The following blog entry is written from a defendant’s position during the early stages of litigation. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/personal injury case and its proceedings.)
Plaintiff Signed the Conditions of Services Agreement and is Bound by Its Provisions.
The Conditions of Services form was signed and dated November 3, 2003, prior to the bulk of the treatment provided at UMC and by Dr. Cruz, and two days prior to the subject surgery. California law uniformly holds that one who signs an instrument may not avoid the impact of its terms on the grounds that she failed to read it before signing. In Hoffman v. Sports Car Club of America (1986) 180 Cal.App.3d 119, the plaintiff, a driver injured while participating in a sports car race, sought to avoid the impact of a release agreement on the ground that he failed to read it before signing. In affirming the trial court’s grant of defendants’ motion for summary judgment, the Court of Appeal stated:
[M]istake, as plaintiff has argued it, is not a viable ground for not enforcing the release. His position on this point we liken to a person who comments upon leaving the movie, Had I known what it was about, I never would have bought a ticket. In sum, plaintiff cannot now claim he was mistaken about what was in the release when he failed to read it before signing [Citation]. Id. at 126.
Plaintiff cannot now claim that he did not read or appreciate the terms of the Conditions of Services agreement that was signed after his admission to UMC. Plaintiff was given the opportunity to read and review the document, he signed it and is therefore bound by its provisions.
Any explanation as to his lack of understanding about the relationship between UMC and Dr. Cruz (i.e., he had many papers to sign and was in pain) is irrelevant. In the case of Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158 [21 Cal.Rptr.2d 245] the plaintiff argued that she was literate in Greek but not English and therefore could not read the subject agreement. The Court of Appeal stated that the plaintiffs contention is not well taken , and suggested that the plaintiff should have had the instrument read to her. Id. at 163.
For these reasons plaintiff cannot meet the test of Mejia, supra, to establish an ostensible agency relationship between independent contractor physicians and hospital in order to impute their alleged liability upon UMC. Plaintiff had actual notice through the Conditions of Services agreement and cannot satisfy the first of the three-part test for ostensible agency (the plaintiff believed that the physician was an agent of the hospital, and this belief was reasonable [Mejia, supra, 1156 -1157); and he has presented no evidence in support of the second of the three tests, that his belief must be generated by some act or neglect of UMC. (Id.)
Plaintiffs Have Failed to Meet Their Substantive Burden Entitling Them to Summary Judgment/ Adjudication
Plaintiffs have failed to establish in their moving papers that Dr. Cruz was an agent or employee of UMC. Plaintiffs have thus failed to meet their burden. Notwithstanding, UMC has established by the aforementioned evidence that Dr. Cruz is not a UMC employee or agent, or at a minimum, that there is a triable issue as to whether Dr. Cruz is a UMC agent. Either way, summary adjudication must be denied.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.