The opinion
Filed 5/30/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
CLARA STOKES et al., B279241
Plaintiffs and Appellants, Los Angeles County
Super. Ct. No. BC586899
v.
ELLEN M. BAKER,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Holly J. Fujie, Judge. Reversed.
Hodes Milman Liebeck, T. Gabe Houston, Daniel M. Hodes,
Lee M. Weiss; Newmeyer & Dillion, Charles S. Krolikowski and
Jason Moberly Caruso for Plaintiffs and Appellants.
Haight Brown & Bonesteel, Angela S. Haskins, Vangi M.
Johnson; Cole Pedroza, Curtis A. Cole, Kenneth R. Pedroza and
Danica-Joyce Lam for Defendant and Respondent.
_________________________
Health and Safety Code section 1799.110, subdivision (c)
states: “In 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,
the court shall admit expert medical testimony 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
emergency department.”1 In this appeal, we must decide whether
this expert qualification requirement applies to all expert medical
testimony in a negligence action against an emergency room
doctor, or whether it applies only to medical testimony regarding
the standard of care.
Plaintiffs Clara and Vaughn Stokes sued defendant Ellen
Baker, M.D., alleging Dr. Baker negligently failed to diagnose
a subarachnoid hemorrhage afflicting Ms. Stokes when she
presented to Dr. Baker’s emergency department. They alleged
Dr. Baker’s negligence caused Ms. Stokes’s aneurysm to go
untreated until it ruptured, resulting in the cognitive and
neurological difficulties Ms. Stokes now experiences.
The trial court granted Dr. Baker’s motion for summary
judgment, concluding plaintiffs’ causation expert—a board-
certified neurointerventional surgeon—was not qualified to offer
medical testimony under section 1799.110 because he did not
have substantial professional experience working in an
emergency department. We conclude this was error. As we will
discuss, section 1799.110’s structure and legislative history
confirm the Legislature intended the expert qualification
provision to ensure only that emergency physicians are subject to
a fair and practical appraisal of the applicable standard of care.
Although the trial court’s interpretation is consistent with the
1 Statutory references are to the Health and Safety Code,
unless otherwise designated.
2
strict letter of the isolated clause, its literal construction would
generate needless conflicts with Evidence Code section 720 and
absurd consequences in cases where causation and damages
implicate medical issues outside the experience and expertise
of emergency room physicians. We reverse.
FACTS AND PROCEDURAL BACKGROUND
Consistent with the applicable standard of review, we state
the facts established by the parties’ evidence in the light most
favorable to plaintiffs as the nonmoving parties, drawing all
reasonable inferences and resolving all evidentiary conflicts,
doubts or ambiguities in plaintiffs’ favor. (Jacks v. City of Santa
Barbara (2017) 3 Cal.5th 248, 273 (Jacks); Saelzler v. Advanced
Group 400 (2001) 25 Cal.4th 763, 768 (Saelzler).)
1. Dr. Baker’s Emergency Treatment of Ms. Stokes
Ms. Stokes presented to Torrance Memorial’s emergency
department on May 25, 2014, complaining of sudden pain on the
back of her head radiating to her neck. She told Dr. Baker she
had experienced pain in her neck and a migraine headache since
twisting her neck two days earlier, and she reported a recent
increase in the frequency of migraines. Ms. Stokes said she was
suffering from the worst headache she had ever experienced
and described her primary pain intensity as “10/10.” She also
reported vomiting the prior evening, and complained of right
sciatic nerve pain.
Dr. Baker’s physical examination of Ms. Stokes found neck
tenderness, no neurologic deficit, and full strength in both arms
and legs. A computerized tomography scan of Ms. Stokes’s head
and brain was “negative” for injury, and an x-ray of her lumbar
spine was “unremarkable.” An x-ray of her cervical spine
revealed a congenital fusion abnormality and degenerative
changes at various vertebrate. Dr. Baker contacted the on-call
neurologist, who indicated he could see Ms. Stokes in two or three
days. Dr. Baker did not order further testing.
3
Dr. Baker concluded that Ms. Stokes had an acute migraine
headache, dehydration secondary to vomiting, and severe
degenerative changes to her cervical spine. She prescribed Ms.
Stokes pain medication and advised her to contact the neurologist
for a follow-up visit. Ms. Stokes was discharged with instructions
to follow up with the neurologist and to return to the emergency
department if her condition worsened or if she developed new
symptoms. Ms. Stokes followed up with the neurologist on
May 28, 2014.
On June 4, 2014, Ms. Stokes suffered an intracranial bleed
secondary to a ruptured aneurysm. She was admitted to the
hospital and underwent a craniotomy and clipping. She
remained intubated after the surgery and required high levels of
sedation. Her hospital treatment was complicated by healthcare-
associated pneumonia and staph infection. Following the
ruptured aneurysm and surgery, Ms. Stokes has had persistent
cognitive and physical impairments that prevent her from
performing full-time work in a normal working environment.
2. The Complaint
Plaintiffs sued Dr. Baker, Torrance Memorial, and other
medical professionals who had participated in Ms. Stokes’s
treatment, asserting causes of action for medical negligence
and loss of consortium. They alleged Dr. Baker breached the
standard of care by “fail[ing] to identify, diagnose, and treat, an
intraventricular and subarachnoid hemorrhage in” Ms. Stokes,
and by “fail[ing] to order and perform a lumbar puncture, thereby
permitting the hemorrhage to progress untreated.” And they
alleged Dr. Baker’s failure to diagnose the hemorrhage allowed
it to go untreated until Ms. Stokes’s aneurysm ruptured, which
caused Ms. Stokes to suffer serious personal injuries.
3. Dr. Baker’s Motion for Summary Judgment
Dr. Baker moved for summary judgment on the grounds
that her care and treatment of Ms. Stokes were consistent with
4
the standard of care and nothing she did or failed to do caused
Ms. Stokes’s alleged injuries.
