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Remote, On-Call Radiologist Qualifies as ‘Emergency Room’ Physician—C.A.
Opinion Says Stricter Statutory Requirements for Expert Witnesses in Medical Malpractice Cases Involving Acute Care Physicians Apply When Doctor Being Sued Reviews X-Ray Films Off-Site
By a MetNews Staff Writer
Div. Two of this district’s Court of Appeal held yesterday that stricter qualification standards for expert witnesses applicable under California law in malpractice actions against emergency care physicians apply where the defendant doctor works remotely to review records for the acute care facility on a “stat”—or immediate—basis.
The court acknowledged that the decision conflicts with the 1995 Fifth District decision in Miranda v. National Emergency Services Inc.—which held that the governing statute does not apply in malpractice actions against physicians providing emergency medical services on an on-call or consulting basis—but said that “[b]ecause we find Miranda’s reasoning flawed, we respectfully reject its holding.”
At issue is Health and Safety Code §1799.110 which was enacted to grant emergency department doctors some protection from malpractice claims by modifying the standard of care to account for the unique challenges faced in acute care settings and by requiring that any experts testifying have recent experience in emergency medicine.
Sec. 1799.110(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.”
The question arose after three-year-old Charlie Leyva was brought by his mother, Daniela Barcenas, to the emergency department at PIH Health Hospital-Whittier on Oct. 11, 2020. Leyva’s emergency room treating physician issued “stat” orders for an X-ray and ultrasound of Levya’s abdomen, which were taken between 3 a.m. and 4 a.m.
The images were sent for evaluation to Dr. Peyman Kangavari, an on-call radiologist who worked remotely for the facility and who concluded that the child’s bowel was obstructed, issuing a report based on the X-ray within 40 minutes and an analysis of the ultrasound within approximately one hour. Levya was sent home but returned a few hours later, nonresponsive and not breathing.
Following multiple surgeries, he now suffers from “short gut syndrome” as well as speech and mental impairments.
On April 23, 2021, Levya, by and through his mother acting as his guardian ad litem, filed a negligence action against Kangavari PIH Health, and other emergency department professionals and associated entities. The complaint alleges that Kangavari committed medical malpractice by failing to timely diagnose his bowel obstruction.
Kangavari moved for summary judgment and both parties submitted declarations from medical doctors on the issue of the standard of care—the plaintiff relied on a report by Dr. Ravi Srinivasa, a medical school associate professor of clinical radiology, and the defense declaration was submitted by Dr. John Lieu, a diagnostic radiologist.
During ensuing litigation, each asserted that the other’s purported expert failed to meet the qualification requirements of §1799.110(c).
Los Angeles Superior Court Judge Olivia Rosales granted summary judgment in favor of the defendants, finding that §1799.110 applies and sustaining Kangavari’s objection to Srinivasa’s qualifications.
Brian M. Hoffstadt—now presiding justice of Div. Five, sitting by assignment to the division on which he previously served as an associate justice—wrote the opinion reversing the judgment in favor of Kangavari, finding that §1799.110(c) applies but concluding that neither of the experts met the heightened statutory qualifications. Presiding Justice Elwood Lui and Justice Judith Ashmann-Gerst joined in the opinion.
Statutory Purpose
Hoffstadt said that “[a]lthough the text of section 1799.110 is ‘not a model of clarity’…, our Legislature’s purpose in enacting that statute was crystal clear.” He explained:
“[E]mergency department physicians sued for malpractice were…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…. 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’…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.’ ”
Against this background, he reasoned:
“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….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]….’ ”
Textual Argument
The plaintiff argues that the statutory text precludes the application of the stricter expert witness qualifications in cases where an on-call or consulting doctor is being sued for malpractice, pointing out that the statute requires an expert to have experience within the last five years “while assigned” to provide emergency medical coverage in an emergency department.
Hoffstadt said:
“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.”
Unpersuaded, he remarked:
“[W]e 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.”
Legislative History Assertion
Leyva alternatively points to the legislative history as supporting her position, pointing out that the bill that gave rise to the law originally applied to “physician specialists and other physicians…assist[ing] emergency physicians” before the “assisting” clause was deleted.
Hoffstadt disagreed that this amendment was dispositive, saying:
“[P]laintiff ignores the reason why the provision affecting 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….”
Turning to the Miranda case, he noted that the opinion “relied upon the textual and legislative history arguments pressed by plaintiff in this case” and said “we respectfully disagree” with the decision.
Pointing out that “Dr. Lieu does not…in his declaration (nor in his curriculum vitae) specify his…experience working under emergency conditions” and that “Dr. Srinivasa does not…specify that his work in emergency departments reading diagnostic studies or reviewing images indicate that he undertook these tasks while working under emergency conditions,” he said that both declarations were inadmissible under §1779.110(c).
Hoffstadt reasoned that “[b]ecause 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 expert testimony,” Rosales erred in granting Kangavari’s summary judgment motion.
The case is Charlie L. v. Kangavari, B327714.
Steven B. Stevens, Philip Michels, and Jin N. Lew of the Los Angeles firm Law Offices of Michels & Lew represented the plaintiff. Acting for the defendant were Scott Darrow Buchholz, Pari Naz Granum, Nicole G. Wells of the San Diego firm Dummit Buchholz & Trapp, and H. Thomas Watson and Peder Kristian Batalden of the Burbank-based Horvitz & Levy LLP.
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