Ermoian v. Desert Hospital (152 Cal. App. 4th 475, 2007)

Opinion

KING, J.

Plaintiff Amanda Ermoian (Amanda) was bom with brain abnormalities that left her severely mentally retarded and unable to care for herself. Her conditions- could not have been prevented, treated, or cured in útero. Through her guardian ad litem, she sued Desert Hospital (the Hospital) and Maria Sterling, a registered nurse, for wrongful life, breach of contract, and promissory estoppel. She claims that defendants were negligent in, among other ways, failing to inform her mother of her abnormalities prior to her birth. Their negligence, she contends, deprived her mother of the opportunity to make an informed choice to terminate the pregnancy. As a result, her mother did not have an abortion, and she was bom. The court granted defendants’ motion for summary adjudication on the breach of contract and promissory estoppel claims. The wrongful life cause of action was tried by the court, which found for defendants.

Amanda contends that we should conduct a de novo review of the trial court’s findings and direct the trial court to enter judgment in her favor. In the published portion of this opinion, we explain that the applicable standard of review is the substantial evidence standard, and conclude that substantial evidence supports the express and implied findings necessary to support the judgment. In the unpublished portion of the opinion, we reject Amanda’s arguments that the court erred in denying Amanda’s motion to have certain requests for admissions be deemed granted, that the court erred in granting defendants’ motion for summary adjudication, and that certain legal and evidentiary rulings by the trial court require reversal.

I. SUMMARY OF FACTS

In 1994, the Hospital operated Desert Hospital Outpatient Maternity Services Clinic (the clinic), a comprehensive perinatal services program (CPSP) for Medi-Cal patients. Under this CPSP, and pursuant to Medi-Cal regulations, the Hospital provided psychosocial, nutrition, and health education services, and related case coordination to Medi-Cal patients during and after pregnancy. The Hospital contracted with a corporation controlled by Morton Gubin, M.D., which employed Masami Ogata, M.D., to provide obstetrical services to the clinic’s patients. Drs. Gubin and Ogata, who had a private practice located elsewhere, saw the clinic’s patients at the clinic’s facility. The physicians are not employees of the Hospital.

In January 1994, Jackie Shahan (Shahan), Amanda’s mother, went to the Hospital emergency room because of cramping, hives, headaches, and vomiting. Shahan did not have her own physician at that time. The emergency room physician informed Shahan that she was pregnant and referred her to Drs. Gubin and Ogata.

On January 13, 1994, Shahan went to the clinic and met with Carol Cribbs, a comprehensive perinatal health worker. Shahan filled out a questionnaire in which she answered “yes” to the question; “Do you want to continue this pregnancy?” In response to the question, “What are your hopes for this pregnancy?” Shahan stated, “To have a healthy baby.” Nevertheless, she testified that she had “mixed feelings” about the pregnancy and was not sure if she would “keep Amanda or not.”

Shahan was given a document titled, “patient rights and responsibilities.” Among other “rights,” this document states that Shahan has the right to “[r]eceive any explanations on any tests or office procedures and answer[s to] any questions [she] may have,” “[r]eview [her] medical record with a doctor and/or nurse,” and “[participate in making any plans and/or decisions about [her] care, and that of [her] baby, during the pregnancy, labor, delivery and postpartum.” Cribbs signed the document as a “witness.”

Shahan also signed an “informed consent” form regarding alphafetoprotein testing. According to the form, the alpha-fetoprotein test is a blood test, the “major purpose” of which “is to detect fetuses with neural tube defects, such as spina bifida and anencephaly.” The form states, among other things: “I understand that if the fetus is found to have a birth defect, the decision whether or not to continue the pregnancy will be entirely mine.” Cribbs told Shahan that she would be notified if there were any problems with the pregnancy. The alpha-fetoprotein test was negative, indicating “no increased risk of neural tube defects.”

On January 25, 1994, Shahan met with Dr. Gubin. Dr. Gubin explained that he was in charge of the clinic. Shahan told Dr. Gubin that she might want to have an abortion. Dr. Gubin said he did not perform abortions at the clinic and she “would have to go somewhere else” for that. Dr. Gubin examined Shahan and let Shahan hear the fetus’s heartbeat. Upon hearing the heartbeat, Shahan decided she would not have an abortion.

After meeting with Dr. Gubin, Shahan met with Sterling. Sterling was a registered nurse and Shahan’s CPSP case coordinator. Sterling scheduled an ultrasound for January 28. Sterling told Shahan that Shahan would get the results of the ultrasound and be provided with all the information she needed.

After her visit to the clinic, Shahan returned home, where she lived with Amanda’s father, Martin Ermoian (Ermoian). She told Ermoian that she was not going to get an abortion. According to Shahan, Ermoian agreed, but “he wasn’t sure still.”

On January 28, Shahan underwent the scheduled ultrasound at the Hospital. The ultrasound technician told Shahan that “Amanda was fine.” After the ultrasound, Shahan told Ermoian that she was “not going to have an abortion.” The two of them “decided then that [they] were going to keep Amanda.”

The radiologist’s report regarding the January 28 ultrasound indicates that the gestational age of the fetus was 20.1 weeks, plus or minus 1.4 weeks. The report does not indicate any abnormalities.

Dr. Ogata met with Shahan on February 22 and talked with her about the January 28 ultrasound. Dr. Ogata told Shahan that the fetus was healthy. Shahan also spoke with Cribbs, who told her that everything was normal and that the baby was healthy. Cribbs noted in Shahan’s chart that she and Shahan discussed the visit with the physician, and that the ultrasound was normal.

On March 21, Shahan called Sterling and complained of abdominal pain and hallucinations. Sterling told Shahan to go to the labor and delivery department of the Hospital. Sterling wrote in Shahan’s medical chart that Shahan was sent to the Hospital “for evaluation.” At the Hospital, Shahan underwent an ultrasound due to a possible abruption of the placenta. Sterling testified that she “had nothing to do with that ultrasound,” and was not aware that an ultrasound “was being done.” Neither Dr. Gubin nor Dr. Ogata saw Shahan that day.

