Filed 6/1/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

MARLINE WICKS et al.,

Plaintiffs and Appellants,

v.

ANTELOPE VALLEY 

HEALTHCARE DISTRICT,

Defendant and Respondent.

 B297171

 (Los Angeles County

 Super. Ct. No. MC027302)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Randolph A. Rogers, Judge. Affirmed.

Law Offices of Michels & Lew, Philip Michels and 

Steven B. Stevens for Plaintiffs and Appellants.

La Follette, Johnson, DeHaas, Fesler & Ames, Arthur E. 

Zitsow, Julie Pollock Birdt and David J. Ozeran for Defendant 

and Respondent.

__________________________
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SUMMARY

The trial court granted summary judgment to a hospital in 

a lawsuit brought by the family of an emergency room patient 

who was released from the hospital and died eight hours later. 

We conclude no evidence showed that the nursing staff caused or 

contributed to the patient’s death; no evidence showed the 

hospital was negligent in the selection and retention of the 

two emergency room doctors who treated the patient; and the 

evidence conclusively established the emergency room doctors 

were not the ostensible agents of the hospital.

Accordingly, we affirm the judgment.

FACTS

1. The Parties and the Complaint

Plaintiffs Marline and Bethanie Wicks are the spouse and 

daughter, respectively, of decedent Matthew Wicks. They sued 

two emergency room (ER) doctors (Christopher Belfour and 

Lawrence Michael Stock); Antelope Valley Emergency Medicine 

Associates, Inc.; and Antelope Valley Healthcare District, doing 

business as Antelope Valley Hospital (the hospital), for medical 

negligence in connection with Mr. Wicks’s death on October 26, 

2016. 

As relevant here, the complaint alleged the defendant 

hospital selected and assigned physicians to care for and treat 

Mr. Wicks, and those individuals were the ostensible agents of 

the hospital. The complaint alleged the hospital was negligent in 

the “selection, training, retention, supervision and hiring” of the 

two ER doctors, and its nursing personnel were negligent in the 

care and treatment of decedent. No details were alleged in the 

complaint.
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2. Defendant’s Motion for Summary Judgment

The hospital moved for summary judgment, contending 

(1) its employees, nurses and nonphysician personnel complied 

with the standard of care in their care and treatment of 

Mr. Wicks; (2) no act or omission of the hospital negligently 

caused or contributed to his death; (3) the hospital was not 

negligent in its appointment of Dr. Stock or Dr. Belfour to the 

medical staff; (4) neither doctor was an employee or agent of the 

hospital; and (5) the hospital did not control, direct or supervise 

either doctor in his care or treatment of decedent. Defendant 

relied on the following evidence.

a. The Holland declaration

A declaration from Dr. J. Paul Holland, who has actively 

practiced as an emergency physician since 1979, provided the 

sequence of events at the hospital on October 26, 2016. His 

recitation of these events was based on his review of decedent’s 

medical records for that day. Those records were attached as an 

exhibit to a declaration from defendant’s counsel (the Birdt 

declaration), and authenticated in a declaration from the 

hospital’s custodian of records, Laurie Lee Dorsey. The Holland 

declaration correctly recites what is shown in the medical 

records, as follows.

Mr. Wicks came to the emergency department at the 

hospital at 4:03 a.m., complaining of “[s]tomach pain[,] tight 

chest.” His vital signs (blood pressure, pulse, oxygen saturation, 

etc.) were recorded at 4:17 a.m., and included a pain level of 7 out 

of 10. At 4:19 a.m. (the noted “triage time”), nurse Krystal 

Crawford noted Mr. Wicks’s height and weight (including a BMI 

(body mass index) of 33.9), and that he complained of neck pain, 

cough, sore throat and “chest congestion x tonight per patient 
4

‘like a dull ache in my throat, like I’m getting strangled below my 

neck.’ ” She noted the patient was alert, denying any chest pain 

or shortness of breath, speaking normally, and ambulating 

without difficulty. After the triage, he was placed in a bed at 

4:22 a.m. 

Mr. Wicks was then evaluated by nurse Amberlyn Aroneo 

Wildoner. Her detailed notes, recorded at 4:59 a.m., state, among 

other details, that Mr. Wicks was alert, oriented and cooperative, 

appeared to be in distress due to pain, and stated he had woken 

up with a pain in his upper chest/throat. He described the pain 

as something “ ‘stuck’ ” in his throat. He denied any shortness of 

breath or inability to swallow, and said “he feels like he needs to 

clear his throat but when he does it doesn’t clear”; he said he also 

woke up with epigastric pain. Nurse Wildoner noted no 

respiratory distress, and “[c]hest pain present, upper, [s]ore 

throat present.” Her notes at 5:03 a.m. show she placed him on a 

cardiac monitor, and her notes at 5:46 a.m. show she established 

an IV site, drew lab specimens and sent them to the lab. 

Dr. Belfour evaluated Mr. Wicks at 5:10 a.m., ordered an 

electrocardiogram (ECG) and reviewed the ECG results at 

5:34 a.m. Dr. Belfour also ordered a chest X-ray, and the records 

show radiologist Dr. Kellie Greenblatt reviewed it and noted, at 

6:10 a.m., “[n]o radiographic evidence of acute cardiopulmonary 

disease”; “[n]o significant interval change”; and “[m]ild 

cardiomegaly” (enlarged heart). 

