Filed 11/18/21 Todd v. Pacific Alliance Medical Center CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
DONALD SHERWIN TODD et al., B307401
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC589068)
v.
PACIFIC ALLIANCE MEDICAL
CENTER,
Defendant and Respondent.
APPEAL from judgment of the Superior Court of
Los Angeles County, John P. Doyle, Judge. Affirmed.
Donald Sherwin Todd and Kathy Todd, in pro. per., for
Plaintiffs and Appellants.
Doyle Schafer McMahon, Raymond J. McMahon and
David Klehm for Defendant and Respondent.
____________________________
Plaintiffs Kathy Todd and her husband Donald Todd (the
Todds) sued, among others, Pacific Alliance Medical Center
(Pacific Alliance) after Kathy’s brother, Larry Tucker, died in
2014 from arteriosclerosis.1 The Todds contend that Pacific
Alliance was aware Tucker had an abnormal electrocardiogram
(ECG or EKG) test in 2010, and failed to take appropriate steps
to notify Tucker and his physician. This appeal follows the trial
court’s entry of summary judgment on Pacific Alliance’s amended
motion for summary judgment. Pacific Alliance amended its
motion after this court previously reversed an award of summary
judgment in favor of Pacific Alliance.
We reject the Todds’ argument that the trial court lacked
authority to consider the amended motion for summary
judgment. On the merits, we conclude the Todds fail to raise a
triable issue of material fact. Although they submitted an expert
declaration, the Todds’ expert relies on facts different from those
alleged in the Todds’ operative pleading and purports to create a
duty on the part of the hospital where, as a matter of law, none
exists. Even though the Todds persuasively point out that Pacific
Alliance has had a “second bit[e] at the apple” by filing two
motions for summary judgment, we decline to apply the doctrine
of collateral estoppel. Remanding the case to the trial court for
further proceedings when it is clear that Pacific Alliance is
entitled to judgment as a matter of law would be a futile act that
1 The record refers both to “arteriosclerotic” and
“atherosclerotic” heart disease. Arteriosclerosis is a disease
characterized by hardening and thickening of the arterial walls.
Atherosclerosis is a form of arteriosclerosis characterized by fatty
deposits in the arteries. (American Heritage Dictionary of the
English Language (4th ed. 2000) pp. 101, 113.)
2
the law does not require. We affirm the judgment in favor of
Pacific Alliance.
BACKGROUND
Kathy Todd’s brother, Larry Tucker, was born in 1952.
“Tucker[ ] died on July 24, 2014. According to the Los Angeles
County Coroner’s investigation, Mr. Tucker fell down several
stairs and sustained head injuries. A call was placed to 911 and
Mr. Tucker was pronounced dead at the scene. The autopsy
attributed Mr. Tucker’s death to ‘arteriosclerotic heart disease’
and reported that his arteries were from 60% to 80% occluded.
“Mr. Tucker had been a patient of Dr. [Thick] Chow’s since
October 2007. Dr. Chow’s records for Mr. Tucker did not contain
any complaints of chest pain or shortness of breath; nor did they
report any diagnosis of heart disease. In the year before his
death, Mr. Tucker presented with complaints of back, neck and
shoulder pain, flea bites, rash, and a swelling on his hand.”
(Todd v. Chow et al. (June 5, 2018, B278824, B280840) [nonpub.
opn.], fn. omitted (Todd I).)
“Mr. Tucker’s medical records included 2010 test results
labeled as ‘Abnormal ECG’ (electrocardiogram) with a notation
‘probable inferior infarct, old.’ The records also included
laboratory results showing high cholesterol.” (Todd I, supra,
B278824, B280840.) The 2010 ECG was taken at Pacific Alliance
in advance of a hernia repair operation. Dr. Felix Chi-Ming Yip
performed the hernia operation on October 14, 2010. The
operation occurred at Pacific Alliance, and the Todds allege no
cause of action with respect to that operation.
3
1. Operative complaint
In their third amended complaint, the Todds alleged causes
of action for medical malpractice and wrongful death. We
summarize below those allegations pertinent to this appeal.
