Carmichael v. Reitz

• Decision Date: 27 May 1971
• Citation: 17 Cal.App.3d 958,95 Cal.Rptr. 381
• Court: California Court of Appeals Court of Appeals
• Parties: Vira Dee Mae CARMICHAEL and Richard Carmichael, Plaintiffs and Appellants, v. James REITZ, M.D., and G. D. Searle & Company, a corporation, Defendants and Respondents. Civ. 36330.

Page 381

95 Cal.Rptr. 381

17 Cal.App.3d 958

Vira Dee Mae CARMICHAEL and Richard Carmichael, Plaintiffs and Appellants, v. James REITZ, M.D., and G. D. Searle & Company, a corporation, Defendants and Respondents.

Civ. 36330.

Court of Appeal, Second District, Division 5, California.

May 27, 1971.

Rehearing Denied June 22, 1971.

Hearing Denied Aug. 18, 1971.

Harney, Ford & Schlottman and David M. Harney, Los Angeles, for plaintiffs-appellants.

Bonne, Jones & Bridges and H. Gilbert Jones, Los Angeles, for defendant-respondent James Reitz, M.D.

McCutchen, Black, Verleger & Shea and Dryden, Harrington & Swartz, Los Angeles, for defendant-respondent G. D. Searle & Company.

AISO, Associate Justice.

Plaintiff Vira Dee Mae Carmichael and her husband Richard Carmichael ¹ brought this action for damages against defendants James Reitz, M.D., J. G. Dahlquist, M.D., the Harriman-Jones Medical Clinic, and G. D. Searle & Company, a corporation (hereinafter 'Searle'), for pulmonary embolisms ² and thrombophlebitis ³ allegedly caused by Dr. Reitz's having prescribed the drug Enovid, manufactured and marketed by Searle, in treating plaintiff for endometriosis. ⁴

A motion for nonsuit made by defendants Dr. Reitz, Dr. Dahlquist, and the Hariman-Jones Medical Clinic upon plaintiff's resting her case in chief was granted and a judgment of nonsuit entered. Plaintiff appeals from this judgment only insofar as it concerns defendant Dr. Reitz.

The trial was completed as to Searle and the jury returned a verdict in its favor. Plaintiff also appeals from the judgment entered on the verdict.

Since the issues raised by the respective appeals are disparate except as the negligence, if any, on the part of Dr. Reitz might bear upon the issue of proximate causation in the case against Searle, ⁵ and since the evidence to be considered on the disparate issues is not the same, we treat the two appeals separately.

Appeal Against Dr. Reitz

Plaintiff, in this phase of her appeal, contends that the trial court prejudicially erred: (1) in granting the nonsuit since she had made out a prima facie case sufficient to go to the jury on the theories of (a) negligence, (b) failure to obtain an 'informed consent,' (c) res ipsa loquitur, and (d) strict liability; and (2) in ruling a certain question propounded by plaintiff's counsel to Dr. Reitz as argumentative.

We fail to find merit in any of these contentions for the reasons we set forth below and therefore conclude that the judgment of nonsuit in favor of Dr. Reitz should be affirmed.

I.

Before reaching the substantive aspects of the nonsuit, we ascertain In limine just what theories of recovery and what evidence are properly before us in this review of the nonsuit, because plaintiff's brief manifests confusion in this respect.

In determining whether the evidence was sufficient to permit plaintiff to go to the jury only the evidence which was before the court at the time when the nonsuit was granted may be considered. (Cf. Ely v. Beal (1950) 100 Cal.App.2d 743, 745, 224 P.2d 479; People v. Superior Court (1970) 3 Cal.App.3d 476, 482, 83 Cal.Rptr. 771, fn. 3; Thompson v. Superior Court (1968) 262 Cal.App.2d 98, 103, 68 Cal.Rptr. 530.) It would be patently unfair to opposing counsel and to the trial judge for a plaintiff to permit the granting of nonsuit in the trial court and then claim error on appeal on the basis that in hindsight the evidence introduced after the grant of nonsuit supplied gaps in plaintiff's case. Unlike the situation in Perry Reitz. He likewise did not move for a 359, 368, 334 P.2d 299, plaintiff's experienced trial counsel rested his case in chief without making it subject to reopening on the issue of liability against Dr. Reitz. He likewise did not move for a new trial against Dr. Reitz; plaintiff's motion for new trial was directed against Searle only.

It is also noted Dr. Reitz was temporarily excused, after plaintiff's examination of him under Evidence Code, section 776, upon the understanding that Searle would be given the opportunity to cross-examine him at a later date when he could again be in court. The trial judge did not rule immediately on the motion for nonsuit, indicating that he would prefer to first hear the balance of Dr. Reitz's testimony. But then in the course of Searle's cross-examination of Dr. Reitz, the trial judge granted the motion for nonsuit. No objection was made by plaintiff's counsel as to the point in time at which the trial judge ruled on the motion, nor did he request the judge to further defer his ruling.