Nurse Shelly Macias took over the care of Mr. Wicks from 

nurse Wildoner at 6:19 a.m. Her notes show he was “[s]tanding 

at bedside for comfort” at 6:29 a.m., she recorded his vital signs 

at 6:53 a.m., and at 7:05 a.m. a person from the lab was at 

bedside for another blood draw. 
5

Dr. Stock took over Mr. Wicks’s care after Dr. Belfour’s 

shift ended at around 6:00 a.m. According to Dr. Holland and the 

medical records, over the next several hours, in addition to the 

chest X-ray, various tests were performed, including another

ECG, two troponin tests and other blood work. 

Dr. Stock met and examined Mr. Wicks at 8:42 a.m., but 

testified he had no independent memory of the interaction. His 

custom and practice was “obtaining history, understanding the 

context of how [the patient] got there, doing an exam, and 

reviewing risk factors . . . for the conditions, and then reviewing 

any of the lab data or any [test] results” done since the patient’s 

arrival. Although he had no independent memory of treating 

Mr. Wicks, Dr. Stock testified it was his custom and practice then 

and now to look at the electronic records system to see if 

Mr. Wicks had been treated at the hospital previously. His 

custom and practice was to look through such documents for 

“a discharge summary, an old EKG, something to that effect that 

might be very useful.” (The term ECG is synonymous with EKG.) 

When asked if part of his custom and practice would be “to look 

at the patient’s past medical history,” he responded, “Yes, I would 

talk to the patient, I’d read the chart and—and generally would 

look in the electronic medical record.” 

At around 11:00 a.m., Dr. Stock decided to discharge 

Mr. Wicks. He had seen Mr. Wicks a second time and noted he 

had “improved”; by this time a second ECG and a second troponin 

test had been performed. (Vital signs recorded by the nurses at 

6:53 a.m., 7:53 a.m. and 9:53 a.m. (blood pressure, pulse, oxygen 

saturation, etc.) were normal and stable, with pain reduced to 

4 out of 10 at 6:53 a.m. and the same thereafter.) The time on 

Dr. Stock’s discharge order is 11:06 a.m. Mr. Wicks was given
6

discharge instructions; these included a diagnosis of “chest pain 

of unclear etiology,” and a referral to a cardiologist, as well as a 

follow-up with his primary care physician in one day. (Decedent’s 

wife testified that one of the doctors (she said Dr. Belfour) told 

them he wanted Mr. Wicks to see a cardiologist the next day, and 

that he thought the cardiologist listed in the instructions “will see 

you tomorrow.”) Mr. Wicks left the emergency department at 

11:16 a.m., and died less than eight hours later. The cause of 

death was “acute dissection of aorta.” 

Dr. Holland opined that the care and treatment provided by 

the hospital’s nursing and ancillary personnel “were within the 

standard of care at all times to a reasonable medical probability,” 

and that no actions or inactions by nursing or ancillary personnel 

caused or contributed to Mr. Wicks’s death. Among other things, 

Dr. Holland stated that “[i]t is not required by the standard of 

care for the nurses to go back and review prior records of a 

patient in the circumstance where the patient is alert and 

oriented.” 

b. The Lutgen declaration

Defendant presented a declaration from Regina Lutgen, the 

hospital’s manager of medical staff services. Ms. Lutgen was in 

charge of “the oversight of the practices of Medical Staff Services” 

at the hospital. She has been a “Certified Professional in Medical 

Staff Practices” since 2015. 

Ms. Lutgen explained that hospitals in California are 

prohibited from employing physicians and surgeons to practice 

medicine under the Corporate Practice of Medicine Doctrine. 

Defendant therefore does not employ any physicians or surgeons 

and only employs nurses and nonphysician staff to implement the 

orders of the independent contractor physicians. She had 
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personal knowledge that the ER doctors who treated Mr. Wicks 

were independent contractors with staff privileges at defendant

hospital and were not employed by defendant. 

She stated that at all relevant times, the hospital “had 

appropriate procedures for appointment of medical staff members

and periodic review of the competence of the physicians 

comprising the medical staff of the hospital, including 

appropriate procedures for the evaluation of medical staff 

applications and assignment of clinical privileges.” Ms. Lutgen 

described the application and approval procedure; stated that 

each active member of the medical staff is reviewed for 

reappointment every two years; and stated that both Dr. Stock 

and Dr. Belfour had active privileges, were deemed competent by 

the procedure she described, and had active medical licenses 

without restriction by the state of California. She stated the 

hospital “complied with the standard of care in California at all 

times with regard to its appointment of medical staff.” 

c. The Birdt declaration

In addition to presenting the medical records mentioned 

above and copies of deposition testimony of various witnesses, the 

Birdt declaration included a copy of the hospital’s “Conditions of 

Services” form that Mr. Wicks signed at 5:08 a.m. on October 26, 

2016. Mrs. Wicks testified at her deposition that was her 

husband’s signature, and she also recognized his initials on the 

document, a copy of which is an exhibit to her deposition. 

