Capelouto v. Kaiser Foundation Hospitals

• Decision Date: 11 September 1972
• Citation: 7 Cal.3d 889,500 P.2d 880,103 Cal.Rptr. 856
• Court: California Supreme Court
• Parties: , 500 P.2d 880 Kim CAPELOUTO, a Minor, etc., et al., Plaintiffs and Appellants, v. KAISER FOUNDATION HOSPITALS et al., Defendants and Respondents. L.A. 29972. In Bank

Page 856

103 Cal.Rptr. 856

7 Cal.3d 889, 500 P.2d 880

Kim CAPELOUTO, a Minor, etc., et al., Plaintiffs and Appellants, v. KAISER FOUNDATION HOSPITALS et al., Defendants and Respondents.

L.A. 29972.

Supreme Court of California,

In Bank.

Sept. 11, 1972.

Shulman & Shulman, and Adley M. Shulman, Beverly Hills, for plaintiffs and appellants.

Robert E. Cartwright, San Francisco, Edward I. Pollock, Theodore A. Horn, Los Angeles, Marvin E. Lewis, San Francisco, William H. Lally, Sacramento, Joseph W. Cotchett, San Mateo, Leonard Sacks, Pico Rivera, Irving H. Green, Elmer Low, Pasadena, Robert P. Fry, Samuel Shore, Daniel Fogel and George R. Royce, Los Angeles, as amici curiae on behalf of plaintiffs and appellants.

Thelen, Marrin, Johnson & Bridges, James M. Radnich and Henry W. Holmes, Jr., Los Angeles, for defendants and appellants.

TOBRINER, Justice.

In this case we consider the right of an infant to recover damages for the pain and suffering incidental to an illness contracted as a result of medical malpractice. As we explain below, an infant may recover damages for pain and suffering on the same basis as an adult. Indeed, lay testimony, as well as expert testimony, may support such an award. Moreover, in certain cases the trier of fact may infer pain and suffering from the nature of the injury alone. In accordance with these principles we hold that in the instant case an instruction to the jury foreclosing compensation to the infant for pain and suffering worked both error and prejudice, compelling the order of a new trial.

Rachel Capelouto was admitted to the Kaiser Hospital Sunset facility in the early morning of July 30, 1964, and at 6:45 a.m. she gave birth to her daughter Kim. Rachel and Kim were discharged from Kaiser on August 2; shortly thereafter Kim developed the first symptoms of a gastrointestinal disorder which was to cause her recurrent distress throughout the entire first year of her life. At various times she suffered from projectile vomiting, severe diarrhea, dehydration, cramps and shock. At times the dehydration was severe enough to require the introduction of intravenous feeding devices, and in the fifth month of her life the attending physician concluded that her condition had so deteriorated as to endanger her life. She was hospitalized six times during her first year, the initial hospitalization occurring on August 5 when she was barely one week old. Laboratory tests of Kim's stools indicated the presence of the bacteria salmonella Newport, C--2, and her physician eventually decided that the salmonella infection was the primary cause of her symptoms. Following treatment for salmonellosis Kim's condition gradually improved. Ultimately she recovered completely; she suffered no permanent disability.

Kim had contracted the salmonella infection while at Kaiser Hospital immediately after her birth. The initial source of the infection lay with Mrs. Lipsitz, an asymptomatic carrier of the bacteria, who herself had been admitted to Kaiser for childbirth. Salmonella spreads by transmission from the stools of an infected person to the mouth of the recipient, generally via some neutral medium such as unwashed hands. Mrs. Lipsitz's son, Robert, apparently contracted the disease at childbirth when the close proximity of the anal and birth canals facilitates transmission. Robert was placed in the same newborn nursery as Kim; he first exhibited symptoms at 8:40 p.m. on July 30, 30 hours after his birth. Eventually seven infants in that nursery, including Robert and Kim, were diagnosed as having salmonellosis, as were seven other infants housed in a different nursery at Kaiser. The entire Kaiser maternity unit was temporarily closed during one period of that August as a result of the epidemic.

In an action for malpractice Kim sought both special and general damages. At the defendants' request, the trial court instructed the jury, in part: 'You are not permitted to award Kim Capelouto damages for physical pain and mental suffering which, although possible, is under the law incapable of proof because of the age of the child.' The jury awarded Kim $1,510.24, the precise amount of the medical expenses. After the court denied a motion for a new trial Kim appealed. ¹ Three issues confront us: the propriety of the above instruction; the viability of recovery for pain and suffering in the absence of expert testimony, and the proper scope of a possible new trial.

