Jacobs v. Sharp Healthcare CA4/1

Filed 1/25/23 Jacobs v. Sharp Healthcare CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
VALORI JACOBS, D079404
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2019-
00070139-CU-MM-CTL)
SHARP HEALTHCARE et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Richard S. Whitney, Judge. Reversed and remanded with directions.
The Law Office of Herb Fox and Herb Fox for Plaintiff and Appellant.
Dummit, Buchholz & Trapp, Scott D. Buchholz, William R. Moore and
Amanda K. Crawley for Defendants and Respondents.
INTRODUCTION
Valori Jacobs sued her treating physician for medical malpractice,
alleging he was negligent in performing her sinus surgery and failed to
obtain her informed consent before performing additional procedures during
surgery. Jacobs also sued Sharp Healthcare and Sharp-Rees Stealy Medical
Group, Inc. (collectively, Sharp), which operated the hospital facility where
she was treated and had the surgery, alleging the surgeon was an “employee
and/or contracted agent” of Sharp’s.
Sharp demurred to Jacobs’s operative complaint on the grounds the
statute of limitations had run on the first cause of action for professional
negligence, under Code of Civil Procedure section 340.5,1 and that claim and
the second cause of action for lack of consent failed for “uncertainty” because
there were no allegations establishing how Sharp was liable for the
physician’s actions. The trial court agreed and sustained Sharp’s demurrer
without leave to amend.2
We reverse as to the first and second causes of action. On our de novo
review, we conclude the operative complaint does not clearly and
affirmatively establish, as a matter of law, that Jacobs’s professional
negligence claim is time-barred, and that it sufficiently alleged Sharp’s
liability for the physician’s actions on the basis of ostensible agency.
1 All further unspecified statutory references are to the Code of Civil
Procedure.
2 On appeal, Jacobs does not challenge the trial court’s ruling sustaining
the demurrer as to the third cause of action for fraud for uncertainty and the
fourth cause of action for “ ‘medical incompetence for procedures performed’ ”
as duplicative of the professional negligence claim.
2
FACTUAL AND PROCEDURAL BACKGROUND
I.
Factual Allegations3
Jacobs was treated by Dr. James Amsberry—an ear, nose, and throat
(ENT) specialist who practiced out of the Sharp facility in San Diego—for
sinus nasal congestion and allergic rhinitis from 2017 to 2019. She was first
seen by Dr. Amsberry on January 6, 2017. Dr. Amsberry diagnosed Jacobs
with nasal polyps and a right-sided deviated septum and recommended
turbinate reduction to open the nasal passages, septoplasty to correct the
deviated septum, and sinus surgery to remove the polyps. Dr. Amsberry told
Jacobs the risks associated with anesthesia and that surgery might not lead
to any improvement, but he did not inform her of the “[s]pecific risks” of
surgery. Jacobs trusted Dr. Amsberry’s opinion and agreed to the surgery.
On February 28, 2017, Jacobs had the surgery with Dr. Amsberry at
the Sharp facility in San Diego. After the surgery, Jacobs was in
“excruciating pain.” She had difficulty breathing and felt “overall distress.”
Dr. Amsberry agreed to an overnight hospital stay for monitoring, but told
her “there were no complications” from the surgery.
On March 1, 2017, Jacobs felt “palpitations, rapid heartbeats, and
pressure in her chest along with pain that pulsated down her left arm and
3 We derive the relevant facts from the operative second amended
complaint (SAC). And because this is an appeal from a judgment entered
after a demurrer was sustained, we accept as true and liberally construe the
facts alleged in the SAC. (Chapman v. Skype Inc. (2013) 220 Cal.App.4th
217, 225; Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228,
1238.) We also note Jacobs was a self-represented litigant during the
pleading stage, and her counsel on appeal acknowledges her pleadings were
not a “ ‘model of clarity, conciseness or consistency.’ ”
3
into [the] chest area.” She was told by someone in Dr. Amsberry’s office to go
to the emergency room, which she did by ambulance. The “ER physician” told
her that sometimes patients who have undergone sinus surgery can
experience nerve pains. Jacobs was monitored and sent home the same day.
On March 8, 2017, Jacobs saw Dr. Amsberry in her first post-surgery
visit. She complained of nasal dryness, pain or pressure on the inside of her
head, an “empty hollow feeling inside her nose,” the feeling her lungs were
not getting enough oxygen, and burning in her eyes. Dr. Amsberry told her
everything was “normal” except “no one had ever complained of the eye
burning before.” He told Jacobs “everything was looking good” and
“mentioned that the stents would be removed” from her nasal cavity at the
next visit.
But at the next visit, on March 22, 2017, Dr. Amsberry explained he
had instead used “dissolvable packing” for the nasal stents. Jacobs continued
to complain of pain and pressure, nasal dryness “along with thick yellow
mucus production” in her nasal passages, and “liquid coming from the nose.”
Dr. Amsberry “convinced her” the liquid was saline rinse. He prescribed her
antibiotics and medically cleared her to return to work the next day.
Jacobs had four more post-surgery visits with Dr. Amsberry. He told
Jacobs it would take at least one year to heal completely from the surgery.
On March 29, 2017, she continued to complain of pain in her sinuses,
pressure in the head, abnormal breathing, and now there was “the sound of a
soda can popping inside her head.” Dr. Amsberry performed an endoscopic
examination and, again, assured her “everything was looking good.”
On April 26, 2017, Jacobs asked Dr. Amsberry if the symptoms she was
experiencing, including sinus infections, “could be” the result of the surgery.
She told him she felt some relief while on antibiotics, but the symptoms
4
returned with “worsening pain . . . deep inside her head” when she finished
the prescribed dosage. Dr. Amsberry suggested “a revision surgery may be
needed to address some clean up on the right frontal sinuses.”
On June 7, 2017, Jacobs told Dr. Amsberry “[s]he was concerned that
the antibiotics were not clearing the infection, the antibiotics may not have
been properly prescribed, or perhaps some other pathology was responsible
for the continuous infections.” She had on several occasions asked about
tests that could be performed to determine the type of infection, or whether it
could be a “CSF leak” (cerebrospinal fluid leak) or “Empty Nose Syndrome” or
“any other complications from surgery.” Dr. Amsberry told her there were no
signs of a CSF leak and he did not think she had empty nose syndrome.
Jacobs continued to see Dr. Amsberry for treatment through March
2018 “in hopes of getting relief.” But her symptoms persisted and worsened.
When she told Dr. Amsberry she felt increasing pain at the base of her skull,
he told her “the pain was not related to her sinuses, because ‘your sinuses are
not in the back of your head.’ ” Dr. Amsberry again suggested a revision
surgery but Jacobs was “apprehensive” about having another surgery because
of her experience with the first one. She wanted to explore options other than
surgery. Dr. Amsberry told Jacobs to follow up with her primary doctor, Dr.
Tom-Oliver Klein,4 who also practiced at Sharp. She did, and Dr. Klein
“instructed [her] to go back to Dr. Amsberry” to discuss the symptoms of her
head pain. Jacobs then saw a “new Sharp [p]rimary care physician,” Dr.
Ahmed Turek. An X-ray was taken and she was told she had “spondylosis
which is an arthritic condition not related to the surgery.”
