The opinion
Filed 1/2/25
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
CHARLIE L., a Minor, etc., B327714
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 21STCV15446)
PEYMAN KANGAVARI, M.D.,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Olivia Rosales, Judge. Reversed and remanded.
Law Offices of Michels & Lew, Steven B. Stevens, Philip
Michels and Jin N. Lew for Plaintiff and Appellant.
Horvitz & Levy, H. Thomas Watson and Peder K. Batalden;
Dummit, Buchholz & Trapp, Scott D. Buchholz, Pari H. Granum,
and Nicole G. Wells for Defendant and Respondent.
Cole Pedroza, Curtis A. Cole and Cassidy Davenport for
California Medical Association, California Dental Association,
and California Hospital Association as Amicus Curiae on behalf
of Defendant and Respondent.
******
To grant physicians and surgeons in general acute care
hospital emergency departments a measure of protection from
malpractice claims—and thereby to encourage the provision of
such emergency medical care—our Legislature enacted what is
now Health and Safety Code section 1799.110.1 (Petrou v. South
Coast Emergency Group (2004) 119 Cal.App.4th 1090, 1094
(Petrou)); Jutzi v. County of Los Angeles (1987) 196 Cal.App.3d
637, 648 (Jutzi).) The statute accomplishes its purpose in two
ways—namely, (1) by modifying the standard of care applicable
in malpractice cases to account for the “unique challenges and
demands of an emergency room” (Stokes v. Baker (2019) 35
Cal.App.5th 946, 948 (Stokes); § 1799.110, subd. (a)), and (2) by
increasing the qualifications an expert must possess before
testifying as to whether that altered standard of care was
violated in any given case (§ 1799.110, subd. (c)). This case
presents the question: Does section 1799.110’s stricter
qualifications requirement for expert witnesses apply when the
physician being sued was an on-call radiologist who remotely
reviewed X-ray and ultrasound images for an emergency
department patient on a “stat” basis as requested by the
emergency department? We hold that it does, and thus
respectfully disagree with Miranda v. National Emergency
1 All further statutory references are to the Health and
Safety Code unless otherwise indicated.
2
Services, Inc. (1995) 35 Cal.App.4th 894, 903-904 (Miranda). The
trial court here correctly ruled that section 1799.110 applies to
the malpractice claims against the on-call radiologist, but
incorrectly granted summary judgment after finding the
defendant-radiologist’s expert was qualified under that statue
but the plaintiff-patient’s expert was not. Because we conclude
that neither expert was shown to meet the more stringent test for
qualification when the evidence is viewed through the lens
applicable on summary judgment, we reverse the judgment for
the defendant-physician.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
At 2:07 a.m. on October 11, 2020, three-year-old Charlie L.
(plaintiff) was brought by his mother to the emergency
department at PIH Health Hospital-Whittier for abdominal pain.
Plaintiff had been in and out of hospitals for conditions related to
a malrotated bowel he had at birth, for which he had endured
several corrective surgeries as well as prior emergency
department visits for incidents of vomiting and constipation.
At around 3:00 a.m., the emergency department physician
treating plaintiff issued “stat” orders for an X-ray and ultrasound
of plaintiff’s abdomen. The images were sent for evaluation to
Peymam Kangavari, M.D., an “on-call radiologist” working
remotely.
The X-ray was taken at 3:12 a.m. and Kangavari issued a
report based on the images at 3:51 a.m. The ultrasound was
taken at 3:24 a.m. and Kangavari issued another report based on
those images at 4:35 a.m. Both reports concluded that plaintiff’s
bowel was unobstructed. Based on Kangavari’s reports of the
imaging results as well as other examinations of plaintiff by
3
emergency department staff, plaintiff was discharged home at
5:54 a.m. with instructions to follow up with his pediatrician and
gastroenterologist.
Soon after returning home, plaintiff vomited and turned
blue. His parents brought him back to the emergency
department at 8:18 a.m., nonresponsive with a faint pulse and
not breathing. Plaintiff was transferred to Children’s Hospital
Orange County later that morning, where he underwent multiple
surgeries over the next three days to remove necrotic tissue and
the majority of his small bowel due to a lack of blood flow caused
by a bowel obstruction.