Dr. Chow failed to diagnose arteriosclerotic heart disease,
failed to perform appropriate diagnostic tests, and failed to
consult with cardiac experts. Pacific Alliance is responsible for
Dr. Chow’s negligent failure to diagnose, failure to perform
appropriate tests, and failure to consult with experts.
On February 11, 2010, someone at Pacific Alliance
performed an ECG on Tucker. Pacific Alliance learned that
Tucker’s ECG was abnormal. Dr. Chow also had notice of
Tucker’s abnormal ECG. “Dr. Chow incorrectly diagnose[d] . . .
‘rotator cuff syndrome with DJD [degenerative joint disease] of
the cervical spine’ after receipt of the deceased[’s] ‘abnormal ECG
report.’ ” (Italics omitted.) Because they knew of the abnormal
ECG, both Dr. Chow and Pacific Alliance “had constructive
knowledge of the possible heart condition of Larry Tucker . . . .”
Pacific Alliance and Dr. Chow failed to “order additional test[s] to
determine what was causing the deceased to have an abnormal
ECG result[ ].”
2. Prior appeal
In the prior appeal, we affirmed the entry of summary
judgment in favor of Dr. Chow, who is no longer a party. We
reversed the entry of summary judgment in favor of Pacific
Alliance. We explained that Pacific Alliance failed to make a
prima facie showing that the Todds could not establish liability.
(Todd I, supra, B278824, B280840.)
4
First, we rejected Pacific Alliance’s argument that the
grant of summary judgment in Dr. Chow’s favor was sufficient to
carry its burden under a theory of issue preclusion to show
Pacific Alliance could not be vicariously liable based on
Dr. Chow’s negligence. At the time of our prior opinion, the
judgment in Dr. Chow’s favor was also on appeal, thus not yet
final for purposes of applying the doctrine of issue preclusion. As
we held, “[t]he summary judgment in favor of Dr. Chow . . .
afford[ed] no basis for affirming the summary judgment as to
Pacific Alliance. (Todd I, supra, B278824, B280840.)
Second, we held Pacific Alliance “failed to present evidence
defeating the alleged direct liability and vicarious liability for
actions or omissions by employees other than Dr. Chow—and
therefore did not carry its initial burden of production on
summary judgment.” (Todd, supra, B278824, B280840.) “In
order to establish that plaintiffs could not establish a breach of
the standard of care, Pacific Alliance was itself required to
provide expert evidence of the applicable standard. It failed to do
so.” (Ibid.) By merely relying on expert opinion proffered as to
Dr. Chow’s conduct, Pacific Alliance did not carry its burden in
moving for summary judgment based on the negligence of
persons other than Dr. Chow or Pacific Alliance itself.
3. Amended motion for summary judgment and
opposition
Pacific Alliance filed an amended motion for summary
judgment, arguing that there were no triable issues of material
fact that Pacific Alliance breached a duty owed to Tucker or that
Pacific Alliance caused Tucker’s death.
Pacific Alliance argued now that the judgment in favor of
Chow was final, Pacific Alliance could not be vicariously liable for
5
any negligence committed by Dr. Chow—a contention the Todds
do not dispute on appeal. Pacific Alliance further argued a
hospital’s duty does not include diagnosing, advising, or treating
patients. Pacific Alliance contended the “medical standard of
care required that the decedent’s physician, not [Pacific Alliance]
which was the hospital where the ECG was performed,
recommend any further cardiac studies if warranted.” Pacific
Alliance also contended it did not cause or contribute to any of
the decedent’s injuries.
In a declaration in support of Pacific Alliance’s motion,
Dr. Ryan Klein, a physician in California since 1978, stated:
“Mr. Tucker’s only treatment at [Pacific Alliance] was for a pre-
surgical EKG prior to an outpatient hernia procedure. The EKG
was performed on October 11, 2010 and showed some minor
abnormalities. However, these abnormalities were not even
severe enough to prevent the hernia repair surgery from going
forward and Mr. Tucker was cleared for surgery by his physician
who was not acting as an agent of [Pacific Alliance].”