4 The SAC incorrectly states his name is Dr. Tom Oliver-Klein. In a
written stipulation filed on May 20, 2022, the parties agree the correct name
is Dr. Tom-Oliver Klein.
5
On or after March 30, 2018, Jacobs “sought care outside of Dr.
Amsberry’s office and Sharp because she felt her complaints were not being
addressed.” She had experienced an increase in her symptoms, which
included: insomnia, anxiety, and depression; pressure down the arm and in
the chest and shoulders; and tingling, popping and ringing in her left ear.
Jacobs contacted Dr. Matthew Leach, another ENT specialist, for a second
opinion. Dr. Leach told her surgery was not needed or recommended, and she
began non-invasive treatment for her ongoing symptoms. He had Jacobs
undergo computed tomography (CT) and magnetic resonance imaging (MRI),
“all of which showed various findings which are still being explored.” Jacobs
did not see the results of the imaging “until after 3/2019.”
Jacobs obtained a “Best Doctors Report”5 that was “dated on or about
March 2019.” She alleged “her suspicions were confirmed after” she received
this report, and somewhat inconsistently, “[t]his is when [she] began to
suspect that there may have been injuries and/or other complications that
caused injuries to [her], arising from the surgery of 2/28/2017.” She alleged
the Best Doctors Report was based on information provided by Sharp but
Sharp “did not provide the surgical record at the timing of the first Best
Doctors [R]eport.” And “[t]his is what prompted [her] suspicions.” She then
obtained Sharp’s medical records in “approx[imately] 3/2019,” which showed
a “[f]rontal balloon dilation and endoscopic sphenoid balloon dilation” was
performed. She was not aware these procedures were being performed
during surgery. The medical records also showed “the presence or
introduction of infection” during the surgery.
5 The SAC does not explain what a Best Doctors Report is, nor does the
record on appeal.
6
On May 7, 2019, Jacobs emailed Dr. Amsberry and “several other
physicians at Sharp” to complain of her continuing symptoms. When Dr.
Amsberry responded, Jacobs asked him “if there were any complications in
her procedure.” He did not respond to that question, and instead asked to
speak with her. In a phone call, Dr. Amsberry “pleaded” with Jacobs to see
another doctor, Dr. Mair,6 and “conveyed a sense of urgency that an
additional surgery needed to be performed.” Dr. Amsberry told Jacobs “Dr.
Mair was an expert who had some ideas for a minimally invasive surgical
procedure.” But a few days later, Dr. Amsberry changed his mind, informing
her that surgery was not the only option. Jacobs then agreed to see Dr. Mair,
who performed an endoscopic examination and told her she might have
“Empty Sella Syndrome which involves the pituitary gland.”7
On June 17, 2019, Jacobs was tested for nerve damage by Dr. Butrous,
a neurologist referred by Dr. Leach. Dr. Butrous told Jacobs she had “nerve
damage on the left side in [the] occipital, neck, shoulder and left arm region,”
and referred her to Dr. Khoo, a neurosurgeon, who recommended surgery to
correct the nerve damage. In all, Jacobs sought care from “several ENT
doctors and specialist[s] , [n]eurologist, [n]eurosurgeon, [e]ar [s]pecialist, and
[c]hiropractor specialist,” as well as urgent care clinics.
On December 20, 2019, Jacobs underwent revision sinus surgery, which
included a “ethmoidectomy, sphenoidectomy, bilateral revisions to all
sinuses,” and another septoplasty to correct her septal deviation and other
6 The SAC does not state Dr. Mair’s complete name, nor that of Dr.
Butrous and Dr. Khoo, whom we will discuss shortly.
7 The SAC does not state when Jacobs saw Dr. Mair, and May 7, 2019 is
the last date that appears in the SAC that Jacobs received medical care or
advice from Dr. Amsberry.
7
ongoing symptoms Jacobs had been experiencing. During the revision
surgery, two “identically sized lesions” were removed from Jacobs’s left sinus.
Jacobs is “not sure” what these two lesions were but believes they were the
stents placed in her nasal cavity during the first surgery “that were
scheduled to be removed by Dr. Amsberry” but were not.
II.
Demurrer Proceedings
A. Jacobs’s SAC
Eleven days after the revision surgery, on December 31, 2019, Jacobs
filed this action against Sharp and Dr. Amsberry,8 asserting four causes of
action for professional negligence, lack of informed consent, intentional and
deliberate fraud, and “medical incompetence.” In March 2020, Jacobs filed a
first amended complaint (FAC). Sharp and Dr. Amsberry demurred to the
FAC, which the trial court sustained with leave to amend.
Jacobs filed the operative SAC in November 2020. She alleged Dr.
Amsberry was “an individual employee and/or contracted agent” of Sharp.
She asserted the same four causes of action against Dr. Amsberry, and
against Sharp “under the doctrine of ‘respondeat superior.’ ”
Jacobs alleged: “Of findings to date, [Jacobs] believes that she has
suffered complications from surgery inter-operative and/or post-operative,
and was not informed, nor were adequate procedures followed before, during
and after the [February 28, 2017] surgery.” Dr. Amsberry and Sharp’s
8 Jacobs also named Dr. Klein and Dr. Turek as defendants. Initially
respondents in this appeal, this court dismissed the appeal as to Dr. Klein
and Dr. Turek upon the parties’ written stipulation. We do not discuss Dr.
Klein and Dr. Turek further unless relevant to our discussion of the factual
allegations within the SAC.
8
professional negligence in the surgery and substandard follow-up care
resulted in her “continued[ ] infections, pain and suffering, corrective surgery
and other quality of life altering issues.” Dr. Amsberry and Sharp failed to
apprise her of “many of the risks associated with surgery and procedures
being performed.” And they failed to inform her and obtain her consent to
“performing additional . . . procedures,” including “[f]rontal [b]alloon dilation”
or “endoscopic sphenoid balloon dilation” which were described in Sharp’s
medical records. Jacobs “believes she was part of some clinical trials without
her consent.” She sought actual, economic, and punitive damages.
B. Sharp and Dr. Amsberry’s Demurrer
Sharp and Dr. Amsberry demurred to the SAC.9
First, they asserted Jacobs’s professional negligence claim was time-
barred under the one-year limitations period of section 340.5. They argued
Jacobs’s “injury” occurred in February 2017 when she underwent surgery
“and, potentially, in March/April 2017” when she experienced symptoms,
including “ ‘palpitations, rapid heartbeat, and pressure in her chest and arm’;
‘burning in both eyes’; ‘nasal dryness and pain/pressure on the inside of
head’; ‘. . . nasal dryness and thick yellow mucus production; liquid coming
from nose,’ ” and so on. They argued section 340.5’s second element of when
Jacobs suspected, or when a reasonable person would have suspected
wrongdoing, was “an objective rather than a subjective standard.”10 And
9 Sharp and Dr. Amsberry also filed a motion to strike the punitive
damages claim in the SAC, which Jacobs did not oppose and the trial court
granted. The motion to strike is not at issue in this appeal, so we do not
discuss it.