The radiologist’s written report regarding the March 21 ultrasound states that the fetus is “viable” and is 25.8 weeks old, plus or minus 1.8 weeks. It further states: “Scans of the fetal head show minimal prominence of the lateral ventricles with lateral ventricular measurement of between 11 and 12mm (upper limits of normal 10mm). Follow-up ultrasound scanning is recommended to confirm or exclude fetal hydrocephalus. No morphologic abnormalities are seen within the fetal axial skeleton or body.” Under the heading, “Impression,” the report states: “Slight prominence of fetal ventricular size which measures approximately 12mm (upper limits of normal 10mm). Follow-up ultrasound scanning is recommended in 4 to 6 week[s], [<([]... There has been normal interval fetal growth since previous ultrasound of [January 28].” (Capitalization omitted.) The report is addressed to Dr. Ogata, and concludes: “[R]eport called to Dr. Ogata at 1145 hours on [March 21].” (Capitalization omitted.) According to Dr. Gubin, the fetus was viable as of March 21, and they “had no feeling there was any abnormality.”

The next day, March 22, Shahan was examined by Dr. Ogata at the clinic. As of that date, the clinic had not received the written report of the March 21 ultrasound. According to Shahan, Dr. Ogata discussed the ultrasound with her and told her that the ultrasound indicated that the head of the fetus might be small, but that it was not a concern. He told her that the baby was healthy, and they would repeat the ultrasound in four to six weeks to check the head.

Sterling talked with Dr. Ogata about “the heart tones that [Shahan] heard, the measurements that the doctor had gotten.” She made a note in Shahan’s medical chart to “repeat ultrasound next visit.” The note also states, “size vs dates.”

Sterling then talked with Shahan. Sterling was apparently unaware of the results of the ultrasound performed the night before or of any problem with the fetus at that time. Sterling “opened up the chart and copied for [Shahan] exactly what the doctor told her . . . .” In her notes regarding her meeting with Shahan, Sterling indicated that she talked to Shahan about bed rest and the “signs and symptoms of labor and pre-term labor.” According to Shahan, Sterling told her that “everything was fine” and that they would let her know if there was any problem with the ultrasound. This was the last time Sterling saw Shahan in the clinic.

By this time, Shahan and Ermoian were in agreement that Shahan would have the baby, and the “issue of abortion ... no longer existed.”

Shahan’s next visit to the clinic took place on March 29. An ultrasound was not performed at that time. At trial, Sterling explained the apparent inconsistency between her March 22 note to “repeat ultrasound next visit” and the failure to obtain an ultrasound at the next visit as follows: When Dr. Ogata examined Shahan on March 22, his measurements of Shahan (the size) indicated a gestational age of 22 weeks; the note “size vs dates” refers to a discrepancy between the estimated age of the fetus based upon the size and the previously estimated gestational age of 28 weeks, which was based upon the January 28 ultrasound (the dates). Dr. Ogata recommended that an ultrasound be obtained at Shahan’s next visit to resolve this discrepancy “if the measurements were still wrong.” At Shahan’s March 29 visit, the measurements “were very good according to her due date.” In addition, the March 21 ultrasound report (which indicated a gestational age of approximately 25.8 weeks) had by that time been received and placed in Shahan’s chart. Thus, an ultrasound on March 29 “would not have been ordered because at that time it wasn’t warranted by the doctor and he didn’t give us an order to schedule [an ultrasound].” Dr. Gubin’s testimony corroborated Sterling’s explanation.

During the March 29 visit to the clinic, Shahan met with Carol Cribbs and either Dr. Ogata or Dr. Gubin. Shahan complained of cramping, abdominal pain, and headaches. Cribbs told Shahan that these problems were normal and that the baby was healthy. There is no evidence in the record that Cribbs had any knowledge of the March 21 ultrasound or of any problem with the fetus. Nor is there evidence of what was discussed between the physician and Shahan during that visit.

On April 11, Shahan called the clinic to complain of headaches, cramping, spotting, vomiting, and hallucinations. She was told to get bed rest, and to come into the clinic on April 19. On April 19, she met with Dr. Ogata. Dr. Ogata told Shahan that she might be going into premature labor and told Shahan to rest. Shahan testified that she asked about the March 21 ultrasound and was told that “everything was okay.”

On April 28, Shahan called Sterling to report “the same complaints.” Sterling told Shahan she would have another ultrasound. Shahan asked Sterling why she was having another ultrasound and if there was a problem. Sterling told her that everything was fine and that she was scheduled for another ultrasound.

On May 6, Dr. Ogata ordered an ultrasound for Shahan. According to Shahan, she was told that someone would call and let her know the results of the ultrasound if there was a problem. The scheduled ultrasound was performed on May 9. The radiologist’s report regarding the ultrasound states that “there is evidence of microcephaly, which may be worsening since the previous study of [March 21]. There is also evidence of enlargement of the lateral ventricles, probably not significantly changed.” (Capitalization omitted.) The gestational age was estimated at 32.5 weeks, plus or minus 2.4 weeks. The report does not indicate that the radiologist called anyone at the clinic, Dr. Gubin, or Dr. Ogáta to inform them of the results.

Shahan did not appear for a scheduled appointment at the clinic the next day, May 10. Nor did she otherwise contact the clinic after the May 9 ultrasound.

On May 13, Shahan was .admitted to the labor and delivery department of the Hospital with premature rupture of membranes. A report by Dr. Ogata on that day makes no reference to any abnormalities or problems with the fetus. Two days later, Amanda was bom.

At the time of the birth, the physicians had not yet received the report of the May 9 ultrasound. A “delivery note” by Dr. Gubin dated the day of the birth does not mention any problem with Amanda.

Amanda was bom with brain abnormalities, including hydrocephalus ex-vacuole. These conditions could not have been prevented and could not have been treated or cured in útero. Prior to the birth, Shahan had not been informed of any problems with the fetus. She testified that she would have had an abortion if she had known that the fetus would be bóm with a “severe injury.”

Dr. Gubin testified that he believed that in 1994 it was illegal to perform or recommend an abortion of a viable fetus. Because he believed that abortion was illegal, as well as “immoral [and] unethical,” he would not have recommended an abortion to anyone with a viable fetus. He further testified that regardless of when an ultrasound was performed that showed microcephaly or an abnormality, if the fetus was viable, he would have treated the patient and fetus in the same way: “Let the fetus continue to develop[,] and deliver and hope that the [radiologist’s] findings were wrong . . . .”

At the time of trial, Amanda was eight years old. She is microcephalic, mentally retarded, and, according to a pediatric neurologist, “will always be a child under the age of one year.” She suffers from cerebral palsy involving both sides of her body, has diminished vision, and is unable to walk, crawl, talk, communicate, or control elimination. She cannot chew, and is fed a liquid diet and medicine through a bottle and a gastrostomy tube. She will be dependent upon others for her care for the rest of her life.

