Blecker v. Wolbart

• Decision Date: 09 May 1985
• Citation: 167 Cal.App.3d 1195,213 Cal.Rptr. 781
• Court: California Court of Appeals Court of Appeals
• Parties: Carol N. BLECKER, Plaintiff and Respondent, v. John C. WOLBART, M.D., Defendant and Appellant. Civ. 22968.

Page 781

213 Cal.Rptr. 781

167 Cal.App.3d 1195

Carol N. BLECKER, Plaintiff and Respondent, v. John C. WOLBART, M.D., Defendant and Appellant.

Civ. 22968.

Court of Appeal, Third District, California.

May 9, 1985.

As Modified May 28, 1985.

Wilke, Fleury, Hoffelt, Gould & Birney, Philip R. Birney, and Bruce A. Kimzey, Sacramento, for defendant and appellant.

Knox, Ricksen, Snook, Anthony & Robbins, Steven R. Anthony, Oakland, and Richard H. Carlson, San Francisco, for plaintiff and respondent.

EVANS, Associate Justice.

This matter arises out of plaintiff's action for indemnification. Defendant contends the trial court erred in (1) refusing an instruction describing the liability of a tortfeasor for the subsequent medical negligence caused by a treating physician; (2) refusing to permit evidence of plaintiff's collision with decedent's motorcycle, thus precluding the jury from making a comparison of the parties' negligence; (3) finding plaintiff suffered an actual monetary loss; (4) refusing to allow defendant's expert to place facts relating to decedent's prior cardiac arrest before the jury; and (5) awarding prejudgment interest. We conclude that for instructional error, the judgment must be reversed.

On March 23, 1978, plaintiff, while in the course and scope of her employment with California State Automobile Association (hereafter CSAA) and driving a vehicle owned by CSAA, collided with a motorcycle ridden by Lon Cole. Cole suffered a fractured forearm and a severe fracture of the right femur (thigh bone). Immediate emergency care was provided for the injury to his forearm, but surgery on his femur was postponed until Code was deemed to be a good candidate for corrective surgery.

Defendant, an anesthesiologist, examined Cole the day before his surgery and concluded his condition would tolerate the surgery. Internal bleeding had decreased Cole's blood volume significantly, a condition which increases the risk of surgery because the body will be unable to supply sufficient oxygen to the organs.

Expert testimony presented at trial established defendant's negligence in his evaluation, anesthetisizing, and level of care extended Cole, including faulty placement of an endotrachael tube and his failure to adequately monitor Cole's vital signs; as a consequence, Cole suffered cardiac arrest on the operating table. Defendant also failed to take appropriate measures once Cole's heart had stopped. Cole lapsed into a coma, essentially brain dead, and died four days later.

Cole's heirs settled with CSAA for Cole's wrongful death. CSAA paid $260,476 to Cole's heirs and obtained a release of all claims for medical and funeral expenses. Following payment by CSAA, plaintiff brought the present action against defendant and five other medical defendants for indemnity. In a pretrial ruling, Judge Michael Virga determined plaintiff could proceed solely on a cause of action under American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899 (hereafter AMA ). Her cause of action for full indemnity was eliminated. ¹

The trial court accepted two stipulations from plaintiff: (1) that she had been negligent in causing Cole's fractures, but was not a proximate cause of his death, and (2) that she had settled with Cole's heirs for $260,476. The court also precluded defendant from presenting evidence of the collision other than a description of the injuries suffered by Cole.

I

Defendant contends the trial court erred in refusing his instruction based upon Ash v. Mortensen (1944) 24 Cal.2d 654, 150 P.2d 876. In Ash, the Supreme Court held "It is settled that where one who has suffered personal injuries by reason of the tortious act of another exercises due care in securing the services of a doctor and his injuries are aggravated by the negligence of such doctor, the law regards the act of the original wrongdoer as a proximate cause of the damages flowing from the subsequently negligent medical treatment and holds him liable therefor. [Citations.]" (Id., at p. 657, 150 P.2d 876.) The holding has been hailed as "a positive rule of decisional law of this state" (Herrero v. Atkinson, supra, 227 Cal.App.2d at p. 75, 38 Cal.Rptr. 490), and is in accord with the Restatement Second of Torts section 457, and other leading experts in the field of tort law. (See Prosser and Keeton on Torts (5th ed. 1984) Intervening Causes, § 44, pp. 309-310.) Instead, the jury was instructed "In this case CAROL BLECKER has admitted that she was negligent and that her negligence was a proximate cause in bringing about an injury to Lon Cole but alleges that the immediate cause of the death was the negligence of Defendant, DR. JOHN WOLBART. CAROL BLECKER is not relieved of such death if: [p] 1. At the time of her conduct CAROL BLECKER realized, or reasonably should have realized, that Defendant DR. JOHN WOLBART might act as he did." (Emphasis added.)

