Ebaugh v. Rabkin

• Decision Date: 14 January 1972
• Citation: 99 Cal.Rptr. 706,22 Cal.App.3d 891
• Court: California Court of Appeals Court of Appeals
• Parties: Elizabeth EBAUGH, Plaintiff and Respondent, v. R. RABKIN, M.D., et al., Defendants and Appellants. Civ. 28464.

Page 706

99 Cal.Rptr. 706

22 Cal.App.3d 891

Elizabeth EBAUGH, Plaintiff and Respondent, v. R. RABKIN, M.D., et al., Defendants and Appellants.

Civ. 28464.

Court of Appeal, First District, Division 2, California.

Jan. 14, 1972.

As amended Jan. 26, 1972.

Bledsoe, Smith, Cathcart, Johnson & Rogers, Robert A. Seligson, San Francisco, for defendants and appellants.

Ricksen, Ricksen, Snook & Vendt, Oakland, for plaintiff and respondent.

KANE, Associate Justice.

Defendants T. Scruggs, M.D., and Permanente Medical Group, a co-partnership ('Permanente'), appeal from a judgment entered on a jury verdict awarding to respondent Elizabeth Ebaugh both compensatory and punitive damages. Defendants R. Rabkin, M.D., and Kaiser Foundation Hospitals also appeal from the judgment but the appeal by those parties has been rendered moot by the entry of a judgment in their favor notwithstanding the verdict, which judgment has become final. Accordingly, the appeal by Rabkin and Kaiser is ordered dismissed.

Respondent, a patient of Dr. Rabkin, was admitted to the Kaiser Foundation Hospital in Walnut Creek on February 6, 1967, and was scheduled for a breast biopsy the next day at 8 a.m. Appellant Scruggs was the treating physician for one Mary Notarmaso who was admitted to the same hospital and was scheduled for gall bladder surgery on the same day and at the same hour as respondent. Both patients were in the same ward and attended by the same nurses. On the operation day one patient left the ward at 7:35 a.m., the other shortly after, at 7:40 a.m. Somehow a mixup in the charts occurred, as a result of which each patient was subjected to the surgery scheduled for the other. Dr. Scruggs, who was supposed to perform the operation on Mrs. Notarmaso, opened up respondent's abdomen and examined her gall bladder. When this examination revealed a normal gall bladder, Dr. Scruggs inspected the chart and the wrist band of respondent. It was at this point that he discovered the error.

In the meantime Dr. Rabkin made an incision on Mrs. Notarmaso. He soon discovered that he was not operating on respondent and immediately terminated the procedure. He repaired the wound that he had made and placed a dressing on it. Shortly after, he located respondent and performed the scheduled breast biopsy on her.

The jury returned verdicts awarding respondent $7,500 compensatory damages against all defendants and punitive damages in the sums of $10,000 against Dr. Rabkin, $5,000 against Dr. Scruggs, $30,000 against Kaiser Foundation Hospitals and $30,000 against Permanente.

Appellants do not challenge the propriety of the award of $7,500 for compensatory damages. However, they contend (1) that the issue of punitive damages should not have been submitted to the jury, and (2) that even assuming punitive damages to be a jury issue, the trial court committed prejudicial error in its instructions on this subject. Both contentions are sound.

1. The evidence was insufficient to support a verdict for punitive damages.

Civil Code section 3294 provides that 'In an action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud, or malice, express or implied, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.' The cases interpreting section 3294 make it clear that in order to warrant the allowance of punitive damages that act complained of must not only be wilful in the sense of intentional, but it must also be accompanied by aggravating circumstances, amounting to malice. The malice required implies an act conceived in a spirit of mischief or with criminal indifference towards the obligations owed to others. There must be an intent to vex, annoy or injure. Mere spite or ill will is not sufficient; and mere negligence, Even gross negligence is not sufficient to justify an award of punitive damages. (Read v. Turner (1966) 239 Cal.App.2d 504, 515--516, 48 Cal.Rptr. 919; Ellis v. City Council (1963) 222 Cal.App.2d 490, 498--499, 35 Cal.Rptr. 317; Gombos v. Ashe (1958) 158 Cal.App.2d 517, 526--527, 322 P.2d 933.)

The cases also point out that the only form of malice contemplated by Civil Code section 3294, which creates the right to exemplary damages, is Malice in fact. (Davis v. Hearst (1911) 160 Cal. 143, 116 P. 530; Wolfsen v. Hathaway (1948) 32 Cal.2d 632, 198 P.2d 1.) Under general definition, malice in fact denotes ill will on the part of the defendant, or his desire to do harm for the mere satisfaction of doing it. In ultimate analysis, malice in fact is malice of evil motive (Davis v. Hearst, supra; 14 Cal.Jur.2d § 176, pp. 810--811).

In the instant case there is simply no evidence that any of the appellants were guilty of malice, either 'express or implied.' On the contrary, the record negates any conclusion that the unauthorized operation on respondent's person took place out of evil motive or criminal indifference by appellants, or with an intent to injure or do harm to respondent for the mere satisfaction of doing it.

Dr. Scruggs' action was admittedly negligent, amounting to a technical battery. However, the facts disclose that he did not know that he was operating on the wrong person. Thus, due to inadvertence, he was acting under a mistake of fact. Punitive damages are not recoverable where a person, acting in good faith, commits the tort of battery under a mistake of fact. (Wolfsen v. Hathaway, supra; Heinze v. Murphy (1942) 180 Md. 423, 24 A.2d 917; Prosser on Torts (3d ed.) p. 34.)

There is a further error with respect to the award of punitive damages against Permanente, the employer of Dr. Scruggs. It is well settled that while an employer may be held liable...