The third paragraph of that document, initialed by 

Mr. Wicks, described the “legal relationship between hospital and 

physicians.” (This and all other paragraph headings in the 

admission document were in boldface capital letters.) It states 

that all physicians providing services, including the emergency 
8

physician, “are not employees, representatives or agents of the 

hospital.” 

3. Plaintiff’s Opposition

Plaintiff’s opposition contended that (1) defendant’s motion 

had no admissible evidence to support it, instead relying on “an 

expert’s recitation of events, gleaned from a review of 

unauthenticated documents”; (2) defendant was responsible for 

the negligence of physicians assigned to its emergency 

department; and (3) defendant offered “no admissible evidence 

that it did anything to review the applications of the physicians 

to assure that they were reasonably competent.” 

In addition to objecting to all of defendant’s evidence, 

plaintiff submitted two expert declarations, plus medical records 

from Mr. Wicks’s earlier (November 2015) outpatient admission 

to the hospital for hernia surgery. Defense counsel stipulated to 

the authenticity and foundation of those records. 

a. The Ritter declaration

Dr. Michael Steven Ritter has specialized in emergency 

medicine since 1994, and has held various positions in the 

emergency department at Mission Hospital in Mission Viejo since 

1998. He has worked with and trained emergency medicine 

nurses throughout his career, and has handled hundreds of 

cardiac emergencies. Dr. Ritter stated that the standard of care

for emergency department nurses is a national standard, because 

Mr. Wicks was treated in a major medical center located in a 

major metropolitan area. 

Dr. Ritter described several entries in the 2015 medical 

records of decedent’s hernia repair. These records indicated a 

history of smoking, morbid obesity, heart murmur, high blood 

pressure and high cholesterol. Dr. Ritter also described nurse 
9

Wildoner’s note of decedent’s past medical history, which states: 

“History provided by, patient, No past medical history.” 

Dr. Ritter opined that the care and treatment provided by 

the hospital’s nurses fell below the standard of care expected of 

emergency department nurses under similar circumstances. The 

nurses failed to review Mr. Wicks’s chart and document his 

cardiovascular risk factors, and the discharge nurse did not 

document that she reassessed Mr. Wicks’s level of pain

immediately before his discharge. The medical records show the 

last pain level assessment at 9:53 a.m. (the pain level was 4, at 

6:53 a.m., 7:53 a.m. and 9:53 a.m.), with discharge at 11:16 a.m. 

(The discharge nurse testified that her custom and practice was 

to ask the patient about his level of pain at the time of discharge.) 

Dr. Ritter opined that if the nurses had obtained 

Mr. Wicks’s medical history, a reasonably prudent emergency 

physician would have summoned a cardiologist for an emergency 

consult, the cardiologist would have ordered a CT scan with IV 

contrast, the CT scan would have shown the cause of Mr. Wicks’s

chest pain was an aortic dissection, and the cardiologist and ER

physician would have arranged for a cardiothoracic surgery 

consult; if no surgeon was at its facility, Mr. Wicks would have 

been transferred to another facility, and Mr. Wicks “would have 

received timely diagnosis and treatment.” 

b. The MacGregor declaration

Dr. John S. MacGregor has specialized in cardiology and 

interventional cardiology since 1991. He testified he had been 

asked to review the case from the point of view of what a 

cardiologist would have done if called for an emergency consult of 

Mr. Wicks, and the likely outcome of such a consult. On the 

questions of whether the nurses violated their standards of care, 
10

and what an emergency medicine physician would have done if 

they had complied with the standard of care, he deferred to 

Dr. Ritter and assumed the truth of Dr. Ritter’s opinions. 

Dr. MacGregor opined that if a cardiologist had been timely 

called for an emergency consult of a patient in Mr. Wicks’s 

condition and with his history, the cardiologist would have 

ordered a CT scan with IV contrast. “As we know that Mr. Wicks 

was in pain and that he died seven hours later, we can determine 

that, more likely than not, a CT scan with IV contrast of the 

chest would have shown that the cause of Mr. Wicks’ chest pain 

was a thoracic aortic dissection.” A cardiologist would have 

arranged for a surgery consult; surgery would be performed, and 

Mr. Wicks would have survived.

4. Defendant’s Reply

Defendant’s reply stated that defendant did not dispute the 

qualifications of Dr. Ritter or Dr. MacGregor, but objected that 

both declarations were inadmissible on causation. Defendant 

objected to the causation opinions in both declarations on 

grounds of speculation, conjecture, lack of foundation, and failure 

to state causation to a reasonable medical probability. 

5. The Trial Court’s Decision

The court granted defendant’s motion for summary 

judgment. The trial court overruled plaintiffs’ objections to 

defendant’s expert opinions and sustained defendant’s objections 

to the causation opinions expressed by Dr. Ritter and 

Dr. MacGregor. Dr. Ritter’s opinion that the nurses deprived 

Mr. Wicks of timely care was predicated “upon a long series of 

alleged dependent probabilities, which is legally a mere 

possibility,” and thus “too speculative to be admitted as a matter 

of law.” Dr. MacGregor’s declaration suffered from the same 
11

deficiency. The trial court concluded Mr. Wicks received “actual 

notice that the emergency department physicians were 

independent contractors,” and “no reasonable jury could find that 

Mr. Wicks did not understand the information provided.” And, 

the court found plaintiffs “have not cogently disputed [the 

hospital’s] showing that it exercised reasonable care in retaining 

the identified emergency department physicians as independent 

contractors.” 