10 As we later explain, this is not an entirely correct statement of the law.
(See Discussion Section II.C., post.) The one-year limitations period under
9
“[g]iven [Jacobs’s] complaints and consultation with an outside doctor in
March 2018, a reasonable person would have suspected at that time that
someone did something wrong,” and she “fail[ed] to allege facts to explain
why she could not reasonably, th[r]ough due diligence, discover her injury by
March 30, 2018, when she sought a second opinion.”
Second, Sharp and Dr. Amsberry asserted the entire SAC failed for
“uncertainty” as to all defendants, because it failed to allege sufficient
“specific negligent conduct” taken by any defendant, other than Dr.
Amsberry. They further asserted there were no factual allegations in the
SAC to establish that Sharp was liable for any actions by Dr. Amsberry, and
Dr. Amsberry, as a physician, is “legally precluded” from being an employee
of Sharp’s.
C. Jacobs’s Opposition
In opposition, Jacobs (still a self-represented litigant) argued she acted
reasonably in trying to discover the cause of her injury, and while doing so,
the limitations period on her professional negligence claim was tolled. Jacobs
did not address the issue of how Sharp could be liable for Dr. Amsberry’s
actions; instead, she asserted Dr. Amsberry performed certain procedures on
her without her consent and without informing her of the associated risks.
D. Trial Court’s Ruling
The trial court ruled the first cause of action for professional negligence
against Sharp and Dr. Amsberry was barred by the one-year statute of
limitations period under section 340.5, finding the SAC alleged “facts that
section 340.5 is determined under both a subjective and objective test; the
first to occur under these two alternate tests triggers the limitations period.
(Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1391 (Kitzig); accord Kernan
v. Regents of University of California (2022) 83 Cal.App.5th 675, 680–681
(Kernan).)
10
demonstrate [Jacobs] suspected an injury and wrongdoing by March 30,
2018.” It further determined the professional negligence claim and the
second cause of action for lack of informed consent were “uncertain” as
against Sharp, but not Dr. Amsberry; the third cause of action for fraud was
uncertain against all defendants; and the fourth cause of action for “ ‘medical
incompetence for procedures performed’ ” was duplicative of the professional
negligence claim and likewise time-barred.11
The trial court sustained the demurrer as to all causes of action within
the SAC, but overruled the demurrer as to the lack of informed consent claim
against Dr. Amsberry. It denied Jacobs leave to amend, finding she failed to
demonstrate how she could properly amend. On June 2, 2021, the court
entered a judgment of dismissal against Sharp and Jacobs timely appealed.12
DISCUSSION
I.
Standard of Review
“The rules by which the sufficiency of a complaint is tested against a
general demurrer are well settled.” (Centinela Freeman Emergency Medical
Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010.) “In
reviewing an order sustaining a demurrer, we examine the operative
complaint de novo to determine whether it alleges facts sufficient to state a
11 As we have noted, Jacobs does not challenge the trial court’s ruling
sustaining the demurrer as to the third and fourth causes of action, and so we
do not discuss them further.
12 Dr. Amsberry is not a party to this appeal because there is no final
judgment as to him. (See Heshejin v. Rostami (2020) 54 Cal.App.5th 984, 991
[in a multi-party case, a judgment is final and appealable when it leaves no
issues to be determined as to one party].)
11
cause of action under any legal theory.” (T.H. v. Novartis Pharmaceuticals
Corp. (2017) 4 Cal.5th 145, 162.) “We do not, however, assume the truth of
contentions, deductions, or conclusions of fact or law.” (Moore v. Regents of
University of California (1990) 51 Cal.3d 120, 125.) “We ‘accept as true not
only those facts alleged in the complaint but also facts that may be implied or
inferred from those expressly alleged.’ ” (Munoz v. Patel (2022) 81
Cal.App.5th 761, 771.) “ ‘ “Further, we give the complaint a reasonable
interpretation, reading it as a whole and its parts in their context.” ’ ”
(Centinela, at p. 1010.)
Relevant here, “for a demurrer based on the statute of limitations to be
sustained, the untimeliness of the lawsuit must clearly and affirmatively
appear on the face of the complaint and matters judicially noticed.”
(Coalition for Clean Air v. City of Visalia (2012) 209 Cal.App.4th 408, 420
(Clean Air).) “This will not be the case unless the complaint alleges every fact
which the defendant would be required to prove if he were to plead the bar of
the applicable statute of limitation as an affirmative defense.” (Lockley v.
Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th
875, 881.) “It is not sufficient that the complaint might be barred.” (Roman
v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324–325.) “If the dates
establishing the running of the statute of limitations do not clearly [and
affirmatively] appear in the complaint . . . [t]he proper remedy ‘is to ascertain
the factual basis of the contention through discovery and, if necessary, file a
motion for summary judgment[.]’ ” (Ibid.)
“And when [a demurrer] is sustained without leave to amend, we decide
whether there is a reasonable possibility that the defect can be cured by
amendment: if it can be, the trial court has abused its discretion and we
reverse; if not, there has been no abuse of discretion and we affirm.” (Blank
12
v. Kirwan (1985) 39 Cal.3d 311, 318.) “The burden of proving such
reasonable possibility is squarely on the plaintiff.” (Ibid.)
II.
The Trial Court Erred in Sustaining the Demurrer as to Jacobs’s Professional
Negligence Claim as Time-Barred
A. Section 340.5
The parties agree Jacobs’s first cause of action for professional
negligence is governed by the statute of limitations prescribed by section
340.5.13 “Section 340.5 provides that the time for commencement of an
action for injury or death based on alleged professional negligence by a health
care provider ‘shall be three years after the date of injury or one year after
the plaintiff discovers, or through the use of reasonable diligence should have
discovered, the injury, whichever [time period expires] first.’ ” (Gutierrez v.
Mofid (1985) 39 Cal.3d 892, 896 (Gutierrez).) Thus the statute sets forth two
periods of limitation⎯a three-year outside period and a one-year discovery
period, “both of which must be met.” (Rose v. Fife (1989) 207 Cal.App.3d 760,
767−768 (Rose); Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1189 [“A
plaintiff in a medical malpractice action must satisfy the requirements of
both the one-year and the three-year limitations periods.”].)
13 Section 340.5 states: “In an action for injury or death against a health
care provider based upon such person’s alleged professional negligence, the
time for the commencement of action shall be three years after the date of
injury or one year after the plaintiff discovers, or through the use of
reasonable diligence should have discovered, the injury, whichever occurs
first. In no event shall the time for commencement of legal action exceed
three years unless tolled for any of the following: (1) upon proof of fraud, (2)
intentional concealment, or (3) the presence of a foreign body, which has no
therapeutic or diagnostic purpose or effect, in the person of the injured
person.”
13
“The three-year period begins to run when the plaintiff discovers the
harmful effect, i.e., the physical manifestation of the wrongful act. The
negligent cause of that effect is not a concern for the three-year period.”
(Rose, supra, 207 Cal.App.3d at p. 768.) “The one-year period commences
when the plaintiff is aware of both the physical manifestation of the injury
and its negligent cause.” (Ibid.; see Gutierrez, supra, 39 Cal.3d at p. 896
[“[T]he term ‘injury,’ as used in section 340.5, means both ‘a person’s physical
condition and its “negligent cause.” ’ ”].)
