DeVault v. Logan

• Decision Date: 27 December 1963
• Citation: 36 Cal.Rptr. 145,223 Cal.App.2d 802
• Court: California Court of Appeals Court of Appeals
• Parties: Gladys B. DeVAULT, Plaintiff and Appellant, v. Joseph A. LOGAN et al., Defendants and Respondents. Civ. 250.

Page 145

36 Cal.Rptr. 145

223 Cal.App.2d 802

Gladys B. DeVAULT, Plaintiff and Appellant, v. Joseph A. LOGAN et al., Defendants and Respondents.

Civ. 250.

District Court of Appeal, fifth District, California.

Dec. 27, 1963.

Richard M. Kaplan, San Francisco, for appellant.

Stammer, McKnight & Barnum and James K. Barnum, Fresno, for respondents.

RALPH M. BROWN, Justice.

This appeal originated in a medical malpractice action commenced by plaintiff-appellant against Doctors Joseph A. Logan, Curtis Lee Price and Frank J. Puerta, a copartnership practicing medicine, defendants-respondents. Dr. Puerta is the actor; Doctors Logan and Price are joined on a theory of partnership liability. The word 'defendant' as used herein shall refer to Dr. Puerta. The issues raised by the affirmative defense of the bar of the statute of limitations were tried by a jury prior to and separate from the issues on the merits and the verdict was for plaintiff. Defendants' motion for an order for judgment notwithstanding the verdict was granted. Plaintiff appeals from the minute order granting the motion and from the judgment entered pursuant thereto in favor of the defendants.

The order granting judgment notwithstanding the verdict is not a final judgment and not an appealable order. The purported appeal therefrom must be dismissed. (Jordan v. Talbot, 55 Cal.2d 597, 602, 12 Cal.Rptr. 488, 361 P.2d 20.)

Viewing the evidence in the light most favorable to the plaintiff, and disregarding conflicts and contradictions, as the court must on an appeal from a judgment notwithstanding the verdict, the evidence shows the following facts:

On February 25, 1960, at about 7:00 p. m. the plaintiff, a 71-year-old woman, fell on a cement step outside her son's home, injuring her left hip and upper thigh. She was carried into the house, where she sat on a chair until Dr. Puerta arrived some 45 minutes later. She was assisted by her son and Dr. Puerta in walking a distance of approximately 38 feet to the bedroom where Dr. Puerta examined her. He advised her that it was his opinion she had no fractured bones but did have a bad bruise. He told her to come to his office the next morning for x-rays, and advised her to use crutches if it became necessary for her to go to the bathroom. He said nothing about going to a hospital that night or about obtaining immediate x-rays. The reassured plaintiff fell asleep but awakened about 2:30 a. m. February 26th, and, using crutches, went to the bathroom. As she seated herself on the toilet seat, she heard a loud popping sound from the area of her left hip and immediately experienced excruciating pain which caused her to become nauseated and to faint. Later that same morning she was transported by ambulance to St. Agnes Hospital where an x-ray was taken and she was placed in traction. She was told she had a fractured hip. That same night Dr. Clarmont P. Doane, an orthopedic specialist, performed surgery and removed the head of the femur and inserted a metal prosthesis. The plaintiff was informed of this surgery while in the hospital. Although she saw both Dr. Logan and Dr. Puerta in the hospital, the subject of her initial diagnosis and treatment by Dr. Puerta was never discussed.

Plaintiff was discharged from St. Agnes Hospital on March 8, 1960. She never saw or talked with the defendants again.

She never recovered after surgery and her hip became increasingly painful. A staphylococcus infection developed in the operative wound which persisted for months. She was subsequently seen for treated by Doctor Molyneaux, Doctor Beare and Doctor Cleary in the San Francisco Bay area and by Doctor Doane and Doctor Gray in Fresno. She entered hospitals upon three occasions where she underwent diagnostic studies and tests for anemia and received blood transfusions. All of this occurred prior to June 15, 1960. She never discussed with any of these doctors the subject of her initial diagnosis and treatment by Dr. Puerta.

On September 9, 1960, at the Peninsula Hospital in Burlingame, the metal prosthetic femoral head was removed by surgical procedure performed by Dr. Cleary, an orthopedic surgeon.

In March 1961 the plaintiff's daughter consulted an unidentified attorney in San Francisco on another matter and was told by him that the plaintiff's medical case 'probably handn't been handled properly.' The remark was transmitted to plaintiff. She then consulted her present attorney in June 1961 and this action was filed July 26, 1961, seventeen months after the injury.

It was the opinion of the medical witnesses that the plaintiff's hip was fractured at the time of the fall and that a displacement of the fracture occurred at the time she seated herself in the bathroom.

