wilson, and CEMA (collectively the moving defendants) filed a summary judgment motion arguing they were entitled to summary judgment on two grounds: (1) Powells claims against them were barred by the statute of limitations provision of Code of Civil Procedure section 340.5; and (2) the moving defendants did not breach the standard of care and no improper acts or omissions of the moving defendants caused or contributed to Powells alleged injuries. With respect to the first issue, the moving defendants asserted Powells amendment substituting them for Doe defendants did not relate back to the filing of the original complaint because Powell was aware of their identities and the facts necessary to sue them when he filed his original complaint, and therefore his claims against them were untimely.
On the second issue, the moving defendants presented the expert declaration of Dr. Benjamin Hafkenschiel, an emergency room physician. Dr. Hafkenschiel opined that based on his training, experience and education, as well as his review of Powells medical records and the depositions of Powell and Richardson, Richardson complied with the standard of care in providing Powell treatment and did not cause Powell injury. Dr. Hafkenschiel further opined it was appropriate for Dr. Wilson to sign off on Powells chart, since there was nothing in the findings Richardson charted that suggested Powell required further evaluation or intervention, the chart did not present any information that Powell was experiencing an acute neurological condition and Dr. Wilson was assured Powell would receive further medical consultation and diagnosis, as the chart indicated Powell was scheduled for an MRI three days later. The moving defendants argued that Dr. Hafkenschiels opinion constituted expert evidence on standard of care and causation which must be rebutted by competent expert testimony to create a triable issue of fact.
Powells Opposition to the Motion
Powell opposed the motion. With respect to the issues of breach of the standard of care and causation, Powell presented an expert declaration of Dr. R. Scott Jacobs, an emergency room physician, in which he opined Richardson fell below the standard of care when she discharged Powell without securing an MRI of his spine or a neurosurgical consultation to evaluate his condition. Dr. Jacobs further opined that as the supervising physician, Dr. Wilson was responsible for Richardsons breaches of the standard of care, and it was medically probable the treatment the moving defendants provided was a cause of Powells injuries and damages.
On the statute of limitations issue, Powell asserted that when he filed the original complaint (1) he did not know Richardson was not an employee of the hospital; (2) he did not know the identities of Dr. Wilson and CEMA; and (3) he did not know or suspect a factual basis for the moving defendants liability until Richardson was deposed on July 23, 2003, and he obtained a complete copy of CMCs medical records on June 9, 2004. In support of this argument, he submitted declarations from himself and his wife, as well as his attorney, Lynette Hecker.
Hecker explained in her declaration that Richardson was not suspected of malfeasance until her July 28, 2003 deposition when it came to "our attention" the CMC records they had received in late September 2002 were incomplete and Richardson testified (1) she might have given Powell pain medications before examining him; (2) she read the triage nurses notes before examining Powell, but did nothing to rule out numbness and her examination did not result in any finding as to Powells difficulty walking; and (3) there was a two hour discrepancy between the time she first saw Powell and ordered medication for him, and the time the medication was given to him.
In his declaration, Powell stated he did not suspect Richardson of negligence until his attorneys advised him after her deposition that her testimony made them think she may have acted negligently, which had not been revealed in the hospital chart. Powell explained that on September 23, 2001, he "was disappointed that my condition was not easily cured and/or dealt with, and was discouraged and depressed by having to continue to endure pain and weakness." Powell stated he did not suspect anyone of negligence until he saw Dr. Watson in October 2001. At that time, Powell understood that if his condition had been diagnosed correctly on the first couple visits, before he started having significant weakness and numbness, he could have been close to, if not completely, cured. Powell did not suspect that being cared for differently at CMC would have made his surgical outcome any better, since he "thought that the permanent damage had already been done by the time I was seen at [CMC], because I was already having extreme pain, and could not walk on my own when I went to [CMC]."
Powell further stated in his declaration that during his 2005 deposition, his pain increased as the deposition wore on, despite having taken his daily medications. Powell explained that he felt threatened because there were five defense attorneys "looking at me and questioning me[,]" and felt "as if I were being made to look foolish and stupid for not recognizing that I had been negligently cared for, apparently by all of the medical providers I came into contact with prior to Dr. Watson. I was intimidated and felt that giving them the answers that I thought they wanted would help me get out of there quickly."
Powell stated that during his 2003 deposition, he was on two or three medications and at his 2005 deposition, he was on nine different daily medications that greatly affected his memory and ability to think straight, and made him more defensive and argumentative. Powell claimed that the passage of time and use of medications made his recollection of events at the 2005 deposition "not nearly as accurate" as his 2003 deposition. Powell further claimed that when he saw Richardson, he believed she did the further examination, i.e. a rectal examination, and testing, i.e. more x-rays of a different part of his back, that Dr. Kleinman wanted, and when he saw Dr. Kleinman "thereafter, he did not make a fuss over the care I had received at [CMC], rather he scheduled me to see Timothy Watson, M.D." Powell could not "recall asking Richardson to order an MRI for me, nor for me to be seen by an MD while I was at [CMC] on September 23, 2001." In her declaration, Mrs. Powell stated she did not recall her husband asking Richardson to order an MRI, nor to be seen by a physician while they were at CMC on September 23, 2001.
Mrs. Powell also stated in her declaration that her husbands mental faculties had greatly diminished during the pendency of this litigation; he was no longer "bright and as quick-witted as he used to be"; and his mental capacities were greatly affected when he took the medications he was on in January 2005, as his mental acuity and memory skills were greatly diminished and remained diminished "to this day." Richardson and Dr. Wilson objected to these statements on various grounds, including that they called for an expert opinion, were legal conclusions, lacked foundation, were vague and ambiguous, called for speculation and were irrelevant. Noting that Powell had not offered any competent medical expert testimony to support his claim that the medication affected his state of mind so as to render his 2005 deposition unreliable, the court stated that Mrs. Powells statements were insufficient to show Powell was unable to reliably answer questions, and therefore sustained the moving defendants objections. On appeal, Powell contends the court abused its discretion in doing so because under Code of Civil Procedure section 437c, subdivision (e), a party opposing summary judgment is not required to offer expert medical testimony to support claims as to his state of mind. Powell does not challenge, however, the other grounds for objecting to the admissibility of this evidence, and therefore even if the court erred in concluding expert testimony was required, Powell has not shown prejudicial error.