II. SUMMARY OF EXPERT TESTIMONY

Amanda presented the testimony of five experts. Roy Filly, M.D., testified that the March 21 ultrasound indicated that “there has been some form of maldevelopment of the central nervous system or potentially the spine, spinal cord.” Although the ultrasound report did not “absolutely” indicate a birth defect, there was an 80 percent chance of an “anomaly.” He opined that the fetus was not viable at this time. He would have scheduled followup ultrasounds at two-week intervals. The May 9 ultrasound indicated that the fetus was microcephalic, which usually results in “very profound mental retardation often associated with other things, blindness, deafness, spasticity, seizures.”

Merle Robboy, M.D., testified that he performs abortions up to, but not beyond, 30 weeks’ gestational age. He would have recommended or performed an abortion after the March 21 ultrasound if Shahan requested one. In his opinion, the applicable standard of care for the physicians required Shahan to be referred to a high-risk specialist or a perinatologist. He would have advised Shahan of the abnormalities indicated by the March 21 ultrasound and discussed the potential for an abortion.

Mary Dee Cutler, R.N., opined that Sterling’s conduct as Shahan’s case coordinator fell below the applicable standard of care in several respects, including her failure to inform Shahan of the potential defects apparent in the March 21 ultrasound, the failure to seek a referral to a specialist, the failure to ensure that a followup ultrasound was performed in a timely manner, and the failure to inform Shahan of her options. Cutler further opined that these failures and breaches of other duties owed to Shahan caused Amanda to be bom. She based this opinion on her belief that if the mother had “different information,” she “may have made different decisions, which would have changed whether or not the pregnancy would have been terminated or allowed to continue.”

Eugene Solimán, M.D., testified that the March 21 ultrasound shows an abnormal result indicating potential brain damage leading to mental retardation, blindness, or deafness. He opined that Dr. Gubin, Dr. Ogata, and Sterling acted below the applicable standards of care by, among other failures, failing to review the March 21 ultrasound report with Shahan, failure to ensure that a followup ultrasound was done on the next visit, and failing to inform Shahan of the results and potential risks disclosed by the March 21 ultrasound. Shahan, he stated, should have been referred to a specialist in March 1994 and told to go to a fetal diagnostic center.' She should also have been told that she was entitled to terminate the pregnancy if she desired. Dr. Solimán further opined that Sterling and the Hospital breached their respective standards of care by failing to inform Shahan of the May 9 ultrasound. These failures, he concluded, were a substantial factor in bringing about Amanda’s birth.

On cross-examination, Dr. Solimán was questioned about Sterling’s March 22 “size vs dates” note. Dr. Solimán agreed that if Sterling was told to obtain a repeat ultrasound for the purpose of resolving the size versus dates question, “there would be nothing that would raise her eyebrows that there is a distinct problem.” Nor was there anything in the medical records to show that the physician’s original diagnosis concerning the pregnancy had changed, and in that situation, it would be appropriate for the nurse to continue to treat the patient under the original diagnosis. He further stated that the March 21 ultrasound indicated a potential problem, not a definitive finding.

Arthur Shorr, a consultant to health care providers, opined that the Hospital failed to implement rules, policies, regulations, and processes concerning the CPSP.

Defendants presented the testimony of two experts. Janice Kidwell is a nurse with experience in establishing a CPSP at another hospital. Kidwell testified that the Hospital complied with all requirements for operating such a program.

Manuel Porto, M.D., distinguished the duties of the physicians who provided the medical services for CPSP patients and the nurse who oversaw the support services of the CPSP. He explained that the physicians, not the CPSP staff, are responsible for making diagnoses, managing the medical care of the patient, referring patients to other physicians, interpreting ultrasound reports, and determining whether another evaluation is needed. Sterling and other CPSP staff did not have the duty to interpret or discuss an ultrasound with the patient.

Dr. Porto testified that in 1994, viability of a fetus was-considered to occur at approximately 24 weeks. With respect to a physician’s treatment of a woman carrying a viable fetus during the third trimester of pregnancy, Dr. Porto stated that recommending or performing an abortion falls below the standard of care unless the pregnancy threatened the life of the mother or the fetus was certain to die. Specifically, the failure of a physician to give a patient the option of an abortion under such circumstances does not fall below the applicable standard of care. Instead of informing a patient of the option of terminating the pregnancy, the standard of care in that situation required the physician to inform the patient of problems and, depending on how serious the problems are, to formulate a plan for supportive care and management after the delivery.

According to Dr. Porto, as of the date of the March 21 ultrasound, the fetus was nearly one month past the age of viability. In his view, the March 21 ultrasound presented “an equivocal finding.” It raised the possibility of different abnormalities with a “strong chance that this baby would be bom completely normal and this problem would resolve itself.” There could not be a definitive diagnosis at that time. Giving Shahan the option of terminating the pregnancy at that time without a definitive diagnosis, Dr. Porto testified, would have been below the physician’s standard of care. Specifically, Dr. Gubin and Dr. Ogata each acted consistent with the standard of care in treating Shahan.

With respect to the May 9 ultrasound, Dr. Porto testified that the report showed evidence of microcephaly and a very strong possibility that the baby would be bom severely impaired. However, the report did not indicate that the fetus would suffer a “lethal birth.” Nor did the medical records indicate that Shahan had any physical or psychiatric condition that would support an abortion of a viable fetus. Dr. Porto testified that it did not matter that the May 9 ultrasound was performed seven weeks after the March 21 ultrasound, rather than between four and six weeks as the radiologist had recommended; at any time after the March 21 ultrasound, the fetus was at a viable gestational age.

On cross-examination, Dr. Porto testified that a third-trimester abortion was generally not available to Shahan in 1994. He knew of one location in California that performed third-trimester abortions, but did not know whether that center did so in 1994 or, if they did, whether Shahan would have been “a candidate for that place.”

III. PROCEDURAL HISTORY

In March 1998, Amanda, Shahan, and Ermoian filed the operative pleading in this case, a second amended complaint against the Hospital, Sterling, and Cribbs. The pleading alleged three .causes of action. The first .cause of action, titled “professional negligence/wrongful life,” is brought by Amanda, through Shahan as her guardian ad litem, and is asserted against each defendant. The second and third causes of action are for,breach of written contract and promissory estoppel; these are asserted by Amanda, Shahan, and Ermoian against the Hospital.

