Agnew v. Parks

Decision Date10 August 1959
CourtCalifornia Court of Appeals Court of Appeals
PartiesFrances AGNEW, Plaintiff and Appellant, v. Floyd Roswell PARKS, Edwin Larson, John C. Wilson, Paul E. McMaster, Harold B. Pool, Lutheran Hospital Society of Southern California, Adeline Jones and Los Angeles County Medical Association, Defendants and Respondents. Civ. 22828.

Montgomery G. Rice and Earle K. Stanton, Los Angeles, for appellant.

Richard L. Kirtland and Frederick O. Field, Los Angeles, for respondent Los Angeles County Medical Ass'n Harold B. Pool, Los Angeles, for respondents Edwin Larson and Harold B. pool.

J. Rolf DeWied and Jorz & Sawtelle, Los Angeles, for respondent Floyd Parks.

Hill, Farrer & Burrill, Anson B. Jackson, Jr., and Elliott H. Pentz, Los Angeles, for respondents Lutheran Hospital Society of Southern Cal. and Adeline Jones.

Schell, Delamer & Loring, Los Angeles, for respondent Paul E. McMaster.

LILLIE, Justice.

This is an appeal from a judgment entered on an order granting motions for nonsuit in an action based on a Fifth Amended Complaint entitled 'For Damages for Conspiracy to Obstruct the Orderly Prosecution of a Civil Action and for Concerted Refusal to Deal.' Suit was filed November 15, 1951, as the result of a series of trials which arose out of a malpractice action brought by plaintiff against Dr. Edwin Larson on July 10, 1945, based upon his failure to take X-rays for injuries to her hip sustained by a fall on March 3, 1943. The first trial, on July 10, 1946, resulted in a judgment of nonsuit reversed on appeal (Agnew v. City of Los Angeles, 82 Cal.App.2d 616, 186 P.2d 450); the second, in a judgment for defendant also reversed (97 Cal.App.2d 557, 218 P.2d 66); and the third, pending when the instant action was instituted, in a $37,883.91 judgment affirmed (134 Cal.App.2d 433, 286 P.2d 556) and now final. The appeal as to John C. Wilson, now deceased, has heretofore been dismissed. Agnew v. Parks, 164 Cal.App.2d 837, 331 P.2d 184.

The complaint contained two causes of action--demurrers to the first were sustained without leave to amend; to the second, demurrers were overruled, and the cause proceeded to trial before a jury resulting in the within judgment of nonsuit.

Appellant contends that the trial court erred in sustaining, without leave to amend, demurrers to the first cause of action; and in granting motions for nonsuit on the second. Arising out of the latter is respondents' claim that the allegations in the complaint do not constitute a cause of action. As to the sufficiency of the pleading, plaintiff has offered for the aid of this court no substantial argument or citation of authority.

The first assignment of error is without merit; not only does the first cause of action not sufficiently allege a good cause but, for the most part, is barred by the statute of limitations. Very briefly, the pleading charged a conspiracy alleging that plaintiff sought, for a consideration, to get certain doctors to testify as expert medical witnesses on her behalf in a malpractice case, but was unsuccessful due to threats of the Los Angeles County Medical Association to expel them from membership and cause a cancellation of their public liability insurance if they did so; and that defendants submitted Dr. Larson's defense in plaintiff's case to a 'malpractice committee' of the Association on which it rendered an opinion declaring him free from negligence, and published it to each member of the Association; and further alleged that defendants conspired to obstruct the orderly prosecution of plaintiff's malpractice action and cause a concerted refusal to deal, by threatening members of the Association to prevent them from testifying, concealing 18 X-rays of her injuries, and causing the Superior Court on July 14, 1946, upon recommendation of the Association, to appoint Dr. Parks as a 'distinguished and unprejudiced' witness to examine plaintiff and testify; that such 'recommendation' was in accord with a plan to recommend a doctor favorable to Larson, represent him as being impartial and then have him testify for the defendant; and that after Parks was appointed by the court he appeared at the first trial as an alleged disinterested witness for plaintiff, testifying unfavorably to plaintiff's case.

