Chavez v. Sprague

• Decision Date: 29 October 1962
• Citation: 25 Cal.Rptr. 603,209 Cal.App.2d 101
• Court: California Court of Appeals Court of Appeals
• Parties: Jose Jesus CHAVEZ, Plaintiff and Appellant, v. Charles P. SPRAGUE, M. D., Defendant and Respondent. Civ. 6871.

Page 603

25 Cal.Rptr. 603

209 Cal.App.2d 101

Jose Jesus CHAVEZ, Plaintiff and Appellant, v. Charles P. SPRAGUE, M. D., Defendant and Respondent.

Civ. 6871.

District Court of Appeal, Fourth District, California.

Oct. 29, 1962.

Harney, Ford & Schlottman, Los Angeles, for appellant.

Swing, Swing & Fisher, San Bernardino, for respondent.

GRIFFIN, Presiding Justice

This is a so-called malpractice action brought by plaintiff-appellant against defendant-respondent Dr. Charles P. Sprague (hereinafter referred to as defendant), et al, to recover damages for bodily injuries claimed to have been proximately caused by professional negligence on the part of defendant in the performance of a surgical operation known as a thyroidectomy while plaintiff was an indigent patient of the San Bernardino County Charity Hospital, said hospital being owned and operated by the County of San Bernardino in its governmental capacity. Plaintiff alleged these facts in his complaint, and also alleged that defendant and Does One through Ten were physicians and surgeons; that he engaged their services for the purpose of performing on him the operation described in the said charity hospital; that defendants, including Does One through Ten, were not employees or officers of said hospital and therefore no claim was required to be filed with them or the County of San Bernardino within 90 days of the injury, as required by Government Code, sections 1981 and 2003; that during the operation on plaintiff, defendants were donating their services to said hospital without receiving any monetary compensation or other consideration from said hospital; and that on November 22, 1957 they negligently performed the operation.

Defendant filed an answer denying generally these allegations and admitted that an operation was performed, but claimed that it was performed by other doctors sued as defendants Does One though Ten, employees of the County of San Bernardino It was alleged in the answer, as a special defense, that defendant was a public employee of San Bernardino County and was acting within the scope of his employment as such public employee, and no verified claim for such damages was presented in writing or otherwise, or filed with him within 90 days after the occurrence of the accident or injury complained of, nor was such a claim filed with the clerk of the legislative body of said county, and accordingly plaintiff's claim is barred by Government Code, section 1981 (now section 801).

and that he only exercised supervision over them by virtue of his employment by the county as a member of the volunteer medical staff.

In the pretrial conference order, all fictitious defendants were dismissed because they were not served with process. It was agreed that among the issues remaining were: (1) capacity and status of defendant as a public officer or employee of the County of San Bernardino at the time such operation was performed; (2) the relationship between defendant and each of the other persons who participated in the performance of such surgical operation; (3) the nature and extent of the participation, if any, by defendant in the performance of the surgical operation; and (4) whether noncompliance by plaintiff with the requirements of Government Code, sections 1981 and 2003, was a bar to the prosecution of the action.

At the trial, the court, upon stipulation of the parties, proceeded under Code of Civil Procedure, section 597, to trial of the special defense that the prosecution of the action was barred by reason of noncompliance by plaintiff with the claims provisions of Government Code, section 1981 and section 2003 (now section 803).

It appears from the pretrial statement that at all times here involved the San Bernardino County Charity Hospital was a public charitable hospital, owned and operated by the County of San Bernardino; that plaintiff was admitted thereto as a patient on November 20, 1957 for diagnosis and treatment of ailments; that plaintiff's ailments were diagnosed by employees of the County of San Bernardino and that such employees prescribed a surgical operation for the ailment from which plaintiff was then suffering; that at all times involved, Dr. S. Kase, Dr. M. Call and Dr. H. Dutro were physicians and surgeons employed by the County of San Bernardino, as resident, intern and anesthetist, respectively, at said hospital, and that they were, at all times mentioned, acting within the course and scope of their respective employments by said county; that on November 22, 1957, a surgical operation was in fact performed upon plaintiff by the said Dr. Kase, as indicated operator, and Dr. M. Call, as indicated first assistant, under an anesthetic administered by the said Dr. Dutro; that at all times during the performance of said surgical operation, from the beginning of the skin incision until the skin incision was closed, defendant Dr. Sprague was personally present in the operating room where said operation was performed and observed the performance of said operation.