In July 1998, defendants filed a motion for summary judgment, or, alternatively, summary adjudication of each cause of action. In August 1998, Amanda, Shahan, and Ermoian filed a motion for an order that the truth of certain facts be deemed admitted on the ground that defendants failed to timely respond to a request for admissions. The court denied the motion to deem facts admitted, and granted the motion for summary adjudication as to the second and third causes, of action. Thereafter, the court entered a judgment of dismissal as to the claims of Shahan and Ermoian. Shahan and Ermoian did not appeal from the judgment against them. They are not parties to this appeal.

The case, proceeded to trial on the sole remaining claim for wrongful life. Prior to trial, the court ruled on certain motions in limine. Among these is a ruling, based upon Civil Code section 43.6, that Amanda was not required to produce evidence that Shahan “would have, if informed, at the time she should have been informed of the genetic defect, obtained an abortion.” However, to prove the element of causation, the court ruled that Amanda must introduce testimony that at the time Shahan should have been informed of the abnormalities in the fetus, an abortion was available to her as a choice. The court explained, “at that point in time, there had to be something to choose between, either not having an abortion or having an abortion, [f] And if at that point in time there was no place on the earth that you could obtain an abortion, then I don’t think you’ve met the elements of the particular cause of action. So I think it’s an element that you have to introduce testimony that at the time [Shahan] should have been informed, there was still a choice to be made as to whether she could or couldn’t have an abortion.” Amanda “would need to have a doctor testify that he has reviewed the medical records, reviewed the issues related to the mother, and at the time the mother should have been informed of the defect, or whatever it was that would have necessitated the choice, that he or she would have performed an abortion.”

With respect to proof of the availability of an abortion, the court addressed the legality of late-term abortions in California at the time of Shahan’s pregnancy. The court ruled that, in 1994, California law prohibited an abortion of a viable fetus unless it was necessary to protect the health or safety of the mother. Therefore, if the testifying physician is from California, the availability of an abortion would necessarily involve issues concerning the viability of the fetus and the health and safety of the mother. These issues, the court ruled, would be questions for the trier of fact. The court did not preclude Amanda from introducing the testimony of a physician who would have performed an abortion in another state or foreign country with less restrictive abortion regulations.

The case was tried by the court in 2003. During the trial, the court granted Cribbs’s motion for judgment and dismissed her from the action. Amanda does not challenge this ruling.

Following trial, the court found for defendants. The court issued a statement of decision stating: “[Amanda’s] medical condition did not result from negligent care or treatment of any defendant. . . . [f] Drs. Gubin and Ogata are not defendants in this case. Drs. Gubin and Ogata were independent contractors of the [H]ospital. Since they are not employees of the [H]ospital, the [H]ospital is not vicariously liable for their conduct under the theory of respondent superior. [][] Based upon the evidence presented at trial, an elective abortion is not recommended as a treatment alternative after the twentieth (20th) week of gestation (unless the health of the mother is at substantial risk). Failing to offer an abortion as a treatment alternative cannot fall below the standard of care if, as here, the evidence showed that the fetus was beyond the twenty (20) week gestation and the mother’s health was not at substantial risk. The evidence showed that the treating physician would not have recommended an elective abortion as an alternative following a second ultrasound, [f] Therefore, the court finds as follows: [][] [Amanda] did not meet her burden of proving her cause of action for wrongful life. The [H]ospital is not vicariously liable for actions of Drs. Ogata and Gubin. The [H]ospital and Nurse Sterling did not act negligently in failing to advise Ms. Sha[h]an. Nurse Sterling’s failure to schedule a follow-up ultrasound did not proximately cause any damages.”

IV. ANALYSIS

A., B.

C. Sufficiency of the Evidence Supporting the Judgment

A child can assert a cause of action for medical malpractice resulting in the child’s “wrongful life.” (Turpin v. Sortini (1982) 31 Cal.3d 220, 239 [182 Cal.Rptr. 337, 643 P.2d 954].) “The essence of the child’s claim is that the medical professional’s breach of the applicable standard of care resulted in that child being born to experience the pain and suffering attributable to his or her affliction.” (Hegyes v. Unjian Enterprises, Inc. (1991) 234 Cal.App.3d 1103, 1112 [286 Cal.Rptr. 85]; see also Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 877 [22 Cal.Rptr.2d 819] [“The gravamen of the action is that a child afflicted with a genetic defect ‘alleges that but for the defendant’s negligence he or she would not have been bom and thus would not have had to suffer the defect’ ”].)

Wrongful life is a form of a medical malpractice action. (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420 [107 Cal.Rptr.2d 50].) “ ‘As in ordinary medical malpractice cases, the plaintiffs in a wrongful life . . . case must establish the following basic elements: “(1) the duty of the professional to use such skill, pmdence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.” [Citations.]’ ” (Ibid.; see also Gami v. Mullikin Medical Center, supra, 18 Cal.App.4th at p. 877.)

The “resulting injury” in a wrongful life action is not the plaintiff’s disease or birth defects, but the birth of the plaintiff with the defect. (Curlender v. Bio-Science Laboratories (1980) 106 Cal.App.3d 811, 828-829 [165 Cal.Rptr. 477].) In essence, injury occurs when never being bom, or nonexistence, is preferable to existence in the plaintiff’s diseased state. (Turpin v. Sortini, supra, 31 Cal.3d at p. 232.) There is no dispute in this case as to whether Amanda has suffered such an injury for purposes of a wrongful life claim. The parties did dispute issues of duty, negligence, and causation.

The trial court found that Amanda failed to meet her burden of proof of establishing her cause of action for wrongful life. This conclusion is based, at least in part, upon the express findings that defendants are not employees of the Hospital and, therefore, not vicariously liable for the conduct of Drs. Gubin and Ogata; the Hospital and Sterling “did not act negligently” in failing to advise Shahan; and Sterling’s failure to schedule a followup ultrasound did not proximately cause any damages. The court’s statement of decision did not expressly address certain factual issues, including issues concerning alleged negligent noncompliance with statutory or regulatory duties, Sterling’s alleged negligence for failing to schedule an ultrasound for the March 29 visit, and (if the Hospital is vicariously liable for the conduct of the doctors) the physician’s negligence for failing to inform Shahan of problems with the fetus. Because of the absence of express findings on these issues, we must first consider whether we can infer findings favorable to the judgment on such issues under the doctrine of implied findings.