“Larry Tucker died on July 24, 2014. The Coroner Report
shows he suffered sudden death after a ground level fall down
three steps. The only autopsy finding was atherosclerosis in
three vessels but there was no finding of ischemic heart damage
or that Mr. Tucker suffered a myocardial infarction (heart
attack). It is common for atherosclerosis to be noted on an
autopsy in patients who have never displayed symptoms for
cardiac disease or atherosclerosis during their life because
patients with atherosclerosis can live for decades without
showing any symptoms of the disease.”
“The standard of care does not require that [Pacific
Alliance], as the hospital where the pre-operative EKG for an
6
out-patient hernia repair procedure is performed, to make a
referral to a cardiologist or for additional cardiac testing unless a
patient reports cardiac symptoms prior to the hernia procedure.
The standard of care requires that referrals for additional
medical care and treatment after medical testing, such as an
EKG, are made by the patient’s physician, not by the hospital
where the testing was performed. Mr. Tucker did not have
cardiac related symptoms that would have alerted [Pacific
Alliance], its employees, or any of its agents, that Mr. Tucker
may have been suffering from atherosclerotic heart disease at the
time the pre-operative EKG was taken prior to the hernia repair
procedure.”
Dr. Klein opined “to a reasonable degree of medical
probability” that “no negligent act or omission by Pacific
Alliance . . . caused or contributed to decedent’s death. To a
reasonable degree of medical probability, [Tucker] died as a
result of [a] process that would not have been detected even if a
cardiology consult or cardiac testing had been ordered at or near
the time of the EKG at [Pacific Alliance] in October, 2010.”
4. Opposition
The Todds opposed the amended motion for summary
judgment, relying heavily on the declaration of Jennifer Lynn
Cook, M.D., FAHA, FACC. The Todds argued that based on
Dr. Cook’s declaration, they raised triable issues of material fact
supporting the inference that Pacific Alliance should have
provided the ECG results to Dr. Chow and to Tucker.
7
Dr. Cook was licensed to practice medicine in Arizona and
Ohio.2 Dr. Cook “treated patients with Arteriosclerosis Heart
Disease in [her] professional duties.” Dr. Cook declared: “The
Deceased underwent pre-operative screening on October 11, 2010
at [Pacific Alliance] where an Electro Cardio Gram (‘ECG’) was
performed with ‘abnormal results.’ The ECG revealed; a Q waves
in leads II, III and aVF suggesting the presence of an old inferior
infarction. In addition the voltage in the precordial leads
suggests the presence of left ventricular hypertrophy.” Dr. Cook
averred that the ECG “raises concern for underlying coronary
atherosclerosis.” “Larry Tucker should have had evaluation and
treatment for coronary atherosclerosis after his ECG of
2 Cook attested, “Based on my Certification in Advanced
Heart Failure & Transplantation (2016); Cardiovascular Disease
(2007); Internal Medicine (2001)—American Board of Internal
Medicine, education, training and experience, I am familiar with
the standard of care for hospitals[ ] . . . in the Southern California
area currently and at all times relevant in this matter.”
Although Pacific Alliance correctly states that Dr. Cook is
not licensed to practice medicine in California, Pacific Alliance
offers no legal authority supporting the proposition that Dr. Cook
was unqualified to opine on the standard of care. Interpreting
the evidence in the light most favorable to the party opposing
summary judgment, we conclude that Dr. Cook was generally
familiar with the local standard of care. (Avivi v. Centro Medico
Urgente Medical Center (2008) 159 Cal.App.4th 463, 471 [Israeli
doctor could opine on standard of care for treating fractures in
the United States]; Borrayo v. Avery (2016) 2 Cal.App.5th 304,
310–311 [“Today ‘neither the Evidence Code nor Supreme Court
precedent requires an expert witness to have practiced in a
particular locality before he or she can render an opinion in an
ordinary medical malpractice case.’ [Citation.]”].)
8
October 11, 2010. Doing so would have provided opportunity to
restore perfusion to any remaining ischemic areas. In my opinion
Larry Tucker . . . should have had a treadmill stress test with
nuclear imaging.” “Larry Tucker relied upon the medical
expertise of [Pacific Alliance] to notify both the patient (‘Larry
Tucker’), and his primary care physician Dr. Thick Chow, M.D.,
of the ECG abnormal result of October 11, 2010. The deceased,
without knowledge and notice[ ] of his ECG’s abnormal result,
[was] denied . . . his opportunity to seek further testing and care.”