“The three-year period is tolled ‘(1) upon proof of fraud, (2) intentional
concealment, or (3) the presence of a foreign body, which has no therapeutic
or diagnostic purpose or effect, in the person of the injured person.’ The
statute makes clear, however, that the one-year period is not similarly
extended. Thus, regardless of extenuating circumstances, the patient must
bring his [or her] suit within one year after he discovers, or should have
discovered, his ‘injury.’ ” (Gutierrez, supra, 39 Cal.3d at p. 896.) In other
words, “once a patient knows, or by reasonable diligence should have known,
that he has been harmed through professional negligence, he has one year to
bring his suit.” (Ibid.)
B. The Three-Year Outside Limitations Period Was Met
There is no dispute Jacobs met the three-year outside period under
section 340.5. Jacobs filed her complaint on December 31, 2019. Whether
taking the latest date of the revision surgery on December 20, 2019, the date
of March 30, 2018 when Jacobs sought a second opinion, or even the earliest
date of the first surgery on February 28, 2017, the complaint was timely filed
within the three-year limitations period.
For that reason, we are not presented with the question of whether the
presence of a “foreign body” tolls the applicable limitations period, as both
14
parties suggested in their briefing. Jacobs contends her professional
negligence claim was entitled to tolling because she sufficiently alleged that
she first discovered on December 20, 2019 that a foreign body (i.e., the nasal
stents) was left behind in the surgery. Sharp responds that although the
foreign body exception “delays the start of the medical malpractice statute of
limitations,” Jacobs’s SAC “establishes she was aware of the existence of the
nasal stents as early as March 8, 2017,” when Dr. Amsberry mentioned to her
in the post-surgery visit on that date that “the stents” would be removed from
her nasal cavity at the next visit. Both arguments miss the mark.
As we have explained, section 340.5’s “ ‘foreign body’ exception only
tolls the three-year outside limitation period and not the one-year ‘discovery’
period.” (Ashworth v. Memorial Hospital (1988) 206 Cal.App.3d 1046, 1058,
italics added; see Gutierrez, supra, 39 Cal.3d at p. 896 [“The statute makes
clear, however, that the one-year period is not similarly extended” by the
presence of a foreign body.].) Because the three-year limitations period was
met here, the foreign body exception is a red herring. We next turn to
whether Jacobs’s SAC was barred by the one-year discovery limitations
period.
C. The SAC Does Not Clearly and Affirmatively Establish, as a Matter of
Law, That the Professional Negligence Claim Is Time-Barred by the
One-Year Discovery Period
Under the one-year discovery rule, a plaintiff must bring her suit
within “one year after the plaintiff discovers, or through the use of reasonable
diligence should have discovered, the injury.” (§ 340.5.) “[T]he term ‘injury,’
as used in section 340.5, means both ‘a person’s physical condition and its
“negligent cause.” ’ ” (Gutierrez, supra, 39 Cal.3d at p. 896, quoting Sanchez
v. South Hoover Hospital (1976) 18 Cal.3d 93, 99 (Sanchez).) Thus, “ ‘the
[one-year] statute of limitations begins to run when the plaintiff suspects or
15
should suspect that her injury was caused by wrongdoing.’ ” (Kitzig, supra,
81 Cal.App.4th at p. 1391, quoting Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d
1103, 1110 (Jolly).) “This [discovery] rule sets forth two alternate tests for
triggering the [one-year] limitations period: (1) a subjective test requiring
actual suspicion by the plaintiff that the injury was caused by wrongdoing;
and (2) an objective test requiring a showing that a reasonable person would
have suspected the injury was caused by wrongdoing.” (Kitzig, at p. 1391;
accord Kernan, supra, 83 Cal.App.5th at p. 681.) “The first to occur under
these two tests begins the limitations period.” (Kitzig, at p. 1391; Kernan, at
p. 681.)
The trial court determined the one-year discovery period began to
accrue on March 30, 2018, making Jacobs’s professional negligence claim too
late when the action was filed 21 months later on December 31, 2019. The
court found the SAC alleged Jacobs had “suffered ‘ongoing symptoms’ ” and
expressed “suspicions to Dr. Amsberry” in June 2017 that “the antibiotics
were not clearing the infection, the antibiotics may not have been
properly prescribed, or perhaps some other pathology was responsible for
the continuous infections.” And that “[s]he ha[d] on several occasions asked
about tests that could be performed to find out what type of infection it was
or where it was, including asking about CSF Leak, Empty Nose Syndrome or
any other complications from surgery.” The court ruled the SAC
demonstrated “[Jacobs] had sufficient reason to seek a second opinion by
March 30, 2018, because she had ongoing symptoms and she suspected
wrongdoing (at a minimum, improper prescription).” And although Jacobs
“may not have discovered all of the details of the causes of the injury,” the
court found the SAC sufficiently alleged “facts that demonstrate[d] she
suspected an injury and wrongdoing by March 30, 2018.”
16
On our de novo review, we conclude the trial court erred. As we shall
explain, the SAC does not “clearly and affirmatively” (Clean Air, supra, 209
Cal.App.4th at p. 420) establish, as a matter of law, that the one-year
discovery period was triggered on March 30, 2018, under either the subjective
or objective tests. Because the trial court’s analysis focused on whether
Jacobs actually suspected her ongoing symptoms were caused by Dr.
Amsberry’s wrongdoing when she sought a second opinion on March 30, 2018,
we begin with the subjective prong of the discovery rule. (See Kitzig, supra,
81 Cal.App.4th at p. 1391.)
1. The Subjective Test
Applying the subjective test and liberally construing the complaint in
her favor, we conclude Jacobs sufficiently pled circumstances⎯overlooked by
the trial court⎯that preclude a finding that her professional negligence claim
is manifestly barred by the one-year discovery period. Specifically, we
conclude Jacobs sufficiently pled delayed discovery of facts based on her
reasonable reliance on Dr. Amsberry’s repeated assurances that her ongoing
symptoms were unrelated to the surgery, such that the act of obtaining a
second opinion on March 30, 2018 did not necessarily trigger the one-year
discovery limitations period.
First, as this court observed in Kitzig, supra, 81 Cal.App.4th at page
1393, “it is not the law that a person who obtains a second medical opinion
while under the care of her personal physician and the second physician
confirms that her physician is ‘doing nothing wrong’ and then she continues
her treatment with her physician, is under an obligation⎯as a matter of
law⎯to bring suit within one year.” And “[a]lthough the subjective prong of
the discovery rule requires merely a suspicion ‘ “that someone has done
something wrong” to him’ [citation], a patient ‘is fully entitled to rely upon
17
the physician’s professional skill and judgment while under his care, and has
little choice but to do so.’ ” (Ibid., quoting Sanchez, supra, 18 Cal.3d at
p. 102.) “While this reliance may not be justified if the patient actually
suspects wrongdoing [citation], this suspicion must be meaningful by having
some effect on the patient’s ongoing relationship with her doctor.” (Kitzig, at
p. 1393, italics added.)