1. Application of the Doctrine of Implied Findings

Ordinarily, when the court’s statement of decision is ambiguous or omits material factual findings, a reviewing court is required to infer any factual findings necessary to support the judgment. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 [275 Cal.Rptr. 797, 800 P.2d 1227] (Arceneaux); SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 462 [17 Cal.Rptr.3d 96].) This rule “is. a natural and logical corollary to three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error.” (Fladeboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 58 [58 Cal.Rptr.3d 225] (Fladeboe).)

In order to avoid the application of this doctrine of implied findings, an appellant must take two steps. First, the appellant must request a statement of decision pursuant to Code of Civil Procedure section 632 (all further references are to the Code of Civil Procedure unless otherwise indicated); second, if the trial court issues a statement of decision, “a party claiming omissions or ambiguities in the factual findings must bring the omissions or ambiguities to the trial court’s attention” pursuant to section 634. (Fladeboe, supra, 150 Cal.App.4th at pp. 59-60.)

Section 634 provides: “When a statement of decision does not resolve a controverted issue, or if the statement is ambiguous and the record shows that the omission or ambiguity was brought to the attention of the trial court either prior to entry of judgment or in conjunction with a motion under Section 657 or 663, it shall not be inferred on appeal or upon a motion under Section 657 or 663 that the trial court decided in favor of the prevailing party as to those facts or on that issue.” Amanda did not file a motion for new trial under section 657 or a motion to set aside the judgment under section 663. Therefore, Amanda’s compliance with section 634 depends upon whether she brought the alleged deficiencies in the statement of decision “to the attention of the trial court . . . prior to entry of judgment.” Section 634 “does not specify the particular means that the party may use to direct the court’s attention to the claimed defects in the statement.” (Arceneaux, supra, 51 Cal.3d at p. 1134.)

The parties’ briefs do not address the issue of whether Amanda brought any omissions or ambiguities to the attention of the court for purposes of the doctrine of implied findings. We therefore requested supplemental briefing from the parties to address this issue.

(a) Relevant Procedural History

Following trial, the court issued a minute order stating its “verdict” in favor of defendants and against Amanda, Shahan, and Ermoian. Amanda thereafter filed a request for statement of decision pursuant to section 632, setting forth 92 paragraphs of purported controverted issues. The court then ordered the defendants “to prepare a tentative statement of decision.” Defendants did so, submitting a “[PROPOSED] STATEMENT OF DECISION.” This seven-page document includes discussion of the law and evidence (or lack of evidence) under the following headings: “THE HOSPITAL IS NOT VICARIOUSLY LIABLE FOR ACTIONS OF DRS. OGATA OR GUBIN”; “THE HOSPITAL AND NURSE STERLING DID NOT ACT NEGLIGENTLY IN FAILING TO ADVISE MS. SHAHAN”; “AN ABORTION WAS NOT AN OPTION AVAILABLE TO PLAINTIFF’S MOTHER”; and “NURSE STERLING’S FAILURE TO SCHEDULE A FOLLOW-UP ULTRASOUND DID NOT PROXIMATELY CAUSE ANY DAMAGES.”

The day after defendants’ proposed statement of decision was submitted, Amanda filed a document titled, “PLAINTIFF’S PROPOSAL FOR STATEMENT OF DECISION AND OBJECTION TO DEFENDANTS’ PROPOSED STATEMENT OF DECISION.” We will refer to this document as the “Proposal and Objection.” The text of this document is discussed below.

Thereafter, the court filed its statement of decision, the text of which is set forth at page 492, ante.

Following the issuance of the statement of decision, but prior to the entry of judgment, Amanda filed a notice of appeal. Amanda subsequently filed a notice designating the reporter’s transcript on appeal and designation of issues pursuant to rule 4 of the California Rules of Court We will refer to this document as the “Rule 4 Notice.”

Because the notice of appeal was filed before the entry of judgment, we dismissed Amanda’s appeal as premature, without prejudice to reinstating the appeal upon proof of entry of judgment. Following the entry of judgment, we granted Amanda’s motion to vacate the order of dismissal and reinstate the appeal.

(b) Analysis

In her supplemental brief, Amanda contends that she brought the deficiencies in the statement of decision to the attention of the court when she filed (1) the Rule 4 Notice and (2) her Proposal and Objection.

The Rule 4 Notice sets forth a procedure for the preparation of the reporter’s transcript on appeal. Under this rule, the appellant must, within 10 days after a notice of appeal, file either a notice designating a reporter’s transcript or a notice of intent to proceed without a reporter’s transcript (unless proceeding by an agreed statement or settled statement). (Rule 4(a)(1).) The court clerk is responsible for sending the notice to the reviewing court and the court reporter. (Rule 4(d).) Of particular relevance here is rule 4(a)(5), which requires an appellant who designates a transcript of less than all of the oral proceedings to “state the points to be raised on appeal.”

Amanda’s Rule 4 Notice was filed after she filed her notice of appeal. It is expressly directed only to the parties, their attorneys, and the clerk of the superior court. Pursuant to rule 4, the document designates certain oral proceedings to be transcribed for the appeal and certain points to be raised on appeal.

Ordinarily, it would be frivolous to assert that a notice filed pursuant to rule 4 could bring deficiencies in a statement of decision to the attention of the trial court for purposes of section 634. Section 634 requires that any deficiencies be brought to the attention of the trial court “prior to entry of judgment.” Because the designation of the reporter’s transcript must be filed after the filing of the notice of appeal, which itself must generally be filed after the entry of judgment, a notice under rule 4 could not properly be filed before the entry of judgment. It could not, therefore, bring any deficiency to the attention of the trial court prior to the entry of judgment.

Here, Amanda improperly filed her notice of appeal and Rule 4 Notice prior to the entry of judgment. This apparently fortuitous mistake on her part does not help her. Despite being filed before the entry of judgment, Amanda’s Rule 4 Notice cannot be viewed as effectively bringing any deficiencies in the statement of decision to the attention of the court. The purposes of a notice filed pursuant to rule 4 are to inform the court reporter which portions of the oral proceedings to transcribe, to limit the scope of appellate review to the issues specified, and to enable the respondent on appeal to determine whether to request that additional portions of the oral proceedings be transcribed. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) ff 4:80 to 4:80.1, p. 4-19 (rev. # 1, 2006).) There is nothing in the rule that suggests that the trial judge would ever see such a notice, let alone be expected to take any action based upon it. Nor does Amanda request any relief or action from the trial court in the document; she merely designates oral proceedings to be transcribed and points to be raised on appeal. Although the document is filed with the superior court, this is so the court clerk can direct the document to the reporter and send a copy to the reviewing court. (Rule 4(d).) Regardless of its content, therefore, Amanda’s Rule 4 Notice could not have brought to the attention of the trial court any deficiencies in the statement of decision.