Judgment in favor of the hospital was entered on March 25, 

2019, and plaintiffs filed a timely appeal.

DISCUSSION

Plaintiffs contend there is no admissible evidence to 

support the summary judgment motion, so the burden of 

producing evidence never shifted to plaintiffs. They contend that 

even if defendant’s evidence is admissible, the opposing Ritter 

and MacGregor expert declarations demonstrate triable issues of 

material fact that negligence by the hospital’s nurses was a 

substantial factor in causing Mr. Wicks’s death. And they 

contend the form Mr. Wicks signed and initialed telling him the 

ER doctors were independent contractors and not employees or 

agents of the hospital does not conclusively establish the doctors 

were not defendant’s ostensible agents.

None of these contentions has merit.

1. The Standard of Review

A defendant moving for summary judgment must show 

“that one or more elements of the cause of action . . . cannot be 

established, or that there is a complete defense to the cause of 

action.” (Code Civ. Proc., § 437c, subd. (p)(2).) Summary 

judgment is appropriate where “all the papers submitted show 

that there is no triable issue as to any material fact and that the 
12

moving party is entitled to a judgment as a matter of law.” (Id., 

subd. (c).)

Our Supreme Court has made clear that the purpose of the 

1992 and 1993 amendments to the summary judgment statute 

was “ ‘to liberalize the granting of [summary judgment] 

motions.’ ” (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 

536, 542.) It is no longer called a “disfavored” remedy. (Ibid.) 

“Summary judgment is now seen as ‘a particularly suitable 

means to test the sufficiency’ of the plaintiff’s or defendant’s 

case.” (Ibid.) On appeal, “we take the facts from the record that 

was before the trial court . . . . ‘ “We review the trial court’s 

decision de novo, considering all the evidence set forth in the 

moving and opposing papers except that to which objections were 

made and sustained.” ’ ” (Yanowitz v. L’Oreal USA, Inc. (2005) 

36 Cal.4th 1028, 1037.)

We apply the abuse of discretion standard to the trial 

court’s evidentiary rulings. (Ducksworth v. Tri-Modal 

Distribution Services (2020) 47 Cal.App.5th 532, 544.)

2. Defendant’s Evidence Was Properly Admitted

We dispose first of plaintiffs’ assertion that none of 

defendant’s evidence was admissible, so plaintiffs did not have to 

produce any evidence. Plaintiffs are mistaken.

a. The Holland declaration and the medical 

records

With no basis either in fact or law, plaintiffs assert the 

Holland declaration is inadmissible because it is based on 

hearsay. Dr. Holland’s opinion was based on his review of 

Mr. Wicks’s medical records and the deposition testimony of 

witnesses in this case. Inexplicably, plaintiffs say the medical 

records were unauthenticated. The medical records were 
13

properly authenticated as the hospital’s business records, and as 

such, they are not hearsay. They are the type of records on which 

medical experts may and do rely in order to give expert testimony 

in a medical malpractice case. (Garibay v. Hemmat (2008)

161 Cal.App.4th 735, 741-742 (Garibay) [in professional 

malpractice cases, expert opinion testimony is required to prove 

defendant’s performance met the prevailing standard of care, 

except in cases where the negligence is obvious to laymen, but 

expert opinion has no evidentiary value unless authenticated 

medical records on which expert relied are offered in evidence].)

Here, defense counsel’s declaration stated that the copies of 

Mr. Wicks’s medical records provided to Dr. Holland for review 

“were true and exact copies of the records provided directly to my 

office by the hospital’s Health Information Management 

supervisor,” and that a true and correct copy of Mr. Wicks’s

hospital records from October 26, 2016, along with the 

declaration of the hospital’s custodian of records, is attached as 

Exhibit C to the volume of documentary evidence filed with 

defendant’s summary judgment motion. The custodian’s 

declaration in turn establishes these as the hospital’s business 

records as described in Evidence Code section 1271. No more was 

required, but in addition, these very same medical records were 

identified at the depositions of the ER nurses and doctors who 

created them—for example, nurses Macias, Wildoner and 

Crawford.

Plaintiffs assert other baseless reasons why they think the 

medical records in support of the summary judgment motion 

were inadmissible, and each contention is utterly without merit. 

They say defendant’s separate statement did not provide page 

citations to the medical records, or to the deposition testimony on 
14

which Dr. Holland relied in forming his opinions, and this failure 

violated California Rules of Court, rule 3.1350(d)(3) (separate 

statement must state undisputed material facts, including 

“reference to the exhibit, title, page, and line numbers”). 

Defendant complied with that rule by citing specific paragraphs 

of Dr. Holland’s declaration as the evidence supporting each 

undisputed material fact recited in the separate statement. 

Citation to the particular page of each medical record and 

witness testimony which provided the factual basis for each of 

Dr. Holland’s opinions is not required by rule 3.1350(d)(3).