In support of the motion, Dr. Baker proffered the
declaration of Jonathan Lawrence, M.D., a board-certified
physician in emergency medicine with “extensive experience
dealing with patients presenting to the Emergency Department
with the complaints and symptoms such as those experienced
by [Ms. Stokes] on May 25, 2014.” Dr. Lawrence opined that
Dr. Baker’s care and treatment of Ms. Stokes “conformed with
the standard of care required under the circumstances.” He
explained: “[T]he presentation of plaintiff [Ms. Stokes] to the
[Torrance Memorial] Emergency Department on May 25, 2014
was not suspicious for subarachnoid hemorrhage. . . .
The radiologic imaging ordered by Dr. BAKER was appropriate
for following up on the patient’s complaints of neck pain and it
confirmed that plaintiff [Ms. Stokes] suffers from degenerative
disk disease in the cervical spine. In addition, Dr. BAKER
consulted with a Neurologist who advised that he would follow
[up with] the patient in his office in two to three days.
Accordingly, the index of suspicion for subarachnoid hemorrhage
was low and did not require any further work-up such as a
lumbar puncture.”
As for causation, Dr. Lawrence opined: “It is further my
opinion, to a reasonable degree of medical probability that no
negligent act or omission by defendant ELLEN BAKER, M.D.
caused or contributed to any injury, harm or damages as alleged
by plaintiffs.”
4. Plaintiffs’ Opposition
In opposition to Dr. Baker’s motion, plaintiffs proffered the
declarations of emergency medicine physician Michael Ritter,
M.D., and neurointerventional surgeon George Rappard, M.D.
Dr. Ritter opined that Dr. Baker fell below accepted
standards of care for emergency medicine in her diagnosis, care,
and treatment of Ms. Stokes. According to Dr. Ritter, Dr. Baker’s
5
impression that Ms. Stokes had an acute migraine headache,
dehydration secondary to vomiting, and severe degenerative
changes to her cervical spine did not account for Ms. Stokes’s new
pattern of headaches or her sudden onset of head pain radiating
to the neck. Rather, these symptoms were consistent with a
subarachnoid hemorrhage, which causes “severe headaches as
well as neck pain and stiffness,” and therefore “the standard
of care required Dr. Baker to order all necessary testing to
completely rule out a subarachnoid hemorrhage.” Dr. Ritter
further explained that “[s]maller hemorrhages may not show up
on a normal CT scan.” Thus, when Ms. Stokes’s CT scan came
back negative, “the standard of care required Dr. Baker to order
a lumbar puncture,” which would have “revealed blood in
Ms. Stokes’[s] cerebral spinal fluid” and “confirm[ed] a
subarachnoid hemorrhage.” At that point, “the standard of care
would have required Dr. Baker to refer Ms. Stokes to a specialist
such as a neurosurgeon or neurointerventional surgeon to
address the subarachnoid hemorrhage.” By failing to order
the lumbar puncture, Dr. Ritter opined Dr. Baker breached
the standard of care in treating Ms. Stokes.
Dr. Rappard opined that Dr. Baker’s actions were a
substantial factor in causing Ms. Stokes to suffer greater injuries
than she would have suffered had Dr. Baker diagnosed the
subarachnoid hemorrhage when Ms. Stokes presented to the
emergency department on May 25, 2014. Based on his experience
as a board-certified neurointerventional surgeon and his review
of Ms. Stokes’s medical records, Dr. Rappard determined
Ms. Stokes’s subarachnoid hemorrhage was “a small ‘sentinel’
or ‘early warning’ bleed, which denotes an aneurysm that has yet
to fully rupture but will likely rupture in the near future.” Had
Dr. Baker diagnosed the subarachnoid hemorrhage and referred
Ms. Stokes to a neurosurgeon or neurointerventional surgeon,
the specialist would have identified the aneurysm and performed
“aneurysm repair surgery (endovascular coiling or aneurysm
6
clipping) on an emergent basis” that would have “successfully
repaired” the aneurysm before it ruptured. This, according to
Dr. Rappard, would have resulted in a better outcome for
Ms. Stokes, as “the morbidity rate for repair of an un-ruptured
aneurysm is approximately 2%,” while “the morbidity following
a subarachnoid hemorrhage from a ruptured aneurysm is
approximately 70%.” Thus, Dr. Rappard opined that Dr. Baker’s
failure to order a lumbar puncture was a substantial factor
in causing Ms. Stokes to suffer the injuries she experienced
following her aneurysm repair surgery, including her prolonged
intubation, acute respiratory failure, and persistent cognitive
issues.
5. Dr. Baker’s Reply and Evidentiary Objection
to Dr. Rappard’s Declaration
Dr. Baker objected to Dr. Rappard’s declaration, arguing
Dr. Rappard was not qualified under section 1799.110 to offer
expert medical testimony in an action for negligence against
an emergency room doctor. Further, because Dr. Ritter did not
opine that the failure to diagnose a subarachnoid hemorrhage
caused plaintiffs’ injuries, Dr. Baker argued plaintiffs had failed
to raise a triable issue of fact as to causation.
Plaintiffs opposed the evidentiary objection, arguing section
1799.110 applied to only expert medical testimony regarding the
standard of care for emergency room physicians, and not to the
causation issues addressed in Dr. Rappard’s declaration.
6. The Trial Court’s Initial Order
After a hearing, the trial court issued an order striking
Dr. Rappard’s declaration, concluding Dr. Rappard was
unqualified under section 1799.110 to offer expert medical
testimony in the matter because he lacked substantial
professional experience within the last five years in an
emergency department. However, the court found Dr. Ritter’s
declaration raised a triable issue of fact as to whether Dr. Baker
complied with the applicable standard of care in failing to order
7
a lumbar puncture to rule out a subarachnoid hemorrhage.
Thus, on its own motion, the court continued the hearing on
Dr. Baker’s summary judgment motion, and set a schedule for
supplemental briefing on only the causation issue.
