At 2:07 a.m. on October 11, 2020, three-year-old Charlie L. (plaintiff) was brought by his mother to the emergency department at PIH Health Hospital-Whittier for abdominal pain. Plaintiff had been in and out of hospitals for conditions related to a malrotated bowel he had at birth, for which he had endured several corrective surgeries as well as prior emergency department visits for incidents of vomiting and constipation.
At around 3:00 a.m., the emergency department physician treating Charlie issued “stat” orders for an X-ray and ultrasound of plaintiff’s abdomen. The images were sent for evaluation to Peymam Kangavari, M.D., an “on-call radiologist” working remotely. The X-ray was taken at 3:12 a.m. and Kangavari issued a report based on the images at 3:51 a.m. The ultrasound was taken at 3:24 a.m. and Kangavari issued another report based on those images at 4:35 a.m. Both reports concluded that plaintiff’s bowel was unobstructed. Based on Kangavari’s reports of the imaging results as well as other examinations of plaintiff by emergency department staff, plaintiff was discharged home at 5:54 a.m. with instructions to follow up with his pediatrician and gastroenterologist.
Soon after returning home, plaintiff vomited and turned blue. His parents brought him back to the emergency department at 8:18 a.m., nonresponsive with a faint pulse and not breathing. Plaintiff was transferred to Children’s Hospital Orange County later that morning, where he underwent multiple surgeries over the next three days to remove necrotic tissue and the majority of his small bowel due to a lack of blood flow caused by a bowel obstruction.
Plaintiff now suffers “short gut syndrome,” has to be fed with a G-tube, wears diapers at all times, and struggles with speech and other mental and emotional capabilities.
Plaintiff, by and through his mother acting as his guardian ad litem, filed a negligence action against Kangavari on April 23, 2021. Plaintiff alleged that Kangavari committed medical malpractice by failing to timely diagnose his bowel obstruction, and alleged that malpractice caused his injuries. Kangavari moved for summary judgment on the grounds that the undisputed facts showed that he adhered to the standard of care (and hence was not negligent), and that any negligence did not cause plaintiff’s injuries.
Health and Safety Code section 1799.110.1
To grant physicians and surgeons in general acute care hospital emergency departments a measure of protection from malpractice claims—and thereby to encourage the provision of such emergency medical care—the California Legislature enacted what is now Health and Safety Code section 1799.110.1. The statute accomplishes its purpose in two ways—namely, (1) by modifying the standard of care applicable in malpractice cases to account for the “unique challenges and demands of an emergency room” § 1799.110, subd. (a)), and(2) by increasing the qualifications an expert must possess before testifying as to whether that altered standard of care was violated in any given case (§ 1799.110, subd. (c)).
The issue in the present case was whether section 1799.110’s stricter qualifications requirement for expert witnesses apply when the physician being sued was an on-call radiologist who remotely reviewed X-ray and ultrasound images for an emergency department patient on a “stat” basis as requested by the emergency department.
The Court of Appeal of the State of California Second Appellate District Division Two stated in its opinion filed on January 2, 2025: “The question presented in this appeal is whether section 1799.110’s qualifications requirement for expert witnesses applies in malpractice actions against physicians who remotely provide medical expertise on an expedited basis as part of an emergency department in the midst of treating an emergency department patient. We hold that it does. In our view, this is the only conclusion consonant with section 1799.110’s purpose … section 1799.110’s strictures apply to physicians who remotely provide their medical expertise as part of an emergency department that is treating a patient of that department. Such physicians are under the same time pressures as any other physician providing emergency medical services; like their in-person counterparts formally assigned to an emergency department, such physicians also lack the time to review the patient’s more fulsome medical history, to conduct research, or to reflect. And they face the same threat of malpractice liability that drives up insurance rates and concomitantly drives physicians away from taking such posts. Indeed, plaintiff’s expert frankly acknowledges that “diagnostic radiologists” like Kangavari “rarely need[]to work in the emergency department itself.””
“Because plaintiff does not dispute that Kangavari was providing emergency medical services on an on-call and “stat” basis—and because we have concluded that this qualifies as providing emergency medical coverage—section 1799.110’s stiffer expert witness qualifications requirement applies. Thus, the parties’ experts may offer testimony only if they “have had substantial professional experience” “provid[ing] emergency medical coverage” in the emergency department during the five years preceding plaintiff’s injury. (§ 1799.110, subd. (c).)”
Nonetheless, the California appellate court held in the case it was deciding: “The trial court here correctly ruled that section 1799.110 applies to the malpractice claims against the on-call radiologist, but incorrectly granted summary judgment after finding the defendant-radiologist’s expert was qualified under that statue but the plaintiff-patient’s expert was not. Because we conclude that neither expert was shown to meet the more stringent test for qualification when the evidence is viewed through the lens applicable on summary judgment, we reverse the judgment for the defendant-physician.”
Charlie L. v. Kangavari, B327714.
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