Basically this cause is predicated upon a conspiracy to obstruct the orderly prosecution of a civil action, to refuse to deal, and to defraud. The long-established rule that a conspiracy, in and of itself, however atrocious, does not give rise to a cause of action unless a civil wrong has been committed resulting in damage (Herron v. Hughes, 25 Cal. 555) requires a determination of whether the pleaded facts show something was done which, without the conspiracy, would give rise to a right of action (Orloff v. Metropolitan Trust Co., 17 Cal.2d 484, 110 P.2d 396; Mox, Incorporated v. Woods, 202 Cal. 675, 262 P. 302; Schaefer v. Berinstein, 140 Cal.App.2d 278, 295 P.2d 113; Perry v. Meikle, 102 Cal.App.2d 602, 228 P.2d 17). The only purpose of the pleader in employing a conspiracy is to link together and make equally liable with him who carries out the scheme one who has agreed to a common design to commit a wrong (Mox, Incorporated v. Woods, 202 Cal. 675, 262 P. 302). To be actionable therefore, the alleged combination must result in the commission of a civil wrong, either by the perpetration of an unlawful act or some injurious act by unlawful means, resulting in damage (McIntire v. Chevrolet Motor Co., 115 Cal.App. 187, 1 P.2d 40; Lynch v. Rheinschild, 86 Cal.App.2d 672, 195 P.2d 448; Rose v. Ames, 53 Cal.App.2d 583, 128 P.2d 65; Sweeley v. Gordon, 47 Cal.App.2d 385, 118 P.2d 16, 842; Peterson v. Corporation of America, 21 Cal.App.2d 527, 69 P.2d 904).

Appellant's real complaint stems from her alleged unsuccessful attempt to secure the expert testimony of nine doctors who refused to testify for her in a malpractice action against Dr. Larson because the Los Angeles County Medical Association assertedly threatened to expel them from membership and report them to their insurance carriers to cause cancellation of their insurance policies if they did so. Although a determination of the issues before us depends upon whether, under the facts alleged, defendants have committed a civil wrong, and the ethical considerations so pertinaciously advanced by appellant have little place in our resolve of a purely legal problem, however, because of the nature and extent of her argument we are impelled to comment briefly on her scathing condimnation of what she asserts to be a common design among respectable medical practitioners to intimidate members of their own profession to prevent them from testifying against each other and rendering services as experts for plaintiffs in malpractice actions regardless of merit, "largely due to the pressure exerted by medical societies and public liability insurance companies which issue policies of liability insurance to physicians covering malpractice claims" (Minority opinion of the late Mr. Justice Carter, Huffman v. Lindquist, 37 Cal.2d 465, 484, 234 P.2d 34, 46, 29 A.L.R.2d 485; A.O.B. p. 8).

Quite apart from this language and the allegations of plaintiff's complaint, the truth of which we are bound at this point to assume (Clark v. Lesher, 106 Cal.App.2d 403, 235 P.2d 71), one cannot long be acquainted with our courts without recognizing the existence of just such a serious ethical problem growing out of the surging tide of malpractice litigation which, if not resolved, may well threaten not only the fair administration of justice but irreparable harm to the medical profession which can only result in a frustration of public confidence in, and an impugnation of the integrity of, one of the world's most honorable professions. We are acutely aware of the problems arising out of the steadily increasing volume of negligence actions plaguing doctors and that they, more than the members of any other profession because of the serious personal nature of their services, are subject to attack by many unfounded claims of malpractice; but it cannot be denied even by the profession itself that there are also many claims of substantial merit. In recognition thereof our trial courts have encouraged local medical societies to cooperate in the formation of a panel of impartial qualified medical doctors from which they may with confidence appoint experts to examine claimants involved in negligence actions against doctors and give their unbiased opinion, which endeavor has recently been adopted by our State Legislature authorizing the new so-called Impartial Medical Testimony Plan. Perhaps the medical profession having previously tried to cope with the problem of malpractice litigation in a variety of ways with obviously not too much success, will find that its faithful cooperation with the trial courts in this regard will result in the destruction of the ill-reputed 'conspiracy of silence' (A.O.B. p. 10) said to pervade malpractice litigation, and prevent further serious attacks on the dignity and integrity of this fine profession, and the competent and proficient men and women who comprise it.

Absent a showing in her complaint that any doctor had previously been retained by plaintiff to examine or treat her, we are faced with the question whether a doctor, who has no relationship with a person growing out of contract to examine or treat, has a duty to enter into an agreement to render services as a medical expert merely upon request. We hold that he does not. Even the Hippocratic Oath, by which every doctor is morally bound, assumes a pre-existing relationship of patient and physician, which relationship in its inception is basically contractual and wholly voluntary, created by agreement, express or implied, and which by its terms may be general or limited (McNamara v....

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