7. Plaintiffs’ Supplemental Declarations and
Dr. Baker’s Objections
Plaintiffs filed supplemental declarations from Dr. Ritter
and Dr. Rappard addressing the causation issue. Dr. Ritter
opined, based on his review of Dr. Rappard’s declaration and
a conversation with Dr. Rappard, that Dr. Baker’s breach of the
standard of care was a substantial factor in causing plaintiffs’
injuries. Dr. Rappard reaffirmed his earlier causation opinion,
and emphasized that the opinion had been based on the standard
of care for emergency room physicians articulated in Dr. Ritter’s
declaration.
Dr. Baker objected to both declarations. She maintained
the trial court properly excluded Dr. Rappard’s first declaration
under section 1799.110, and argued Dr. Ritter was not permitted
to rely upon the excluded declaration as a basis for his purported
causation opinion.
8. The Order Granting Summary Judgment
The trial court granted Dr. Baker’s motion for summary
judgment, concluding Dr. Ritter’s supplemental declaration
“fails to raise a triable issue of material fact as to causation.”
The court explained: “Dr. Ritter improperly bases his conclusions
regarding causation on the declarations of Dr. Rappard, which
constitute inadmissible hearsay, in direct violation of the rule . . .
that an expert may not predicate an opinion upon the outside
opinion of another expert. Further, the Court agrees with
Dr. Baker that to allow the introduction of the outside opinion of
Dr. Rappard through the declaration of Dr. Ritter would impose
the improper standard of care upon Dr. Baker, which, pursuant
to Health & Safety Code section 1799.110, must be determined by
a medical expert with substantial professional experience while
8
assigned to provide emergency medical coverage in a general
acute care hospital emergency department within the last
five years.”
The court entered judgment in favor of Dr. Baker.
Plaintiffs filed a timely appeal.
DISCUSSION
1. Standard of Review and Principles of Statutory
Construction
Summary judgment is properly granted if all the papers
submitted show no triable issue of material fact exists and
the moving party is entitled to judgment as a matter of law.
(Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 849; Sanchez v. Kern Emergency
Medical Transportation Corp. (2017) 8 Cal.App.5th 146, 152.)
A defendant meets its burden by showing that one or more
essential elements of the plaintiff’s cause of action cannot be
established, or that there is a complete defense. (Code Civ. Proc.,
§ 437c, subd. (o); Aguilar, at p. 849; Saelzler, supra, 25 Cal.4th
at p. 768; Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 741.)
If the defendant makes this showing, the burden shifts to the
plaintiff to demonstrate a triable issue of fact exists. (Aguilar,
at p. 849.)
We review a trial court’s ruling granting summary
judgment de novo, liberally construing the nonmoving party’s
evidence while strictly scrutinizing the moving party’s showing.
(Jacks, supra, 3 Cal.5th 248, 273; Saelzler, supra, 25 Cal.4th
at p. 768.) We consider all the evidence set forth in the papers,
except that to which objections have been properly sustained,
and all inferences reasonably deducible from the uncontradicted
evidence. (Code Civ. Proc., § 437c, subd. (c); Perry v. Bakewell
Hawthorne, LLC (2017) 2 Cal.5th 536, 542.) “ ‘We apply the same
three-step analysis required of the trial court. We begin by
identifying the issues framed by the pleadings since it is these
allegations to which the motion must respond. We then
9
determine whether the moving party’s showing has established
facts which justify a judgment in movant’s favor. When a
summary judgment motion prima facie justifies a judgment, the
final step is to determine whether the opposition demonstrates
the existence of a triable, material factual issue.’ ” (Gutierrez v.
Girardi (2011) 194 Cal.App.4th 925, 931-932.) Any doubts
concerning the propriety of the motion must be resolved in favor
of the party opposing the motion. (Salas v. Sierra Chemical Co.
(2014) 59 Cal.4th 407, 415.)
The Courts of Appeal are divided over whether a trial
court’s evidentiary rulings in the context of a summary judgment
motion are reviewed for an abuse of discretion (as evidentiary
rulings generally are) or reviewed independently (as summary
judgment motions generally are). (See Reid v. Google, Inc. (2010)
50 Cal.4th 512, 535 [recognizing opposing positions, without
deciding appropriate standard of review].) We need not weigh in
on the debate here. Because the trial court’s ruling to exclude
Dr. Rappard’s declaration turned on the court’s construction of
section 1799.110, subdivision (c), the ruling presents a pure
question of law subject to our de novo review. (Zhou v. Unisource
Worldwide (2007) 157 Cal.App.4th 1471, 1476, citing People
ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.)
In construing the statute, we apply the following established
principles.
The “ ‘fundamental purpose of statutory construction is
to ascertain the intent of the lawmakers so as to effectuate the
purpose of the law.’ ” (People v. Hull (1991) 1 Cal.4th 266, 271;
Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709,
715; Klein v. United States of America (2010) 50 Cal.4th 68, 77.)
To determine the legislative intent, we look first to the words
used in the statute, “because the statutory language is generally
the most reliable indicator of legislative intent.” (Hassan, at
p. 715; Klein, at p. 77.) “[T]he various parts of the statutory
enactment must be harmonized by considering the particular
10
clause in the context of the whole statute.” (Nunn v. State of
California (1984) 35 Cal.3d 616, 625.) And, we must keep in
mind “the nature and purpose of the enactment,” so as to give the
language “such interpretation as will promote rather than defeat
the objective of the law.” (Clinton v. County of Santa Cruz (1981)
119 Cal.App.3d 927, 933.) In ascertaining legislative intent, our
inquiry is not limited to the statutory language alone; “we should
also take into account the object of the legislation, the evils to be
remedied, the legislative history, public policy and other matters
helpful in discerning the intended meaning of the words used.”
(Ibid.; People v. Carron (1995) 37 Cal.App.4th 1230, 1236.)