Codefendants Opposition to the Motion
Codefendants also filed an opposition to the motion, claiming they were obliged to do so. Challenging only the contention that the moving defendants did not fall below the standard of care and cause injury, codefendants submitted a declaration from their own expert, Dr. H. Allen Hooper, an emergency room physician, in which he disagreed with various statements contained in Dr. Hafkenschiels declaration. Dr. Hooper stated that Dr. Hafkenschiel relied on facts that were either incorrect or not supported by the medical records and depositions and opined that Richardson fell below the applicable standard of care. Dr. Hooper also stated that as Richardsons supervising physician, Dr. Wilson was responsible for Richardsons professional acts and omissions. From this declaration, codefendants argued there was a triable issue of fact as to whether the moving defendants fell below the standard of care.
The Reply Papers
The moving defendants filed separate replies to the oppositions of Powell and the codefendants. In both replies, the moving defendants conceded there was a triable issue of fact as to standard of care and causation with respect to Richardson. The moving defendants argued, however, there was no triable issue of fact as to whether Dr. Wilson acted below the standard of care because Dr. Jacobs was not qualified to render a legal opinion that Dr. Wilson was vicariously liable for Richardsons acts or omissions, and Dr. Hooper did not offer any opinion that Dr. Wilson was directly negligent. The moving defendants further argued the trial court should not consider the codefendants opposition because they lacked standing to oppose the motion.
The Trial Courts Ruling
Following oral argument on the motion and taking the matter under submission, the trial court adopted its tentative ruling as its decision, which granted the motion in favor of Richardson and Dr. Wilson, but denied it as to CEMA. With regard to Richardson, the trial court found the undisputed facts showed the statute of limitations ran on the claim against her and Powells Doe amendment was ineffective to toll the statute. The trial court explained it denied the motion as to CEMA because Powell was unaware of the fact that CEMA was Richardsons employer when he filed the complaint, thereby making his Doe amendment effective, and since Richardsons negligence was imputable to CEMA under respondeat superior principles and there was a triable issue of fact as to whether Richardsons care and treatment fell below the standard of care and caused Powells injuries, an issue of fact remained as to CEMAs liability.
Although the trial court found Powell properly substituted Dr. Wilson into the case in place of a Doe defendant, as Powell was unaware of Dr. Wilsons identity or connection to the case until June 2004, the court granted the motion as to Dr. Wilson because Powell failed to show a triable issue of fact as on the issues of standard of care and causation. The court found Dr. Wilson presented sufficient evidence that his care and treatment of Powell did not fall below the standard of care, thereby shifting the burden of proof to Powell. The court sustained the moving defendants objection to Dr. Jacobss opinion regarding Dr. Wilsons liability on the ground it constituted a legal opinion that he was not qualified to render and consequently the court disregarded two paragraphs of Dr. Jacobss declaration to the extent he purported to state opinions as to Dr. Wilsons liability. The court therefore concluded Powell failed to raise a triable issue of fact regarding Dr. Wilsons breach of the standard of care and causation. With respect to the codefendants opposition, the court found they did not have standing to oppose the motion because the motion was not brought against them and therefore the court intended to disregard their opposition. The court further stated, however, that even if it were to consider Dr. Hoopers declaration, it was insufficient to raise a triable issue as to Dr. Wilson because his statements were unsupported legal conclusions.
DISCUSSION
I. Standard of Review
We review an order granting summary judgment de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) We independently review the record and apply the same rules and standards as the trial court. (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925.) The trial court must grant the motion if "all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).)
In performing our independent review of a defendants summary judgment motion, we apply the rules pertaining to summary judgment procedure. A defendant moving for summary judgment has the initial burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is an affirmative defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o); Aguilar, supra, 25 Cal.4th at p. 850.) If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiffs opposing evidence and the motion must be denied. However, if the moving papers make a prima facie showing that justifies a judgment in the defendants favor, the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849.)
In determining whether the parties have met their respective burdens, the court must "consider all of the evidence" and "all of the inferences reasonably drawn therefrom," and "must view such evidence [citation] and such inferences [citations] ... in the light most favorable to the opposing party." (Aguilar, supra, 25 Cal.4th. at pp. 844-845.) "There is a triable issue of fact if, and only 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." (Id. at p. 850, fn. omitted.) Consequently, a defendant moving for summary judgment must "present evidence that would require ... a trier of fact not to find any underlying material fact more likely than not." (Id. at p. 845.)
When conducting its independent review, an appellate court considers "all the evidence set forth in the moving and opposition papers except that to which objections were made and sustained." (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65-66.) In addition, the appellate court must consider all inferences reasonably drawn from that evidence. (Aguilar, supra, 25 Cal.4th at p. 843.) The admissible evidence and the reasonable inferences are viewed in the light most favorable to the party opposing the motion for summary judgment. (Ibid. )
II. Summary Judgment as to Richardson
Powell contends the trial court erred when it granted the summary judgment motion in Richardsons favor. A plaintiff must file suit against a healthcare provider within three years after the date of injury "or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first." (Code Civ. Proc., § 340.5.) Powell filed his original complaint in December 2002 and substituted Richardson into the action in June 2004, more than one year later. Powell contends his claim against Richardson is timely because it relates back to the original complaint.
Code of Civil Procedure section 474 allows a plaintiff who is ignorant of a defendants name to designate that defendant by a fictitious name and amend the complaint when the defendants true name is discovered. The amended complaint relates back to the date of filing of the original complaint, allowing the plaintiff to avoid the bar of the statute of limitations. (See Munoz v. Purdy (1979) 91 Cal.App.3d 942, 946 (Munoz ); Scherer v. Mark (1976) 64 Cal.App.3d 834, 841, 842 (Scherer).)