Plaintiffs say, as in Garibay, Dr. Holland had no personal 

knowledge of the underlying facts, so his narration of those facts 

“ ‘had no evidentiary foundation.’ ” The expert’s declaration in 

Garibay had no evidentiary foundation because in that case the 

medical records were not before the court. “Without those 

hospital records, and without testimony providing for 

authentication of such records,” the expert’s declaration had no 

evidentiary basis. (Garibay, supra, 161 Cal.App.4th at p. 742.) 

In this case, defendant provided the medical records in support of 

the motion and authenticated them six ways from Sunday.

Plaintiffs also assert that because the hospital is a party, 

the declaration of its custodian of records is insufficient 

authentication. No case authority is cited for this preposterous

assertion. Plaintiffs incorrectly infer that Evidence Code 

section 1560 supports their assertion, but it does not. Section 

1560 governs the sufficiency of compliance with a subpoena duces 

tecum that is served upon a custodian of records of a business in 

an action where the business is not a party. Nothing in 

section 1560 suggests that a hospital’s custodian of records 

cannot authenticate its own records. The business records 
15

exception to the hearsay rule, Evidence Code section 1271, 

governs the admissibility of hospital records, and Ms. Birdt’s

declaration supplied the facts to authenticate defendant’s 

business records.

b. The Lutgen declaration and plaintiff’s

negligent hiring claim

Plaintiffs similarly contend the Lutgen declaration was 

inadmissible hearsay, and therefore the burden of producing 

evidence on their negligent hiring claim did not shift to them.

Again, they are mistaken.

We have described the Lutgen declaration (at pp. 6-7, ante). 

In paragraphs 2, 4, 5, 6 and 7, Ms. Lutgen described the 

hospital’s procedures for the appointment and evaluation of 

independent contractor physicians and surgeons who comprise 

the medical staff of the hospital, opined those procedures were 

appropriate and complied with the standard of care concerning 

the appointment of medical staff, and stated those procedures 

were used in the appointment and periodic evaluations of every 

physician applying for appointment to the medical staff. As the 

hospital’s manager of medical staff services, in charge of the 

oversight of the practices of medical staff services, she had 

personal knowledge of the hospital’s procedures for awarding 

staff privileges to its physicians and personal knowledge that the 

hospital acted consistently with its procedures in appointing each 

of its staff doctors.

Plaintiffs say Ms. Lutgen’s testimony “is nothing more than 

inadmissible hearsay testimony about the contents of a file” that 

is inadmissible under People v. Sanchez (2016) 63 Cal.4th 665, 

684 (Sanchez) (“If an expert testifies to case-specific out-of-court 

statements to explain the bases for his opinion, those statements 
16

are necessarily considered by the jury for their truth, thus 

rendering them hearsay.”). In paragraph 9 of her declaration, 

Ms. Lutgen testified that she looked at the medical staff services 

files of Drs. Stock and Belfour, and in paragraph 12, she testified 

that she looked at the roster of physicians with medical staff 

privileges at defendant hospital. (We asked counsel, in advance 

of oral argument, to address during argument the question 

whether the statements in paragraphs 9 and 12 were hearsay, 

and whether the foundational requirements for the business 

records exception to the hearsay rule were shown. Counsel did 

so.)

In addition to the statements just described in paragraphs 

9 and 12, Ms. Lutgen testified to her understanding that the 

hospital’s files on the ER doctors were protected from discovery, 

citing Evidence Code section 1157. She stated she would comply 

with a court order to produce the files for in camera review. Such 

files are confidential and not subject to discovery. (Evid. Code, 

§ 1157, subd. (a) [“Neither the proceedings nor the records of 

organized committees of medical . . . staffs in hospitals, . . .

having the responsibility of evaluation and improvement of the 

quality of care rendered in the hospital, . . . shall be subject to 

discovery.”]; Mt. Diablo Hosp. Medical Center v. Superior Court 

(1984) 158 Cal.App.3d 344, 347 [“ ‘Section 1157 represents a 

legislative choice between competing public concerns. It 

embraces the goal of medical staff candor at the cost of impairing 

plaintiffs’ access to evidence.’ ”].) Defense counsel told us at oral 

argument plaintiffs never requested an in camera review of the 

ER doctors’ files and therefore waived the Sanchez objection to 

paragraph 9 of Ms. Lutgen’s declaration. 
17

We do not need to decide if paragraph 9 is inadmissible 

under Sanchez or whether plaintiffs waived the Sanchez objection 

by failing to request an in camera review of the ER doctors’ files. 

Ms. Lutgen’s testimony in paragraphs 2, 4, 5, 6 and 7 was based 

on her personal knowledge and was sufficient to show the ER 

doctors were granted staff privileges in accordance with 

appropriate procedures for the appointment and evaluation of 

independent contractor physicians and surgeons who comprise 

the medical staff of the hospital. It was then up to plaintiffs to 

create a material disputed fact that the ER doctors lacked 

credentials or for any reason should not have been granted or 

permitted to retain staff privileges. They offered no evidence, 

and consequently summary judgment of their negligent hiring 

claim was proper.

3. Plaintiffs’ Evidence Did Not Create A Material 

Dispute That Any Nurse’s Action Or Omission 

Caused Or Contributed To Mr. Wicks’s Death.