“ ‘Once the intention of the legislature is ascertained it
will be given effect even though it may not be consistent with the
strict letter of the statute.’ ” (People v. Ali (1967) 66 Cal.2d 277,
280.) Although ambiguity is generally a condition precedent to
interpretation, “ ‘[t]he literal meaning of the words of a statute
may be disregarded to avoid absurd results or to give effect to
manifest purposes that, in the light of the statute’s legislative
history, appear from its provisions considered as a whole.’ ”
(County of Sacramento v. Hickman (1967) 66 Cal.2d 841, 849,
fn. 6, quoting Silver v. Brown (1966) 63 Cal.2d 841, 845; see also
Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 27
(Simpson Strong-Tie).) “ ‘ “It is a settled principle of statutory
interpretation that language of a statute should not be given a
literal meaning if doing so would result in absurd consequences
which the Legislature did not intend.” ’ ” (Younger v. Superior
Court (1978) 21 Cal.3d 102, 113 (Younger).)
With these principles in mind, we turn to the central
question presented in this appeal: Does section 1799.110,
subdivision (c) require every expert who provides medical
testimony in a negligence action against an emergency room
doctor to have substantial professional experience within the
last five years providing emergency medical coverage in an
emergency department, or does the statute apply only to those
11
medical experts who testify as to an emergency room doctor’s
standard of care?
2. Section 1799.110 Applies to Standard of Care
Testimony Only
Section 1799.110, subdivision (c) provides: “In 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, the court shall admit
expert medical testimony 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 emergency department. For purposes
of this section, ‘substantial professional experience’ shall be
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.”
In striking Dr. Rappard’s declaration, the trial court
construed section 1799.110, subdivision (c) to categorically bar
expert medical testimony from any physician who lacked the
requisite professional experience in an emergency department,
regardless of the proffered testimony’s subject matter. Read in
isolation, this construction is consistent with the strict letter
of the expert qualification clause, which directs that in “any
action for damages involving a claim of negligence” against an
emergency room doctor, “the court shall admit medical testimony
only from physicians and surgeons who have had substantial
professional experience within the last five years” providing
emergency medical coverage in an emergency department.
(§ 1799.110, subd. (c), italics added.) However, while we must
acknowledge the trial court’s construction conforms to a literal
reading of the text, for the reasons that follow, we conclude this
interpretation must be rejected because it is contrary to the
12
statute’s apparent legislative intent and it would lead to absurd
results. (See Simpson Strong-Tie, supra, 49 Cal.4th at p. 27.)
As we will discuss, when the expert qualification clause
of section 1799.110, subdivision (c) is considered within the
context of the whole statute and in light of its legislative history,
the Legislature’s purpose in imposing a professional experience
requirement is clear: to ensure emergency room doctors are held
to a practical standard of care by restricting expert medical
testimony to physicians and surgeons who have recently
experienced the unique challenges and demands of an emergency
room. Because those considerations have no bearing on the
assessment of whether negligent conduct caused a plaintiff’s
alleged injuries or what damages are reasonable to compensate
a plaintiff for such injuries, there is no logical reason to require
the same experience of an expert offering medical testimony on
matters other than the standard of care. Indeed, as this case
demonstrates, imposing such a requirement on causation or
damages experts in cases where medical testimony is needed to
establish facts outside the specialized experience and expertise
of an emergency room doctor is certain to generate needless
conflicts with Evidence Code section 720 and to produce absurd
outcomes the Legislature could not have possibly intended.
a. The language and structure of section 1799.110
suggest it applies only to standard of care issues
Section 1799.110 expressly recognizes that emergency room
physicians confront unique challenges and demands that doctors
practicing in conventional medical office settings do not face.
By its terms, the statute applies to a claim of negligence against
a physician or surgeon arising out of “emergency medical
services” or “emergency medical care,” which are defined to mean
“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.” (§ 1799.110, subd. (b).) As courts
13
interpreting section 1799.110 in different circumstances have
recognized, emergency room doctors treat patients in “a markedly
different environment than in the relaxed office confines of a
private practitioner. Not only is the atmosphere of an emergency
room quite different, but so is the typical doctor-patient
relationship that is found there.” (James v. St. Elizabeth
Community Hospital (1994) 30 Cal.App.4th 73, 81 (James).)
Among other distinctions, these courts have noted that
physicians covering emergency rooms must regularly
“make instantaneous decisions often without the benefit
of medical histories, consultation, or time for reflection.”
(Ibid.; Miranda v. National Emergency Services, Inc. (1995)
35 Cal.App.4th 894, 904 (Miranda).)
Although no court has directly addressed whether
the expert qualification clause is limited to standard of care
testimony, every court to consider section 1799.110’s legislative
intent has determined the statute’s “clear purpose . . . is to
encourage the provision of emergency medical care by preventing
malpractice claims based on the assertion that an emergency
room physician fell below the standard of care which could have
been provided by a specialist in the particular field acting under
nonemergency conditions.” (Jutzi v. County of Los Angeles (1987)
196 Cal.App.3d 637, 651 (Jutzi), italics added; accord, Sigala v.
Goldfarb (1990) 222 Cal.App.3d 1450, 1455; James, supra, 30
Cal.App.4th at p. 81; Miranda, supra, 35 Cal.App.4th at p. 902;
Petrou v. South Coast Emergency Group (2004) 119 Cal.App.4th
1090, 1093.) In identifying this purpose, these courts have
repeatedly recognized that the statute’s language almost
exclusively refers to and implicates matters commonly associated
with an assessment of the applicable standard of care.
For instance, the court in James focused on section
1799.110, subdivision (a), which instructs the trier of fact to
“consider, together with all other relevant matters, the
circumstances constituting the emergency, as defined herein,
14
and the degree of care and skill ordinarily exercised by reputable
members of the physician and surgeon’s profession in the same
or similar locality, in like cases, and under similar emergency
circumstances.” (§ 1799.110, subd. (a), italics added; James,
supra, 30 Cal.App.4th at p. 82.) As the James court explained,
the language of subdivision (a), though not specifically referring
to the standard of care, is plainly intended to ensure the
physician is “judged against the standard of care for providing
‘emergency medical services’ in the ‘same or similar locality.’ ”
(James, at p. 82, italics added.)