CLAIM STATUTE

After considering the question of whether Government Code, section 2003, was applicable under the pleadings and facts stated, the court held that section was applicable and was a proper defense to raise in the action and proceeded to determine the status of defendant as being a county employee within the meaning of that section.

The first question on this appeal to be determined is the correctness of this ruling. Plaintiff relies upon the case of Stewart v. McCollister, 37 Cal.2d 203, 231 P.2d 48 (decided May 15, 1951), based on section 1981 of the Government Code, holding in effect that compliance with the claims provisions of that section was not required unless the plaintiff, in his complaint, 'claimed' (pleaded) that the defendant was a public officer or employee and that his negligence had occurred in the course of his public employment. Soon after this decision, the Legislature adopted Government Code, section 2003 'A cause of action against an employee of a district, county * * * for damages resulting from any negligence upon the part of such employee while acting within the course and scope of such employment shall be barred unless a written claim for such damages has been presented to the employing district, county * * * in the manner and within the period prescribed by law as a condition to maintaining an action therefor against such governmental entity.'

which took effect on September 22, 1951, reading:

The cause of action in the instant case arose on November 22, 1957, and the complaint was filed on November 5, 1958. Had this cause of action arisen and been filed before the adoption of Government Code, section 2003, the facts would have brought it within the holding in Stewart v. McCollister, supra, 37 Cal.2d 203, 231 P.2d 48, but the immediate enactment thereafter of section 2003 fairly indicates a legislative intent as to county employees to make noncompliance a bar irrespective of whether the facts giving rise to the defense are pleaded in the complaint or the defense is raised specially by answer, i. e., where the provisions of section 2003 are applicable, that section operates as an independent bar to an action against a public employee for torts arising out of negligence committed within the course and scope of his employment, regardless of whether the issue as to his status as a public employee is pleaded in the complaint or raised by the answer; that this is the purpose and the effect of the enactment of section 2003 in 1951, after the decision in the Stewart case is stated by the author in Procedure Before Trial (Cont.Ed.Bar), page 236, as follows:

'Section 2003 was enacted to overcome the effect of Stewart v. McCollister, supra. * * * It has not yet been construed by the courts. However, it seems fairly clear that (1) section 2003 applies to all claims within its scope, irrespective of whether public employment allegations appear in the complaint; (2) compliance with section 2003 is a prerequisite to maintenance of an action, and where the comparable entity claim law so provides may be a prerequisite to commencement of such action, against an employee; (3) section 2003 is an additional requirement to section 1981, and in a proper case, both must be complied with; (4) since the time and manner of presentation of a claim under section 2003 depends on the terms of the applicable claim statute governing claims agiainst the employing entity, section 2003 is inoperative if no such entity claim statute exists (such is the case with many cities and districts in relation to certain types of claims).'

Professor Van Alstyne, though opposed to claim statutes in general, has this to say, in 8 U.C.L.A. Law Review, page 516:

'* * * in 1951 the legislature attempted to close the Stewart loophole by enacting section 2003 (now section 803) of the Government Code. This new section required a claim to be presented to the employing entity as a prerequisite to maintaining any action founded on negligence against the employee, and it was so drafted that its applicability did not depend upon whether 'it was claimed' that such negligence was in the course and scope of employment.'

Government Coce, section 1981 (and by analogy section 2003) has been held to be a constitutional procedural requirement designed to protect public officers and employees from unfounded and harassing litigation. (Veriddo v. Renaud, 35 Cal.2d 263, 217 P.2d 647; Huffaker v. Decker, 77 Cal.App.2d 383, 175 P.2d 254.) Failure to comply with the claims procedure of Government Code, section 1981, is fatal to the maintenance of an action against an employee whenever Government Code, section 1981, is applicable. (Ward v. Jones, 39 Cal.2d 756, 249 P.2d 246; Rounds v. Brown, 121 Cal.App.2d 642, 263 P.2d 620; Henry v. City of Los Angeles, 114 Cal.App.2d 603 The law Revision Commission, which advocates repeal of both sections 1981 and 2003, in its report upon the...