Bernstein v. Alameda-Contra Costa Medical Ass'n

Decision Date16 February 1956
Docket NumberNo. 16483,ALAMEDA-CONTRA,16483
Citation139 Cal.App.2d 241,293 P.2d 862
CourtCalifornia Court of Appeals Court of Appeals
PartiesSamuel L. BERNSTEIN, M.D., Petitioner and Appellant, v.COSTA MEDICAL ASSOCIATION, an unincorporated association, Respondent.

Tobriner, Lazarus, Brundage & Neyhart, San Francisco, for appellant.

Peart, Baraty & Hassard, Alan L. Bonnington, San Francisco, for respondent.

FRED B. WOOD, Justice.

Samuel L. Bernstein, M.D., was expelled from the Alameda-Contra Costa Medical Association upon a finding by the association's council that he was guilty of seven charges of violation of the Principles of Medical Ethics of the American Medical Association. 1

Upon appeal to the council of the California Medical Association, he was absolved of one of the charges but the decision of the local council was affirmed in all other respects. Upon appeal to the Judicial Council of the American Medical Association the action of the state council was affirmed.

He then brought this action seeking a writ of mandate to restore him to membership and monetary damages for injuries allegedly sustained. The trial court found the evidence sufficient as to three of the remaining charges (insufficient as to the other three) and that Bernstein is entitled to no relief. He was appealed. The association has not.

We will consider the three remaining charges, designated by the parties as the Hill, the Muir, and the Enea cases.

The Hill Case.

The charge was that Dr. Bernstein had violated section 4 2 of Article IV of Chapter III of the Principles of Medical Ethics in that on July 23, 1949, he 'rendered a report concerning one George Hill, then deceased. Said report concerning George Hill was addressed 'To Whom It May Concern', and contained several statements of criticism by Dr. Bernstein of a pathological report previously made by Dr. J. M. Ellis. Specifically, Dr. Bernstein described Dr. Ellis as a pathologist 'who is not a certified pathologist, and who has rendered a very inexpert report' on the case. He again referred to Dr. Ellis as a 'rather inept and inexpert individual'. He further stated that ' a more experienced pathologist would have examined the heart a littled more thoroughly'. Further on in the report he stated 'Here, again, I must comment about the inexpertness of the pathologist', referring again to Dr. Ellis.'

It was stipulated that on October 5, 1948, Dr. Ellis performed an autopsy upon the body of George Hill and rendered to the coroner a pathological report to the effect that Hill probably died of natural causes, although recognizing the possibility of industrial injury as the cause, and later submitted the report to Hill's employer at the latter's request in regard to an industrial accident hearing concerning the death of Hill; and that on July 23, 1949, Dr. Bernstein, in response to a request by the attorney for Hill's widow, who was the applicant in the industrial accident proceeding, prepared a pathological report and delivered it to the widow's attorney, who thereupon turned it in to the Industrial Accident Commission. Both reports were introduced in evidence before the local medical council.

The Bernstein report was based upon a study of various papers, including 'the copy of the inquest, the report of Dr. T. A. Miller, radiologist of St. Francis Hospital, the X-ray report issued by him, the report by Dr. Carl B. Eichorn, St. Francis Hospital, and report of the nurse on duty at the Columbia Steel Mill Hospital who first attended George Hill.' Dr. Bernstein expressed the opinion that 'George Hill's death was caused directly by the injury.' He set forth in considerable detail the several factors which led him to that conclusion, in the course of which he analyzed the autopsy report, indicating various features thereof which he deemed inadequate or erroneous. In the course of this analysis Dr. Bernstein made the remarks concerning Dr. Ellis and his report which are quoted in the charge.

Counsel for the accusers (1) stipulated that Dr. Ellis was not a certified pathologist, (2) stated that Ellis was amply qualified in fact as a licensed physician who had specialized in pathology for some years, and (3) contended that the question whether Ellis was a good or bad pathologist was not an issue, the question being whether Dr. Bernstein's conduct was ethical. The referee stated that 'the qualifications of Dr. Ellis or the competeny of the particular report that Dr. Ellis rendered is entirely immaterial in so far as the charge herein made is concerned.' Apparently the council concurred in that view.

It further appears that Dr. Bernstein's report was given to the attorney for the widow of Hill for use as evidence in support of her claim for benefits under the workmen's compensation law, 3 and was used for that purpose. It was brought to Dr. Ellis' attention by the attorney for the employer in the industrial accident proceeding, whereupon Dr. Ellis wrote the employer's attorney, at the latter's request, an analysis of Dr. Bernstein's report, apparently for the use of the employer in that proceeding. There is evidence that the Industrial Accident Commission made an award in the widow's favor.

It was Dr. Ellis who brought the Bernstein report to the attention of the medical association, nearly two years after its rendition.

It seems abundantly clear that Dr. Bernstein's report was requested by a litigant for use as evidence in a judicial proceeding; was prepared and delivered by the doctor, in response to that request, solely for that purpose; and was put to that very use by the litigant.