The Miranda court was more definitive in its assessment of
section 1799.110, subdivision (c). Like subdivision (a), the second
sentence of subdivision (c) instructs that, in determining whether
the proposed expert has the required “substantial professional
experience,” the court shall look to “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), italics added.) The Miranda court declared
“[t]his command is obviously intended to ensure that the
performance of an emergency room physician sued for alleged
malpractice in rendering emergency room treatment is evaluated
under a standard of care essentially equivalent to that prevailing
in emergency rooms at the time in the locality where the alleged
negligence took place.” (Miranda, supra, 35 Cal.App.4th at
p. 905, italics added.) And the court concluded this interpretation
was “logical” and “consistent with the underlying purpose of
section 1799.110,” explaining: “In a professional negligence
action against an emergency room physician, an expert called to
testify about issues relating to the relevant standard of care
ought to be a physician who has had ‘substantial professional
experience’ in treating patients while assigned to duty in an
emergency room as an emergency room physician.” (Id. at p. 906,
italics added.)
15
Although these cases addressed a different issue, they
nonetheless highlight an important point relevant to our
construction of the statute’s expert qualification clause.2 While
section 1799.110 repeatedly refers to matters implicating the
standard of care, it contains no language pertaining to a factual
assessment of a negligence claim’s other elements. That makes
sense: while a specialized knowledge of the emergency room
environment is essential to understanding and assessing the sort
of “instantaneous decisions” emergency room doctors must make,
“often without the benefit of medical histories, consultation, or
time for reflection” (James, supra, 30 Cal.App.4th at p. 81), the
same is simply not true of medical issues arising out of the
2 The issue in Jutzi, James, and Miranda was whether
the term “emergency medical coverage” in section 1799.110,
subdivision (c) should be construed to have the same meaning
and scope as the term “emergency medical services” in
subdivision (a). While all three recognized section 1799.110’s
“clear purpose” was to “encourage the provision of emergency
medical care by preventing malpractice claims based on the
assertion that an emergency room physician fell below the
standard of care which could have been provided by a specialist
in the particular field acting under nonemergency conditions”
(Jutzi, supra, 196 Cal.App.3d at p. 651; accord, James, supra, 30
Cal.App.4th at p. 81; Miranda, supra, 35 Cal.App.4th at p. 902),
the Jutzi court concluded the term “emergency medical coverage”
was “synonymous” with “emergency medical care” and
“emergency medical services.” (Jutzi, at p. 647; see § 1799.110,
subd. (b) [providing the same definition for “emergency medical
care” and “emergency medical services”]; see also Zavala v. Board
of Trustees (1993) 16 Cal.App.4th 1755, 1762.) The James and
Miranda courts rejected this construction, concluding the
Legislature intended “emergency medical coverage” to have a
broader scope, so that the expert qualification requirement in
subdivision (c) applies “if the emergency room physician has
rendered any kind of treatment in a general acute care hospital’s
emergency department.” (James, at p. 82, italics added;
Miranda, at pp. 906-907; accord, Zavala, at pp. 1762-1763.)
16
causation and damages elements of a negligence claim. For those
issues, a physician’s experience working in an emergency room
would do nothing to assist the trier of fact in determining
whether the emergency room doctor’s breach of the standard of
care caused the plaintiff’s injuries, nor would such experience
assist a jury with its task of assessing what damages are
reasonable to compensate the plaintiff for her injuries.
Dr. Baker attempts to explain this omission by arguing
section 1799.110’s reference to a “claim of negligence” is itself an
indication that the Legislature intended the expert qualification
clause to apply to testimony regarding causation. Citing the
Medical Injury Compensation Reform Act’s definition of
“professional negligence” (Civ. Code, § 3333.1, MICRA),
Dr. Baker asserts the term “claim of negligence” as used in
section 1799.110 means “(1) a negligent act (breach in the
standard of care) + (2) proximate cause (causation).”3 Thus, she
maintains section 1799.110 should be interpreted to apply to
3 Civil Code section 3333.1 defines “ ‘Professional
negligence’ ” to mean “a negligent act or omission to act by a
health care provider in the rendering of professional services,
which act or omission is the proximate cause of a personal injury
or wrongful death, provided that such services are within the
scope of services for which the provider is licensed and which
are not within any restriction imposed by the licensing agency
or licensed hospital.” Though not particularly relevant to our
decision, we agree with plaintiffs that Dr. Baker’s reliance upon
this statute is misplaced. Section 1799.110 does not use the
term “professional negligence” in defining its scope, nor does it
reference Civil Code section 3333.1 specifically or incorporate
MICRA’s provisions generally. As plaintiffs correctly observe,
given that Civil Code section 3333.1 was enacted years before
section 1799.110’s predecessor, the use of the term “claim of
negligence” in section 1799.110 instead of “professional
negligence” indicates, if anything, that the Legislature intended
the statutes to have different scopes.
17
standard of care and causation testimony. The argument does
little to resolve the arguable incongruity in the statutory text.
Regardless of how “claim of negligence” is defined, we
have already recognized a literal reading of section 1799.110,
subdivision (c) commands that the court “shall admit expert
medical testimony only from physicians and surgeons who have
had substantial professional experience within the last five
years” in an emergency department. (§1799.110, subd. (c), italics
added.) But that apparent categorical mandate is at odds with
the rest of the statute, which, as other courts have recognized,
seems to indicate a legislative intent to ensure only that the
treatment provided in an emergency room “is evaluated under a
standard of care essentially equivalent to that prevailing in
emergency rooms at the time in the locality where the alleged
negligence took place.” (Miranda, supra, 35 Cal.App.4th at p.
