Judge: Erick L. Larsh, Case: 2020-01141903, Date: 2023-05-25 Tentative Ruling
Defendants Kaiser Foundation Health Plan, Inc. (“KAISER FOUNDATION HEALTH PLAN” or “KFHP”) and Kaiser Foundation Hospitals (“KAISER HOSPITALS”) (collectively “Defendants”) seek summary judgment on Plaintiff Elena Krish’s (as the Successor-In-Interest to Cynthia Rubalcava (“Decedent”)) (“Plaintiff” or “KRISH”) Complaint which alleges causes of action for professional negligence/medical malpractice and wrongful death.
Alternatively, Plaintiff seeks summary adjudication of the following issues:
Issue 1: Defendants believe there is no triable issue of material fact as to the Complaint against Defendant KAISER FOUNDATION HEALTH PLAN as they do not provide medical care.
Issue 2: Defendants believe there is no triable issue of material fact as to the Complaint against Defendant KAISER HOSPITALS as they do not employ the physicians and are not ostensible agents.
Issue 3: Defendants believe there is no triable issue of material fact as to the wrongful death cause of action as Plaintiff cannot maintain the action.
Issue 4: Defendants believe there is no triable issue of material fact as to the survival cause of action (the professional negligence/medical malpractice claim) as Plaintiff cannot maintain the action.
Defendants’ Evidentiary Objections.
The Court SUSTAINS Objection Nos. 1 (to Exhs. B-N), 2 (to Exhis. L-O), 4, 5, and 10; and OVERRULE Objection Nos. 2, 3, 6, 7, 8, 9, and 11. The Court’s ruling on these objections results in Exhibits B-O attached to the Declaration of Gary Carlin being stricken and paragraphs 4-7, 9-11, and 34, 38, and 40 being stricken from Plaintiff KRISH’s declaration.
Plaintiff’s Objections in the Response to Separate Statement.
Plaintiff asserts objections in the Response to the Separate Statement. The Court OVERRULES all of the objections. The separate statement is not evidence. Any evidentiary objections must comply with CRC, Rule 3.1354(b).
Whether there is a triable issue as to Plaintiff’s claims against Defendant KAISER FOUNDATION HEALTH PLAN? [Issue 1]
Defendants contend that KAISER FOUNDATION HEALTH PLAN is entitled to summary judgment on Plaintiff’s Complaint because Plaintiff cannot establish that KAISER FOUNDATION HEALHT PLAN owed Decedent a duty of care because it does not provide medical care. (See SUMF No. 3) Specifically, Defendants contend that Gopal v. Kaiser Foundation Health Plan, Inc. (2016) 248 Cal.App.4th 425 is dispositive of this dispute and that KAISER FOUNDATION HEALTH PLAN cannot be held responsible for the quality of the care provided to its members by independent members of Southern California Permanente Medical Group nor can it be held vicariously liable based on a theory of enterprise liability.
In Opposition, Plaintiff disputes that KAISER FOUNDATION HEALTH PLAN does not provide medical care. (See Response to SUMF No. 3.) Plaintiff presents evidence that Kaiser Permanente’s website states that it arranges health care services for its members and as such contracts the doctors that will work at their facilities who become the agents of Defendants; that KAISER FOUNDATION HEALTH PLAN does not allow its members to go outside of its networks without its permission; and that KAISER FOUNDATION HEALTH PLAN decides which doctors will treat their members. (See Id.; see also Exh. A, Krish Decl., ¶¶ 31-32, and Exhs. K-P.)
The Court, however, sustained Defendants’ evidentiary objections to Exhibits K through P. As to Plaintiff declaration, her testimony in paragraphs 31 and 32 has nothing to do with whether KAISER FOUNDATION HEALTH PLAN provides medical care. (See Krish Decl., ¶¶ 31 and 32 which state: “I don’t recall when it finally happened, but it seemed to take quite a while for Kaiser to approve my sister to go to Emory Winship. We felt that because it was Christmas and then New Years, everything was moving extremely slow. I had to call several times to ask what was going on with her case. Meanwhile, the cancer grew. I believe, we finally got approved to go to Emory Winship in early January. During one visit to Emory Winship, when she was trying to get approved for a Clinical Trial, one of the doctors noted that her bilirubin was off. She was immediately admitted to emergency surgery for a bile duct stint insertion. We were told that she would have to have this done every 3-4 months for the rest of her life because they were made of plastic. I learned that if she got a metal stint inserted, it meant she was going to die.”] As such, Plaintiff does not have any evidence to support her dispute with this material fact.
Civil Code section 1371.25 states: “A plan, any entity contracting with a plan, and providers are each responsible for their own acts or omissions, and are not liable for the acts or omissions of, or the costs of defending, others. Any provision to the contrary in a contract with providers is void and unenforceable. Nothing in this section shall preclude a finding of liability on the part of a plan, any entity contracting with a plan, or a provider, based on the doctrines of equitable indemnity, comparative negligence, contribution, or other statutory or common law bases for liability.”
In Gopal, supra, the Court recognized that health care service plans “are not health care providers under any provision of law” (see Civil Code section 3428(c)) and are not vicariously liable “for the acts or omissions of…others” pursuant to Civil Code section 1371.25. (Gopal, supra, 248 Cal.App.4th at 430-431.) The Gopal Court also held that the health service plan could not be liable under a theory of enterprise liability and there was nothing inequitable in requiring the plaintiff to look at Kaiser Hospitals and the emergency room hospital, the providers at issue, for compensation for their claims. (Id. at 429.)
Likewise, in Watanabe v. California Physicians’ Service (2008) 169 Cal.App.4th 56, the patient brought an action against the health care service plan alleging that the plan wrongfully delegated initial health care decisions to the health care provider and as a result the health care service plan should be liable for the provider’s alleged failure to diagnose the patient’s brain tumor. The Court of Appeal held that the plan could not be vicariously liable for the acts or omissions of the provider. (Id. at 68.)
Accordingly, the Court GRANTS summary adjudication in favor of Defendant KAISER FOUNDATION HEALTH PLAN on Issue No. 1.
Whether there is a triable issue as to Plaintiff’s claims against Defendant KAISER HOSPITAL? [Issue 2]
Defendants contend that Defendant KAISER HOSPITALS is entitled to summary judgment on Plaintiff’s claims because KAISER HOSPITALS does not employ the physicians who provided the medical care to Decedent; Decedent was not treated at any hospital setting for the treatments at issue; and thus, KAISER HOSPITALS is not an ostensible agent of these providers. (See SUMF Nos. 2 and 3; see also Declaration of A. Wu and Declaration of D. Barnett, Exh. C.)
Plaintiff, in Opposition, disputes that KAISER HOSPITALS did not employ any of the physicians who provided medical treatment to Decedent, disputes that Decedent was not treated at any “hospital setting”, and disputes that KAISER HOSPITALS is not an ostensible agent. (See Response to SUMF Nos. 2 and 3.) Plaintiff seeks to introduce evidence that KAISER HOSPITALS prohibits their members from seeking medical attention from doctors or entities outside of its network; that KAISER HOSPITALS (and KFHP) state on its websites that certain measures are used to select the practitioners; and that Decedent was provided with medical services through her membership with KFHP. (See Krish Decl., ¶¶ 32-33, Exh. A; see also Exhs. K-P and S, Declaration of Sein.) Plaintiff also seeks to introduce evidence that all the facilities that Decedent visited were “Kaiser facilities” with “Kaiser” doctors, nurses, technicians, staff, etc.; that all medical reports for Decedent identify different “Kaiser” doctors as the “provider’; that Decedent went to different “Kaiser” facilities and was treated by “Kaiser”; and all facilities Decedent visited were owned by KAISER HOSPITALS. (See Response to SUMF No. 3, Exhs. B-H and K-P; see also PAMF Nos. 1-7.)
The Court, however, sustained Defendants’ evidentiary objections to Exhibits K-P. The declaration of Plaintiff at paragraphs 32 and 33 also does not create a triable issue of fact as to whether KAISER HOSPITALS employed the physicians who provided medical care to Decedent or whether Decedent was treated at a hospital setting.
The evidence produced by Defendants that KAISER HOSPITALS does not employ of the physicians who provided medical care to Decedent is undisputed. (See A. Wu Decl., ¶¶ 3-7.)
The evidence produced by Defendants that Decedent was not treated at any hospital setting for the treatments at issue is also undisputed. (See D. Barnett Decl., ¶¶ 3-5.)
Accordingly, the Court GRANTs summary adjudication in favor of Defendant KAISER HOSPITALS on Issue No. 2.
Whether Plaintiff can maintain the wrongful death action against Defendants? [Issue 3]
Defendants contend that Plaintiff is not a proper plaintiff and lacks standing to bring a wrongful death cause of action because she is only the sister of Decedent and Decedent’s mother is still alive and that Decedent’s mother cannot assign her rights to Plaintiff. (See SUMF Nos. 1 and 2.)
Plaintiff, in Opposition, contends she does not lack standing to bring the wrongful death cause of action because she has been assigned all rights, title, and interests for this case and that she is the rightful heir of Decedent’s estate pursuant to Code of Civil Procedure section 377.60. Plaintiff also contends that sisters of a decedent can bring a wrongful death claim where pecuniary loss has resulted from the death and cites to Wilson v. San Francisco (1951) 106 Cal.App.2d 440, 444 as legal authority.
Code of Civil Procedure section 377.60 states:
“A cause of action for the death of a person caused by the wrongful act or neglect of another may be asserted by any of the following persons or by the decedent's personal representative on their behalf:
(a) The decedent's surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession. If the parents of the decedent would be entitled to bring an action under this subdivision, and the parents are deceased, then the legal guardians of the decedent, if any, may bring an action under this subdivision as if they were the decedent's parents...”
In Scott v. Thompson (2010) 184 Cal.App.4th 1506, 1510-1511, the Court explains who can bring a wrongful death action as follows:
““In California, an action for wrongful death is governed solely by statute, and the right to bring such an action is limited to those persons identified therein.’ [Citation omitted.] Put another way, ‘because the right to sue for wrongful death damages is strictly a creature of statute and exists only so far and in favor of such persons as the Legislature has declared [citation], ‘standing’ among multiple claimants is determined by statutory rank.’ [Citation omitted.] The wrongful death statute vests standing in the following persons or a personal representative on their behalf: ‘The decedent's surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession.’ (Code Civ. Proc., § 377.60, subd. (a); [citation omitted.] It is undisputed Michael died without a spouse, domestic partner, or issue; consequently, the rules of intestate succession control standing here.
The Probate Code provides that, absent a surviving spouse, domestic partner, or issue, the decedent's intestate estate passes ‘to the decedent's parent or parents equally’ (Prob.Code, § 6402, subd. (b)) or, “[i]f there is no surviving ... parent, to the issue of the parents” (Prob.Code, § 6402, subd. (c))—in other words, to the decedent's siblings. Surviving heirs are ‘those who outlive the decedent.’” (Id.)
Likewise, Rothman v. U.S. (C.D. Cal. 1977) 434 F.Supp.13, the Court, applying California law, stated that where the decedent’s father was still living, the sisters of the decedent had no claim as heirs in California under California law and thus could not bring an action for wrongful death. (Rothman, supra, 434 F.Supp. at 18 [“Since decedent's father is still living, the sisters have no claim as heirs in California, and therefore cannot bring an action for wrongful death.”].)
In Mayo v. White (1986) 178 Cal.App.3d 1083, the Court held that the parents of the decedent “were the only proper heirs at law for purposes of maintaining a wrongful death action under Code Civ. Proc., § 377, and that the brothers and sisters, while potential heirs under Prob. Code, § 225 (now § 6402, subd. (b)), were not proper heirs at law and were ineligible to bring the action under § 377, despite the parents alleged renunciation of heirship.” (Id. at 1083.)
Here, the parties do not dispute that Decedent’s mother is still alive. Plaintiff, however, contends that she can bring this wrongful death claim despite same because Decedent’s mother assigned all rights, title, and interests to her. Plaintiff does not cite any case law that holds that Decedent’s mother, the heir, can assign her rights to Decedent’s sister. Accordingly, the Court finds that Plaintiff lacks standing to assert the wrongful death cause of action and grant summary adjudication on Issue No. 3.
Plaintiff, in Opposition, contends that she can maintain an action for wrongful death and cites to Wilson v. City and County of San Francisco (1951) 106 Cal.App.2d 440 as legal authority. In Wilson, the sister, the housekeeper and hostess of a Catholic priest brought an action for wrongful death when the priest was killed as a result of the negligence of a motorman in a city-owned street. (Wilson, supra, 106 Cal.App.2d at 441.) Although the issue of standing was not at issue, in Wilson, the Court states:
“Usually wrongful death cases are brought by children for the death of the parent, or one spouse for the death of the other, where a legal obligation to support exists and need not be proved. (5) But a sister or brother may maintain such an action where pecuniary loss has resulted from the death. [Citations omitted.] Collateral heirs may recover when, as here, they show loss of support and a reasonable probability that the society, comfort and protection of the decedent was of such a character that it was of pecuniary advantage to the plaintiff. [Citations omitted.] Collateral heirs must prove their pecuniary loss or their recovery will be limited to nominal damages.”(Wilson, supra, 106 Cal.App.2d at 444-45.)