Kitzig is instructive here. Kitzig sued her dentist for professional
negligence, alleging he improperly placed dental implants. (Kitzig, supra, 81
Cal.App.4th at pp. 1386−1389.) Under the dentist’s care from 1992 to 1995,
which included eight surgeries, Kitzig experienced breathing problems,
dizziness, and headaches; multiple implant infections; implants pushing up
into her sinus and an opening between her mouth and sinus; and pain.
(Ibid.) The dentist, however, assured Kitzig some of her symptoms “ ‘didn’t
have anything to do with the implants’ ”; “the implants looked good and were
healing”; the hole in her sinus was not really concerning and “it would
probably close on its own.” (Ibid.) So Kitzig continued to see the dentist
regularly, even when she “ ‘didn’t feel really good about it,’ ” because she
believed him that everything was fine. (Id. at p. 1389.) In March 1995, more
than three years after the first surgery, Kitzig’s husband felt “ ‘something
wasn’t right’ ” because his wife was losing too many implants and suffering
too many infections; Kitzig then went to her husband’s dentist who found the
implants were failing. (Ibid.) In January 1996, after undergoing extensive
surgeries with another doctor to repair the damage, Kitzig served the dentist
with her notice of intention to sue. (Id. at p. 1390.)
On appeal, the dentist asserted there was insufficient evidence to
support the jury’s finding that Kitzig timely filed her professional negligence
claim. He argued the one-year discovery period had run, since Kitzig
18
admitted she went to see a different physician in May 1994, more than a year
before she filed the lawsuit, because “she was ‘suspicious’ [he] may have done
something wrong because she ‘had that hole in [her] sinus.’ ” (Kitzig, supra,
81 Cal.App.4th at p. 1392.) We disagreed that the plaintiff’s suspicion was
sufficient to trigger the one-year limitations period under section 340.5. (Id.
at pp. 1392−1396.)
We held in Kitzig the mere act of seeking a second medical opinion
“whenever a patient is motivated by a possible suspicion . . . that her doctor
was ‘doing something wrong’ ” does not, as a matter of law, necessarily trigger
the one-year statute of limitations. (Kitzig, supra, 81 Cal.App.4th at
pp. 1393−1394.) Such a rule “would hinder a patient’s ability to obtain the
best medical care.” (Id. at p. 1393.) We noted the plaintiff’s “briefly held
‘suspicion’ regarding the hole in her sinus had no [meaningful] effect on her
continuing relationship with [the dentist] and that she continued to rely
exclusively on [his] medical judgment.” (Ibid.) We therefore concluded “[a]
finding that Kitzig was required to bring suit under these circumstances is
inconsistent with the accepted practice of obtaining a second opinion during
ongoing medical treatment.” (Ibid.) Those circumstances included the fact
the dentist “remained involved and continued to treat Kitzig and assure her
there were no problems,” advice we held she “certainly had a reasonable basis
to rely on.” (Id. at p. 1394.)
This case is strikingly similar to Kitzig, only Jacobs’s claim was
dismissed at the pleading stage where we are concerned “ ‘only [with] the
legal sufficiency of the complaint, not the truth of its factual allegations or
the plaintiff’s ability to prove those allegations’ ” (Stueve Bros. Farms, LLC v.
Berger Kahn (2013) 222 Cal.App.4th 303, 310), and where we assume the
19
truth of the facts alleged and liberally construe them in Jacobs’s favor (see
Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 565 (Higgins)).
Jacobs alleged in the SAC she continued under Dr. Amsberry’s care for
nearly 27 months after the sinus surgery, from February 28, 2017 to at least
May 7, 2019, despite any concerns or questions she had regarding her
ongoing symptoms after the surgery, and even after she sought a second
opinion from Dr. Leach on March 30, 2018. Importantly, like Kitzig, she
alleged that during the period she remained under Dr. Amsberry’s care, he
repeatedly assuaged her concerns that her pain and symptoms were
unrelated to the surgery.
Jacobs alleged Dr. Amsberry assured her when she awoke from the
surgery “there were no complications” during the procedure, an assurance he
did not disavow on May 7, 2019 when she again asked him “if there were any
complications in her procedure.” Jacobs did complain in her post-surgery
visits of various symptoms, and had expressed concerns or asked whether the
symptoms “could be the result of the [surgery],” whether “the antibiotics may
not have been properly prescribed,” whether she could be suffering a CSF
leak, empty nose syndrome, “or any other complications from surgery.”
(Italics added.) But Dr. Amsberry, whom she “trusted,” told Jacobs the
symptoms were “normal” and that “everything was looking good.” He told
her he did not see any signs of a CSF leak, did not think she had empty nose
syndrome, and “the pain was not related to her sinuses.” (Italics added.)
Dr. Amsberry also told Jacobs to follow up with her primary doctor, and
when she saw Dr. Turek, he told her she had “spondylosis which is an
arthritic condition not related to the surgery.” (Italics added.) He also
referred her to Dr. Mair, who told her sometime after May 7, 2019, that she
might have “Empty Sella Syndrome which involves the pituitary gland.”
20
Under these circumstances, as alleged in the SAC, it was error for the
trial court to dismiss Jacobs’s professional negligence claim on demurrer as
time-barred. As our high court has observed, “[i]n many cases, the harm
caused by medical malpractice is not immediately apparent. The best
medical treatment sometimes fails, or requires long and difficult
recuperation, or produces bad side effects. Thus, even if a patient is unhappy
with h[er] condition, [s]he may not suspect [s]he has been wronged. Lacking
medical knowledge, [s]he may reasonably rely upon [her] negligent
physician’s soothing disclaimers.” (Gutierrez, supra, 39 Cal.3d at p. 899.)
Here, the trial court gave no consideration to Jacobs’s allegations that, even
as she expressed concerns or raised questions about her ongoing symptoms,
she reasonably relied on Dr. Amsberry’s professional opinion that her
symptoms were “normal” and continued in his care. (See Kernan, supra, 83
Cal.App.5th at p. 683 [holding where plaintiff remained under her doctors’
care and continued to work with the hospital after learning of her fetus’s
death, that “a reasonable trier of fact could infer from these actions that
plaintiff continued to trust the hospital even after learning of the
[intrauterine fetal demise], undermining defendant’s contention that plaintiff
subjectively suspected defendant’s negligent performance of the [external
cephalic version] procedure on the day she learned her baby had died”].)
The trial court also placed heavy reliance on the fact that Jacobs sought
a second opinion from Dr. Leach on March 30, 2018 to determine that she
suspected wrongdoing by that date. We first note the court’s interpretation of
the SAC that Jacobs “had sufficient reason to seek a second opinion . . .
because she had ongoing symptoms and she suspected wrongdoing (at a
minimum, improper prescription)” is not a fair read of the allegations. Jacobs
alleged she “sought care outside of Dr. Amsberry’s office and Sharp because
21
she felt her complaints were not being addressed” (italics added), not because
she suspected her symptoms were caused by Dr. Amsberry’s or Sharp’s
wrongdoing. (See Higgins, supra, 123 Cal.App.3d at p. 565 [The facts alleged
in the complaint are “assumed to be true and liberally construed in favor of
the party against whom the motion is made.”].) Indeed, Jacobs explicitly
stated in the SAC that her solicitation of a second opinion “does not mean she
knew she suffered an injury but rather when one is not satisfied with care,
one seeks other care.”