The defense expert, Dr. Holland, opined that no actions or 

inactions by nursing or ancillary personnel caused or contributed 

to Mr. Wicks’s death. Plaintiffs contend Dr. Holland’s opinion on 

causation was conclusory and therefore inadmissible, and in any 

event the trial court erred in disregarding the Ritter and 

MacGregor opinions on causation. We disagree on both points.

a. Dr. Holland’s opinion

We see nothing conclusory in Dr. Holland’s opinion. He 

accurately recounted, based on his review of the hospital records, 

everything that happened in detail from the time Mr. Wicks 

presented at the ER until his discharge. He opined the nurses 

regularly and appropriately attended to Mr. Wicks. Their 

evaluations were appropriate. Mr. Wicks’s vital signs were noted 
18

four times, and each time, they were in normal limits. The

nurses correctly carried out all doctors’ orders. All labs ordered 

were performed and the two ECG’s and X-ray that were ordered 

were performed.

Dr. Holland pointed out that the two ER doctors testified it 

was their custom and practice to ask about the patient’s past 

medical history and chronic conditions. When a patient is alert 

and oriented, there is no need for a nurse to obtain and note a 

patient’s medical history, as the patient can give the doctors any 

further medical history the doctors may think they need. 

Dr. Holland testified an aortic dissection is extremely 

difficult to diagnose and has a very high mortality rate even if it 

is diagnosed early. It is undisputed that nurses cannot diagnose 

an aortic dissection or interpret the results of an ECG or chest Xray, and it is not the nurses’ responsibility to order further tests. 

Nurses cannot order a patient admitted to the hospital or order a 

cardiology consult; only a doctor can do those things. There is no 

record that a doctor issued any order that the nurses failed to 

carry out. Nothing in Mr. Wicks’s vital signs, lab results or the 

notes of the ER doctors’ review of the ECG’s, X-ray and troponin 

levels would have alerted a nurse to do anything these nurses did 

not do.

In short, Dr. Holland thoroughly explained the facts on 

which he based his opinion and the reasons why he concluded the 

nurses met the standard of care and did not contribute to 

Mr. Wicks’s death. The trial court did not err in overruling 

plaintiffs’ objections to his testimony.

b. Dr. Ritter’s opinion

That brings us to the declarations of plaintiffs’ experts.
19

Since defendant did not dispute the qualifications of 

Dr. Ritter or Dr. MacGregor, we assume they were qualified to 

offer expert opinions in this case. But we find neither expert

declaration created a material disputed fact that the nurses’ 

performance caused or contributed to Mr. Wicks’s death to a 

reasonable medical probability. 

Dr. Ritter testified the nurses were negligent in that they 

failed to review Mr. Wicks’s chart and document his 

cardiovascular risk factors, and nurse Macias did not document 

that she reassessed Mr. Wicks’s level of pain before his discharge. 

Dr. Ritter testified that if the nurses had done these things, then

(1) to a reasonable degree of medical probability, an ER doctor 

would have summoned a cardiologist, (2) the cardiologist more 

likely than not would have ordered a CT scan with IV contrast or 

other advanced diagnostic studies, (3) more likely than not, the 

CT scan with IV contrast would have shown the aortic dissection, 

(4) the ER doctor and the cardiologist would have arranged for a 

cardiovascular surgery consultation, and (5) if the hospital had 

no cardiothoracic surgeon, then, more likely than not, Mr. Wicks 

would have been transferred to another facility for the 

consultation. Dr. Ritter opined, “I can determine to a reasonable 

degree of medical probability, if the nurses had obtained a proper 

and complete history and provided it to the emergency medicine 

physician, Mr. Wicks would have received timely diagnosis and 

treatment.”

We agree with the trial court this is speculation and lacks 

reasoned explanation. Dr. Ritter did not explain how the nurses’ 

failure to take a history contributed to any of the decisions made 

by the ER doctors. He did not explain why, if the nurses had 

taken a history and documented Mr. Wicks’s pain level 
20

immediately before discharge, that would have informed the ER 

doctors they needed to take any of the steps enumerated above. 

Dr. Ritter completely ignored the testimony of both ER doctors 

that they themselves customarily reviewed a patient’s medical 

history. The nurses’ failure to report Mr. Wicks’s history to the 

ER doctors could not have caused or contributed to his death, 

because the doctors themselves obtained Mr. Wicks’s history, and 

Dr. Stock reviewed the hospital’s electronic records, so they did 

not need the nurses’ notes.

Dr. Ritter opined the nurses should have noted Mr. Wicks’s 

history of heart murmur, smoking cigarettes, hypertension, high 

cholesterol, and morbid obesity. The undisputed evidence shows

that four times, the nurses took and recorded Mr. Wicks’s vital 

signs, including blood pressure, pulse and oxygen saturation, and 

they noted his body mass index indicating obesity. An hour after 

he arrived at the hospital, nurse Wildoner placed Mr. Wicks on a 

cardiac monitor, and less than an hour later she established an 

IV site, drew lab specimens and sent them to the lab. 