Dr. Cook opined that Pacific Alliance did not comply with the
standard of care and that Pacific Alliance’s negligence “caused or
contributed to Larry Tucker[’s] injuries.”
5. Prior writ proceeding
The trial court initially denied Pacific Alliance’s amended
motion for summary judgment. Pacific Alliance petitioned for
writ of mandate on the ground that Dr. Cook’s declaration was
not signed under penalty of perjury under California law.
Following Pacific Alliance’s petition for writ of mandate, this
court issued the following order: “[W]e agree with petitioner that
the trial court erroneously denied petitioner’s motion for
summary judgment based on a declaration not signed under the
penalty of perjury under the laws of the State of California.
(Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th
601, 618.) The court should either have granted the motion or
reconsidered it after permitting the real parties to file a further
amended declaration that complies with California law. [¶]
Accordingly, the parties are notified of our intention to issue a
peremptory writ in the first instance [citation], requiring
respondent court to vacate its August 29, 2019 order denying
petitioner’s motion for summary judgment.”
9
The trial court vacated its August 29, 2019 order denying
Pacific Alliance’s motion for summary judgment. This court then
dismissed the petition as moot. Dr. Cook filed an amended
declaration executed under penalty of perjury under the laws of
the State of California.
6. Judgment
The trial court’s tentative order, later adopted as its ruling,
explains that it exercised its discretion to allow Pacific Alliance to
file the amended motion for summary judgment. The trial court
rejected the argument that collateral estoppel barred the
amended motion for summary judgment. The court concluded
that Pacific Alliance did not have a duty to report the EKG
results to Tucker.
In a motion for reconsideration, the Todds argued that
Dr. Cook’s declaration evidenced that Pacific Alliance had a duty
to notify Tucker and Dr. Chow of the ECG results. The trial
court denied the Todds’ motion for reconsideration. The court
concluded Dr. Cook’s declaration conflicted with allegations in
the third amended complaint that Dr. Chow was aware of the
results of the ECG. On August 12, 2020, the court entered
judgment in favor of Pacific Alliance. The Todds timely appealed
from the judgment.
DISCUSSION
Our standard of review is familiar. “A moving party is
entitled to summary judgment when the party establishes that it
is entitled to the entry of judgment as a matter of law. (Code Civ.
Proc., § 437c, subd. (c).) A defendant may make this showing by
demonstrating that the plaintiff cannot establish one or more
elements of all of his causes of action, or that the defendant has a
10
complete defense to each cause of action. (Id. subd. (o).) This
court reviews an order granting a motion for summary judgment
de novo. [Citation.] ‘We will affirm a summary judgment if it is
correct on any ground, as we review the judgment, not its
rationale.’ [Citation.]” (Marshall v. County of San Diego (2015)
238 Cal.App.4th 1095, 1107 (Marshall).) “As with an appeal from
any judgment, it is the appellant’s responsibility to affirmatively
demonstrate error and, therefore, to point out the triable issues
the appellant claims are present by citation to the record and any
supporting authority. In other words, review is limited to issues
which have been adequately raised and briefed.” (Lewis v.
County of Sacramento (2001) 93 Cal.App.4th 107, 116,
disapproved on another ground as recognized in Kaufman &
Broad Communities, Inc. v. Performance Plastering, Inc. (2005)
133 Cal.App.4th 26, 41–42.)
The Todds argue (1) the trial court erred in considering a
second motion for summary judgment after this court reversed
the trial court’s grant of Pacific Alliance’s prior motion; (2) the
trial court should have considered the standard of care in the
Todds’ expert’s declaration, which raised material issues of fact
regarding Pacific Alliance’s breach of that standard of care and
the cause of Tucker’s demise; and (3) the second motion for
summary judgment was barred by the doctrine of collateral
estoppel.