Code of Civil Procedure section 474 provides in pertinent part: "When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceedings must be amended accordingly...."
As pertinent here, to be ignorant of the defendants name, the plaintiff must be ignorant of either the defendants identity or the facts giving rise to a cause of action against the defendant. (Munoz, supra, 91 Cal.App.3d at p. 946; Barnes v. Wilson (1974) 40 Cal.App.3d 199, 205.) Ignorance must be "real and not feigned." (Scherer, supra, 64 Cal.App.3d at p. 841.) "A plaintiff must actually be ignorant of the facts giving [rise to] a cause of action against a defendant. `Ignorance of the facts is the critical issue, and whether it be due to misinformation or negligence is not relevant." (Munoz, supra, 91 Cal.App.3d at p. 947; accord, Dover v. Sadowinski (1983) 147 Cal.App.3d 113, 116 (Dover).) Indeed, the plaintiff has no duty to exercise reasonable diligence to ascertain the true facts before filing the complaint; ignorance for whatever reason is sufficient to allow reliance on Code of Civil Procedure section 474. (Munoz, supra, at pp. 947-948; accord, Dover, supra, at p. 116.)
Code of Civil Procedure section 474 is interpreted liberally to the benefit of plaintiffs seeking to avoid the bar of the statute of limitations. (General Motors Corp. v. Superior Court (1996) 48 Cal.App.4th 580, 593.) Thus, "even though the plaintiff knows of the existence of the defendant sued by a fictitious name, and even though the plaintiff knows the defendants actual identity (that is, his name), the plaintiff is `ignorant within the meaning of the statute if he lacks knowledge of that persons connection with the case or with his injuries. [Citations.]" (Id. at pp. 593-594.) The key is ignorance of the facts, "and the pivotal question is, `"did plaintiff know facts?" not "did plaintiff know or believe that [he or] she had a cause of action based on those facts?" [Citations.]" (Id. at p. 594, italics in the original.) Moreover, it is knowledge of the facts sufficient to lead a reasonable person to believe liability is probable, not suspicion of wrongdoing or potential liability, which defeats a claim of ignorance. (Id. at p. 595.)
Powell concedes he knew Richardsons name on September 23, 2001, and therefore he was aware of her identity when he filed the complaint. Powell asserts, however, he had no knowledge or basis for suspicion of the factual basis for her liability on September 23, 2001. Powell testified in his 2005 deposition, however, that he knew on September 23, 2001 that (1) Dr. Kleinman sent him to CMC to get an MRI because he had a possible spinal cord injury, (2) he asked Richardson both for an MRI and to be seen by a doctor, and (3) neither request was granted. Powell also testified that one month after his October 2001 surgery, he believed he would not have been "as bad" if Richardson had treated him differently. Moreover, when Powell filed his complaint in December 2002, he alleged the defendants had negligently diagnosed, failed to diagnose and failed to treat his spinal injury so as to cause him permanent damage. Thus, the evidence establishes that Powell knew when he filed his complaint facts sufficient to lead a reasonable person to believe Richardsons liability for medical malpractice was probable, i.e. he knew she failed to order an MRI or have him seen by a doctor, and he knew he was permanently damaged because of the delay in diagnosing his spinal injury.
In an attempt to avoid the impact of his deposition testimony, Powell contends his testimony is "directly contradicted by numerous other inferences and evidence which raise a triable issue of material fact" as to his ignorance of Richardsons wrongdoing on September 23, 2001. First, Powell points to his 2003 deposition testimony, in which he testified that Dr. Kleinman "might have wanted to have an MRI done" at CMC, but he wasnt "100 percent" certain, he did not read the slip of paper Dr. Kleinman gave him before sending him to CMC, Dr. Kleinman told him to go to CMC to have more testing done, and Dr. Kleinman did not tell him it was an emergency. This testimony, however, does not directly contradict his 2005 deposition testimony, in which he testified without equivocation that he told Richardson Dr. Kleinman sent him to CMC to have an MRI. It merely appears that Powell was less certain in 2003 about why Dr. Kleinman sent him to CMC and more certain in 2005. Even if the 2003 deposition is conflicting on these points and we accept that Powell was uncertain what testing Dr. Kleinman wanted done, Powells 2005 deposition testimony that he asked Richardson for an MRI and to see a doctor remains uncontradicted by the portions of the 2003 deposition the parties provided in their papers.
Powell argues his 2003 testimony is more reliable than the testimony he gave in 2005 because memories fade with time and his medication use was greater in 2005. Since there is no conflict between the two depositions on whether Powell in fact asked Richardson for an MRI and to see a doctor, it is irrelevant whether Powells 2003 deposition testimony is more reliable than his 2005 testimony. We also note that it does not appear Powells memory faded with time as he asserts, since his 2005 deposition testimony was actually more, not less, certain than the testimony he gave in 2003.
For this reason, we need not address Powells arguments that his 2003 deposition testimony is more reliable than his 2005 deposition testimony.
Powell next points to his wifes 2005 deposition testimony that she could not remember whether Powell told Richardson he was there to have an MRI or asked to see a doctor, asserting it conflicts with his deposition testimony. We disagree. Powell testified he told Richardson he wanted an MRI and to see a doctor. Mrs. Powell could not remember whether he told her these things and admitted that her memory of the visit was not very good. That Mrs. Powell could not remember what Powell told Richardson does not create an issue of fact as to whether Powell knew when he filed the complaint that he told Richardson he wanted an MRI and to see a doctor given Powells testimony that he asked for these things.