Plaintiff now suffers “short gut syndrome,” has to be fed
with a G-tube, wears diapers at all times, and struggles with
speech and other mental and emotional capabilities.
II. Procedural Background
Plaintiff, by and through his mother acting as his guardian
ad litem, filed a negligence action against Kangavari on April 23,
2021.2 Plaintiff alleges that Kangavari committed medical
malpractice by failing to timely diagnose his bowel obstruction,
and alleges that malpractice caused his injuries.
Kangavari moved for summary judgment on the grounds
that the undisputed facts showed that he adhered to the standard
of care (and hence was not negligent), and that any negligence
did not cause plaintiff’s injuries. In support of his motion,
2 Plaintiff named other defendants—specifically, PIH Health,
Inc., Presbyterian Health Physicians, the hospital, the emergency
department physician, and the emergency department
physician’s assistant—but plaintiff’s claims against those parties
are not at issue on appeal.
4
Kangavari provided the declaration of a diagnostic radiologist,
John Lieu, M.D.
Plaintiff opposed the motion. In support of his opposition,
he provided the declaration of a medical school professor of
clinical radiology, Ravi Srinivasa, M.D.
During protracted litigation over whether Kangavari could
depose plaintiff’s expert in the midst of briefing on the summary
judgment motion, Kangavari asserted for the first time that
plaintiff’s expert did not meet the qualifications set forth in
section 1799.110, which requires experts testifying in certain
negligence cases to have specific and “substantial professional
experience” in an emergency department.3 Kangavari never
deposed the expert, but plaintiff’s expert still filed a
supplemental declaration attempting to establish that he had the
requisite qualifications. Following a reply brief by Kangavari,
objections and responses regarding the admissibility of plaintiff’s
expert’s opinion under section 1799.110, and a hearing at which
plaintiff objected that Kangavari’s expert also did not meet the
qualifications required by the statute, the trial court granted
summary judgment for Kangavari.4
3 The trial court initially continued the summary judgment
hearing so Kangavari could depose plaintiff’s expert prior to filing
his reply brief and, if Kangavari presented any deposition
testimony in that reply, the court also granted plaintiff
permission to file a sur-reply. Plaintiff then moved to quash the
notice of deposition of his expert, and Kangavari argued in
opposition, among other things, that the expert lacked the
requisite experience to provide a standard of care opinion against
an emergency department physician.
4 The parties spill much ink debating the propriety of
plaintiff’s supplemental expert declaration, the timeliness of
5
The court (1) ruled that section 1799.110 applies to the
malpractice claims against Kangavari; (2) implicitly overruled
plaintiff’s objection to Kangavari’s expert’s qualifications under
section 1799.110; (3) expressly sustained Kangavari’s objection to
plaintiff’s expert’s qualifications under section 1799.110; and (4)
ruled that plaintiff’s failure to oppose the motion with expert
testimony warranted the grant of summary judgment.
After judgment was entered for Kangavari, plaintiff timely
appealed.
DISCUSSION
Plaintiff argues that the trial court erred in granting
summary judgment for Kangavari because (1) section 1799.110’s
qualifications requirement for expert witnesses does not apply to
this case in the first place, and (2) even if the statute applies,
either (a) both parties’ experts met the requirement (such that
there was admissible and conflicting expert testimony on the
standard of care, thereby precluding summary judgment, Code.
Civ. Proc., § 437c, subds. (a), (c), (o), (p)(2); Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850, 853 (Aguilar)) or (b)
neither of them did (such that Kangavari did not carry his
threshold burden of negating an element of plaintiff’s claim,
thereby precluding summary judgment (e.g., McAlpine v. Norman
(2020) 51 Cal.App.5th 933, 939; Hanson v. Grode (1999) 76
Cal.App.4th 601, 606-607)).
This appeal therefore presents two questions.
First, does section 1799.110’s stiffer expert witness
qualifications requirement apply in a malpractice lawsuit against
Kangavari’s reply brief, and the validity of plaintiff’s mid-hearing
objection. Like the trial court, we have opted to consider the
entirety of the parties’ filings in the trial court.