I. The Todds Failed To Demonstrate Error in the Trial
Court’s Exercise of Its Inherent Discretion To
Consider a Successive Motion for Summary
Judgment
The Todds challenge the trial court’s decision to permit
Pacific Alliance to file an amended motion for summary
11
judgment. They rely on Code of Civil Procedure section 437c,
subdivision (f)(2),3 which provides: “A motion for summary
adjudication may be made by itself or as an alternative to a
motion for summary judgment and shall proceed in all procedural
respects as a motion for summary judgment. A party shall not
move for summary judgment based on issues asserted in a prior
motion for summary adjudication and denied by the court unless
that party establishes, to the satisfaction of the court, newly
discovered facts or circumstances or a change of law supporting
the issues reasserted in the summary judgment motion.”
In Marshall, the appellate court rejected the argument that
section 437c, subdivision(f)(2) precludes a trial court from
exercising its inherent authority to “permit a party to file a
successive motion for summary judgment and/or adjudication”
where the successive motion was based on “evidence that was not
presented in connection with a prior motion.” (Marshall, supra,
238 Cal.App.4th at pp. 1106, 1107.) In Marshall, the trial court
allowed the filing of successive motions for summary judgment
and later granted those motions; the appellate court affirmed.
(Id. at p. 1104.) In doing so, the appellate court reasoned
although section 437c, subdivision (f)(2) restricts a party’s ability
to file a successive motion for summary judgment, it “does not
restrict a court’s inherent authority in any manner.” (Marshall,
at p. 1106.)
Here, the trial court had inherent authority to entertain
Pacific Alliance’s amended motion for summary judgment.
(Marshall, supra, 238 Cal.App.4th at p. 1106; see also Meridian
3 Undesignated statutory references are to the Code of
Civil Procedure unless otherwise indicated.
12
Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 700,
fn. 13 [Prohibition in section 437c, subdivision (f)(2) may be
overcome by “exercise of judicial discretion”].) The Todds
demonstrate no error in the trial court’s exercise of its inherent
authority to hear Pacific Alliance’s amended motion for summary
judgment. This is especially true in light of our direction to the
trial court in the writ proceedings to reconsider the amended
summary judgment motion upon obtaining a properly attested
declaration. (See Discussion, part III, post.)
The Todds correctly point out that this court previously
reversed the judgment in favor of Pacific Alliance finding that
Pacific Alliance failed to establish its initial burden on summary
judgment. The amended motion, however, was not based on the
same evidence as the original motion. In its amended motion,
Pacific Alliance offered Dr. Klein’s declaration to correct the
deficiency this court identified with the original motion.
Dr. Klein’s declaration was a declaration from a qualified expert
and was sufficient to meet Pacific Alliance’s initial burden that
the Todds could not establish one or more elements of their
medical malpractice cause of action. Klein opined that Pacific
Alliance complied with the standard of care “in all respects,
including the management of decedent—and the EKG findings.”
Klein further opined that “no negligent act or omission by Pacific
Alliance . . . caused or contributed to decedent’s death.”
Finally, the Todds’ reliance on Pender v. Radin (1994)
23 Cal.App.4th 1807, 1812 is misplaced. In Pender, the trial
court denied the defendant’s original motion for summary
judgment. (Id. at p. 1811.) The trial court then allowed the
defendant to file a second motion for summary judgment. (Ibid.)
Applying section 437c, subdivision (f)(2), the appellate court
13
concluded the trial court did not err in considering the second
motion based on newly discovered facts, which also made a
“relatively new case” applicable. (Pender, at p. 1812.) “Because
there was new information, the trial court did not abuse its
discretion under the statute in allowing [the defendant] to renew
her motion.” (Ibid.)
Pender does not consider whether a trial court has inherent
discretion to permit successive summary judgment motions even
absent new facts or a change in the law. The case is not
authority for a proposition not considered. (Los Angeles County
Metropolitan Transportation Authority v. Yum Yum Donut Shops,
Inc. (2019) 32 Cal.App.5th 662, 673.) Pender therefore does not
support the Todds’ argument that the trial court lacked
discretion to hear Pacific Alliance’s amended motion for summary
judgment.
II. The Todds Failed To Demonstrate a Triable Issue of
Material Fact
A wrongful death cause of action requires showing a tort,
the resulting death, and damages. (Lattimore v. Dickey (2015)
239 Cal.App.4th 959, 968.) The underlying tort the Todds alleged
was medical malpractice. “ ‘The elements of a cause of action for
medical malpractice are: (1) a duty to use such skill, prudence,
and diligence as other members of the profession commonly
possess and exercise; (2) a breach of the duty; (3) a proximate
causal connection between the negligent conduct and the injury;
and (4) resulting loss or damage.’ [Citation.]” (Ibid.)