Richardsons deposition testimony also does not create a triable issue regarding what facts Powell knew when he filed the original complaint. Richardson testified that she would have ordered an MRI if she wanted to rule out spinal cord compression, she did not have information from any source at the hospital that Dr. Kleinman had referred Powell to CMC to rule out spinal cord compression, and if she had been aware of the referral, she would have had a doctor see Powell. While this testimony may raise an issue of fact as to whether Powell in fact told Richardson that Dr. Kleinman sent him to CMC to have an MRI because he thought Powell might have a spinal cord injury and that Powell wanted to have MRI and see a doctor, it does not raise an triable issue as to what facts Powell knew when he filed the complaint. This is because Powell did not know when he filed the complaint that Richardson would claim he did not ask for these things. If Powell thought he asked Richardson for an MRI and to see a doctor when he filed the complaint, which he testified he did, then it was incumbent on him to name her as a defendant at that time.
Powell contends he can use his declaration, in which he stated that he could not recall asking Richardson to order an MRI or to be seen by a doctor, to show a triable issue of fact, even though the declaration conflicts with his deposition testimony. Powell is incorrect. A party cannot rely on a declaration filed in summary judgment proceedings that conflicts with the partys deposition testimony. Rather, the admissions or concessions made in the deposition testimony control, and the declaration — subsequently prepared for the tactical purpose of obtaining or avoiding summary judgment — is generally disregarded. (See Benavidez v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 860-861; DAmico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21-22.)
This rule, however, will not be applied unless the discovery admission or concession was unequivocal. (See Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482 ["summary judgment should not be based on tacit admissions or fragmentary and equivocal concessions, which are contradicted by other credible evidence"].) Powell contends his 2005 deposition testimony was just that — ambiguous and tacit. We disagree. When asked if he told Richardson that Dr. Kleinman sent him to CMC to rule out spinal cord compression, Powell answered, "I told her I was there because he had sent me over to get an MRI done. And that the reason I was at Fresno Community was that Clovis Community, he had called and they didnt have anybody on staff to do an MRI that day, and he wanted one done right away." When asked if he told Richardson why Dr. Kleinman said he wanted an MRI done, Powell responded, "He said I had a possible spinal cord injury." Later in the deposition, the following exchange occurred:
"Q. When you left Fresno Community were you disgusted with the care, or lack of care, that you had.
"A. I would have to say yes.
"Q. You were sent over there to get an MRI and they didnt give you one, correct?
"A. Yes.
"Q. You told the nurse practitioner you were supposed to get an MRI and you didnt get one?
"A. Yes.
"Q. You asked the nurse practitioner when you were going to see a doctor, and you never saw a doctor?
"A. Yes.
"Q. You thought you should have seen a doctor?
"A. Yes.
"Q. You thought you should have been given an MRI?
"A. Yes.
"Q. And you knew when you left the emergency room you had not seen a doctor, right?
"A. Correct.
"Q. You knew you had not gotten an MRI?
"A. Yes."
There is nothing tacit, ambiguous, or equivocal about Powells responses. While he states in his declaration that he believed Richardson performed the further testing Dr. Kleinman wanted and he cannot recall telling Richardson to order an MRI or that he wanted to see a doctor, these statements directly conflict with his deposition testimony and therefore the statements must be disregarded. Although Powell now claims that he was intimidated during the 2005 deposition and he gave the answers he thought the attorneys wanted because he wanted to get out of the deposition quickly, Powell does not explain why, if the answers were not accurate, he did not later correct them, as he did other responses he gave during the deposition.
Relying on Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, Powell argues the trial court erred when it found his 2005 deposition testimony to be binding and conclusive. In Scalf, however, the Court of Appeal merely reversed a trial courts overly expansive application of the rule against declarations contradicting deposition testimony in a case where the deposition testimony was not a complete admission of the rather intricate factual issue involved in the summary judgment motion. (Scalf, supra, at pp. 1514, 1519-1523.) That is not the case here — the question is simply whether Powell knew when he filed that complaint that he told Richardson he wanted an MRI and to see a doctor.
Relying on the physician reassurance doctrine, Powell contends that even if there was a reasonable basis for him to suspect Richardson was negligent when he was at CMC on September 23, 2001, that suspicion was put to rest by subsequent events, namely by (1) Richardsons telling him he should keep his appointment for an MRI, (2) Dr. Kleinmans failure to "make a fuss" over the care he received at CMC when he next saw Dr. Kleinman on October 1, 2001, and (3) his belief in October 2001 that permanent damage already had been done by the time he went to CMC because when he went there, he was having extreme pain and could not walk on his own. Based on this evidence, Powell asserts that an average lay person would not have any reasonable basis to suspect Richardson of negligence until he learned more about her involvement during discovery.
Powells reliance on the doctrine of physician reassurance is misplaced. That doctrine states a patient is entitled to rely on the physicians skill and judgment while under his or her care, thereby diminishing the degree of diligence required of a patient in ferreting out the negligent causes of his condition. (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 102; see also Brown v. Bleiberg (1982) 32 Cal.3d 426, 433-435.) The doctrine applies in determining when the one-year limitations period of Code of Civil Procedure section 340.5 commences, which is when "the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury,..." (Sanchez, supra, 18 Cal.3d at pp. 101-102.)
While a patient has a duty to exercise reasonable diligence to discover his or her injury, there is no duty under Code of Civil Procedure section 474 to exercise reasonable diligence to discover the identity of Doe defendants prior to filing a complaint. (Balon v. Drost (1993) 20 Cal.App.4th 483, 488.) As one appellate court explained, "`[t]hat, indeed, is the normal situation for which the fictitious name statute, Code of Civil Procedure section 474, is designed: when the plaintiff is ignorant of the name of "a defendant," the plaintiff must file suit against the known wrongdoers, and, when the Does true name is discovered, the complaint may be amended accordingly. [Citation.] [Citation.] [¶] Thus, while the duty to investigate is considered in discussing whether an initial complaint is timely, that inquiry is not relevant to whether a Doe amendment is timely. [Citation.]" (Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1172.) Instead, the relevant inquiry is what facts the plaintiff actually knew at the time the complaint was filed. (Id. at p. 1170.)