Notably, as Jacobs alleged, Dr. Leach’s second opinion did not provide
her with any information, on March 30, 2018, regarding the cause of her
ongoing symptoms or that Dr. Amsberry had done anything wrong. (See
Sanchez, supra, 18 Cal.3d at p. 102 [concluding plaintiff’s “reasonably
founded suspicions were [shown to be] undeniably aroused . . . both by her
own recognition of her symptoms and by external corroboration” (italics
added)].) Jacobs alleged Dr. Leach told her surgery was not needed or
recommended and he took CT and MRI imaging⎯the results of which she did
not see “until after 3/2019” and “which showed various findings which are
still being explored.” (Italics added.)
It is therefore not correct, as Sharp suggests in its briefing on appeal,
that Jacobs alleged the imaging studies Dr. Leach ordered “led [Jacobs] to
believe . . . that she had ‘suffered complications from surgery’ ” on March 30,
2018.14 Rather, Jacobs explicitly alleged “[she] began to suspect that there
14 Sharp contends Jacobs admitted in her SAC that she actually
suspected, on March 30, 2018, she had “ ‘suffered complications from
surgery,’ ” and the trial court appears to have adopted this viewpoint in the
order sustaining Sharp’s demurrer. A close reading of the entire allegation,
in its context, does not support that interpretation. After alleging the events
of March 30, 2018, in the past tense, Jacobs shifted to the present tense and
22
may have been injuries and/or other complications that caused injuries to
[her], arising from the surgery of 2/28/2017” in March 2019, when she
obtained the Best Doctors Report.
And it is sometime after March 2019 that Jacobs’s suspicion was
“meaningful,” in that it had “some effect on [her] ongoing relationship” with
Dr. Amsberry. (Kitzig, supra, 81 Cal.App.4th at p. 1393.) The SAC alleged
she sought medical advice or care from Dr. Amsberry again in May 2019 and
as a result, saw Dr. Mair on his referral. The SAC does not state Jacobs was
treated by Dr. Amsberry again after that date. In June 2019, Jacobs saw Dr.
Butrous, a neurologist, who told her she had nerve damage and referred her
to Dr. Khoo, a neurosurgeon, who recommended surgery to correct the nerve
damage. She then filed her notice of intention to sue the defendants in
November 2019 and underwent revision sinus surgery, presumably with a
different doctor and thereby discontinued treatment with Dr. Amsberry, in
December 2019. Thus, liberally construing the SAC in her favor, the earliest
date on which it could be determined, as matter of law, that Jacobs actually
suspected her ongoing symptoms were caused by the surgery was March
2019, making her action timely filed on December 31, 2019.
2. The Objective Test
Under the objective test, “[t]he patient is charged with ‘presumptive’
knowledge of his negligent injury, and the statute commences to run, once he
alleged: “Of findings to date, Plaintiff believes that she has suffered
complications from surgery inter-operative and/or post-operative, and was not
informed, nor were adequate procedures followed before, during and after the
surgery of 2/28/2017.” (Italics added.) Giving the SAC a reasonable
interpretation and reading it as a whole and its parts in context, as we must,
the phrase “to date” and the shift from past to present tense demonstrate
that Jacobs was describing her belief at the time the SAC was filed—not as it
was on March 30, 2018.
23
has ‘ “notice or information of circumstances to put a reasonable person on
inquiry, or has the opportunity to obtain knowledge from sources open to his
investigation.” ’ ” (Gutierrez, supra, 39 Cal.3d at pp. 896–897, quoting
Sanchez, supra, 18 Cal.3d at p. 101, italics omitted.) “Thus, when the
patient’s ‘reasonably founded suspicions [have been aroused],’ and she has
actually ‘become alerted to the necessity for investigation and pursuit of her
remedies,’ the one-year period for suit begins.” (Gutierrez, at p. 897, quoting
Sanchez, at p. 102, italics added.)
Because we have concluded that, on the face of the SAC, the earliest
date by which Jacobs had actual suspicion that her injury was caused by Dr.
Amsberry’s wrongdoing is March 2019, an analysis under the objective prong
of the discovery rule necessarily focuses on whether it is affirmatively clear
from the SAC that a reasonable person in Jacobs’s position should have
suspected the injury was caused by the wrongdoing sooner. (See Kitzig,
supra, 81 Cal.App.4th at p. 1391.) We conclude it is not.
Again, Jacobs remained under Dr. Amsberry’s care for nearly 27
months after her surgery. And during that time, Jacobs’s concerns and
questions about her ongoing symptoms after the surgery were allayed by Dr.
Amsberry’s repeated assurances that she had not suffered any complications
from the surgery, as well as by Dr. Turek’s opinion, after an X-ray, that “she
had spondylosis which is an arthritic condition not related to the surgery,”
and by Dr. Mair’s opinion, after an endoscopic examination sometime after
May 7, 2019, that she might have “Empty Sella Syndrome which involves the
pituitary gland.”
As courts have recognized, an ordinary lay person does not have the
education, information or experience to reach a reasonable conclusion on
their own, without professional advice, as to what is causing their ailments.
24
(See Gutierrez, supra, 39 Cal.3d at p. 899 [“The best medical treatment
sometimes fails, or requires long and difficult recuperation, or produces bad
side effects.”]; Kitzig, supra, 81 Cal.App.4th at p. 1392 [“ ‘The mere fact that
an operation does not produce hoped-for results does not signify negligence
and will not cause commencement of the statutory period.’ ”].) Although
Jacobs may have been aware something was physically wrong with her after
the surgery, her symptoms required medical expertise to determine their
cause. But here, she received the medical opinions of at least three doctors
that her physical ailments were unrelated to the surgery or her sinuses.
Under an objective standard, based on the allegations of the SAC, Jacobs had
no “ ‘ “notice or information of circumstances [that would] put a reasonable
person on inquiry [notice]” ’ ” of Dr. Amsberry’s alleged wrongdoing sooner
than March 2019, when she alleged the Best Doctors Report provided her
with information of his professional negligence. (Gutierrez, at p. 896, italics
omitted.)
We are not persuaded by Sharp’s argument that “the imaging studies
[ordered by Dr. Leach on March 30, 2018] led [Jacobs] to believe, as she
stated in her [SAC], that she had ‘suffered complications from surgery,’ ” and
mere “[s]uspicion of wrongdoing is sufficient to constitute discovery.” As we
have already explained, this is a mischaracterization of the SAC. Jacobs does
not allege the imaging studies led her to believe she had suffered
complications from the surgery, on March 30, 2018. (See footnote 14, ante.)
Moreover, the cases on which Sharp relies for the proposition that the one-
year discovery period is triggered the moment a plaintiff has any suspicion
are inapposite. Whether applying a subjective or objective test, none of those
25
cases involve a situation where, as here, a plaintiff’s suspicions are allayed by
the medical opinions of doctors, including her treating doctor.15
Quoting Jolly, supra, 44 Cal.3d at pages 1110 to 1111, in particular,
Sharp argues “[a] plaintiff need not be aware of the specific ‘facts’ necessary
to establish the claim; that is a process contemplated by pre-trial discovery.
Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive
to sue, she must decide whether to file suit or sit on her rights. So long as a
suspicion exists, it is clear that the plaintiff must go find the facts; she cannot
wait for the facts to find her.” This quotation is taken out of context.
Immediately before the quoted language, our high court said: “Under the
15 See e.g., Knowles v. Superior Court (2004) 118 Cal.App.4th 1290,
1293−1294, 1298−1301 (applying the one-year discovery rule to determine
when family members of a decedent should have reasonably discovered that a
doctor’s professional negligence in performing a surgery caused decedent’s
death); Rivas v. Safety-Kleen Corp. (2002) 98 Cal.App.4th 218, 222, 224−225,
230–231 (applying a different statute of limitations (section 340, subdivision
(3)) in a personal injury case against manufacturers and suppliers of certain
toxic chemicals); Dolan v. Borelli (1993) 13 Cal.App.4th 816, 820−821,
824−825 (applying the one-year discovery rule to determine when a plaintiff
should have known, through reasonable diligence, that a doctor negligently
failed to “release her right carpal tunnel ligament during the first
operation”); Barber v. Superior Court (1991) 234 Cal.App.3d 1076, 1079,
1082−1083 (applying the one-year discovery rule to determine when a
plaintiff should have known that a doctor was negligent in diagnosing and
treating plaintiff’s appendicitis); Rose, supra, 207 Cal.App.3d at pp. 763, 766,
769, 771−772 (concluding the one-year discovery period began to accrue when
plaintiff was hospitalized and told by two doctors that her infection was
caused by an intrauterine device (IUD), even though plaintiff was not aware
of the specific brand of IUD that was responsible for her injuries); Steingart v.
White (1988) 198 Cal.App.3d 406, 416 (in applying the one-year limitations
period, the court held that “there remains at minimum a triable issue of fact
as to whether [the plaintiff] exercised reasonable diligence after the
purported misdiagnosis” of her cancer).
26
discovery rule, the statute of limitations begins to run when the plaintiff
suspects or should suspect that her injury was caused by wrongdoing, that
someone has done something wrong to her.” (Jolly, at p. 1110, italics added.)
The plaintiff in Jolly admitted in her deposition she was interested in
obtaining more information about the drug at issue “because she wanted to
‘make a claim,’ ” and “she felt someone had done something wrong to her
concerning [the drug], that it was a defective drug and that she should be
compensated,” more than a year before she filed suit. (Jolly, supra, 44 Cal.3d
at p. 1112.) Thus, in Jolly, our high court held the discovery period ran when
the uncontradicted facts established the plaintiff suspected the defendants’
conduct was wrongful “well over a year before she filed suit” and “[t]his
suspicion would not have been allayed by any investigation.” (Ibid., italics
added.)
Unlike Jolly, and the other cases cited by Sharp, Jacobs alleged any
suspicion she had about her symptoms after the surgery were allayed by Dr.
Amsberry, and the other doctors, such that she continued in his care until at
least May 2019. Under these circumstances, it cannot be said as a matter of
law that Jacobs had notice or information of circumstances that would put a
reasonable person on inquiry notice of Dr. Amsberry’s alleged wrongdoing on
March 30, 2018, as urged by Sharp.
III.
The Trial Court Erred in Sustaining the Demurrer to Jacobs’s Claims for
Professional Negligence and Lack of Consent Against Sharp for Uncertainty
The trial court sustained Sharp’s demurrer to Jacobs’s claims for
professional negligence and lack of informed consent as “uncertain” against
Sharp, but not Dr. Amsberry. The court explained it “fail[ed] to see how
[Sharp is] liable for medical negligence,” finding the “SAC does not support
27
that [Sharp was] evasive and or dismissive in a manner that breached a duty
or caused any injury.” The court determined the lack of informed consent
claim was based on the allegation “additional procedures were performed for
which no consent was obtained.” It found that “[w]hile [Jacobs] does not
specify what the procedures were, Dr. Amsberry is in a position to know
which procedures are referenced for which consent was not obtained” and
thus the claim was not uncertain as to him. But as to Sharp, the court
concluded Jacobs failed to allege how Sharp was involved with the alleged
additional procedures.
As to the lack of consent claim, Jacobs contends she sufficiently alleged
Sharp was vicariously liable for the actions of Dr. Amsberry on a theory of
ostensible agency. And although neither party expressly addresses the trial
court’s ruling on the professional negligence claim for uncertainty, Jacobs has
implicitly but sufficiently raised the issue on appeal. On our de novo review,
we conclude the trial court erred in finding both claims uncertain as to
Sharp’s liability. In reaching its decision, the trial court misapplied the
demurrer standard for uncertainty and failed to consider Jacobs’s allegation
that Sharp could be vicariously liable for Dr. Amsberry’s actions under an
agency theory.
Section 430.10, subdivision (f), provides a party may demur to a
pleading on the ground that “[t]he pleading is uncertain,” and that
“ ‘uncertain,’ ” as used in this subdivision, “includes ambiguous and
unintelligible.” “ ‘A demurrer for uncertainty is strictly construed, even
where a complaint is in some respects uncertain, because ambiguities can be
clarified under modern discovery procedures.’ ” (Chen v. Berenjian (2019) 33
Cal.App.5th 811, 822.) “ ‘ “[D]emurrers for uncertainty are disfavored, and
are granted only if the pleading is so incomprehensible that a defendant
28
cannot reasonably respond.” ’ ” (A.J. Fistes Corp. v. GDL Best Contractors,
Inc. (2019) 38 Cal.App.5th 677, 695 (A.J. Fistes).)
In California, a hospital may be held liable for a physician’s wrongdoing
when the physician is an ostensible agent of the hospital. (See, e.g., Markow
v. Rosner (2016) 3 Cal.App.5th 1027, 1038 (Markow); Mejia v. Community
Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1453 (Mejia).) This
rule of allowing hospitals to be held vicariously liable for the negligence of
physicians “cast[s] aside” the historical impediment that “traditional rules of
respondeat superior” did not apply to skilled professionals, such as
physicians. (Mejia, at pp. 1451−1452.) As health care services modernized
over time, courts “soon realized . . . the traditional emphasis on the master’s
ability to control the servant was unrealistic in the context of the modern
health care system.” (Id. at p. 1453.)
“ ‘The conception that the hospital does not undertake to treat the
patient, does not undertake to act through its doctors and nurses, but
undertakes instead simply to procure them to act upon their own
responsibility, no longer reflects the fact. Present-day hospitals, as their
manner of operation plainly demonstrates, do far more than furnish facilities
for treatment. They regularly employ on a salary basis a large staff of
physicians, nurses, and internes, as well as administrative and manual
workers, and they charge patients for medical care and treatment, collecting
for such services, if necessary, by legal action. Certainly, the person who
avails himself of “hospital facilities” expects that the hospital will attempt to
cure him, not that its nurses or other employees will act on their own
responsibility.’ ” (Mejia, supra, 99 Cal.App.4th at p. 1453.) “In light of this
modern reality, the overwhelming majority of jurisdictions employed
29
ostensible or apparent agency to impose liability on hospitals for the
negligence of independent contractor physicians.” (Ibid.)
