Metropolitan News-Enterprise


Thursday, July 6, 2017


Page 1


Court of Appeal Holds:

Doctors Summoned Into Operating Room Protected by ‘Good Samaritan’ Law

Presiding Justice Bigelow Says Evidence Showed No Duty to the Patient


By a MetNews Staff Writer


Two doctors who were called into an operating room to help out when the patient began bleeding profusely during surgery were acting as “good Samaritans” and could not be held liable by the patient’s family in an action for wrongful death, the Court of Appeal for this district held yesterday.

The decision came in an unpublished opinion by Presiding Justice Tricia Bigelow of Div. Eight. It upholds summary judgment in favor of the doctors—Ramsay Nucho and Darren Hodgins—awarded by then-Los Angeles Superior Court Judge Allan J. Goodman (now retired).

The family sought to overcome the Good Samaritan Law, contained Business and Professions Code §2396, arguing the applicability of an exception, established by case law.

The statute provides:

“No licensee, who in good faith upon the request of another person so licensed, renders emergency medical care to a person for medical complication arising from prior care by another person so licensed, shall be liable for any civil damages as a result of any acts or omissions by such licensed person in rendering such emergency medical care.”

The exception which courts have engrafted on the statute, Bigelow said, is that there must be an the absence of a preexisting duty of professional care to the patient by the defendant doctors. The family sought to establish such a duty under a “call coverage” contract between Surgical Multispecialties Medical Group, of which Nucho and Hodgins were members, and White Memorial Medical Center, where the decedent, Michael Starnes, underwent surgery.

The agreement obligated Surgical Multispecialties to provide emergency vascular services at the hospital, at any time of day or night. Nucho and Hodgins were performing heart surgery in the next operating room when Starnes incurred an injury to his right axillary artery during shoulder surgery performed by Dr. John Itamura.

The doctors were duty-bound by the “call coverage” contract to respond to Itamura’s plea for help, the family argued.

(Hodgins came at once when summoned, and Nucho came about an hour and a half later, after completing the heart surgery.)

Starnes, who had suffered a massive stroke, died six days later.

Goodman Affirmed

Goodman correctly found the Good Samaritan Law applicable, Bigelow said.

She noted that the “call coverage contract” was properly not considered by him, based on a failure of the plaintiffs to authenticate it. An exhibit tag, she remarked, is not enough to show it had been attached to a deposition.

But even if it had been admitted, she continued, summary judgment for the doctors would have been appropriate. Bigelow wrote:

“The evidence in support of the defendants’ motion showed that Drs. Hodgins and Nucho rendered emergency aid at the request of Dr. Itamura when he encountered a bleeding emergency during Mr. Starnes’s scheduled shoulder surgery. Further, the evidence showed that Dr. Hodgins and Dr. Nucho, and their medical group, had no prior relationship with Mr. Starnes and had no obligation pursuant to their privileges at White Memorial Medical Center to respond to surgical emergencies at the time the doctors responded to Dr. Itamura’s request for emergency help. Accordingly, the defendants’ motion showed sufficient facts to establish a complete defense to the Starnes family’s claim for wrongful death under section 2396, and the burden shifted to the family to show the existence of facts that would make summary judgment improper.”

Plaintiffs’ Burden

The jurist went on to say:

“To defeat the doctors’ showing that they had no prior relationship with Mr. Starnes, the opposition should have presented evidence regarding any on-call schedule requiring the doctors to assume a medical relationship with Mr. Starnes.”

The burden was on the plaintiffs to show such a duty on the part of the doctors, not their burden to show the nonexistence of a duty, Bigelow declared, adding:

“[W]e see no evidence in the record tending to show that Drs. Hodgins and Nucho were acting under the Call Coverage contract when they responded to Dr. Itamura’s operating room at his request. The Call Coverage contract shows only an agreement by the group to provide surgical doctors to the hospital for its emergency room and for in-hospital patients who become in need of emergency surgical treatment. It does not show that Drs. Hodgins and Nucho were acting as such assigned surgical doctors at the time they responded to Dr. Itamuras’ operating room.”

Billing for Services

The family also argued that the fact that the Surgical Multispecialties Medical Group billed them for services of Nucho and Hodgins was “inconsistent with a claim of volunteer status” on their part in responding to Itamura’s call for assistance. Bigelow responded:

“Under such an argument, no doctor could invoke immunity under section 2396 if, after the fact of giving treatment, he or she billed for that treatment. Such a rule would mean that doctors might be induced not to render volunteer emergency treatment lest he or she could not be paid for treatment. Such a rule would dramatically undermine, rather than advance, the purposes of section 2369.”

The case is Starnes v. Nucho, B270107.

Steven L. Saldo and Tyler B. Saldo of the Law Offices of Steven L. Saldo, along with Steven B. Stevens, argued for reversal. Cole Pedroza, Kenneth R. Pedroza and Maureen M. Home were joined by Kent T. Brandmeyer of Law & Brandmeyer in urging affirmance.


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