Calvin v. Thayer
| Decision Date | 01 May 1957 |
| Citation | 150 Cal.App.2d 610,310 P.2d 59 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Howard CALVIN and Jewell Calvin, Plaintiffs and Appellants, v. Joseph H. THAYER et al., Defendant and Respondent. Civ. 21997. |
Richard C. Dyer, Frederick M. Kraft, Los Angeles, Low & Stone, Sheldon Berlin, Beverly Hills, for appellants.
Reed, Callaway, Kirtland & Packard, Henry E. Kappler, Los Angeles, for respondent.
Plaintiffs-appellants brought this action against the defendant physician and surgeon claiming damages for malpractice. The first cause of action of the complaint alleged that on June 15, 1952, Mrs. Calvin was injured in an automobile accident; she engaged the services of Dr. Joseph H. Thayer and numerous John Does (who were not served), as physicians and surgeons to examine, diagnose, treat and operate upon and care for her; she was suffering from a post-traumatic subdural hematoma which caused intracranial pressure causing her to suffer 'constant severe headaches, dizziness, loss of memory, marked changes in personality, and loss of vision resulting from the choking of the optical discs and atrophy of the optic nerves'; the condition required immediate surgery; defendants knew or should have known that if they failed to perform their full duties Mrs. Calvin would suffer injury and pain; that defendants wrongfully and negligently failed to properly diagnose or treat plaintiff's condition and they negligently failed to associate or refer plaintiff to another physician and surgeon who was qualified. It was alleged that if defendants had correctly diagnosed and treated her condition she would have wholly recovered from her injuries in two or three months, but that as a result of the negligence of defendants she suffered intense and excruciating pain and mental anguish and her optic nerves have been irreparably damaged and her vision permanently impaired. In a second cause of action Mr. Calvin realleged all the allegations of the first cause of action and prayed for damages which he had sustained.
Dr. Thayer filed an answer denying the accusations of negligence and damage. As a special defense it was alleged that the action, having been filed more than one year after the Statute of Limitations had commenced to run, was barred by the provision of section 340, subd. 3, of the Code of Civil Procedure. The action was filed January 28, 1954. It was alleged that on or about January 17th, 18th and 19th, 1953, plaintiffs and each of them knew that Mrs. Calvin was suffering from a post subdural hydroma or hematoma as a result of her automobile accident, which was causing the ailments from which she was suffering, and they knew or should have known of any alleged failure on the part of Dr. Thayer to properly diagnose and treat Mrs. Calvin. As a further separate defense it was alleged that plaintiffs accepted $5,000 from Philip F. Pomerantz and executed in his favor a release of all persons from all claims for damages arising out of the injuries suffered in the automobile accident.
The cause was set for trial to a jury. At the opening of the trial defendant made a motion that the special defenses be tried first, pursuant to section 597, Code of Civil Procedure. The motion was granted and pursuant to stipulation of the parties the special defenses were tried to the court.
There was evidence of the following facts: For some two years Mrs. Calvin had been under the care of Dr. Thayer; among her ailments was what the doctor thought was a gall bladder condition that required an operation. Mrs. Calvin engaged defendant's services shortly after her accident and was placed in a hospital on three occasions, but without receiving medical or surgical treatment for injuries suffered in the accident; from the time of the accident until the following January Mrs. Calvin suffered from extreme pains in her head, dizziness, nausea and impairment of vision. Dr. Thayer attributed this condition to ailments from which she had previously suffered. Although X-rays were taken they did not suggest to Dr. Thayer that the condition that was causing Mrs. Calvin's suffering was an accumulation of fluid that was creating brain pressure and injury to the optic nerves. He did not discover that the condition was of traumatic origin.
Although on January 6th defendant was still advising a gall bladder operation either he or an associate recommended that Mrs. Calvin consult. Dr. Seletz, a specialist in neurology and neurological surgery. Dr. Seletz acquanited himself with the patient's history and learned of a cerebral concussion which Mrs. Calvin had received in the accident. On January 9th, in a thorough examination, Dr. Seletz ascertained there was a swelling of the optic disc. He referred Mrs. Calvin to Dr. Schwartz, an ophthalmologist, who examined the patient and confirmed the findings of Dr. Seletz. Dr. Schwartz concluded and reported that the condition had a traumatic basis. On January 9th Dr. Seletz informed plaintiffs that there was an increased pressure within Mrs. Calvin's head due to a head injury and that he feared that it was a surgical condition, but believed it was one he could likely cure. On January 17th Dr. Seletz stated to plaintiffs there was another test that should be made (an air study), and that this test would not be made without an understanding beforehand that if, in the doctor's opinion, surgery was indicated he had permission to immediately proceed with an operation. Plaintiffs expressed their agreement. Mrs. Calvin entered the hospital January 17th. A writing was prepared which stated, in part: 'Mrs. Jewell Calvin, Dr. E. Seletz, Subdural Hematoma--pre-operative diagnosis, possible Subdural Hematoma.' Dr. Seletz testified that the diagnosis was written by him and that he signed the paper. Mr. and Mrs. Calvin signed another paper which stated, in part: 'Pre-operative diagnosis, possible Subdural Hematoma.' This was over the signature of Dr. Seletz. On January 19th Mrs. Calvin signed a paper which read, in part: 'Operation and anesthetic record * * * pre-operative diagnosis, shaving of head.' Mrs. Calvin testified that the three papers dated January 17th were signed by her in blank. The papers which contained the diagnosis stated that the signers certified that the diagnosis was written in before the operation. Dr. Seletz testified that he wrote in the diagnosis, that he never operated without writing in the diagnosis, and that to the best of his knowledge it was written in before the signatures of plaintiffs were attached.
The court found that on or about January 20, 1953 plaintiffs and each of them knew or in the exercise of reasonable care and diligence should have known that Mrs. Calvin was suffering from a post-traumatic subdural hydroma or hematoma as a result of the automobile accident and knew or in the exercise of ordinary care should have known of any failure on the part of Dr....
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