Where a patient seeks to hold a hospital liable for the negligence of a
physician, the doctrine of ostensible agency requires two elements: “(1)
conduct by the hospital that would cause a reasonable person to believe that
the physician was an agent of the hospital, and (2) reliance on that apparent
agency relationship by the plaintiff.” (Mejia, supra, 99 Cal.App.4th at
p. 1453; accord Markow, supra, 3 Cal.App.5th at p. 1038.) “[O]stensible
agency is based on appearances.” (Mejia, at p. 1459.)
“Generally, the first element is satisfied ‘when the hospital “holds itself
out” to the public as a provider of care,’ ‘unless it gave the patient contrary
notice.’ ” (Markow, supra, 3 Cal.App.5th at p. 1038.) To establish this
element, “it is not necessary to show an express representation by the
hospital.” (Mejia, supra, 99 Cal.App.4th at p. 1454.) “Reliance upon an
apparent agency[, the second element,] is demonstrated ‘when the plaintiff
“looks to” the hospital for services, rather than to an individual physician.’ ”
(Markow, at p. 1038.) “Ultimately, ‘there is really only one relevant factual
issue: whether the patient had reason to know that the physician was not an
agent of the hospital. As noted above, hospitals are generally deemed to have
held themselves out as the provider of services unless they gave the patient
contrary notice, and the patient is generally presumed to have looked to the
hospital for care unless he or she was treated by his or her personal
physician. Thus, unless the patient had some reason to know of the true
relationship between the hospital and the physician⎯i.e., because the
hospital gave the patient actual notice or because the patient was treated by
his or her personal physician⎯ostensible agency is readily inferred.’ ” (Ibid.)
30
Here, Jacobs specifically alleged she asserted her “causes of action
against [Sharp], under the doctrine of ‘respondeat superior’, through the
actions of its employees and/or contracted agents including physicians,
surgeons and other staff and support members, including but not limited to
nurses, technicians, anesthesiologist and any other supporting employees.”
She alleged Dr. Amsberry is “an employee and/or contracted agent” of Sharp’s
and “at all times relevant to the injuries complained herein, was acting in the
course and scope of his capacity as an employee and/or contracted agent” of
Sharp’s.” These allegations, alone, are sufficient to survive a demurrer for
uncertainty as to Sharp’s vicarious liability for Dr. Amsberry’s actions. “An
allegation of agency is an allegation of ultimate fact that must be accepted as
true for purposes of ruling on a demurrer.” (City of Industry v. City of
Fillmore (2011) 198 Cal.App.4th 191, 212, citing Skopp v. Weaver (1976) 16
Cal.3d 432, 437.)
Although a plaintiff is not required to allege evidentiary facts to
support the allegation of agency in the pleading stage (Dones v. Life
Insurance Company of North America (2020) 55 Cal.App.5th 665, 685), the
SAC did allege supporting facts. Jacobs alleged that Dr. Amsberry referred
her to other doctors who are similarly “employee[s] and/or contracted
agent[s]” of Sharp’s and who assisted Dr. Amsberry in providing care for
Jacobs, including performing medical tests Dr. Amsberry ordered for Jacobs.
She further alleged Sharp possessed Jacobs’s medical records related to the
care she received from Dr. Amsberry. Nothing in the SAC reveals that Sharp
gave Jacobs “contrary notice” that it was not the provider of care, or that Dr.
Amsberry was Jacobs’s personal physician. (Markow, supra, 3 Cal.App.5th at
p. 1038; see id. at p. 1032 [reversing judgment after jury verdict against
hospital on ostensible agency theory where hospital “unambiguously
31
informed” plaintiff in 25 conditions of admission forms that “all physicians
furnishing services to patients were independent contractors, not agents or
employees of [the hospital]”].)
On our de novo review, we conclude the trial court failed to strictly
construe the SAC against uncertainty when analyzing Sharp’s demurrer, and
ostensible agency is “ ‘readily inferred’ ” from the SAC at this pleading stage.
(Markow, supra, 3 Cal.App.5th at p. 1038.) It cannot be said, as a matter of
law, that the SAC “ ‘ “is so incomprehensible that [Sharp] cannot reasonably
respond” ’ ” to a theory of liability based on ostensible agency. (A.J. Fistes,
supra, 38 Cal.App.5th at p. 695.) We therefore conclude the SAC is not
uncertain as to Sharp’s liability on a theory of ostensible agency.16
Sharp’s arguments to the contrary are not persuasive. In response,
Sharp devotes all but two sentences, asserting that although Jacobs “pleaded
actual agency exclusively in her [SAC],” she now argues for ostensible agency
“without seeking an amendment to properly amend her Verified [SAC] to
state a cause of action in the trial court or in these proceedings.” But as we
have concluded, Jacobs sufficiently alleged that Dr. Amsberry is Sharp’s
16 Jacobs also contends that Dr. Amsberry was an employee of Sharp.
(But see Lathrop v. HealthCare Partners Medical Group (2004) 114
Cal.App.4th 1412, 1420 [“Historically, in order to protect the public from
possible commercial exploitation, physicians were barred from taking a
salary from a for-profit corporation or other artificial legal entity.”]).
However, we need not reach this issue because “ ‘[i]f the complaint states a
cause of action under any theory, . . . that aspect of the complaint is good
against a demurrer.’ ” (Hoffman v. Smithwoods RV Park, LLC (2009) 179
Cal.App.4th 390, 400, italics added.) Here, we conclude Jacobs’s professional
negligence and lack of consent claims survive the demurrer as to Sharp based
on her theory of ostensible agency.
32
ostensible agent at the pleading stage. She does not need to seek leave to
amend on this issue.
Sharp next asserts “an agency finding is legally insufficient” because
Jacobs’s lack of consent claim is also time-barred under section 340.5. We
could very well dispose of this assertion on well-established appellate rules
because Sharp does not develop the argument nor cite to any authority. (See
City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 287 [“we may
disregard conclusory arguments that are not supported by pertinent legal
authority or fail to disclose the reasoning by which the appellant reached the
conclusions he wants us to adopt”]; Doers v. Golden Gate Bridge etc. Dist.
(1979) 23 Cal.3d 180, 184–185, fn. 1. [“ ‘[a]n appellate court will ordinarily
not consider procedural defects or erroneous rulings, in connection with relief
sought or defenses asserted, where an objection could have been but was not
presented to the [trial] court by some appropriate method’ ”].) The argument,
however, is without merit. By its plain language, section 340.5 is applicable
only to a “professional negligence” claim. (§ 340.5.) A lack of consent claim is
a battery (Thor v. Superior Court (1993) 5 Cal.4th 725, 735) and it is
therefore “governed by the two-year statute of limitations set forth in . . .
section 335.1.” (Pugliese v. Superior Court (2007) 146 Cal.App.4th 1444,
1450).
DISPOSITION
The judgment in favor of Sharp is reversed with the following
directions. On remand, the trial court shall (1) vacate its order sustaining
Sharp’s demurrer and (2) enter a new order overruling Sharp’s demurrer on
the first and second causes of action and otherwise sustaining the demurrer
33
without leave to amend on the third and fourth causes of action. Jacobs shall
recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
DO, J.
WE CONCUR:
IRION, Acting P. J.
DATO, J.
34