905.) While that interpretation is compelling, we cannot ignore
that it conflicts with a literal reading of the text. Under this
circumstance, it is proper to seek guidance from the legislative
history of section 1799.110. (See Miranda, at p. 902.)
b. The legislative history of section 1799.110
supports a construction limiting the expert
qualification clause to standard of care
testimony
“Section 1799.110 was enacted in 1978 as former section
1768 and was part of a larger article on Good Samaritans.”
(James, supra, 30 Cal.App.4th at pp. 80-81, citing Stats. 1978,
ch. 130, §§ 2, 8, pp. 342, 345.) “The legislative package which
included former section 1768 was designed to promote ‘the
development, accessibility, and provision of emergency medical
services to the People of the State of California.’ ” (James, at
p. 81, quoting Stats. 1978, ch. 130, § 2, p. 342.) “The language
of section 1799.110 is unchanged from the original language of
former section 1768.” (Miranda, supra, 35 Cal.App.4th at p. 902,
citing Stats. 1978, ch. 130, § 8, pp. 345-346.)
18
As first proposed, Assembly Bill No. 1301 (A.B. 1301),
which added former section 1768 to the Health and Safety Code,
“sought to limit the civil damages exposure of certain
professionals who provided emergency medical services in defined
settings to only that liability which arose out of acts or omissions
performed in a grossly negligent or intentional manner.”
(Miranda, supra, 35 Cal.App.4th at p. 903, citing Legislative
Analyst (June 3, 1977) Analysis of Assem. Bill No. 1301 (1977-
1978 Reg Sess.) as amended May 12, 1977.) A report to the
Senate Judiciary Committee analyzing the proposed provision
emphasized the “unusually high” malpractice exposure
emergency room physicians face in comparison to other medical
providers. (Sen. Com. on Judiciary (Aug. 8, 1977) Analysis of
Assem. Bill No. 1301 (1977-1978 Reg Sess.) Section Dealing with
Malpractice Liability for Emergency Physicians.) The report
identified several unique characteristics of emergency room care
to explain this disparate impact, including that “[e]mergency
physicians must make instantaneous decisions on the diagnosis
and treatment of emergency patients,” while “[o]ther physicians
have the ability to review past medical history, seek a
consultation, study current medical literature, and reflect upon
the proper diagnosis and course of treatment.” (Ibid.) The report
stressed that this factor, in particular, subjected emergency room
physicians to unfair treatment in malpractice litigation,
explaining: plaintiffs “may present expert testimony that
the emergency physician was negligent,” but a jury may not
appreciate that “this expert witness had an opportunity to seek
consultations, review medical texts, review the medical history,
and reflect upon his testimony.” (Ibid.) Without this relevant
context, the report concluded, “it is extremely difficult in the
calm atmosphere of the court room to recreate the atmosphere
of urgency that existed in the emergency room.” (Ibid.)
A.B. 1301 was repeatedly amended in the committee
process. (Miranda, supra, 35 Cal.App.4th at p. 903, citing
19
Sen. Com. Rep. & Digest May 8, 1978.) As a result, the limited
civil liability shield was deleted, and the bill passed both
legislative houses with the provisions that now appear in section
1799.110. (Miranda, at p. 903, citing Letter of Assemblyperson
Vic Fazio to Governor Edmund G. Brown, Jr. (May 10, 1978)
urging the Governor to sign Assem. Bill No. 1301.) In his letter
urging the Governor to sign the legislation, the bill’s author,
Assemblyperson Vic Fazio, recounted these amendments, and
echoed the concerns identified in the Senate Judiciary Committee
report. With respect to the expert qualification provision,
Assemblyperson Fazio explained, the “provision is inherently fair
as physicians are thereby compared to the standard of care
exercised by their peers,” thus preventing “ ‘super specialists’
from second guessing the instantaneous decisions made by
emergency physicians in emergency situations.” (Letter of
Assemblyperson Vic Fazio to Governor Edmund G. Brown, Jr.
(May 10, 1978), italics added.)
Critically, Governor Edmund G. Brown, Jr., nearly vetoed
A.B. 1301 out of concern that its language could be read to
“bar expert medical testimony on issues other than the standard
of care expected of emergency room physicians.” (Governor’s
message to Assem. on Assem. Bill No. 1301 (May 11, 1978)
8 Assem. J. (1977-1978 Reg. Sess.) pp. 14236-14237.)
The Governor allowed the bill to become law without his
signature “based on a commitment from the author to support
simultaneously effective legislation” to clarify the expert medical
testimony provision and to impose a three-year sunset provision
on the new statute. (Ibid.)
Although the subsequent legislation did not pass,4
Assemblyperson Fazio prepared the following statement
4 The clarifying language and sunset provision were
proposed in Senate Bill No. 734, but the legislation did not pass
the Assembly. (Amend. to Sen. Bill No. 734 (Reg. Sess. 1977-
1978) June 22, 1978; Assem. vote on Sen. Bill 734 (Aug. 30, l978)
20
of intent, which was printed in the Assembly Journal with
the unanimous consent of the Assembly:
“The purpose of this letter is to declare
the legislative intent of Section 1768(c) of the
Health and Safety Code as added by Assembly
Bill 1301 (Chapter 130 of 1978).
“As the author of AB 1301, I can state
that it was the intent of the Legislature
by enacting Section 1768(c) of AB 1301 to
establish a five-year professional experience
requirement as a condition to qualify as
an expert medical witness in a medical
malpractice lawsuit involving the provision of
emergency medical services. The Legislature
intended that this expert witness qualification
apply only to those witnesses testifying as to
the standard of care required of an emergency
department physician and not to those
witnesses testifying to the issue of recoverable
damages. The legislative debate on AB 1301
focused exclusively on the qualifications
required of an expert witness testifying on
the issue of liability.”
(Letter of Assemblyperson Vic Fazio to Assembly Speaker Leo T.
McCarthy (Aug. 31, 1978) 10 Assem. J. (1977-1978 Reg. Sess.)
p. 18447, italics added.)5
10 Assem. J. (1977-1978 Reg. Sess.) p. l8345; 8 Sen. J. (1977-1978
Reg. Sess.) p. 15043.)