The ER doctors ordered numerous tests to determine if 

Mr. Wicks needed emergency cardiac care. The doctors ordered

and evaluated the results of two ECG’s, a chest X-ray, two 

troponin tests and other blood work. Dr. Ritter offers no 

explanation why nurses’ notes summarizing past records of 

cardiac risk factors would have helped the ER doctors understand

anything about Mr. Wicks’s cardiac condition that they did not 

already know from his vital signs, ECG’s, chest X-ray and 

troponin tests. 

Dr. Ritter opined that if the doctors had ordered a 

cardiology consultation, a cardiologist would have ordered a CT 

scan with IV contrast. But Dr. Ritter did not dispute 
21

Dr. Holland’s testimony that only a doctor can order tests such as 

a CT scan, order a cardiology consultation, and decide whether to 

discharge or admit a patient to the hospital. Dr. Ritter does not 

explain how a nurse’s notes would have informed the ER doctors 

they needed to order a CT scan with IV contrast. The ER doctors 

did not need a nurse’s notes of Mr. Wicks’s cardiac risk factors to 

decide whether Mr. Wicks needed a cardiology consultation; they

indisputably knew he needed a cardiology consultation, because

they told him to consult a cardiologist the next day. What the 

ER doctors did not know is that Mr. Wicks would suffer an aortic 

dissection several hours later, but Dr. Ritter does not explain how 

nurses’ notes or an inquiry about Mr. Wicks’s level of pain 

immediately before his discharge would have alerted the 

ER doctors that they needed to rule out aortic dissection.

In sum, Dr. Ritter’s opinions lack reasoned explanation for 

his conclusions, and his opinions rest not on facts but on a series 

of hypothetical conditions, i.e., if the ER doctors had ordered an 

emergency cardiology consult, then more tests would have been 

ordered, and the tests would have revealed the risk of aortic 

dissection, and surgery would have been performed, and 

Mr. Wicks would have survived. An expert’s opinion rendered 

without a reasoned explanation of why the underlying facts lead 

to the ultimate conclusion has no evidentiary value because an 

expert opinion is worth no more than the reasons and facts on 

which it is based. (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 

523.)

The holes in Dr. Ritter’s declaration cannot be backfilled by 

the declaration of Dr. MacGregor, who hedged in giving his 

testimony by saying he had no opinion on whether the nurses 

met the standard of care, or on what an ER doctor would have 
22

done if the nurses had met the standard of care. He simply 

assumed as true the facts and opinions expressed by Dr. Ritter.

An expert may not predicate an opinion on the opinion of another 

expert. (Christiansen v. Hollings (1941) 44 Cal.App.2d 332, 347

[“It is, of course, the rule . . . that the opinion of an expert cannot 

be predicated on the opinion of another expert.”].) Dr. MacGregor 

simply assumed causation from the fact of Mr. Wicks’s death. An 

expert’s opinion that something is true if certain assumed facts 

are true, without any foundation for concluding those assumed 

facts exist, has no evidentiary value. (Bushling v. Fremont 

Medical Center (2004) 117 Cal.App.4th 493, 510.)

In short, the trial court did not err in sustaining 

defendant’s objections to the Ritter and MacGregor declarations 

on causation. Because plaintiffs did not create a triable issue on 

whether the nurses’ conduct caused or contributed to Mr. Wicks’s

death, summary judgment for the hospital was proper.

4. The ER Doctors Were Not Ostensible Agents

of the Hospital.

It is well established in California that a hospital may be 

liable for the negligence of physicians on the staff, unless the 

hospital has clearly notified the patient that the treating 

physicians are not hospital employees and there is no reason to 

believe the patient was unable to understand or act on the 

information. This rule is founded on the theory of ostensible 

agency. 

In Mejia v. Community Hospital of San Bernardino (2002) 

99 Cal.App.4th 1448 (Mejia), the court explained the required 

elements of ostensible agency: “(1) conduct by the hospital that 

would cause a reasonable person to believe there was an agency 

relationship and (2) reliance on that apparent agency 

relationship by the plaintiff.” (Id. at p. 1457.) Mejia observed 
23

that California law has “inferred ostensible agency from the mere 

fact that the plaintiff sought treatment at the hospital without 

being informed that the doctors were independent contractors.” 

(Ibid.) “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.” (Id. at pp. 1454-1455.) 

In this case, after Mr. Wicks had been in defendant’s 

emergency room for a little over an hour, he signed and initialed 

an admission form that stated, “All physicians and surgeons 

providing services to me, including the radiologist, pathologist, 

emergency physician, anesthesiologist, and others, are not 

employees, representatives or agents of the hospital. . . . [T]hey 

have been granted the privilege of using the hospital for the care 

and treatment of their patients, but they are not employees, 

representatives or agents of the hospital. They are independent 

practitioners.” 