6
a physician who remotely reviews test results on a “stat” basis as
part of the emergency department?
Second, and if the answer to the first question is “yes,” do
the parties’ respective experts in this case satisfy that
qualifications requirement?
The first question is one of statutory interpretation that
we review de novo. (Adolph v. Uber Technologies, Inc. (2023) 14
Cal.5th 1104, 1120.) The second question, because it arises in the
context of summary judgment and entails the application of the
law to undisputed facts, is also one we review de novo. (Samara
v. Matar (2018) 5 Cal.5th 322, 338 [summary judgment];
Guardianship of Saul H. (2022) 13 Cal.5th 827, 846.)
I. Does Section 1799.110 Apply to Physicians Who
Review Test Results as Part of an Emergency Department
Treating an Emergency Department Patient?
In a typical medical malpractice lawsuit, the applicable
standard of care by which a defendant-physician is adjudged is
the “reasonable degree of skill, knowledge, and care ordinarily
possessed and exercised by members of the medical profession
under similar circumstances.” (Bardessono v. Michels (1970) 3
Cal.3d 780, 788; Burgess v. Superior Court (1992) 2 Cal.4th 1064,
1081.) And in such a lawsuit, the parties may offer expert
opinions on the standard of care as long as any proffered expert
“has special knowledge, skill, experience, training, or education”
that renders the expert familiar with conditions similar to those
at issue in the case. (Evid. Code, § 720, subd. (a); Avivi v. Centro
Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 470-
471; Borrayo v. Avery (2016) 2 Cal.App.5th 304, 310-311
(Borrayo).)
Section 1799.110 alters these defaults in two ways.
7
First, section 1799.110 relaxes the applicable standard of
care “[i]n any action for damages involving a claim of negligence
against a physician and surgeon arising out of emergency medical
services provided in a general acute care hospital emergency
department.” (§ 1799.110, subd. (a), italics added.) For these
purposes, “emergency medical services” are defined as “those
medical services required for the immediate diagnosis and
treatment of medical conditions which, if not immediately
diagnosed and treated, could lead to serious physical or mental
disability or death.” (Id., subd. (b).) Section 1799.110 requires
the standard of care applicable in this context to “consider,
together with all other relevant matters,” (1) “the circumstances
constituting the emergency” and (2) “the degree of care and skill
ordinarily exercised by reputable members of the physician and
surgeon’s profession [(a)] in the same or similar locality, [(b)] in
like cases, and [(c)] under similar emergency circumstances.”
(Id., subd. (a).)
Second, section 1799.110 stiffens the medical qualifications
required for experts who seek to opine on whether the modified
standard of care has been met “[i]n any action for damages
involving a claim of negligence against a physician and surgeon
providing emergency medical coverage for a general acute care
hospital emergency department.” (§ 1799.110, subd. (c), italics
added; Stokes, supra, 35 Cal.App.5th at pp. 950, 966 [limiting the
reach of this provision to expert testimony on the standard of
care, but not testimony regarding causation or damages].) The
statute permits expert testimony in this context “only from
physicians and surgeons who have had substantial professional
experience within the last five years while assigned to provide
emergency medical coverage in a general acute care hospital
8
emergency department.” (§ 1799.110, subd. (c); Petrou, supra,
119 Cal.App.4th at pp. 1094-1095 [expert’s experience must be
within five years of alleged malpractice, not five years of
testimony].)5 Section 1799.110 does not define “emergency
medical coverage.”
The question presented in this appeal is whether section
1799.110’s qualifications requirement for expert witnesses
applies in malpractice actions against physicians who remotely
provide medical expertise on an expedited basis as part of an
emergency department in the midst of treating an emergency
department patient.
We hold that it does. In our view, this is the only
conclusion consonant with section 1799.110’s purpose.
When interpretating a statute, “our fundamental task” “is
to ascertain and effectuate [its] intended legislative purpose.”