Here, Powell knew when he filed the complaint in December 2002 that Richardson failed to give him an MRI or have a doctor see him when he was at CMC on September 23, 2001. As he admits in his declaration, he knew after his October 2001 surgery that had he been diagnosed sooner he may not have suffered permanent injury. Certainly by the time he filed the complaint, as shown by the complaints allegations, he knew he had in fact sustained permanent injuries due to the failure to promptly diagnose his injury. While Powell stated in his declaration that he did not suspect in October 2001 that being cared for differently at CMC would have made his surgical outcome any better, this statement directly conflicts with his 2005 deposition testimony, in which he admitted that one month after his surgery the doctor told him he had limitations and impairments that would continue for the rest of his life, and he believed he wouldnt have been "as bad" if Richardson had treated him differently. Based on what Powell knew when he filed the complaint, a reasonable person would have believed Richardsons liability was probable.
Finally, Powell asserts the trial court erred by relying on new evidence submitted with the moving defendants reply papers. At oral argument, Powell objected to the courts consideration of any additional evidence. The only evidence submitted with the reply that the trial court specifically referred to in its ruling, however, and which Powell specifically discusses in his opening brief, is an excerpt from Powells 2005 deposition testimony, where Powell was asked if there was any reason why he could not give reliable testimony that day, "such as youre under medication that affects your ability to think, youre too tired, ill, anything else?[,]" to which Powell responded, "All those conditions exist, but I should be able to give proper testimony[,]" and his attorney stated that while he was on a long list of medications, he would do his best to give accurate testimony. Although Powell contends this was new evidence, the evidence was actually submitted as part of his opposition and used to argue that the medications he was on affected his mental acuity. Since this evidence was not in fact new, the court did not err in relying on it.
Inasmuch as Powell was not ignorant of Richardsons name or the facts making her liability probable when he filed the complaint in December 2002, the amendment substituting her for a Doe defendant did not relate back to the date upon which the original complaint was filed. Since the amendment was filed more than one year after the original complaint was filed, the statute of limitations had run and summary judgment in Richardsons favor was proper.
III. Summary Judgment as to Dr. Wilson
The trial court granted summary judgment in Dr. Wilsons favor on the grounds he did not breach the standard of care or cause Powells injury. As a general rule, "[t]he standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations] ... [Citations.]" (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001, internal quotation marks omitted.) As noted in Hanson v. Grode (1999) 76 Cal.App.4th 601, 607, "`"California courts have incorporated the expert evidence requirement into their standard for summary judgment in medical malpractice cases. When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence."" Expert opinion, however, is only as good as the factual information and reasoning upon which it is based. (Ibid.)
In his complaint, Powell alleged that the defendants negligently diagnosed, failed to diagnose and failed to treat the injury to his spine. In moving for summary judgment, Dr. Wilson asserted that his conduct fell within the standard of care and did not cause Powell injury. In support of the motion, Dr. Wilson submitted the declaration of Dr. Hafkenschiel, who reviewed "medical records and depositions in this case[,]" including Powells "complete chart" from CMC and the depositions of Powell and Richardson. According to Dr. Hafkenschiel, "upon review of the assessment, findings, diagnosis and treatment charted by Nurse Richardson," Dr. Wilson signed off on the chart "indicating that Mr. Powells treatment and diagnosis was consistent with Nurse Richardsons charted findings." Dr. Hafkenschiel stated that nothing in Richardsons charted findings suggested Powell required further evaluation or intervention and since the chart stated Powell was scheduled for an MRI three days later, Dr. Wilson was assured further follow-up and diagnosis already was scheduled. Dr. Hafkenschiel opined that it was appropriate and within the standard of care for Dr. Wilson to sign off on Powells chart because Richardsons charting did not present any information that Powell was experiencing an acute neurological condition and he was assured Powell would receive further medical consultation and diagnosis following his scheduled MRI.
A. Powells Opposition
We first address Powells motion to augment the record on appeal or, in the alternative, for writ of coram vobis. Powell requests that we augment the appellate record to include a transcript of Dr. Wilsons deposition testimony, which was taken on February 28, 2006, well after entry of judgment on October 5, 2005. Since the testimony was not before the trial court when it ruled on the summary judgment motion, we cannot consider it. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1; Jacobs v. Retail Clerks Union, Local 1222 (1975) 49 Cal.App.3d 959, 966.) "Augmentation does not function to supplement the record with materials not before the trial court." (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.)
In the alternative, Powell requests that we issue a writ of coram vobis directing the trial court to reconsider its prior ruling in light of Dr. Wilsons deposition testimony. The common law writ of error coram vobis is identical to the writ of error coram nobis except that the petition for the former is addressed to an appellate court instead of the court that rendered the judgment. (In re Derek W. (1999) 73 Cal.App.4th 828, 831, fn. 3 (Derek W. ); Betz v. Pankow (1993) 16 Cal.App.4th 931, 941, fn. 5.) A writ of error coram nobis exists "to correct an error of fact which was unrecognized prior to the final disposition of the proceeding." (In re Dyer (1948) 85 Cal.App.2d 394, 399.) Although used most often in criminal cases, the writ is available following a judgment in a civil proceeding. (Id. at p. 400.) A writ of error coram vobis commands the trial court to reconsider its judgment in light of newly discovered evidence. (See Betz v. Pankow (1995) 31 Cal.App.4th 1503, 1507; Betz v. Pankow, supra, 16 Cal.App.4th at p. 941.)
A writ of error coram nobis will be granted only when three requirements are met: (1) some fact exists that was not presented at the trial on the merits and that, if presented, would have prevented the rendition of the judgment; (2) the new evidence does not go to the merits of the issues tried; and (3) the new evidence could not in the exercise of due diligence have been discovered earlier. (People v. Shipman (1965) 62 Cal.2d 226, 230 (Shipman); see also Derek W., supra, 73 Cal.App.4th at p. 832.) The additional requirements for a writ of coram vobis from the appellate court are (1) the error to be corrected does not appear in the record; (2) no other remedy is available; and (3) the issue involved has not been previously determined. (Betz v. Pankow, supra, 16 Cal.App.4th at p. 941; Los Angeles Airways, Inc. v. Hughes Tool Co. (1979) 95 Cal.App.3d 1, 9.)