Other than the Rule 4 Notice, Amanda filed nothing after the court issued its statement of decision that would arguably bring any omissions or ambiguities in that document to the court’s attention. Amanda contends, however, that her Proposal and Objections, filed in response to defendants’ proposed statement of decision, satisfied the requirements of section 634 or rendered any objection to the final statement futile. Even if we assume that objections to a proposed statement of decision may satisfy section 634 or render objections to a final statement of decision futile, we hold that Amanda’s Proposal and Objection did not effectively bring the deficiencies in the proposed statement of decision to the attention of the trial court.

To bring defects in a statement of decision to the trial court’s attention within the meaning of section 634, objections to a statement of decision must be “specific.” (Golden Eagle Ins. Co. v. Foremost Ins. Co., supra, 20 Cal.App.4th at p. 1380.) The alleged omission or ambiguity must be identified with sufficient particularity to allow the trial court to correct the defect. (See Arceneaux, supra, 51 Cal.3d at p. 1138.) “By filing specific objections to the court’s statement of decision a party pinpoints alleged deficiencies in the statement and allows the court to focus on the facts or issues the party contends were not resolved or whose resolution is ambiguous.” (Golden Eagle Ins. Co. v. Foremost Ins. Co., supra, at p. 1380.)

Amanda’s Proposal and Objection consists of two paragraphs. The first paragraph states: “Plaintiff objects to the proposed Statement of Decision filed herein by Defendants, on the grounds that: a) the proposed Statement does not comply with . . . Section 632; b) the proposed Statement does not provide the Court’s ‘explanation’ for its decision as to each controverted issue which was specified by Plaintiff in Plaintiff’s Request for Statement of Decision filed herein, c) the Proposed Statement is factually and legally incorrect and inaccurate; d) the proposed Statement fails to accurately identify the matters that were actually proved at Trial; [e]) the proposed Statement does not accurately specify the applicable law in this case; [f]) the proposed Statement is not supported by the facts and evidence proved at Trial.”

These objections express a generalized disagreement with the whole of the proposed statement of decision. They fall far short of the kind of specific objections required to pinpoint alleged deficiencies in the statement of decision. They do not focus the court on any particular omission or ambiguity in the statement and provide the court with no meaningful guidance as to how to correct any particular defect.

The second paragraph of the Proposal and Objection states: “Pursuant to . . . Section 632, Plaintiff respectfully proposes that this Court reject Defendants’ proposed Statement of Decision in its entirety,' and that the Court issue its own Statement of Decision that is drafted entirely by the Court, with respect to this Court’s Minute Order of March 26, 2004, granting a Verdict for Defendants, Desert Hospital and Maria Sterling and against Plaintiff. Plaintiff respectfully proposes that the Court’s Statement of Decision be drafted entirely by the Court, and that the Court’s Statement specifically ‘explain’ the ‘factual and legal basis for its decision as to each of the principal controverted issues at Trial’, as specified in detail by Plaintiff in Plaintiff’s Request for Statement of Decision filed herein. Since Plaintiff’s substantial rights are involved in this case, and Plaintiff will appeal this Court’s Judgment in favor of Defendants, due process, fundamental fairness, and . . . Section 632 requires the Court to provide the Plaintiff with its own ‘explanation’ of the factual and legal basis for its decision, as to each controverted issue in this action, in full compliance with . . . Section 632.”

In this paragraph Amanda requests, in essence, that the court reject defendants’ proposed statement of decision in its entirety and draft its own statement of decision explaining the factual and legal basis for its decision as to each of the issues specified in Amanda’s prior requests. Significantly, this request is based upon section 632 and makes no reference to section 634. Section 632 permits a party to request a statement of decision. A request made pursuant to this section is merely the first step in the two-step process necessary to avoid the doctrine of implied findings. {Arceneaux, supra, 51 Cal.3d at p. 1134; Fladeboe, supra, 150 Cal.App.4th at pp. 59-60.) By requesting that the court prepare a statement of decision that explains each of her previously identified “controverted issues,” Amanda is simply reiterating her initial request for a statement of decision. Taking the first step in the process a second time does not mean that you have completed the second step.

Read in its entirety, Amanda’s Proposal and Objection asserts general, nonspecific objections to defendants’ proposed statement of decision to support her request that the court prepare its own statement of decision. The overly broad objections and the request to, in effect, start over, do not comply with section 634. The document does not “pinpoint” any alleged omissions or ambiguities and does nothing to focus the court on the facts and issues necessary to correct any such deficiencies.

Even if we construe the Proposal and Objection as an assertion that the 92 paragraphs of issues in Amanda’s initial request for statement of decision are omissions or ambiguities in the statement of decision, the Proposal and Objection is still ineffective. While it is clear that Amanda was displeased with the proposed statement of decision, the incorporation of the previously asserted 92 paragraphs of issues into the Proposal and Objection did not focus the court on any particular omissions or ambiguities in the proposed statement of decision; it merely reasserts, in a scattershot fashion, the same alleged issues. If the court was required to address each of the issues set forth in the 92 paragraphs, Amanda’s reassertion of the same issues could be viewed as effectively pointing out that the requirement was not met. However, a trial court is not required to respond point by point to issues posed in a request for a statement of decision. “ ‘The court’s statement of decision is sufficient if it fairly discloses the court’s determination as to the ultimate facts and material issues in the case.’ (Golden Eagle Ins. Co. v. Foremost Ins. Co. [, supra,] 20 Cal.App.4th [at p.] 1380: . . ; see also Bauer v. Bauer (1996) 46 Cal.App.4th 1106, 1118 [54 Cal.Rptr.2d 377] [trial court ‘is not required to make an express finding of fact on every factual matter controverted at trial, where the statement of decision sufficiently disposes of all the basic issues in the case’]; In re Marriage of Garrity & Bishton (1986) 181 Cal.App.3d 675, 686-687 [226 Cal.Rptr. 485] [trial court’s statement of decision is required only to state ultimate rather than evidentiary facts].)” (In re Marriage of Burkle (2006) 139 Cal.App.4th 712, 736-737, fn. 15 [43 Cal.Rptr.3d 181].) Thus, the proposed statement of decision is not necessarily deficient merely because it does not address each of the issues identified in Amanda’s 92 paragraphs.