5 As the Miranda court explained, the legislative materials
we have used to assist in ascertaining legislative intent are
proper for the purpose. (Miranda, supra, 35 Cal.App.4th at
p. 903, fn. 8.) Legislative committee reports (Commodore Home
Systems, Inc. v. Superior Court (1982) 32 Cal.3d 211, 219; Curtis
v. County of Los Angeles (1985) 172 Cal.App.3d 1243, 1250) and
21
These materials are consistent with the apparent
legislative purpose evidenced in section 1799.110’s broader
statutory language. They show that the Legislature was
concerned about the “unusually high” malpractice exposure
emergency room physicians face, and that lawmakers sought to
address this perceived unfairness by putting protections in place
to ensure the trier of fact judged an emergency room physician’s
conduct based on evidence that did not ignore or obfuscate
the unique challenges presented by the emergency room
environment. And, while some of the materials broadly referred
to claims of “negligence” or “expert testimony that the emergency
physician was negligent,” it is apparent from the context of these
statements that the legislative analysts were focused on how
a jury would judge the reasonableness of an emergency room
physician’s conduct—not the causation or damages elements of a
negligence claim. Indeed, like the statutory text, these legislative
materials contain no discussion of the sort of proof that should
be required to establish an emergency room physician’s conduct
preenactment reports by the Legislative Analyst (Moradi-Shalal
v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 300)
have been sanctioned as legitimate sources of legislative intent.
In addition, a statement by the sponsoring legislator has also
been approved, to the extent it “evidences the understanding
of the Legislature” and not simply the particular legislator’s
personal views. (In re Marriage of Bouquet (1976) 16 Cal.3d 583,
589; see also People v. Overstreet (1986) 42 Cal.3d 891, 900, and
California Teachers Assn. v. San Diego Community College Dist.
(1981) 28 Cal.3d 692, 699-700.) The cited portions of the letters
from Assemblyperson Fazio to Governor Brown and Assembly
Speaker McCarthy meet this test, as they recapitulate the
“discussion and events leading to adoption of proposed
amendments” that transpired during the legislative processing
of the bill. (California Teachers Assn., at pp. 699-700; Miranda,
at p. 903, fn. 8; see also In re Marriage of Bouquet, at p. 590.)
22
caused the plaintiff’s alleged injuries or what damages would
constitute reasonable compensation.
The most compelling evidence of legislative intent to be
found in these materials is the express statement of the bill’s
author declaring that “[t]he Legislature intended that this expert
witness qualification apply only to those witnesses testifying as
to the standard of care required of an emergency department
physician.” (Letter of Assemblyperson Vic Fazio to Assembly
Speaker Leo T. McCarthy, supra, 10 Assem. J. (1977-1978
Reg. Sess.), p. 18447, italics added.) Insofar as the Assembly
unanimously consented to printing this statement in the
Assembly Journal “to declare the legislative intent of AB 1301”
(id. at pp. 18447-18448), it strongly indicates lawmakers
intended the expert qualification requirement to have a more
limited scope than a literal reading of the clause would suggest.
The only cause for doubt is the Legislature’s failure to pass
the clarifying legislation Governor Brown demanded in allowing
the bill to become law without his signature. (See Governor’s
message to Assem. on Assem. Bill No. 1301, supra, 8 Assem. J.
(1977-1978 Reg. Sess.) pp. 14236-14237.) But curious as this is,
we are also mindful of our Supreme Court’s warnings that courts
“can rarely determine from the failure of the Legislature to pass
a particular bill what the intent of the Legislature is with respect
to existing law” (Ingersoll v. Palmer (1987) 43 Cal.3d 1321, 1349)
and that “[u]npassed bills, as evidences of legislative intent,
have little value” (Dyna–Med, Inc. v. Fair Employment &
Housing Com. (1987) 43 Cal.3d 1379, 1396). Moreover, although
the materials we have reviewed are limited, it does appear that
resistance to the Governor’s demand for a three-year sunset
provision may have been the principal factor that undermined
the legislation. (See Sav-On Drugs, Inc. v. County of Orange
(1987) 190 Cal.App.3d 1611, 1623 [reasoning nothing reliable
could be gleaned from rejected amendments because “[t]he
Legislature may have objected to other portions of the bills,
23
for example, and not felt any further clarification . . . was
necessary”].)
In any event, notwithstanding the fate of the clarifying
legislation, we find the legislative materials strongly support
the construction, already reached by several other courts, that
section 1799.110 applies only to evidence regarding the standard
of care required of an emergency room physician. This was the
express understanding and intent of the Legislature that passed
the measure and of the Governor who permitted it to become law.
c. Limiting the expert qualification clause
to standard of care testimony is the only
reasonable construction of the provision
Finally, we consider the practical consequences of adopting
either a literal construction of section 1799.110 or one limiting
the expert qualification clause to standard of care testimony.
We conclude the latter construction is the only reasonable
interpretation, as it satisfies the statute’s apparent legislative
purpose, while avoiding needless conflicts with Evidence Code
section 720 and absurd consequences that the Legislature could
not have intended. (See Younger, supra, 21 Cal.3d at p. 113.)
“Whenever [a] plaintiff claims negligence in the medical
context, the plaintiff must present evidence from an expert that
the defendant breached his or her duty to the plaintiff and that
the breach caused injury to the plaintiff.” (Powell v. Kleinman
(2007) 151 Cal.App.4th 112, 123.) Under Evidence Code
section 720, “[a] person is qualified to testify as an expert if he
has special knowledge, skill, experience, training, or education
sufficient to qualify him as an expert on the subject to which
his testimony relates.” (Evid. Code, § 720, subd. (a).) “Against
the objection of a party, such special knowledge, skill, experience,
training, or education must be shown before the witness may
testify as an expert.” (Ibid.)