Although Powell relies on Rollins v. City and County of San Francisco (1974) 37 Cal.App.3d 145, as authority for less stringent requirements for issuance of a writ of error coram vobis, Rollins did not cite or discuss the California Supreme Courts opinion in Shipman, which set forth three requirements for the issuance of that writ. (Rollins, supra, at pp. 147-150.) Because Rollins did not follow that binding precedent and instead applied less stringent requirements, we decline to follow Rollins and instead apply Shipmans requirements for issuance of a writ of error coram vobis. Even assuming the existence of the powers applied in Rollins, Powell has offered no compelling reason for their use so as to excuse his failure to take Dr. Wilsons deposition and present that testimony before the trial court.
Here, the primary issue presented on the summary judgment motion was whether Dr. Wilson breached the standard of care. Both parties presented evidence on this issue in the form of the declarations of Drs. Hafkenschiel and Jacobs. The trial court found Dr. Wilson met his burden on summary judgment of showing he did not breach the standard of care, and Powell failed to create a triable issue of fact. Because Powells petition for writ of error coram vobis is based on newly discovered evidence that relates to an issue litigated and determined by the trial court, namely whether Dr. Wilson breached the standard of care, he has not satisfied the second Shipman requirement for issuance of a writ of error coram vobis. (Shipman, supra, 62 Cal.2d at p. 230; People v. Welch (1964) 61 Cal.2d 786, 793; People v. Tuthill (1948) 32 Cal.2d 819, 822; Derek W., supra, 73 Cal.App.4th at p. 832; Los Angeles Airways, Inc. v. Hughes Tool Co., supra, 95 Cal.App.3d at p. 9.) Thus, a writ of error coram vobis cannot be issued.
Accordingly, we consider only the evidence that was before the trial court in ruling on the motion. In opposition to the motion, Powell presented the declaration of Dr. Jacobs. Dr. Jacobs stated he reviewed the records from CMC, Clovis Urgent Care, Fresno Surgery Center, Michael Kesselman, Ph.D., Dr. Francisco Montalvo, Nada Nenadovic, D.C., Wilson Chiropractic, Dr. Watson, Health Comp, Kemper Insurance Company, Ninnis & Cribbs (workers compensation), and Pioneer Sales (workers compensation medical records); the depositions of Powell, Leif McGuire, Mrs. Powell, George C. Wilson, D.C., Carol Houk, R.N., Dr. Kleinman, Dr. Watson, Dr. Levin, Dr. Manthani Reddy, Dr. Matthew Iwamoto, and Richardson. He also reviewed Dr. Hafkenschiels declaration. The only opinion contained in Dr. Jacobss declaration regarding whether Dr. Wilson met the standard of care is contained in the seventh paragraph of his declaration: "If a nurse practitioner is seeing patients in an emergency room, the reviewing/supervising physician is responsible to see that the nurse practitioner complies with all applicable standards of care. If the nurse practitioner breaches a standard of care, the reviewing physician is also responsible for that breach. Thus, Dr. Wilson is responsible for the above described breach by Richardson, N.P. as he was her reviewing physician for the care she rendered to Powell." He also opined in paragraph eight that is was medically probable the care and treatment Powell received from Richardson and Dr. Wilson caused injury to Powell.
The trial court sustained Dr. Wilsons objections to these two paragraphs of Dr. Jacobss declaration to the extent they purported to state opinions as to Dr. Wilsons liability because Dr. Jacobs was stating a legal opinion he was not qualified to render and which intruded on the courts sole discretion to decide matters of law. Since Powell had no other evidence whether Dr. Wilsons treatment of him fell below the standard of care or caused his injuries, the court concluded Powell failed to raise a triable issue of fact on those issues.
On appeal, Powell contends the trial court erred in disregarding Dr. Jacobss opinion as to Dr. Wilsons liability or responsibility for Richardsons actions because evidence existed that supported Dr. Jacobss opinion. Specifically, Powell points to a document CMC produced in response to his document production request for CMCs records which have any relation to the care and treatment provided to and the duties of the medical personnel involved in Powells care and treatment. CMC responded by producing a rule contained in the Rules and Regulations of the Medical Staff in effect at the time of Powells visit which CMC stated "relates to the physicians responsibilities with respect to Allied Health Professionals which include nurse practitioners." Under the subheading "Medical Supervision" the rule states: "Dependent Allied Health Professionals (AHPs) [¶] Dependent AHPs shall be under the direction of a member of the Medical Staff who has clinical privileges in the area in which the AHP will practice. The Medical Staff member assumes full legal and medical responsibility for the actions of the AHP. It is the responsibility of both the applicant and the sponsoring physician to notify the Medical Affairs Office, in writing, of any changes in physician sponsorship of any allied health professional." Under the subheading "Orders by an Allied Health Professional" the rule provides that "[a]ny authorized order by an AHP must be countersigned by the responsible supervising practitioner within the time frame required in said position description or defined scope of services."
From this document, Powell argues that Dr. Wilson had full legal and medical responsibility for Richardsons actions, since he was the physician who signed off on her order in Powells chart. The rule, however, is not clear on this point. It appears from the rules language that the legal and medical responsibility arises only when a medical staff member is supervising an AHP who is in training, as the rule requires the AHP to be under the direction of a medical staff member "in the area in which the AHP will practice." Powell does not point to any evidence presented below that Richardson was in training, that Dr. Wilson was a medical staff member under the terms of this rule, or that he was the medical staff member who assumed full legal and medical responsibility for her actions. Without such evidence, it would be mere speculation to conclude that under this rule, Dr. Wilson was liable for Richardsons acts or omissions. (See Vournas v. Fidelity Nat. Title Ins. Co. (1999) 73 Cal.App.4th 668, 672 [a party cannot avoid summary judgment based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of material fact].)