That makes it a 'privileged publication,' a publication (written or oral) '* * * made * * * [i]n any * * * judicial proceeding * * *.' Civ.Code, § 47. In such a case, the privilege is absolute. Moore v. United States Fidelity & Guaranty Co., 122 Cal.App. 205, 210-211, 9 P.2d 562, hearing by Supreme Court denied,--the filing, in a judicial proceeding, of a complaint containing a libelous statement. See also Albertson v. Roboff, Cal.2d 287 P.2d 145. The use of this report as evidence before the Industrial Accident Commission characterizes the author of it as a witness. The testimony of a witness in a judicial proceeding is uniformly accorded the same degree of privilege as is accorded the pleadings therein. (See cases collected in 12 A.L.R. 1247.) Thus, it is established in this state that statements made in an affidavit (testimony in written form) filed in a judicial proceeding enjoy this privilege. Donnell v. Linforth, 11 Cal.App.2d 25, 28-29, 52 P.2d 937, hearing by the Supreme Court denied. See also Kelly v. Daro, 47 Cal.App.2d 418, 118 P.2d 37, oral testimony in a legislative proceeding, which the statute puts in the same category as a judicial proceeding.

The policy of making such statements privileged in obvious. If parties and witnesses were subject to slander and libel actions for utterances made or filed in a judicial proceeding the administration of justice would be hampered and the judicial process throttled. The same policy should ban a medical association by-law which holds over each of the members the threat of expulsion if in his testimony (oral or written) before a court or other judicial body he 'disparages, by comment or insinuation,' 4 another physician. With such a threat ever facing him, he must weigh carefully and well his every utterance lest through some slip of the tongue he 'insinuate' something about another physician which his county medical council may, perchance, deem 'disparaging' and, as such just cause for censure, suspension, or expulsion. It is inconceivable that the law could tolerate the holding of such a sword of Damocles over any medical witness in any judicial proceeding. 5

We are loath to read into the Principles of Medical Ethics an intent upon the part of the American Medical Association to interfere with the judicial process. We find it unnecessary to do so. The canon here involved contains not a single word about the duty of one physician toward another when testifying as a witness in a judicial proceeding. It is a fair inference from such silence that the American Medical Association when it formulated its Principles of Medical Ethics harbored no intent to arrogate to itself the state's prerogative of defining the duties of witnesses in judicial proceedings and the prescribing of penalties for the violation of such duties.

Moreover, section 4 speaks of a physician who 'succeeds' another physician 'in charge of a case.' He is not to disparage the physician who 'preceded' him in charge of the case, for such conduct tends to lower the confidence of the 'patient' in the medical profession and reacts against the 'patient,' the profession and the critic. This suggests a doctor-patient relationship and one doctor succeeding another in that relationship. 6 It is difficult to fit the actors in the present drama into such a picture. It is hard to visualize the coroner or the widow or the body of the decedent as a patient in charge, first, of Dr. Ellis and, later, of Dr. Bernstein.

There is no escape from the conclusion that the evidence does not show a violation of section 4 in the Hill case. 7

The Muir Case.

The charge was that Dr. Bernstein violated section 1 8 of Article IV of Chapter III of the Principles of Medical Ethics in that 'on March 10, 1951, Mrs. Leo F. Muir was a patient of Dr. M. L. Lipton, and was in Pittsburg Community Hospital for delivery of her second child. It was decided that a Caesarean section was necessary and the patient was moved from the labor room to surgery. Just prior to this removal, Dr. Bernstein was scrubbing for a delivery and he engaged a nurse in conversation within hearing distance of Mr. and Mrs. Muir. Dr. Bernstein commented to the nurse, and the comment was heard by Mr. and Mrs. Muir, that this was the poorest excuse...

To continue reading

Request your trial
33 cases
  • Curran v. Mount Diablo Council of the Boy Scouts
    • United States
    • California Court of Appeals Court of Appeals
    • October 3, 1983
    ...rests upon a rule which is substantively capricious or contrary to public policy. For example, in Bernstein v. Alameda etc. Medical Assn. (1956) 139 Cal.App.2d 241, 293 P.2d 862, the court held that a medical society could not lawfully expel a doctor for making disparaging statements about ......
  • Anton v. San Antonio Community Hosp.
    • United States
    • California Supreme Court
    • August 31, 1977
    ...887), and professional societies (Smith v. Kern County Medical Assn. (1942) 19 Cal.2d 263, 120 P.2d 874; Bernstein v. Alameda etc. Med. Assn. (1956) 139 Cal.App.2d 241, 293 P.2d 862.) (See generally Annots., 20 A.L.R.2d 344--417, 421--522, 531--590.)As our recent opinion in Westlake Communi......
  • Abraham v. Lancaster Community Hospital
    • United States
    • California Court of Appeals Court of Appeals
    • January 30, 1990
    ...qualifiedly privileged under § 47, subd. (3); broad test adopted for application of the privilege.]; Bernstein v. Alameda etc. Med. Assn. (1956) 139 Cal.App.2d 241, 246, 293 P.2d 862; Lewis v. Linn, supra, 209 Cal.App.2d 394, 26 Cal.Rptr. b) Third Appellate District: Williams v. Coombs (198......
  • Ascherman v. San Francisco Medical Society
    • United States
    • California Court of Appeals Court of Appeals
    • May 31, 1974
    ...143--144, 231 P.2d 6; Tatkin v. Superior Court (1958) 160 Cal.App.2d 745, 754--757, 326 P.2d 201; Bernstein v. Alameda, etc., Med. Ass'n (1956) 139 Cal.App.2d 241, 253--254, 293 P.2d 862; Swital v. Real Estate Commissioner (1953) 116 Cal.App.2d 677, 679--680, 254 P.2d 587; Curl v. Pacific H......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT