Custodio v. Bauer

• Citation: 27 A.L.R.3d 884,59 Cal.Rptr. 463,251 Cal.App.2d 303
• Parties: , 27 A.L.R.3d 884 Berdella CUSTODIO and Braulio Custodio, Plaintiffs and Appellants, v. F. Henning BAUER, M.D., and Gregory Smith, M.D., Defendants and Respondents. Civ. 23003.
• Decision Date: 24 May 1967
• Court: California Court of Appeals

Page 463

59 Cal.Rptr. 463

251 Cal.App.2d 303, 27 A.L.R.3d 884

Berdella CUSTODIO and Braulio Custodio, Plaintiffs and Appellants, v. F. Henning BAUER, M.D., and Gregory Smith, M.D., Defendants and Respondents.

Civ. 23003.

Court of Appeal, First District, Division 1, California.

May 24, 1967.

Rehearing Denied June 13, 1967.

Hearing Denied July 19, 1967.

Thomas L. Bocci, South San Francisco, for appellants.

Peart, Baraty & Hassard, Salvatore Bossio, John I. Jefsen, San Francisco, for respondents.

SIMS, Associate Justice.

Plaintiffs Braulio and Berdella Custodio, husband and wife, have appealed from a judgment of dismissal ¹ entered upon an order sustaining without leave to amend defendants' demurrer to a complaint in which plaintiffs sought to recover damages resulting from the pregnancy of Mrs. Custodio following the failure of an operation undertaken and performed to accomplish her sterilization. ²

Pleadings

The complaint filed January 20, 1965 contains seven causes of action against three physicians, two of whom have appeared and are parties to these proceedings. Each cause of action sets forth the following allegations: that the defendants were and are physicians duly licensed to practice and engaged in the practice of medicine in the City and County of San Francisco; that each of defendants represented to Mrs. Custodio 'that she had more than sufficient children for her age in life and that additional children would aggravate a then existing bladder and kidney condition and * * * that the removal of the portion of the Faloppian (sic) tubes would accomplish a sterilization and would lend itself to a course of improvement in the physical condition of this plaintiff as it related to her emotional and nervous makeup, as well as the physicial repair of her kidney and bladder organs'; that plaintiffs agreed in writing that an operative procedure could be undertaken to accomplish the foregoing purpose; and that on or about November 14, 1963, Mrs. Custodio employed each of the defendants to treat her professionally 'for the purpose of removing portions of the Faloppian (sic) tubes, so as to accomplish a sterilization that would permanently defeat procreation or conception of a fetus in the female organs of this plaintiff, * * *' and agreed to pay a reasonable sum for those services; that the defendants and each of them 'undertook as physicians to remove a portion of the Faloppian (sic) tubes and to otherwise relocate the said tubes anatomically, so as to accomplish the act of sterilization'; and 'that in consequence of the said negligent conduct of said defendants and each of them, plaintiff became pregnant on or about the 19th day of August, 1964; that plaintiff became aware of her pregnancy on or about the 30th day of November, 1964, at which time plaintiff discovered the negligent actions and conduct of the said defendants and each of them.'

The first cause of action is predicated upon negligent treatment in the performance of the operation. The second cause of action is predicated upon negligent treatment in failing to correctly apprise plaintiff of the consequences of the operation. The fourth count contains a third cause of action based on malpractice. It is predicated upon the negligent failure to fully advise Mrs. Custodio of the procedures available for her treatment.

The third cause of action is predicated upon negligent misrepresentation.

In the fifth cause of action the husband seeks damages for the tortious conduct of the defendants as alleged in the first four causes of action.

In the sixth cause of action the husband and wife jointly seek damages for fraud and deceit.

In the seventh cause of action, both plaintiffs seek to recover for breach of contract. They allege: 'That defendants and each of them violated and breached the terms of said written agreement in that said defendants did not perform their services in the manner required of doctors in the San Francisco Bay Area * * *.'