“Although hospitals do not practice medicine in the same
sense as physicians, they do provide facilities and services in
connection with the practice of medicine, and if they are negligent
in doing so they can be held liable.” (Leung v. Verdugo Hills
14
Hospital (2012) 55 Cal.4th 291, 310.) Under California law, a
hospital has a duty to prevent harm to its patients. (Elam v.
College Park Hospital (1982)132 Cal.App.3d 332, 340–341
(Elam).) “A hospital is required to exercise the degree of care,
skill and diligence used by other hospitals in similar
circumstances.” (Osborn v. Irwin Memorial Blood Bank (1992)
5 Cal.App.4th 234, 285.)
The Todds argue that Dr. Cook’s declaration establishes
Pacific Alliance “breached the standard of car[e] by not informing
decedents’ (‘Larry Tucker’) or his primary care physician
(‘Dr. Thick Chow, M.D.[ ]’)[,] of the abnormal ECG results of
October 11, 2010.” The Todds maintain that Dr. Cook’s
declaration raises a triable issue of material fact as to whether
Pacific Alliance breached that standard of care.
A. Even if Pacific Alliance had a duty to advise
Dr. Chow of the results of the ECG, the Todds
cannot demonstrate causation
The Todds’ principal argument is that Dr. Cook raised a
triable issue of material fact supporting the inference that Pacific
Alliance violated a duty to advise Dr. Chow of the ECG results.
Even if Pacific Alliance breached that asserted standard of care,
the Todds cannot demonstrate the breach caused damages
because they expressly allege Dr. Chow had notice of the
abnormal ECG. The Todds alleged in their operative complaint:
Dr. Chow also had notice of Tucker’s abnormal ECG. “Dr. Chow
incorrectly diagnose[d] . . . ‘rotator cuff syndrome with DJD of the
cervical spine’ after receipt of the deceased ‘abnormal ECG
report.’ ” (Italics omitted.) Because they knew of the abnormal
ECG, both Dr. Chow and Pacific Alliance “had constructive
knowledge of the possible heart condition of Larry Tucker . . . .”
15
Pacific Alliance and Dr. Chow failed to “order additional test[s] to
determine what was causing the deceased to have an abnormal
ECG result[ ].”
In her declaration, Dr. Cook incorrectly states, “[N]either
Larry Tucker or his primary physician received notice of the ECG
abnormal results.” This declaration contradicts an admission in
the operative pleading, and as such, cannot create a triable issue
of material fact. “Facts established by pleadings as judicial
admissions ‘ “are conclusive concessions of the truth of those
matters, are effectively removed as issues from the litigation, and
may not be contradicted by the party whose pleadings are used
against him or her.” [Citations.] “ ‘[A] pleader cannot blow hot
and cold as to the facts positively stated.’ ” [Citation.]’
[Citation.]” (Myers v. Trendwest Resorts, Inc. (2009)
178 Cal.App.4th 735, 746.) Because Dr. Chow had notice of the
ECG results, any breach of Pacific Alliance’s duty to inform
Dr. Chow of the results, as a matter of law, did not cause
Tucker’s death.
B. Pacific Alliance had no duty to advise Tucker of
the ECG results
The remaining question is whether Pacific Alliance had a
duty to notify Tucker of abnormal EKG results in the first place.
The Todds argue the trial court erred in relying on Walker v.
Sonora Regional Medical Center (2012) 202 Cal.App.4th 948
(Walker) to conclude Pacific Alliance did not have a duty to
provide the test results to Tucker.
Walker considered whether a hospital that performed a
cystic fibrosis screening test ordered by the plaintiff’s doctor owed
a duty to disclose the test results directly to the plaintiff. The
purpose of the cystic fibrosis test was to detect the plaintiff’s
16
genetic predisposition to having a child with cystic fibrosis.