Plaintiffs alleged in their complaint that Dr. Baker
breached the standard of care by “fail[ing] to order and perform
24
a lumbar puncture” in order to rule out a subarachnoid
hemorrhage when Ms. Stokes presented to the emergency room.
Consistent with that allegation, plaintiffs’ standard of care
expert, Dr. Ritter, opined that “had Dr. Baker complied with the
standard of care, a lumbar puncture would have been performed,
and, to a reasonable degree of medical probability, Ms. Stokes
would have been diagnosed with a subarachnoid hemorrhage.”
The trial court ruled Dr. Ritter’s declaration raised “triable issues
of material fact as to whether Dr. Baker’s care and treatment of
Ms. Stokes complied with the applicable standard of care.”
However, the court granted Dr. Baker’s summary judgment
motion on the ground that plaintiffs’ causation expert,
Dr. Rappard, did not have the requisite professional experience
in an emergency room to offer medical testimony under section
1799.110, subdivision (c).
The trial court’s ruling was consistent with a literal reading
of section 1799.110’s expert qualification clause, but the result
was absurd in light of the fundamental requirements for expert
testimony set forth in Evidence Code section 720. With respect to
the standard of care, both section 1799.110 and Evidence Code
section 720 required the proffered experts to have special
knowledge of the care a medical professional should provide
under emergency conditions; section 1799.110 simply imposed
the additional requirement that the experts have substantial
professional experience in an emergency room within the last five
years. (See Avivi v. Centro Medico Urgente Medical Center (2008)
159 Cal.App.4th 463, 467-470.) But as for causation, given
plaintiffs’ theory of liability (Dr. Baker’s failure to diagnose a
subarachnoid hemorrhage before it developed into a ruptured
aneurysm), Evidence Code section 720 plainly required special
knowledge, skill, experience, training, or education regarding the
treatment of brain aneurysms or subarachnoid hemorrhages and
the differing morbidity rates attributable to delays in diagnosing
these conditions. As Dr. Rappard’s declaration demonstrates,
25
specialized knowledge of these neurointerventional options was
necessary to aid the trier of fact’s assessment of what injuries
could have been prevented had Ms. Stokes’s subarachnoid
hemorrhage been timely diagnosed. In contrast, an
understanding of the unique challenges that an emergency room
environment presents, though potentially relevant to explaining
why Dr. Baker failed to diagnose the hemorrhage, would do little
to assist the trier of fact in determining whether that failure was
a substantial factor in causing Ms. Stokes’s alleged injuries.
Literally construing section 1799.110’s expert qualification
clause to apply beyond standard of care testimony is neither
reasonable nor necessary to a fair assessment of whether an
emergency room doctor’s conduct caused a plaintiff’s alleged
injuries. As this case demonstrates, such a construction would
result in obvious absurdities, requiring emergency room
physicians to render opinions far outside their area of expertise
that they are not qualified to give under Evidence Code section
720. The practical effect, as plaintiffs rightly point out, would be
to close the courthouse doors to plaintiffs in cases like this one,
where causation and damages implicate medical issues outside
the practice of emergency department physicians.6 These
6 The trial court correctly ruled plaintiffs’ standard of care
expert, Dr. Ritter, was not qualified to offer expert medical
testimony regarding causation; however, the same also was true
of Dr. Baker’s medical expert, Dr. Lawrence. Like Dr. Ritter,
Dr. Lawrence is an emergency medicine physician with no
specialization or apparent experience in either neurosurgery or
neurointerventional surgery. After reviewing the trial court
record and the parties’ appellate briefs, we sent a letter to the
parties requesting supplemental briefing to address what special
knowledge, skill, experience, training, or education was sufficient
under section 1799.110 and Evidence Code section 720 to qualify
an expert to opine to a reasonable medical probability that
Dr. Baker’s breach of the standard of care—i.e., the failure to
perform a lumbar puncture and diagnose Ms. Stokes with a
26
predictably absurd consequences are strong evidence, in addition
to the statute’s structure and legislative history, that the
Legislature intended section 1799.110, subdivision (c) to apply
only to standard of care testimony.
3. The Trial Court Erred in Striking Dr. Rappard’s
Causation Declaration
The trial court struck Dr. Rappard’s declaration on the
ground that he was not qualified to offer medical testimony under
the court’s literal construction of section 1799.110. Because
the court also determined Dr. Ritter was not qualified to offer
a medical opinion regarding causation, the court concluded
plaintiffs failed to raise a triable issue of fact on the issue. As we
hold section 1799.110, subdivision (c) must be construed to apply
only to standard of care testimony, we conclude the court erred
in striking Dr. Rappard’s declaration on the subject of causation.
And, because we find Dr. Rappard’s declaration was sufficient
to raise a triable issue of fact regarding causation, the summary
judgment in favor of Dr. Baker must be reversed.
subarachnoid hemorrhage—was not a substantial factor in
causing Ms. Stokes to suffer a ruptured aneurysm that otherwise
would have been successfully repaired by neurointerventional
surgery. While Dr. Baker reiterated her position that section
1799.110’s expert qualification requirement applied to medical
causation testimony, her response conspicuously omitted any
discussion of the qualifications required under Evidence Code
section 720. At oral argument, however, Dr. Baker’s counsel
conceded Dr. Lawrence was not qualified under Evidence Code
section 720 to opine on causation as framed in plaintiffs’
complaint. Although we do not reverse the judgment on this
ground, since plaintiffs did not object to Dr. Lawrence’s
declaration below, we do hold that unless Dr. Lawrence is able
to show he has special knowledge, skill, experience, training, or
education regarding the neurosurgical issues raised by plaintiffs’
theory of liability, he is not qualified to offer medical testimony
on causation under Evidence Code section 720.
27
DISPOSITION
The summary judgment is reversed. Plaintiffs Clara
Stokes and Vaughn Stokes are entitled to their costs.
CERTIFIED FOR PUBLICATION
EGERTON, J.
We concur:
EDMON, P. J.
DHANIDINA, J.
28