Here (in addition to the causation and damages issues), the ultimate issues were (1) whether Sterling or Hospital staff owed a duty to inform and advise Shahan of the ultrasound results and the abnormalities in the fetus or refer her to a specialist, and if so, whether they breached such, duties; (2) whether Sterling or Hospital staff breached any duty to schedule ultrasounds; (3) whether the physicians owed a duty to Shahan to diagnose the fetus’s abnormal condition, inform Shahan of such condition, and advise Shahan of treatment options, including abortion, or refer Shahan to another treating physician, and, if so, whether they breached such duties; and (4) whether the Hospital was vicariously liable for any negligence of the physicians, based on either actual or ostensible agency. To the extent the statement of decision was deficient in failing to address any of these issues, Amanda’s redundant request to address 92 paragraphs of purported issues simply failed to focus the court’s attention on any such deficiencies. Instead it amounted to a laundry list of alleged issues, most of which were subsumed in the proposed statement of decision.

Because neither the Rule 4 Notice nor the Proposal and Objection effectively brought to the attention of the trial court any omissions or ambiguities in the final or proposed statements of decision, we will apply the doctrirte of implied findings.

2. Standard of Review

Amanda argues that we must review the court’s findings concerning negligence and causation de novo. We reject this contention. In both jury and nonjury trials, factual findings made by the trier of fact are generally reviewed for substantial evidence. (Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1489 [21 Cal.Rptr.3d 36]; Alderson v. Alderson (1986) 180 Cal.App.3d 450, 465 [225 Cal.Rptr. 610].) Factual issues may be reviewed de novo when the facts are uncontroverted and only one deduction or inference may reasonably be drawn. {Fagerquist v. Western Sun Aviation, Inc. (1987) 191 Cal.App.3d 709, 719 [236 Cal.Rptr. 633].) Here, however, essential facts were controverted or permitted conflicting inferences. Sterling’s March 22 note to “repeat ultrasound next visit,” for example, is viewed by Amanda as an order by Dr. Ogata to Sterling to obtain an ultrasound, which Sterling then negligently failed to perform; Sterling, however, explained that the note reflects a recommendation, and that the treating physician on March 29 did not require, and did not order, the ultrasound in light of the information about the gestational age available to the physician at that time. There were also widely conflicting views among the opposing expert witnesses as to the nature and scope of the applicable standards of care and whether the standards were breached. Accordingly, de novo review of the court’s findings is inappropriate in this case.

Under the substantial evidence standard of review, our review begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the trial court’s factual determinations. {Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874 [197 Cal.Rptr. 925]; Piedra v. Dugan, supra, 123 Cal.App.4th at p. 1489.) Substantial evidence is evidence of ponderable legal significance, reasonable in nature, credible, and of solid value. {Bowers v. Bernards, supra, at p. 873.) The substantial evidence standard of review applies to both express and implied findings of fact made by the court in its statement of decision. {SFPP v. Burlington Northern & Santa Fe Ry. Co., supra, 121 Cal.App.4th at p. 462.)

3. Vicarious Liability of the Hospital for Negligence by Dr. Gubin or Dr. Ogata

The Hospital, as an entity that is not a natural person, cannot practice medicine. (Bus. & Prof. Code, §§ 2032, 2022; Lathrop v. Healthcare Partners Medical Group (2004) 114 Cal.App.4th 1412, 1420 [8 Cal.Rptr.3d 668].) Its liability for medical malpractice (including malpractice resulting in a plaintiff’s wrongful life), therefore, must be based upon a theory of vicarious liability. {Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 166 [41 Cal.Rptr. 577, 397 P.2d 161] {Quintal).) Amanda contends, as she did below, that she established such liability because Drs. Gubin and Ogata were the actual or ostensible agents of the Hospital as a matter of law. The trial court disagreed, expressly finding that the Hospital was not vicariously liable for the actions of the physicians.

Whether a physician is an agent of a hospital for purposes of vicarious liability is a question of fact. (Stanhope v. L. A. Coll. of Chiropractic (1942) 54 Cal.App.2d 141, 146 [128 P.2d 705] (Stanhope); Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1457 [122 Cal.Rptr.2d 233] (Mejia).) As explained above, we review the trial court’s finding on this issue under the substantial evidence standard.

Agency may be either actual or ostensible. (Civ. Code, § 2298; Vallely Investments v. BancAmerica Commercial Corp. (2001) 88 Cal.App.4th 816, 826 [106 Cal.Rptr.2d 689].) Actual agency exists “when the agent is really employed by the principal.” (Civ. Code, § 2299.) Here, there was evidence that the physicians were not employees of the Hospital, but were physicians with a private practice who contracted with the Hospital to perform obstetric services at the clinic. The written contract between the Hospital and Dr. Gubin’s corporation (which employed Dr. Ogata) describes Dr. Gubin and his corporation as “independent contractors With, and not as employees of, [the] Hospital.” Sterling testified that Drs. Gubin and Ogata, not the Hospital, provided the obstetric services to the clinic’s patients. Donna McCloudy, a director of nursing at the Hospital, testified that while the Hospital provided some aspects of the CPSP services, “independent physicians came in and provided the obstetrical care . . . .” Based upon such evidence, the court reasonably concluded that the physicians were not the employees or actual agents of the Hospital for purposes of vicarious liability.

Ostensible agency on the other hand, “ ‘may be implied from the facts of' a particular case, and if a principal by his acts has led others to believe that he has conferred authority upon an agent, he cannot be heard to assert, as against third parties who have relied thereon in good faith, that he did not intend to confer such power ....’” (Tomerlin v. Canadian Indemnity Co. (1964) 61 Cal.2d 638, 644 [39 Cal.Rptr. 731, 394 P.2d 571].) “The doctrine establishing the principles of liability for the acts of an ostensible agent rests on the doctrine of estoppel [citation]. The essential elements are representations by the principal, justifiable reliance thereon by a third party, and change of position or injury resulting from such reliance [citation]. Before recovery can be had against the principal for the acts of an ostensible agent, the person dealing with an agent must do so with belief in the agent’s authority and this belief must be a reasonable one. Such belief must be generated by some act or neglect by the principal sought to be charged and the person relying on the agent’s apparent authority must not be guilty of neglect [citation].” (Hartong v. Partake, Inc. (1968) 266 Cal.App.2d 942, 960 [72 Cal.Rptr. 722].)