Plaintiffs contend the evidence defendant presented—the

signed and initialed admission form, plus evidence of Mr. Wicks’s 

physical and mental state and surrounding circumstances at the 

time—did not establish, as a matter of law, that the doctors were 

not the hospital’s ostensible agents. Plaintiffs rely on Mejia and 

Whitlow v. Rideout Memorial Hospital (2015) 237 Cal.App.4th 

631 (Whitlow). They contend these cases stand for the 

proposition, in effect, that no matter what circumstances bring a 

patient to an emergency room, an admission form notifying the 

patient that the ER doctor is not an employee or agent of the 

hospital cannot establish lack of agency as a matter of law. We 

do not so read Mejia and Whitlow. 
24

The facts and circumstances in Mejia and Whitlow are 

entirely different than this case. In Mejia, the hospital did not 

give the patient any notice that its staff physicians were 

independent contractors, and the patient had no reason to know 

they were not agents of the hospital. (Mejia, supra, 

99 Cal.App.4th at p. 1450.) In contrast with Mejia, Mr. Wicks 

signed a straightforward notice, with no obtuse legalese, telling 

him the staff physicians were independent contractors and not 

employees or agents.

In Whitlow, the patient was in no condition to understand 

the admission form she signed in the emergency room stating 

that all physicians furnishing services to her were independent 

contractors and not employees or agents of the hospital. Her son 

declared his mother was “crying in horrible pain” when the 

hospital’s registration processor told her to sign and initial the 

form, she was nauseous and unable to read it, and the processor 

did not explain the contents of the form or read it to her. 

(Whitlow, supra, 237 Cal.App.4th at pp. 633-634.) 

A neurosurgeon who reviewed the decedent’s medical records and 

her son’s declaration opined she was suffering from a massive left 

temporal hemorrhage and was incapable of understanding what 

was contained in the form. (Id. at p. 634.) 

The Whitlow court described the patient as “in dire distress 

and excruciating pain” and as being “forced to sign admissions 

forms that include the agency disclaimer.” (Whitlow, supra, 

237 Cal.App.4th at p. 637; see id. at p. 640 [“we reject the trial 

court’s finding that defendant hospital successfully absolved itself 

of liability as a matter of law when a woman, writhing in pain 

and vomiting as a result of the worst headache she had had in 
25

her life, signed a boilerplate admissions form disclaiming the 

agency of the emergency room physician who treated her”].)

In contrast with Whitlow, there is nothing to suggest 

Mr. Wicks was incapable of understanding the admission form. 

He drove himself to the hospital. He was not in dire distress or 

excruciating pain. The form Mr. Wicks signed has a special line

for him to initial that he was aware the doctors were not 

employees. He initialed the line and signed the form about an 

hour after he arrived at the ER. Nine minutes before he signed 

it, hospital records described him as alert, oriented, cooperative 

and able to describe his symptoms. Dr. Belfour spoke with 

Mr. Wicks two minutes after he signed the form and noted 

Mr. Wicks reported moderate chest discomfort. And Mr. Wicks

had signed and initialed the same forms before on two previous 

hospital admissions in 2015.

At the factually opposite end of the spectrum from Mejia

and Whitlow is Markow v. Rosner (2016) 3 Cal.App.5th 1027, 

where the court found no basis to hold a hospital liable for the 

negligence of a staff physician. The physician had been the 

patient’s chosen personal doctor for four and a half years. (Id. at 

p. 1033.) The patient signed 25 conditions of admission forms

and other consent forms notifying him that his physician was an 

independent contractor, not an agent or employee of the hospital. 

(Id. at pp. 1033-1034.) The patient did not seek emergency care 

from the hospital. Despite evidence that the physician was the 

hospital’s director of its pain clinic, used the hospital’s name and 

logo on his business cards, wore a hospital badge, and treated 

patients in a building displaying the hospital’s name and logo, 

the court found these facts were “negated” by the actual notice 

the hospital gave the patient that his doctor was an independent 
26

contractor, not the hospital’s agent or employee. (Markow, at 

pp. 1041-1042.)

In contrast with Markow, here Mr. Wicks sought 

emergency care from hospital staff physicians he did not choose, 

and he had previously signed two, not more than 25, hospital 

forms notifying him the staff physicians were not employees or 

agents.

Neither Mejia, Whitlow, nor Markow is factually on point 

with this case. Yet all three opinions inform our decision in this 

case. They rest on the same principle of California law, that 

although a hospital may not control, direct or supervise 

physicians on its staff, a hospital may be liable for their 

negligence on an ostensible agency theory, unless (1) the hospital 

gave the patient actual notice that the treating physicians are not 

hospital employees, and (2) there is no reason to believe the 

patient was unable to understand or act on the information, or 

(3) the patient was treated by his or her personal physician and 

knew or should have known the true relationship between the 

hospital and physician. 

The undisputed evidence in this case is that defendant gave 

Mr. Wicks meaningful written notice, acknowledged by Mr. Wicks 

at the time of admission, only a little over an hour after he 

arrived at the hospital, when he was alert, oriented and 

cooperative, that the staff physicians were not employees or 

agents. Hospitals providing emergency care to members of the 

public who do not have an appointment or any relationship with 

the staff physicians have no practical means to give such notice 

before a patient is admitted. Were we to accept plaintiffs’ 

argument that defendant may be liable in this case for the 

negligence of its ER doctors, there would be no circumstance 
27

under which actual notice to an ER patient of an ER doctor’s 

status as an independent contractor would suffice to avoid a 

hospital’s liability for the doctor’s negligence. 

DISPOSITION

The judgment is affirmed. Defendant shall recover its costs 

on appeal.

GRIMES, Acting P. J.

WE CONCUR:

STRATTON, J. 

WILEY, J.