(Walker, supra, 202 Cal.App.4th at p. 953.) The plaintiff gave
birth to a child with cystic fibrosis after her physician and the
hospital failed to tell her she tested positive as a cystic fibrosis
carrier. (Id. at p. 952.) In a motion for summary judgment, the
hospital argued that it did not have a duty to disclose the results
directly to the plaintiff. (Id. at p. 955.)
Walker affirmed the summary judgment entered in the
hospital’s favor, concluding that to the extent the hospital was
providing only clinical laboratory services to perform a test
ordered by the plaintiff’s doctor, it owed a duty to send the
laboratory results to the doctor only. The hospital had no
affirmative duty to release the laboratory test results directly to
the patient. (Walker, supra, 202 Cal.App.4th at p. 962.)
In addition to citing regulations and statutes relevant only
to clinical laboratories, Walker relied on the following reasoning
for holding the hospital did not have a duty to report test results
to the patient: “[T]he physician who ordered a medical test is
likely to be the professional who can best explain the meaning
and significance of the test results to the patient in the context of
that patient’s individual circumstances. Conversely, a
requirement that a hospital laboratory or its employees send
reports directly to a patient or attempt to communicate complex,
problematic test results directly to a patient, independently of the
patient’s physician who ordered the test, would appear to pose a
considerable risk of confusion or misunderstanding.” (Walker,
supra, 202 Cal.App.4th at p. 962.) “[W]hen a laboratory test is
ordered by a patient’s physician, there is an existing patient-
physician relationship with respect to the subject matter of the
17
laboratory test. Hence, a direct disclosure of laboratory results to
the patient might unwisely interfere in that relationship.” (Ibid.)
Derrick v. Ontario Community Hospital (1975)
47 Cal.App.3d 145 is also instructive. There, plaintiffs alleged
they were exposed to a contagious disease by a minor, who had
allegedly contracted that disease while a patient at the defendant
hospital. Plaintiffs further alleged the hospital and attending
physician knew about the patient’s contagious condition. In
reviewing a demurrer ruling, the appellate court declined to
impose a duty on the hospital to inform the minor patient or her
mother that the minor had a contagious disease because “that
duty might substantially interfere with the relationship between
the patient and her attending physician.” (Id. at p. 154.)
Turning to this case, Pacific Alliance cites no evidence and
makes no argument that it served merely as a clinical laboratory
when Tucker underwent a hernia operation there in 2010.4 Even
if Pacific Alliance was not merely a clinical laboratory, we find
Walker’s rationale persuasive, particularly its discussion that
disclosure of test results directly to the patient might unwisely
interfere in the doctor patient relationship. Tucker had a
relationship with Dr. Yin who successfully performed the hernia
4 A “ ‘[c]linical laboratory’ means any place used, or any
establishment or institution organized or operated, for the
performance of clinical laboratory tests or examinations or the
practical application of the clinical laboratory sciences. That
application may include any means that applies the clinical
laboratory sciences.” (Bus. & Prof. Code, § 1206, subd. (a)(8).)
In contrast, to the definition of clinical laboratory in the
Business and Professions Code, Health and Safety Code
section 1250 provides definitions of different types of hospitals.
18
procedure in 2010, and with Dr. Chow, his doctor since 2007, who
knew of Tucker’s 2010 abnormal ECG. Pacific Alliance had no
duty under these circumstances to disclose the ECG results
directly to Tucker where it is undisputed that at the time the
ECG was taken, Tucker had existing patient-physician
relationships with Dr. Yin and Dr. Chow, and the Todds have
admitted Dr. Chow knew about the ECG results.5
We reject the Todds’ argument that Walker is “completely
contradictory” to the evidence that they presented by way of
Dr. Cook’s declaration. Duty is a question of law for the court to
decide, not a question of fact subject to resolution by way of
expert declarations. (Walker, supra, 202 Cal.App.4th at p. 958;
Elam, supra, 132 Cal.App.3d at p. 339 [duty is “question of law
within the exclusive province of the court”].) Dr. Cook’s
declaration cannot raise a triable issue of material fact as to
Pacific Alliance’s duty to Tucker. The Todds do not otherwise
challenge the application of Walker to this case.