Under the foregoing circumstances, any reference plaintiff makes to the testimony of Dr. Boyle or of any other physicians (including Dr. Reitz) who testified after the nonsuit was granted must be disregarded in determining whether the grant of nonsuit was proper.

Similarly our reading of the record ⁶ leads us to conclude that in fairness to the trial judge and counsel for Dr. Reitz, plaintiff's counsel abandoned all theories of recovery except that of 'strict liability' in submitting the issue of nonsuit to the trial judge for ruling.

The issue of 'informed consent' is raised in the pleadings only as it is interwoven into the count pleading negligence. In his redirect examination of plaintiff, her counsel propounded to her two questions which sought to inquire whether she would have consented to take Enovid had she been told of the 'so-called side effects and adverse reactions due to Enovid' which had been read into the record up to that time. ⁷ Objection was sustained to the first question and motion to strike the answer given before objection could be registered was granted; objection was sustained as to the second. Plaintiff's counsel did not inform either the court or opposing counsel at this time that there was an 'informed consent' issue and that the questions might be relevant to this issue. We find no substantial evidence to support the contention that had Dr. Reitz more fully explained the then prevailing medical status of Enovid as a prescription for the treatment of endometriosis plaintiff would not have taken it. Again, at the time of submitting the motion for nonsuit no mention was made of the 'informed consent' issue as still pending.

It is the general rule that where issues of fact or mixed questions of law and fact are involved, one cannot change his theory of recovery on appeal. (Estate of Westerman (1968) 68 Cal.2d 267, 279, 66 Cal.Rptr. 29, 437 P.2d 517; Barrera v. De La Torre (1957) 48 Cal.2d 166, 172, 308 P.2d 724; see Panopulos v. Maderis (1956) 47 Cal.2d 337, 340--341, 303 P.2d 738.) As corollaries or ramifications of this rule, it has been held that: stipulations as to legal issues of facts entered into in the trial court must be adhered to upon appeal. (Vitale v. City of Los Angeles (1936) 13 Cal.App.2d 704, 706, 57 P.2d 993); counsel may not abandon a theory of recovery during trial and then seek to revive it on appeal (Goodwin v. Wolpe (1966) 240 Cal.App.2d 874, 877, 878--879, 50 Cal.Rptr. 55); if counsel concedes that his cause of action sounds in negligence and not on contract, it will be treated as a negligence action on appeal (Griffin v. County of Colusa (1941) 44 Cal.App.2d 915, 918, 113 P.2d 270); if, in course of argument on whether a nonsuit should be granted, counsel indicates that there is no necessity of the court considering a given issue, he cannot urge the failure of the trial court to consider the issue as error on appeal (Drdlik v. Ulrich (1962) 203 Cal.App.2d 360, 367, 21 Cal.Rptr. 642); and one cannot raise on appeal material issues which he abandons at the trial level as a matter of strategy and purely for his own advantage (De Angeles v. Roos Bros., Inc. (1966) 244 Cal.App.2d 434, 442--443, 52 Cal.Rptr. 783). Application of the teachings of these cases to the pleadings and the record specified in footnote, 6, Supra, precludes plaintiff from urging here any theory of recovery other than the one based upon strict products liability, predicated upon the premise that the doctor was a retailer of the drug Enovid. We shall, nevertheless, in fairness to plaintiff point out that there was insufficient evidence on the merits to go to the jury on the theory of negligence.

II.

With the foregoing limitations and criteria in determining the propriety of the nonsuit in mind, ⁸ we now set forth the facts and evidence relevant to the nonsuit issue.

Plaintiff first sought the professional services of Dr. Reitz, a specialist in obstetrics and gynecology, on July 10, 1963. She complained that she was experiencing pain in conjugal sexual intercourse, that she had a 'dropped uterus,' and that she had been married for a period of two and one-half years without becoming pregnant. She also informed Dr. Reitz that she was having 'a great deal of pain with her menstrual periods' and 'had been passing formed blood clots' during those periods. She also mentioned that she had noted personality changes in herself with her menstrual periods--'depression coming on with the menstrual period, and a feeling of excitement prior to this stimulation.'

In the course of taking plaintiff's past history, Dr. Reitz asked her whether she was allergic to or whether she had had any bad reactions to any medication or drugs. Plaintiff replied, 'No.' Dr. Reitz inquired, 'What diseases have you had in the past?' Plaintiff replied that she had had diphtheria, and that she had also undergone a tonsillectomy and an adenoidectomy. She indicated that she had no family history relative to tuberculosis, cancer, or diabetes.

During this visit, Dr. Reitz conducted a physical examination which, in addition to the pelvic area, encompassed the chest, head, neck, abdomen, rectum, and extremities. Percussion and auscultation examinations of the chest indicated no abnormality and no chest problems as of that time. An X-ray of the chest was also taken; it proved negative for abnormalities. During this physical examination, the...