Marina Emergency Medical Group v. Superior Court

Opinion

VOGEL (MIRIAM A.), J. This is a tort action in which, allegedly, an emergency room doctor’s negligence was aggravated by the subsequent negligence of the patient’s personal physician. By the time of trial, the only parties were the patient (the plaintiff) and the emergency room doctor (the defendant). The patient claims (and the trial court agreed) that evidence of the personal physician’s subsequent negligence is inadmissible. We hold that Proposition 51 and the rules of comparative indemnity compel a different result.

Facts

Stuart Chamo’s lacerated thumb was sutured by Brigeli Westerband, M.D., an employee of Marina Emergency Medical Group, which provided emergency medical services at Daniel Freeman Marina Hospital. Two days later, Chamo consulted his personal physician, Norman Solomon, M.D. About a month later, Dr. Solomon referred Chamo to Michael McGuire, M.D., a board certified hand surgeon. Dr. McGuire operated on Chamo’s thumb, and in the process discovered two severed nerves and a partially severed tendon.

Chamo sued Dr. Westerband, Marina Emergency, Dr. Solomon, and Daniel Freeman Marina Hospital for medical malpractice. Dr. Westerband answered, and discovery ensued. At his deposition, Dr. McGuire testified that based on the lapse of time between the injury and the surgery, Chamo’s range of motion was permanently limited. At some point, Dr. Solomon and Daniel Freeman Marina Hospital were voluntarily dismissed from Chamo’s action, leaving Dr. Westerband and Marina Emergency (which is included in our subsequent references to Dr. Westerband) as the only defendants.

Before trial, Chamo moved to exclude all evidence about Dr. Solomon’s subsequent negligence, contending that Dr. Westerband’s only remedy [438]would be a separate action for indemnity against Dr. Solomon. The trial court agreed with Chamo, rejected Dr. Westerband’s opposition, and granted the motion. Dr. Westerband then filed a petition for a writ of mandate in which she asked us to intervene. We stayed trial, issued an order to show cause, and set the matter for hearing.

Discussion

This is Chamo’s syllogism; Since Dr. Westerband’s negligence was the cause of the original injury, Dr. Westerband is liable to Chamo for any aggravation caused by Dr. Solomon’s subsequent medical treatment. Since Dr. Westerband is the one who is liable to Chamo, she is not entitled to tell the jury about Dr. Solomon’s negligence; her only remedy is a subsequent action for indemnity against Dr. Solomon. This is a false syllogism.