(Los Angeles Metropolitan Transportation Authority v. Alameda
Produce Market, LLC (2011) 52 Cal.4th 1100, 1107; United
Riggers & Erectors, Inc. v. Coast Iron & Steel Co. (2018) 4 Cal.5th
1082, 1089.) Although the statute’s text “typically is the best and
most reliable indicator of the Legislature’s intended purpose”
(Larkin v. Workers’ Comp. Appeals Bd. (2015) 62 Cal.4th 152,
157), that text “may be disregarded to avoid absurd results or to
give effect to manifest purposes that . . . appear from its
provisions . . . as a whole” (Silver v. Brown (1966) 63 Cal.2d 841,
5 The statute goes on to define “substantial professional
experience” as being “determined by the custom and practice of
the manner in which emergency medical coverage is provided in
general acute care hospital emergency departments in the same
or similar localities where the alleged negligence occurred.” (§
1799.110, subd. (c).)
9
845 (Silver); Webster v. Superior Court (1988) 46 Cal.3d 338, 344).
In other words, a statute’s purpose is paramount.
Although the text of section 1799.110 is “not a model of
clarity” (Jutzi, supra, 196 Cal.App.3d at p. 650), our Legislature’s
purpose in enacting that statute was crystal clear. What is now
section 1799.110 was enacted in 1978 to “promote ‘the
development, accessibility and provision of emergency medical
services to the People of the State of California.’” (James v. St.
Elizabeth Community Hospital (1994) 30 Cal.App.4th 73, 80-81
(James), quoting Stats. 1978, ch. 130, § 2, p. 342.) As the bill’s
author explained, “emergency room care” has “unique
characteristics”—chiefly, that “[e]mergency physicians must
make instantaneous decisions on the diagnosis and treatment of
emergency patients” without the benefit of time to “review [the
patient’s] past medical history, seek a consultation, study current
medical literature, [or] reflect upon the proper diagnosis and
course of treatment.” (Stokes, supra, 35 Cal.App.5th at pp. 962-
963.) Yet emergency department physicians sued for malpractice
were, at that time, being held to the same standard of care
applicable to physicians acting “in the relaxed office confines of a
private practitioner”—and through the testimony of expert
witnesses who had no familiarity with the very different
“realities” of emergency department care. (Id. at p. 959; James,
at p. 81.) The Legislature not only “perceiv[ed]” this Monday
morning quarterbacking to be “unfair[],” but saw that it was
driving up the cost of malpractice insurance for emergency
department physicians and thereby discouraging physicians from
taking such posts—and, critically, reducing the availability of
emergency department services to the detriment of the public at
large. (Stokes, at pp. 964-965; Jutzi, supra, 196 Cal.App.3d at p.
10
651.) To counteract this perceived unfairness, section 1799.110
requires emergency department physicians to be held to a
standard of care that accounts for “similar emergency
circumstances” (§ 1799.110, subd. (a)), and requires expert
testimony applying that standard of care to come only from
“physicians . . . who have had substantial professional experience
within the last five years while assigned to provide emergency
medical coverage in a general acute care hospital emergency
department” (id., subd. (c)).
Given this undisputed purpose, section 1799.110’s
strictures apply to physicians who remotely provide their medical
expertise as part of an emergency department that is treating a
patient of that department. Such physicians are under the same
time pressures as any other physician providing emergency
medical services; like their in-person counterparts formally
assigned to an emergency department, such physicians also lack
the time to review the patient’s more fulsome medical history, to
conduct research, or to reflect. And they face the same threat of
malpractice liability that drives up insurance rates and
concomitantly drives physicians away from taking such posts.
Indeed, plaintiff’s expert frankly acknowledges that “diagnostic
radiologists” like Kangavari “rarely need[] to work in the
emergency department itself.” Carving such on-call or specialist
physicians out of section 1799.110’s ambit would not “give effect
to [the] manifest purpose[ of section 1799.110] that . . . appear[s]
from its provisions . . . as a whole.” (Silver, supra, 63 Cal.2d at p.
845.)
Plaintiff resists this conclusion with what boils down to two
categories of arguments.