Next, Powell contends that Dr. Wilson is liable for Richardsons negligence as a matter of law under the "captain of the ship doctrine." (See Thomas v. Intermedics Orthopedics, Inc. (1996) 47 Cal.App.4th 957, 967.) The law, however, does not support his contention. There is no evidence that Richardson was Dr. Wilsons agent or employee. Under the "captain of the ship doctrine," a physician is not liable for the negligence of hospital or other nurse attendants who are not his employees, unless the negligence occurred during a surgical procedure or the physician was negligent in failing to discover the negligence. (Id. at p. 966.) The "captain of the ship doctrine[,]" which holds a surgeon responsible for the negligence of others, has not been applied to negligence that occurred outside the surgical arena. (Id. at pp. 966-969; Truhitte v. French Hospital (1982) 128 Cal.App.3d 332, 346-348 [an operating surgeon is not responsible for anothers negligence unless it occurred during the surgery, at which point the surgeon is in complete control]; Sherman v. Hartman (1955) 137 Cal.App.2d 589, 596-597; Hallinan v. Prindle (1936) 17 Cal.App.2d 656, 661-662, disapproved on other grounds in Malloy v. Fong (1951) 37 Cal.2d 356, 364-367; and see Haning, Flahavan & Kelly, Cal. Practice Guide: Personal Injury (The Rutter Group 2006) ¶ 2:277, p. 2-76 [a physician cannot be held liable for anothers negligence in pre- or post-operative care when the other person is not acting under the physicians direct supervision and control]; 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 976, pp. 230-231.)
Finally, Powell argues that whether Richardson was Dr. Wilsons agent is a question of fact for the jury and not a question of law, citing Truhitte v. French Hospital, supra, 128 Cal.App.3d at p. 348. Powell, however, did not present any evidence from which it could be concluded that Richardson was Dr. Wilsons agent. Therefore, there is no triable issue of fact for the jury to decide. Powell contends Dr. Jacobss declaration, in which he stated that a reviewing physician is responsible for a nurse practitioners breaches of the standard of care, presented such evidence. The trial court sustained the moving defendants objection to this portion of his declaration that Dr. Jacobss opinion was a legal conclusion. Powell fails to explain how the trial court abused its discretion in this regard. (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1168 [trial courts determination of admissibility of expert opinion is reviewed for abuse of discretion].) No abuse of discretion occurred, since "`"[t]he manner in which the law should apply to particular facts is a legal question and is not subject to expert [or lay] opinion."" (Id. at p. 1179.)
B. Codefendants Opposition
Codefendants contend the trial court erred by: (1) finding that they did not have standing to oppose the moving defendants summary judgment motion and disregarding their opposition papers; (2) concluding Dr. Hafkenschiels declaration foreclosed all factual issues for a finding of liability by Dr. Wilson; (3) finding Dr. Wilsons care and treatment did not fall below the standard of care or cause Powell injury based on findings that Dr. Wilson presented evidence he did not see or treat Powell, his only involvement was signing off on Powells chart, and Powells chart indicated no further treatment was necessary; and (4) finding all statements in Dr. Hoopers declaration are unsupported legal conclusions.
The trial court concluded that codefendants do not have standing to oppose the summary judgment motion because it was not brought against them. Citing Code of Civil Procedure section 437c, subdivision (p)(2), which states that once a defendant or cross-defendant has met his or her burden of showing a cause of action has no merit, the burden shifts to the plaintiff or cross-complainant to show there is a triable issue of material fact, the trial court reasoned that because codefendants are not plaintiffs or cross-complainants, as they had not filed a cross-complaint against the moving defendants, they do not have standing under section 437c to oppose a summary judgment motion brought against the plaintiff by another defendant.
Codefendants argue the court erred in so finding because it was incumbent on them to protect their own interests by vigorously opposing the motion instead of relying on Powells opposition, and the courts refusal to consider their opposition effectively denied them due process. Codefendants point to Code of Civil Procedure section 437c, subdivision (l), which provides that when a summary judgment motion in a personal injury action is granted on the basis a defendant was without fault, "no other defendant during trial, over plaintiffs objection, may attempt to attribute fault to or comment on the absence or involvement of the defendant who was granted the motion." Based on this subdivision, codefendants reason they run the risk of being prevented at trial from advancing an "empty chair" argument as to Dr. Wilson and have a portion of fault attributed to him should summary judgment be granted in his favor on the basis he lacked fault. Codefendants also assert they run the risk of being precluded from litigating a claim of indemnity against Dr. Wilson should they choose to file a cross-complaint for indemnity at a later date. (See Columbus Line, Inc. v. Gray Line Sight-Seeing Companies Associated, Inc. (1981) 120 Cal.App.3d 622, 630-631 [issue preclusion because codefendant allied with plaintiff]; but see Sutton v. Golden Gate Bridge, Highway & Transportation Dist. (1998) 68 Cal.App.4th 1149, 1155-1157 and White Motor Corp. v. Teresinski (1989) 214 Cal.App.3d 754, 763 [no issue preclusion because no incentive to litigate].)
We need not decide whether the trial court correctly concluded codefendants did not have "standing" to oppose the motion because the trial court ultimately did consider codefendants opposition and found it failed to raise a triable issue of fact as to Dr. Wilson, and, as we shall explain, codefendants have failed to demonstrate on appeal that the trial court erred in so finding.
Codefendants contend the trial court erred when it failed to rule on their written evidentiary objections to Dr. Hafkenschiels declaration. Where evidentiary objections were filed in the superior court, but the record contains no rulings on those objections, the objections ordinarily are deemed waived and the objected-to evidence is considered in reviewing the ruling on the motion. (Vineyard Springs Estates v. Superior Court (2004) 120 Cal.App.4th 633, 642-643; Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 140.) Here, although the trial court concluded that codefendants did not have standing to oppose the motion and stated it would disregard their opposition, the court went on to rule the opposition did not create a triable issue of fact. Although codefendants filed evidentiary objections, they failed to secure a ruling on them. While, as codefendants point out, Powell joined in those objections at oral argument, Powell also failed to secure a ruling on the objections. Accordingly, codefendants failed to preserve the objections for appeal. (Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1186, fn. 1, disapproved on another point in Aguilar, supra, 25 Cal.4th at p. 853, fn. 19; Vineyard Springs Estates v. Superior Court, supra, 120 Cal.App.4th at p. 643.)