Turning first to the issue involving the instruction, we note that this court has ruled: 'If a cause of action is otherwise established, it is settled that damages may be given for mental suffering naturally ensuing from the acts complained of.' (State Rubbish etc. Ass'n v. Siliznoff (1952)38 Cal.2d 330, 338, 240 P.2d 282, 286.) In general, courts have not attempted to draw distinctions between the elements of 'pain' on the one hand, and 'suffering' on the other; ² rather, the unitary concept of 'pain and suffering' has served as a convenient label under which a plaintiff may recover not only for physical pain but for fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or ordeal. (Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 433, 58 Cal.Rptr. 13, 426 P.2d 173; Werchick, Unmeasurable Damages and a Yardstick (1966) 17 Hastings L.J. 263.) Admittedly these terms refer to subjective states, representing a detriment which can be translated into monetary loss only with great difficulty. (Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 511--512, 15 Cal.Rptr. 161, 364 P.2d 337 (dissenting opinion of Traynor, J.); McCormick on Damages (1935) pp. 318--319.) But the detriment, nevertheless, is a genuine one that requires compensation (Civ.Code, § 3333; State Rubbish etc. Ass'n v. Siliznoff, Supra, 38 Cal.2d 330, 240 P.2d 282), and the issue generally must be resolved by the 'impartial conscience and judgment of jurors who may be expected to act reasonably, intelligently and in harmony with the evidence.' (Beagle v. Vasold (1966)65 Cal.2d 166, 181, 53 Cal.Rptr. 129, 137, 417 P.2d 673, 681; cf. Seffert v. Los Angeles Transit Lines, Supra, 56 Cal.2d 498, 507, 15 Cal.Rptr. 161, 364 P.2d 337.)

Indeed, mental suffering frequently constitutes the principal element of tort damages (Rest. (2d) Torts § 905 Com. C); awards which fail to compensate for pain and suffering have been held inadequate as a matter of law. (Clifford v. Ruocco (1952) 39 Cal.2d 327, 329, 246 P.2d 651; Haskins v. Holmes (1967) 252 Cal.App.2d 580, 586--587, 60 Cal.Rptr. 659; Buniger v. Buniger (1967) 249 Cal.App.2d 50, 54, 57 Cal.Rptr. 1; Gallentine v. richardson (1967) 248 Cal.App.2d 152, 155, 56 Cal.Rptr. 237; Chinnis v. Pomona Pump Co. (1940) 36 Cal.App.2d 633, 642--643, 98 P.2d 560; Bencich v. Market St. Ry. Co. (1937) 20 Cal.App.2d 518, 522, 67 P.2d 398.) Thus the instruction which we consider here states a proposition that conflicts with the basic principles governing damages in tort actions. It could be upheld only upon some exotic rationale peculiarly applicable to infant plaintiffs which compelled the special construction of their rights of recovery of damages.

The instruction given by the trial court in the instant case is grounded upon Babb v. Murray (1938) 26 Cal.App.2d 153, 79 P.2d 159. In Babb the infant suffered a fracture of both femurs and underwent traction, remaining in the hospital for five weeks. The injury resulted in a slight deformity which the attending physician predicted would disappear within four to five years. Although the Court of Appeal did state that the child's age (apparently three to four months) rendered her damages for pain and suffering incapable of proof, the court struck down the damage award of $7,000 as excessive because plaintiff had deliberately induced prejudice by emphasizing that defendant was intoxicated and 'driving with a woman . . . not his wife and who was killed in the collision.' (26 Cal.App.2d at p. 154, 79 P.2d at p. 160.) The appellate court reduced the award to $4,000, although the court apparently lacked any reliable evidence of the precise amount of plaintiff's medical expenses.

Thus the opinion in Babb provides only meager support for the proposition that infants are barred, as a matter of law, from recovery for pain and suffering. The only rationale offered in Babb for such a rule is the infant's admitted inability to understand the cause of the pain and suffering; the court offers this explanation of its reasoning: 'Manifestly, she did not know what happened to her and, not knowing, was without fear or mental anguish.' ³ But as one commentator has pointed out, 'the court seems to have confused capacity to suffer with ability to discover the cause of the pain.' (2 Witkin, Summary of Cal. Law (7th ed. 1960) Torts, § 411, p. 1615.) Once we recognize this fallacy, little remains to support the Babb rule; human experience tells us that infants can feel pain and discomfort even if they do not know the source of it.

The infant's inability to explain the cause of pain or to describe the extent of it does not affect the sting of it. Indeed, the infant's cry of hurt is as poignant as the most detailed exposition. The moan of the injured child, who may even be unconscious, needs no elaboration in descriptive language. Communication flows from all manner of sounds and gestures; it is not confined to brittle or inadequate words. The inarticulate anguish of the infant serves as much a ground for recovery as the adult's most sophisticated description.

We have found no jurisdiction adhering to the rule in Babb; indeed, no court has cited the case since its rendition in 1938. ⁴ Since Babb, the decisions have upheld recoveries by young children for pain and suffering and have encountered no special problem in so doing. (E.g., Crane v. C. S. Smith Metropolitan Market Co. (1943) 23 Cal.2d 288, 144 P.2d 356; Chinnis v. Pomona Pump Co. (1940) ...