11
First, plaintiff argues that the text of section 1799.110
precludes the application of the statute’s stiffer expert witness
qualifications requirement in cases where an on-call or specialist
physician is being sued for malpractice. Plaintiff starts with the
following syllogism—namely, (1) subdivision (c)’s more stringent
test for qualifying experts applies, by its plain terms, only “[i]n
an[] action for damages involving a claim of negligence against a
physician . . . providing emergency medical coverage for a general
acute care hospital emergency department” (§ 1799.110, subd. (c),
italics added); (2) subdivision (a)’s test for applying a more
relaxed standard of care applies, by its plain terms, only “[i]n an[]
action for damages involving a claim of negligence against a
physician . . . arising out of emergency medical services provided
in a general acute care hospital emergency department” (id.,
subd. (a), italics added); (3) different wording in the same statute
presumptively indicates different meanings (Ferra v. Loews
Hollywood Hotel, LLC (2021) 11 Cal.5th 858, 872 (Ferra)); and (4)
cases have interpreted “emergency medical coverage” to be
broader than “emergency medical services” (James, supra, 30
Cal.App.4th at pp. 79-80 [“the term ‘emergency medical coverage’
is broader than the term ‘emergency medical services’”]; Zavala v.
Board of Trustees (1993) 16 Cal.App.4th 1755, 1762-1763
(Zavala) [same]; but see Jutzi, supra, 196 Cal.App.3d at p. 647
[equating the two terms]), so that (5) just because an on-call or
specialist physician is providing “emergency medical services”
triggering the relaxed standard of care does not necessarily mean
they are providing “emergency medical coverage” triggering the
stiffer expert qualifications requirement. Plaintiff goes on to note
that subdivision (c)’s more stringent test for qualifying an expert
requires the expert to have “substantial professional experience
12
within the last five years while assigned to provide emergency
medical coverage” in an emergency department. (§ 1799.110,
subd. (c), italics added.) If the expert is required to be assigned to
an emergency department before they may opine on whether the
physician being sued met the relaxed standard of care, plaintiff
reasons, then the physician being sued should also be required to
be assigned to an emergency department before they can get the
advantage of the stiffer expert qualifications requirement.
We reject these text-based arguments.6
6 In response to the amici’s brief, plaintiff cites section 1317,
which grants “members of [a licensed health facility’s] rescue
team,” who are specially “trained in cardiopulmonary
resuscitation,” immunity from liability occurring “while
attempting to resuscitate a person who is in immediate danger of
loss of life” as long as they “exercise[]” “good faith.” (§ 1317,
subds. (g) & (h), italics added.) Because the Legislature knows
how to use the word “team” in some statutes, plaintiff reasons, its
failure to do so in section 1799.110, subdivision (c) means that
section only reaches physicians who are assigned to, and
physically present in, an emergency department. Plaintiff’s
conclusion does not flow from his premise. To begin, section 1317
is on its face inapplicable here, as it addresses the standard of
care applicable to a different (and much smaller) subset of
physicians operating under the emergency condition of
attempting to resuscitate a patient. If anything, section 1317
supports our reading of section 1799.110. Anyone helping to
resuscitate a person is necessarily physically present, so the
Legislature’s use of the word “team” in section 1317 and its
omission from section 1799.110, subdivision (c) suggests that the
breadth of the latter was meant to turn—not on physical
presence—but instead on its specific text and its purpose, which
we have concluded reach on-call specialists working under
emergency conditions with physicians physically present in the
emergency department.