Each cause of action repeats allegations of Mrs. Custodio that she will require $1,500 in medical expenses for prenatal care, postnatal care and hospitalization by reason of her pregnancy; that she 'will suffer additional damage to her person and body in that she will be exposed to further emotional and nervous complications, increased exposure to injury to her kidney, bladder and other organs of the body'; and that she 'was hurt, and injured in her health, strength and activity, sustaining injury to her body, and shock and injury to her nervous system and person, all of which said injuries have caused and continue to cause (her) great mental, physical and nervous pain and suffering, all to her general damage in the sum of Two Hundred Fifty Thousand Dollars ($250,000.00).' Additionally each sets forth: 'That the birth of plaintiff's child will require of the plaintiff, additional costs and expenses to properly care for and raise the said child to the age of maturity; that said cost is estimated to be in the sum of Fifty Thousand Dollars ($50,000.00) over said period of time, which constitutes additional special damages to this plaintiff.' ³

In the fifth cause of action Mr. Custodio seeks for himself recovery of $1,500 for the medical costs of the pregnancy and $50,000 to care for and raise the then expected child. He also alleged: 'That this plaintiff's emotional and nervous system will be affected by said pregnancy and subsequent birth of said child, all of which is a direct consequence of the negligent conduct of said defendants and each of them; that this plaintiff will be damaged generally in the sum of Fifty Thousand Dollars ($50,000.00).'

In the cause of action for fraud and deceit the plaintiffs jointly seek $500,000 punitive damages. In the contract cause of action damages are alleged to consist of the $51,500 special damages referred to above. Each plaintiff prays for $51,500, special damages, and jointly they pray for $500,000 punitive damages, and $51,500 special damages.

The demurrer to the complaint was based on: (1) failure to state facts sufficient to constitute a cause of action; (2) the bar of the provisions of Code of Civil Procedure section 340, subdivision 3; ⁴ (3) uncertainty in the seventh cause of action with respect to the nature and terms of the written agreement referred to therein; and (4) failure to separately state several causes of action.

The court sustained the demurrer without leave to amend on the ground, stated in its order (Code Civ.Proc., § 472d), of failure to state facts sufficient to constitute a cause of action against the demurring defendants.

Issues

Plaintiffs contend that the allegations of the complaint sustain causes of action for negligence (malpractice), misrepresentation (both negligent and intentional), and for breach of contract.

Defendants' principal contention is that pregnancy, the ensuing birth of a child, and the costs and expenses of the delivery and rearing of a child, are not legally cognizable injuries. They further assert that any alleged breach of duty by defendants is not the proximate cause of the alleged pregnancy and attendant costs and expenses; that the alleged misrepresentations are non-actionable statements of opinions; and that no action will lie for breach of contract because there is no warranty of a cure in a contract for medical services.

'The rules relating to the trial court's determination of a demurrer on the ground that a pleading does not state facts sufficient to constitute a cause of action and which govern a reviewing court in considering an appeal from a judgment entered on the sustaining of a demurrer on that ground are in general as follows: The allegations of the complaint must be regarded as true. It is assumed that plaintiff can prove all the facts as alleged; defects in the pleading which do not affect the substantial rights of the parties are disregarded; pleadings must be reasonably interpreted; they must be read as a whole and each part must be given the meaning that it derives from the context wherein it appears; the allegations must be liberally construed with a view to substantial justice between the parties and that the administration of justice shall not be embarrassed by technicalities or useless forms. (Citation.)' (Mercer v. Elliott (1962) 208 Cal.App.2d 275, 277--278, 25 Cal.Rptr. 217, 224; and see also Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 41--42, 172 P.2d 867; and M. G. Chamberlain & Co. v. Simpson (1959) 173 Cal.App.2d 263, 267, 343 P.2d 438.)

'(W)here a complaint is not subject to general demurrer, it is an abuse of discretion to sustain a demurrer without leave to amend even though the complaint may be subject to special demurrer and * * * no request to amend is necessary. (Citations.)' (Greninger v. Fischer (1947) 81 Cal.App.2d 549, 551, 184 P.2d 694, 695; and see Code Civ.Proc., § 472c; Speegle v. Board of Fire Underwriters, supra, 29 Cal.2d 34, 42, 172 P.2d 867; and Wennerholm v. Stanford Univ. Sch. of Med. (1942) 20 Cal.2d 713, 719, 128 P.2d 522, 141 A.L.R. 1358.)

The application of the foregoing rules leads to the conclusion that the trial court abused its discretion in sustaining defendants' demurrer without leave to amend. The judgment must be reversed and the case must be remanded for disposition of defendants' grounds of special demurrer and further proceedings in accordance with the views expressed in this opinion. Defendants' objections with respect to proximate cause, the opinion nature of the alleged misrepresentations and the lack of warranty in the alleged contract do not, as a matter of law, negate the otherwise actionable nature of the allegations of the complaint. The allegations made admit of pleading and proof of conventional damage. Determination of principles of public policy which are claimed to render certain consequences of proved wrongful acts and omissions noncompensable may best await the proof of the elements of damage claimed by plaint...