The concept of partial indemnity among joint tortfeasors ² was solidified and given a judicial stamp of approval in AMA. Prior to that decision, many courts had attempted to formulate a test to deal with the harsh "all-or-nothing" rule of equitable indemnity. (AMA, supra, 20 Cal.3d at pp. 593-594, 146 Cal.Rptr. 182, 578 P.2d 899.) In a holding which presaged the result in AMA, the court in Herrero v. Atkinson, supra, a case factually similar to the instant matter, held "[a]lthough the original negligence of Herrero [driver of the vehicle which collided with the decedent's vehicle] may be regarded in law as a proximate cause of the damages flowing from the subsequent malpractice of the cross-defendants, and the plaintiff may recover a joint and several judgment against all who are found liable, there is no reason why the ultimate burden of damages should not be distributed among the various defendants, and each be made to bear that portion of the judgment which in equity and good conscience should be borne by him." (227 Cal.App.2d at p. 75, 38 Cal.Rptr. 490.)

We do not find the holding of AMA, allowing partial indemnity from a joint tortfeasor on a comparative fault basis, to be antagonistic to the holding in Ash v. Mortensen, supra, 24 Cal.2d 654, 150 P.2d 876. Nor did AMA overrule Ash, either explicitly or impliedly. (See Munoz v. Davis (1983) 141 Cal.App.3d 420, 425, 190 Cal.Rptr. 400.) Plaintiff argues the rule of Ash is but a statement of legal policy which formulated a rule of proximate cause, and is limited to an action brought by the original plaintiff against the original tortfeasor. Aside from not citing any authority for the latter assertion, plaintiff misses the point. By allowing the jury to determine whether plaintiff realized or reasonably should have realized defendant might act as he did (i.e. foreseeability), the trial court ignored the ruling of Ash that subsequent negligent medical treatment is foreseeable as a matter of law. Indeed, the subsequent medical treatment need not even be negligent to hold the original tortfeasor liable. In Hastie v. Handeland (1969) 274 Cal.App.2d 599, 79 Cal.Rptr. 268, a case again involving a vehicular collision and subsequent death of the victim following medical care, the court recognized the original tortfeasor is liable for subsequent injury suffered during medical treatment, citing Ash and Herrero, but went on to hold that liability is not limited to additional harm caused by negligence. (274 Cal.App.2d at pp. 604-605, 79 Cal.Rptr. 268.) "If death resulted from a risk inherent in the medical treatment reasonably required to cure the injuries caused by the accident, respondents [original tortfeasors] would be liable irrespective of whether such treatment was rendered in a proper or a negligent manner. The question is one of causation, and where the additional harm results either from the negligence of doctors or hospitals who furnish necessary medical care, or from the materialization of a risk inherent to necessary medical care, the chain of causation set in motion by the original tort remains unbroken. [Citations.]" (Id., at p. 606, 79 Cal.Rptr. 268.)

Plaintiff argues the question for the jury was whether her negligent driving combined as a matter of fact with the negligent medical care provided by defendant to cause Cole's death, relying upon Niles v. City of San Rafael (1974) 42 Cal.App.3d 230, 116 Cal.Rptr. 733. In Niles, the court found there were two separate torts committed when a young boy fell on a publicly controlled playground and injured his head; he was later sent home from the defendant hospital despite warning signs of brain injury. The court found the public entity defendant to be liable under Ash (at p. 239,) and went on to hold "[t]he rule of Herrero applies if there were separate and distinct negligent acts, the original tortfeasor had no control over the second negligent act, and the liability of the original tortfeasor for the second act is imputed by law. [Citation.]" (42 Cal.App.3d at pp. 239-240, 116 Cal.Rptr. 733.)

More importantly, the Niles court found the jury had been properly instructed where they were told "the public entities were liable to the plaintiff for all damages flowing from the initial tort, including damages caused by malpractice, and that appellants were liable only for damages caused by their own neglect." (Emphasis added; 42 Cal.App.3d at p. 240, 116 Cal.Rptr. 733.) Thus, the Niles jury was given an Ash instruction. By following Herrero, a trial court must give an Ash instruction, as the latter is built into the former.

It is clear from the transcripts of argument between counsel that both parties' counsel and the trial court were confused as to whether a jury could apportion the liability of successive tortfeasors, or whether AMA even applied to successive tortfeasors. The confusion seemed to revolve around the fact there were two separate and distinct injuries (broken bones and death) and two separate and distinct acts of negligence.

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