13
To begin, and most fundamentally, we reject these
arguments because they would have us read the text of section
1799.110 in a manner that would deny the benefits of the statute
to on-call and specialist physicians who are part of the core
universe of persons the statute was meant to aid—namely,
physicians who are operating under the time pressures of the
emergency department. To be sure, the Legislature used the
phrase “providing emergency medical coverage” to define when
section 1799.110’s stiffer expert qualifications requirement kicks
in while using the different “arising out of emergency medical
services” phrase to define when the statute’s relaxed standard of
care applies. But the canon of statutory construction that
generally obligates courts to ascribe different meanings to
different phraseology is just that—a canon of construction that
“yield[s]” to the otherwise “abundantly clear” “purpose” of the
statute. (Rutgard v. City of Los Angeles (2020) 52 Cal.App.5th
815, 827-828; accord, Ferra, 11 Cal.5th at p. 872 [this canon is not
an “immutable rule[]”].) The court in James drew a distinction
between “emergency medical coverage” and “emergency medical
services,” but did so to extend section 1179.110, subdivision (c)’s
expert qualifications requirement to an emergency department
physician treating an emergency department patient who did not
end up needing emergency medical services. (James, supra, 30
Cal.App.4th at pp. 81-82.)7 The court construed “emergency
medical coverage” more broadly than “emergency medical
services,” in recognition of the fact that emergency department
7 The case that first drew a distinction between “emergency
medical coverage” and “emergency medical services” was Zavala,
supra, 16 Cal.App.4th 1755, but it was undisputed that the
doctor in Zavala was providing both. (Id. at p. 1763.)
14
physicians who “cover[]” the emergency department—whether or
not they end up providing “emergency medical services”—are
subject to the same mandatory obligation to treat, the same time
pressures, and the same obligation to be “ultimate ‘generalist[s],’”
regardless of the type of care they ultimately provide. (Ibid.) In
other words, James construed the two phrases differently in a
manner that furthered section 1799.110’s purpose. James’s
holding that the term “emergency medical coverage” is broader
than “emergency medical services” does not mandate that we
construe “emergency medical coverage” to be narrower than—and
thus to exclude from its reach—the “emergency medical services”
undeniably provided by physicians on-call or consulting to the
emergency department. To do so would be inconsistent with the
purpose of section 1799.110.
Plaintiff’s further reliance on the language in subdivision
(c) of section 1799.110 that the expert be “assigned” to an
emergency department adds nothing. As a threshold matter, we
do not see how the statute’s specification regarding the
experience the expert must have should the more stringent
qualifications requirement be triggered somehow alters the
trigger itself. But even if it did, the fact remains that section
1779.110’s purposes of avoiding Monday morning quarterbacking
and thereby ensuring an adequate supply of emergency
department physicians applies whenever a physician is providing
emergency medical services—regardless of the physician’s formal
assignment. To hold otherwise is to give controlling weight to a
hospital’s “org chart.” Nothing in section 1799.110 evinces such
an intent. Either viewed separately or together, plaintiff’s
textual arguments lead to what we view as a further absurd
result. Plaintiff seems to concede that on-call or specialist
15
physicians who provide emergency medical services are entitled
to application of the relaxed standard of care under subdivision
(a) of section 1799.110. Yet, those same physicians—because
they are not, under plaintiff’s view, providing “emergency medical
coverage”—can be found liable for malpractice based on the
testimony of expert witnesses who lack any personal experience
with emergency department practice. This seems absurd, given
that section 1799.110’s purpose is to ensure that the experts
opining on whether a particular physician meets a standard of
care have some personal experience with that standard.
Second, plaintiff argues that the legislative history leading
up to the enactment of what is now section 1799.110 dictates that
on-call or specialist physicians be deemed to be outside its ambit.
A statute’s legislative history can be a helpful tool in ascertaining
its meaning. (Smith v. LoanMe, Inc. (2021) 11 Cal.5th 183, 190.)
Here, plaintiff notes that the bill that gave rise to what is now
section 1799.110 initially contained a second provision that
applied to “physician specialists and other physicians . . .
assist[ing] emergency physicians,” and that second provision was
ultimately deleted before the bill was enacted; thus, plaintiff
reasons, we must give effect to that deletion by excluding on-call
physicians like Kangavari from the ambit of section 1799.110.
(E.g., Central Delta Water Agency v. State Water Resources
Control Bd. (1993) 17 Cal.App.4th 621, 634 [“The fact that the
Legislature chose to omit a provision from the final version of a
statute which was included in an earlier version constitutes
strong evidence that the [statute] as adopted should not be
construed to incorporate the original provision”].)
We reject this legislative history-based argument as well.
To begin, plaintiff ignores the reason why the provision affecting
16
on-call and specialist physicians was deleted. It was deleted—not
based on an explicit desire to subject on-call or specialist
physicians for the emergency department to the same standards
as all other physicians—but instead on the premise that those
physicians were otherwise already given extra protection from
liability by certain Good Samaritan laws with which section
1799.110 potentially “overlap[ped].” Moreover, and even if we
ignored the purported reason for the deletion, the fact remains
that denying on-call or specialist physicians the protection of
section 1799.110 when they are providing expertise on behalf of
the emergency department is inconsistent with the statute’s
purpose, which the bill’s author elsewhere in the legislative
history noted was meant to protect those who provide “emergency
medical services”—which on-call and specialist physicians
undeniably do when treating an emergency department patient.
(Stokes, supra, 35 Cal.App.5th at p. 964, italics added, quoting
Assemblyperson Vic Fazio, letter to Assembly Speaker Leo T.
McCarthy (Aug. 31, 1978) 10 Assem. J. (1977-1978 Reg. Sess.) p.
18447.) If a statute’s unambiguous text must yield to its purpose,
so must its ambiguous legislative history.
This analysis puts us at odds with the decision in Miranda,
supra, 35 Cal.App.4th 894. Miranda held that section 1799.110’s
more stringent test for qualifying an expert witness did not apply
in malpractice lawsuits against physicians providing emergency
medical services on an on-call or consulting basis because those
emergency medical services did not constitute “emergency
medical coverage.” (Id. at pp. 900-907.) In reaching this
conclusion, Miranda relied upon the textual and legislative
history arguments pressed by plaintiff in this case. (Id. at pp.
900-905.) Miranda found the text of section 1799.110 to be
17
“uncertain” (id. at p. 902), and rested its holding chiefly on the
deletion from the initial bill of the language protecting on-call or
specialist physicians (id. at pp. 903-904). However, Miranda did
not discuss the reason for that deletion or otherwise confront how
exclusion of on-call or specialist physicians from the ambit of
section 1799.110 would discourage physicians from working in
emergency departments—a result inimical to the undisputed
purpose of the statute. Because we find Miranda’s reasoning
flawed, we respectfully reject its holding as well.
II. Do the Parties’ Experts Satisfy the Qualifications
Requirement for Expert Witnesses in Section 1799.110?
Because plaintiff does not dispute that Kangavari was
providing emergency medical services on an on-call and “stat”
basis—and because we have concluded that this qualifies as
providing emergency medical coverage—section 1799.110’s stiffer
expert witness qualifications requirement applies. Thus, the
parties’ experts may offer testimony only if they “have had
substantial professional experience” “provid[ing] emergency
medical coverage” in the emergency department during the five
years preceding plaintiff’s injury. (§ 1799.110, subd. (c).)
Although the admission of expert testimony is generally
reviewed for an abuse of discretion (People v. McDowell (2012) 54
Cal.4th 395, 426), and although the question of whether an
expert meets section 1799.110’s qualification standard is a
preliminary fact generally reviewed for substantial evidence
(Sigala v. Goldfarb (1990) 222 Cal.App.3d 1450, 1454; Jutzi,
supra, 196 Cal.App.3d at p. 647; see generally People v. Bolin
(1998) 18 Cal.4th 297, 321-322; Evid. Code, § 402), here each
expert’s qualifications are undisputed and the question thus
becomes one we review de novo (Boling v. Public Employment
18
Relations Bd. (2018) 5 Cal.5th 898, 912). The proponent of each
expert bears the burden of establishing its expert’s qualifications.
(Zavala, supra, 16 Cal.App.4th at p. 1763; accord, Code Civ.
Proc., § 437c, subd. (d) [“Supporting and opposing affidavits or
declarations [proffered in summary judgment proceedings] . . .
shall show affirmatively that the affiant is competent to testify to
the matters stated in the affidavits or declarations”].)
A. Kangavari’s expert
Kangavari’s proffered expert was Dr. Lieu.