Codefendants next contend Dr. Wilson did not meet his burden of proof as the moving party. They argue first that Dr. Wilsons moving papers did not adduce admissible evidence of his involvement with Richardson or Powell, as the facts underlying Dr. Hafkenschiels opinion, which were contained in medical records and depositions, are hearsay and their admissibility limited to showing the basis for Dr. Hafkenschiels opinions. Codefendants objection, however, comes too late, as they failed to object on that ground in the trial court to the indicated evidence. Therefore, they have waived any evidentiary error. (Evid. Code, § 353; People v. Williams (1988) 44 Cal.3d 883, 906; People v. Green (1980) 27 Cal.3d 1, 22, fn. 8, overruled on other grounds by People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3, and People v. Martinez (1999) 20 Cal.4th 225, 239.) The evidence was admitted without any such objection and was properly considered by the trial court.
Codefendants further assert that even if Dr. Hafkenschiels declaration could be used to establish Dr. Wilsons actions, it did not foreclose all possible bases of Dr. Wilsons liability. Codefendants posit Dr. Wilson could have signed off on Powells chart without reading it and state there is "no factual predicate presented for what [Dr.] Wilson did as a basis of `signing off[,]" such as whether he read Dr. Kleinmans written referral form. Considering all the evidence before the trial court, which we are required to do, the evidence establishes Dr. Wilsons only involvement with Powells care while at CMC was to sign his chart. Both Powell and his wife stated in their declarations that Dr. Wilson did not see or examine Powell while he was at CMC. Richardson testified that an emergency room physician did not see Powell that day and she would have consulted one had she been concerned Powell needed to be seen by a physician. Based on his review of Powells chart and the depositions of Powell and Richardson, Dr. Hafkenschiel stated that upon review of Richardsons charted assessment, findings, diagnosis and treatment, Dr. Wilson signed off on the chart, which indicated Powells treatment and diagnosis was consistent with Richardsons charted findings. Dr. Hafkenschiel opined it was appropriate for Dr. Wilson to sign off on the chart because Richardsons charted findings did not suggest Powell required further evaluation or intervention or that he was experiencing an acute neurological condition, and the chart showed Powell was scheduled for an MRI three days later. Dr. Hafkenschiel further opined that no improper action by Dr. Wilson caused or contributed to Powells alleged injuries.
Based on all of the evidence, the record supports the trial courts findings that Dr. Wilson did not see or treat Powell, that his only involvement in Powells treatment was signing off on the chart, and that the chart, i.e. Richardsons findings, indicated no further treatment was necessary. Moreover, Dr. Hafkenschiels opinion establishes that nothing in Richardsons charted findings would have alerted Dr. Wilson that Powell required further evaluation or intervention, and therefore it was appropriate for him to sign off on the chart. Even if Dr. Wilson did not actually review those findings and signed off on the chart without reading it, Dr. Hafkenschiels opinion still establishes that Dr. Wilsons act of signing off on the chart did not cause Powell injury, since Richardsons findings would not have prompted Dr. Wilson to intervene further in Powells case in any event. If codefendants or Powell disagreed with Dr. Hafkenschiels opinions and believed Dr. Wilson should have reviewed more of the chart than Richardsons findings or that further review should have caused him to question those findings, it was incumbent on them to submit an expert witness declaration to that effect. Since they did not do so, the trial court did not err in finding Dr. Wilson met his burden of showing his care and treatment of Powell did not fall below the standard of care and nothing he did or failed to do caused Powell injury.
Finally, codefendants contend the trial court erred in concluding that Dr. Hoopers statements regarding Dr. Wilson are unsupported legal conclusions because much of Dr. Hoopers declaration consists of facts and admissible expert opinions. Codefendants concede, however, that paragraph 16 of Dr. Hoopers declaration, in which Dr. Hooper opines that as Richardsons supervising physician, Dr. Wilson is responsible for Richardsons professional acts and omissions, is possibly a legal conclusion. While the trial court did not state exactly which paragraphs of Dr. Hoopers declaration were legal conclusions, it is apparent the trial court was referring to only those paragraphs that referenced Dr. Wilson, which includes paragraph 16 and paragraph 19, in which Dr. Hooper opined Dr. Wilson did not cause or contribute to Powells injury. Codefendants do not argue that the trial court erred in concluding these portions of Dr. Hoopers declaration are unsupported legal conclusions. They also do not explain how the other portions of Dr. Hoopers declaration create a triable issue of fact as to Dr. Wilsons liability. While codefendants make a blanket assertion that their opposition contains facts adduced in deposition testimony and medical records that create a triable issue of fact so as to defeat Dr. Wilsons motion, they do not cite to the facts they contend do so or make any coherent argument on this issue. Codefendants failure to present cognizable supporting argument and to cite adequate supporting evidence in the record "constitutes a waiver of the issue on appeal. [Citations.]" (Berger v. California Ins. Guarantee Assn (2005) 128 Cal.App.4th 989, 1007, fn. omitted; see also Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1 ["[w]e will not develop the appellants arguments for them...."].)
In summary, the moving defendants submitted evidence that Dr. Wilson met the applicable standard of care and did not cause or contribute to Powells injury. Powell and codefendants failed to contradict that evidence. Dr. Wilson therefore was entitled to summary judgment.
DISPOSITION
The judgment is affirmed. Respondents William Wilson, M.D. and Karraine Richardson, N.P. are awarded their costs on appeal.
We concur:
Levy, Acting P.J.
Dawson, J.