On appeal, plaintiff presents two primary issues: (1) that the motion for a directed verdict, which at the time of trial was a prerequisite to a motion for a judgment notwithstanding the verdict, ¹ was not made timely; and (2) that the court erred in granting the motion.

The motion for a directed verdict was made, by leave of court, after the close of evidence and arguments of counsel to the jury but prior to the court's change to the jury. Plaintiff contends that such motion must be made at the close of evidence in order 'to give the party against whom the motion is directed an opportunity to introduce whatever further and additional evidence he may have at hand to overcome the grounds of the motion' (Estate of Easton, 118 Cal.App. 659, 662, 5 P.2d 635, 636). The contention is answered by the decisional law of this state and by the record. It has been held that while the motion for directed verdict should be made at the completion of the taking of evidence, it is within the discretion of the court to permit it to be made at any time before the case is submitted to the jury. (Gibson v. Southern Pacific Co., 137 Cal.App.2d 337, 290 P.2d 347, 63 A.L.R.2d 1205; Quiring v. Zamboni, 148 Cal.App.2d 890, 307 P.2d 650.) Plaintiff made no request to reargue or reopen when the motion was made and on appeal shows no prejudice. The record discloses that, at the time the motion was made and before the court ruled thereon, the trial judge specifically invited plaintiff's counsel to object to the motion being made at that time, if he so desired, and counsel replied, 'Oh, I assume that the court has control of the order of testimony, and the order of motions.' Having then acquiesced to the belated motion, it is too late for plaintiff to now object.

In seeking reversal, plaintiff urges that the court erred in concluding as a matter of law that plaintiff's alleged cause of action was barred by the statute of limitations.

The general rule is that an action brought by a patient against a doctor for damages for injuries sustaned by the patient arising out of negligent treatment on the part of the physician is an action in tort and not upon a contract. The statute of limitations of one year embodied in the Code of Civil Procedure section 340, subdivision 3, is applicable to such action. (Stafford v. Shultz, 42 Cal.2d 767, 775, 270 P.2d 1; Huysman v. Kirsch, 6 Cal.2d 302, 306, 57 P.2d 908; Garlock v. Cole, 199 Cal.App.2d 11, 15, 18 Cal.Rptr. 393; Mock v. Santa Monica Hospital, 187 Cal.App.2d 57, 63-64, 9 Cal.Rptr. 555.) Exceptions which relax this general rule have been recognized and established. Thus, it has been held that the statute does not commence to run while the patient and physician relationship continues (Huysman v. Kirsch, supra; Myers v. Stevenson, 125 Cal.App.2d 399, 401, 270 P.2d 885; Ehlen v. Burrows, 51 Cal.App.2d 141, 144, 124 [223 Cal.App.2d 807] P.2d 82); or until the plaintiff discovers the injury, or through the use of reasonable diligence should have discovered it (Stafford v. Shultz, supra; hundley v. St. Francis Hospital, 161 Cal.App.2d 800, 806, 327 P.2d 131, 80 A.L.R.2d 360; Hemingway v. Waxler, 128 Cal.App.2d 68, 70-71, 274 P.2d 699) whether such actual or constructive discovery occurs prior to or after termination of the doctorpatient relationship (Petrucci v. Heidenreich, 43 Cal.App.2d 561, 562, 111 P.2d 421); or if there is an act or omission on the part of the doctor which would toll or interrupt the running of the statute or estop the doctor from asserting that the action is barred (Calvin v. Thayer, 150 Cal.App.2d 610, 615, 310 P.2d 59), such as fraudulent concealment of the facts giving rise to the cause of action (Stafford v. Shultz, supra, 42 Cal.2d at page 779, 270 P.2d at page 8; Garlock v. Cole, supra, 199 Cal.App.2d 11, 18 Cal.Rptr. 393).

In the case under consideration plaintiff's arguments relating to the existence of a fiduciary relationship and her reliance on Dr. Puerta's skill and judgment must fail for the relationship of doctor and patient terminated on March 8, 1960, more than one year prior to commencement of this action. Thereafter she was under the care of other physicians and surgeons. Plaintiff adduced no evidence tending to establish the doctrine of fraudulent concealment or that the delay in commencing her action was induced by any conduct on the part of the doctor. The only arguments, therefore, which merit discussion relate to her claim that she did not discover, and could not have discovered by the use of reasonable diligence, the claimed negligence of Dr. Puerta until March of 1961 when an attorney advised her daughter that her case 'probably hadn't been handled properly' and that statement was transmitted to plaintiff.

Similar contentions were made and rejected in two cases which involved factual situations strikingly similar to the facts in this case. In Hemingway v. Waxler, supra, 128 Cal.App.2d 68, 274 P.2d 699, judgment for the defendant after trial on the special defense of the bar of the statute of limitations was affirmed. The plaintiff suffered a broken leg in an accident. The defendant doctor examined plaintiff and x-rays which had been taken and told pla...