Dr. Lieu declared that he has been a practicing Board-
certified diagnostic radiologist “for the past 13 years,”
“interpreting imaging studies for pediatric and adult patients
throughout the hospital setting, including the Emergency
Department.” However, Dr. Lieu does not elsewhere in his
declaration (nor in his curriculum vitae) specify his professional
experience working under emergency conditions, identify the
unique challenges facing a radiologist serving the emergency
department, or key his opinion to the standard of care applicable
under emergency circumstances specifically.
Because Dr. Lieu’s declaration is being submitted by
Kangavari—who is the party moving for summary judgment—we
may not pave over the gaps in Dr. Lieu’s experience by
reasonably inferring that the “interpret[ations]” he did for
“Emergency Department[s]” were for patients awaiting
emergency medical services in those departments. (E.g., Kulesa
v. Castleberry (1996) 47 Cal.App.4th 103, 111 [summary
judgment “papers are to be construed strictly against the moving
party”].) Because the party moving for summary judgment in a
medical malpractice case bears the burden of establishing his
compliance with the pertinent standard of care through the use of
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expert testimony (Powell v. Kleinman (2007) 151 Cal.App.4th
112, 123 [expert declaration required for moving party in a
medical malpractice case]; Borrayo, supra, 2 Cal.App.5th at p.
310 [same]; Munro v. Regents of University of California (1989)
215 Cal.App.3d 977, 984-985 [same]; see generally Code Civ.
Proc., § 437c, subds. (o) & (p)(2) [party moving for summary
judgment has initial burden to negate an element of plaintiff’s
claim]),8 the trial court erred in finding Kangavari met his
burden when it granted his motion.
B. Plaintiff’s expert
Plaintiff’s expert was Dr. Srinivasa.
In his initial declaration, Dr. Srinivasa stated only that he
had been a Board-certified interventional radiologist for the past
10 years and works as an associate professor of clinical radiology
at a medical school; he mentioned no professional experience in
an emergency department. In his supplemental declaration
submitted after Kangavari raised a section 1799.110-based
objection, Dr. Srinivasa stated that he “worked in the emergency
department[] reading diagnostic studies” during his employ at
the University of Texas in Houston from 2012-2015 and that his
work as “Director of Mott Children’s Hospital Pediatric
Interventional Radiology program” from 2016 to 2018 “included
regularly reviewing images of pediatric emergency patients for
diagnosis and for interventional treatment.” Dr. Srinivasa also
declared more generally that his “work” as a professor and
8 While we could reverse the judgment based on this error
alone regardless of what evidence plaintiff submitted in
opposition to the summary judgment motion, we will evaluate
section 1799.110’s qualifications requirement as to plaintiff’s
expert as well.
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interventional radiologist requires him to “regularly . . . read and
interpret images of emergency department patients.” However,
Dr. Srinivasa does not in his declaration (nor in his curriculum
vittae) specify that his work in emergency departments reading
diagnostic studies or reviewing images indicate that he
undertook these tasks while working under emergency
conditions. To the contrary, the professional experiences Dr.
Srinivasa highlighted as involving review of emergency
department patients’ images are listed on his curriculum vitae as
“academic” and “administrative” experience.
Even though Dr. Srinivasa’s declaration was submitted by
plaintiff in opposition to the summary judgment motion, and is
thus subject to the rule obligating us to “liberally construe[]” his
declaration (Saelzer v. Advanced Group 400 (2001) 25 Cal.4th
763, 768; Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874;
Aguilar, supra, 25 Cal.4th at p. 843), that rule of construction
does not empower us to pave over the critical gap in Dr.
Srinivasa’s declaration by reasonably inferring that the
academic-based work he did was in the course of emergency
treatment. (See Code Civ. Proc., § 437c, subd. (d) [requiring
“affirmative[]” “show[ing]’ of a declarant’s “competen[ce] to
testify”].) Thus, Dr. Srinivas’s declaration is also inadmissible
under section 1179.110, subdivision (c).
DISPOSITION
The judgment is reversed. Plaintiff is entitled to his costs
on appeal.
CERTIFIED FOR PUBLICATION.
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______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
Justice of the Court of Appeal, Second Appellate District,
Division Five, assigned by the Chief Justice pursuant to article
VI, section 6 of the California Constitution.
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