“ ‘An agent’s authority may be proved.by circumstantial evidence.’ ” (Tomerlin v. Canadian Indemnity Co., supra, 61 Cal.2d at p. 644.) The burden of proving ostensible agency is upon the party asserting that relationship. (Oswald Machine & Equipment, Inc. v. Yip (1992) 10 Cal.App.4th 1238, 1247 [13 Cal.Rptr.2d 193]; Aspen Pictures, Inc. v. Oceanic S. S. Co. (1957) 148 Cal.App.2d 238, 253 [306 P.2d 933]; Hill v. Citizens Nat. Trust & Sav. Bk. (1937) 9 Cal.2d 172, 177 [69 P.2d 853].) Relative to the relationship between a hospital and doctor, the elements of ostensible agency were first addressed in California in Stanhope, supra, 54 Cal.App.2d 141. There, the plaintiff sustained a broken back while moving a water heater at home. A friend transported him to the Los Angeles College of Chiropractic. (Id. at pp. 142-143.) The plaintiff had had no prior contact with the institution. An examining doctor referred the plaintiff for X-rays. The X-ray laboratory was located on the ground floor of the building that the college occupied. Dr. Joyant interpreted the X-rays as normal. Approximately one week later, further X-rays taken at the General Hospital were interpreted as showing a compression fracture of the 12th dorsal vertebra. In the ensuing malpractice action against the college, plaintiff contended that Dr. Joyant, the doctor interpreting the X-rays, was an employee or agent of the college. Evidence indicated that while the X-ray lab was on the first floor of the building occupied by the college, it was in fact separate from the college. Dr. Joyant owned the laboratory and all of the equipment therein. The laboratory’s name was Los Angeles X-Ray Laboratory. This name appeared on the front window of the lab in conjunction with Dr. Joyant’s name. The college and the doctor had a relationship where, in exchange for the doctor paying no rent or janitorial costs, he would teach at the college and do work on the college’s patients. (Id. at pp. 144-145.) He would however, charge and collect the fees for individuals he treated, whether referred by the college or not. He did not share any of his fees with the college. The agreement between Dr. Joyant and the college was oral. The plaintiff testified that he was carried into the X-ray lab after his initial examination. Upon leaving, Dr. Joyant told him the charge would be $15, but given the connection between the plaintiff’s friend and the college, the bill would be cut in two with the plaintiff owing $7.50. The plaintiff testified that he did not know who to pay. (Id. at p. 146.)

In finding this evidence sufficient to support the jury’s implied finding of ostensible agency, the court stated that, “ ‘before a recovery can be had against a principal for the alleged acts of an ostensible agent, three things must be proved, to-wit:’ [citation] ‘[First] [t]he person dealing with the agent must do so with belief in the agent’s authority and this belief must be a reasonable one; [second] such belief must be generated by some act or neglect of the principal sought to be charged; [third] and the third person in relying on the agent’s apparent authority must not be guilty of negligence. [Citations.]’ [f] An examination of the evidence hereinbefore referred to . . . met the requirements enumerated .... [T]he record reveals [defendant] did nothing to put [plaintiff] on notice that the X-ray laboratory was not an integral part of [defendant] institution, and it cannot seriously be contended that [plaintiff], when he was being carried from room to room suffering excruciating pain, should have inquired whether the individual doctors who examined him were employees of the college or were independent contractors. . . . The evidence produced on this issue is sufficient to support the jury’s implied finding that Dr. Joyant was the ostensible agent of [defendant] college.” (Stanhope, supra, 54 Cal.App.2d at p. 146.)

Stanhope was subsequently relied on by the court in Seneris v. Haas (1955) 45 Cal.2d 811 [291 P.2d 915] (Seneris). There, plaintiff was admitted to the hospital as a “routine obstetrical case.” (Id. at pp. 815-816.) Following her awakening after childbirth she complained that she could not move her lower extremities and had pain in numerous locations. Plaintiff subsequently sued her obstetrician, the anesthesiologist, and the hospital. Relative to the anesthesiologist, she contended that the hospital was responsible for his negligence under respondeat superior. In reversing the trial court’s grant of nonsuit, the court quoted from Stanhope relative to the elements of ostensible agency. (Seneris, supra, at p. 831.) The court then explained: “Plaintiffs . . . showed that defendant West was one of six anesthetists on defendant hospital’s panel, or staff; that he gave anesthetics for no other hospital; that all drugs and equipment used by him were supplied by said hospital; that he had regular ‘on call’ duty at said hospital; that a hospital nurse summoned him to give the anesthetic in question. It appears that this evidence is sufficient to establish, prima facie, that defendant West was an agent of defendant hospital. There is nothing in the record to show that plaintiffs should have been on notice that defendant West was not an employee of defendant hospital and it can not be ‘seriously contended’ that she was obliged to inquire whether each person who attended her in said hospital was an employee or an independent contractor. It follows that the trial court erred in taking the issue of agency from the jury.” (Id. at p. 832.)

Later, in Quintal, supra, 62 Cal.2d 154, the court again dealt with the relationship of an independent contractor anesthesiologist and a hospital. “The hospital . . . furnished the nurses who attended [plaintiff], and the operating room nurses. It also furnished all equipment used by the anesthesiologist, including the anesthetic, [f] When the mother of [plaintiff] brought him to the hospital . . . she was required by the hospital officials to sign an ‘Authority to Operate,’ authorizing the physician in charge of [plaintiff] ‘to administer such treatment and the surgeon to have administered such anesthetics as found necessary and to perform the’ eye operation. This document was not only secured by hospital employees, but was witnessed by two employees of the hospital. [|] This evidence presented a question of fact to the jury.” (Id. at p. 167.)

While both Seneris and Quintal deal with the issue of ostensible agency at a different procedural stage than Stanhope, there is nonetheless consistency as to requirements for finding ostensible agency within the medical context: (1) the service of the physician is performed on what appears to be the hospital’s premises; (2) a reasonable person in the plaintiff’s position would believe that the physician’s services are part and parcel of services provided by a hospital; and (3) the hospital does nothing to dispel