Here, the Complaint alleges that Plaintiff and Decedent were dependent on one another “for love, companionship, comfort, care, assistance, protection, affection, society, and moral support”; that Plaintiff was “deprived of the love, companionship, comfort, care, assistance, protection, affection, society, and moral support of” Decedent and suffered general damages; and that Plaintiff “incurred funeral and burial expenses” as a result of Decedent’s death. (See Complaint, ¶¶ 43-45.)
Wilson, however, did not involve an assignment and C.C.P. section 377.30 was not in play.
Whether Plaintiff can maintain the professional negligence/medical malpractice, i.e., the “survival action,” against Defendants? [Issue 4]
Defendants contend that Plaintiff lacks standing to assert the professional negligence/medical malpractice cause of action because although Decedent’s mother can assert this claim, this claim cannot be assigned by Decedent’s mother to Plaintiff, Decedent’s sister pursuant to Civil Code section 954. Defendants further contend that section 954 does not “extend to permit claims for personal injury to be assigned to another” and that the professional negligence/medical malpractice claim is a claim for personal injury. Defendants cite to Baum v. Duckor (1999) 72 Cal.App.4th 54 as legal authority.
Plaintiff, in Opposition, contends that a claim for professional negligence/medical malpractice is not akin to a claim for personal injury because Decedent’s mother is alleging damages for the loss of her daughter. Plaintiff also contends that Baum, supra, cited by Defendants is inapplicable as it involved a legal malpractice cause of action.
Code of Civil Procedure section 377.30 states: “A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent's successor in interest, subject to Chapter 1 (commencing with Section 7000) of Part 1 of Division 7 of the Probate Code, and an action may be commenced by the decedent's personal representative or, if none, by the decedent's successor in interest.”
Civil Code section 954 states: “A thing in action, arising out of the violation of a right of property, or out of an obligation, may be transferred by the owner.”
In Baum v. Duckor (1999) 72 Cal.App.4th 54 cited by Defendants only deals with the assignment of legal malpractice causes of action. (Id. at 65 [“It is now well settled that under California law a former client may not voluntarily assign his claims for legal malpractice against his former attorneys. In Goodley [, supra,] 62 Cal.App.3d 389, and more recently in Jackson v. Rogers & Wells [(1989)] 210 Cal.App.3d [336 [258 Cal.Rptr. 454]], the courts determined that although choses in action for property or pecuniary losses are generally assignable, a claim for legal malpractice is more akin to those types of claims which are not assignable, i.e., claims for personal injury, wrongs of a purely personal nature (such as injuries to the reputation or feelings of the injured party) or breaches of contracts of a purely personal nature (such as promises of marriage). (Goodley ..., supra, 62 Cal.App.3d at pp. 393-395; Jackson ..., supra, 210 Cal.App.3d at pp. 341-342.) Goodley and Jackson concluded that the attorney-client relationship (although containing contractual elements) is unique and involves a highly personal and confidential relationship, making the relationship '... more analogous to a contract of a personal nature than to an ordinary commercial contract' (Jackson ..., supra, 210 Cal.App.3d at p. 342), and rendering claims for negligent breach thereof nonassignable.’ (Fn. omitted.)”].)
Baum did not involve the assignment of a medical malpractice claim by the Decedent’s successor-in-interest and did not involve a survival cause of action.
However, case law does hold that “causes of action for personal injuries arising out of a tort are not assignable nor are those founded upon wrongs of a purely personal nature such as to the reputation or the feelings of the one injured. Assignable are choses in action arising out of an obligation or breach of contract as are those arising out of the violation of a right of property (s 954, Civ.Code) or a wrong involving injury to personal or real property.” (Goodley v. Wank & Wank, Inc. (1976) 62 Cal.App.3d 389, 393.
Accordingly, the Court GRANTS summary adjudication on Issue No. 4.
Therefore, SUMMARY JUDGEMENT IS GRANTED.
Moving Party to Give Notice.