In sum, the Todds raise no triable issue of material fact
showing that Pacific Alliance breached any duty to report to
Dr. Chow causing Tucker’s death and, as a matter of law, Pacific
Alliance did not have a duty to report the ECG test result to
Tucker. The trial court did not err in granting summary
judgment in favor of Pacific Alliance.
5 We do not opine on whether a hospital may have a duty
to disclose test results when obtaining a patient’s informed
consent. Tucker’s informed consent with respect to his hernia
operation is not at issue in this appeal, and the Todds have made
no argument based on obtaining informed consent.
19
III. Principles of Collateral Estoppel Do Not Require the
Reversal of the Judgment
The trial court rejected the Todds’ argument that collateral
estoppel precluded consideration of Pacific Alliance’s amended
summary judgment motion: “Collateral estoppel does not apply
because the court of appeal merely found that Defendant [Pacific
Alliance] did not meet its burden for the initial motion because it
had failed to provide admissible evidence. Such ruling does not
preclude the instant Motion which is an attempt to remedy
Defendant’s prior error. In fact, had collateral estoppel applied,
it is unclear why the court of appeal would have recently issued
an alternative writ allowing for the Court to grant the instant
Motion.” On appeal, the Todds assert this was error.
Collateral estoppel, also known as issue preclusion,
“prevents ‘relitigation of issues argued and decided in prior
proceedings.’ [Citation.] The threshold requirements for issue
preclusion are: (1) the issue is identical to that decided in the
former proceeding, (2) the issue was actually litigated in the
former proceeding, (3) the issue was necessarily decided in the
former proceeding, (4) the decision in the former proceeding is
final and on the merits, and (5) preclusion is sought against a
person who was a party or in privity with a party to the former
proceeding. [Citation.]” (Castillo v. City of Los Angeles (2001)
92 Cal.App.4th 477, 481.)
“ ‘Importantly, “collateral estoppel is not mechanically
applied, and in each case the court must determine whether its
application will advance the public policies which underlie the
doctrine. [Citation.] Those policies are ‘(1) to promote judicial
economy by minimizing repetitive litigation; (2) to prevent
inconsistent judgments which undermine the integrity of the
20
judicial system; and (3) to provide repose by preventing a person
from being harassed by vexatious litigation.’ ” [Citations.]’
[Citation.]” (Mooney v. Caspari (2006) 138 Cal.App.4th 704, 717;
see also Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 829
[“[E]ven where the minimal prerequisites for invocation of the
doctrine are present, collateral estoppel ‘ “is not an inflexible,
universally applicable principle; policy considerations may limit
its use where the . . . underpinnings of the doctrine are
outweighed by other factors.” ’ [Citation.] [Citations.]”.)
Even if arguably, Pacific Alliance’s amended summary
judgment motion is based on the same issue as the prior motion,
we decline to apply collateral estoppel because that doctrine’s
underlying purposes would not be served. Although the trial
court initially denied the amended motion for summary
judgment, this court created confusion, at least on the part of the
trial court, when we ordered the trial court to reconsider the
amended motion. After the trial court did precisely what we
ordered—reconsidering the amended summary judgment motion
after receiving a properly attested declaration—it granted that
motion, finding no triable issue of material fact. On appeal, the
Todds identify no triable issue of material fact.
Under these circumstances, reversing the grant of
summary judgment on issue preclusion grounds and returning
the case to the trial court would be a futile act because there is
nothing left to decide in a trial. The law does not require a futile
act. (See generally, Civ. Code, § 3532 [“The law neither does nor
requires idle acts”].) Permitting a trial on the merits where the
Todds have demonstrated no triable issue of material fact would
undermine the policy of promoting judicial economy by
minimizing repetitive litigation. For these reasons, even
21
assuming the Todds could demonstrate the elements of collateral
estoppel, we decline to apply that doctrine here. (Cf. Pacific
Lumber Co. v. State Water Resources Control Bd. (2006)
37 Cal.4th 921, 945 [declining to apply collateral estoppel where
application of doctrine is not supported by policy reasons].)
Although we recognize the tragic nature of Tucker’s death, after
review, we conclude the Todds have not demonstrated any error
on appeal.
DISPOSITION
The judgment in favor of Pacific Alliance Medical Center is
affirmed. The parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
22