Farber v. Olkon

• Decision Date: 17 March 1953
• Citation: 40 Cal.2d 503,254 P.2d 520
• Court: California Supreme Court
• Parties: FARBER v. OLKON et al. L. A. 22536.

Page 520

254 P.2d 520

40 Cal.2d 503

FARBER v. OLKON et al.

L. A. 22536.

Supreme Court of California, in Bank.

March 17, 1953.

Fred Girard and Joseph D. Flaum, Los Angeles, for appellant.

Reed & Kirtland, David Sosson, Henry E. Kappler and Fred O. Reed, Los Angeles, for respondents.

SCHAUER, Justice.

Plaintiff, a mentally ill person appearing by guardian ad litem, appeals from an adverse judgment entered upon a directed verdict in his action to recover damages from defendants for alleged bodily assault and negligence in administering an electroshock treatment to plaintiff. We have concluded that, contrary to plaintiff's contention, the trial court's determination that he was not entitled to the benefit of the doctrine of res ipsa loquitur was correct and that, although the evidence be viewed in the light most favorable to plaintiff and conflicts disregarded (see Huffman v. Lindquist (1951), 37 Cal.2d 465, 468-469, 234 P.2d 34; Lashley v. Koerber, M. D., (1945), 26 Cal.2d 83, 84-85, 156 P.2d 441) defendants' motion for directed verdict was properly granted. It follows that the judgment should be affirmed.

Plaintiff was 31 years of age at the time of the treatment of which he here complains. He became mentally ill in August, 1936, at the age of 19, and since then has continued to suffer from chronic schizophrenia with hebephrenic and paranoid features with progressive mental deterioration. After being cared for at his father's direction is various homes and sanitariums he was, in 1944, committed to Camarillo State Hospital, hereinafter termed Camarillo, which is under the supervision of the Department of Mental Hygiene ¹, Welf. & Inst. Code, § 154, hereinafter termed the Department. He remained at Camarillo until August 8, 1947, when he was paroled to, and by Camarillo transported to, Los Angeles Neurological Institute, ² hereinafter termed the Institute, under the father's agreement that he would care for and maintain plaintiff and, upon request, cause plaintiff's return to Camarillo at the father's own expense. Three days later, August 11, 1947, the father, with permission of the Institute, took plaintiff for an automobile ride, but failed to return plaintiff thereto until August 29, 1948. In the meantime plaintiff had been kept for various periods at the father's home, in a sanitarium and in a hospital. At the hospital a brain operation known as a lobotomy was performed by Dr. Seletz on June 27, 1948, with the father's consent. (This lobotomy is mentioned here only as a relevant incident in plaintiff's medical history.'

The history given by Dr. Seletz states that the patient 'has stereotyped behavior will not answer questions. He has no discipline and continues to ramble in his speech * * * his thoughts are disjointed * * *. He refuses to use water to wash with since he states it is too costly. He will not bathe, and will not use the toilet * * *. He has had some 80 shock theraphy treatments, both in private hospitals and at Camarillo State Hospital * * *.' Following the lobotomy plaintiff was cared for in his father's home, but his condition gradually deteriorated, and he became more readily upset and disturbed. After consulting with Dr. Seletz, who suggested that following a lobotomy 'sometimes they gave shock treatments,' the father returned plaintiff to the Institute on the evening of August 29, 1948, and at that time discussed with defendant Dr. Wayne, who is one of the directors of the Institute, plaintiff's agitated and confused behavior and Dr. Seletz' suggestion of shock treatment, and 'asked Dr. Wayne to see what he could do to help the boy.' The father also signed a written consent to administration of the electric shock therapy.

Dr. Wayne, a licensed physician and surgeon who has specialized in psychiatry since 1940, had examined plaintiff when the latter had been admitted to the Institute in 1947 and was aware of his condition and the history of his treatment since then, including the lobotomy. Following further examination of plaintiff Dr. Wayne diagnosed his condition as the same as before, except worse, and on August 30, 1948, administered a shock treatment to him. Dr. Wayne testified that immediately after that treatment 'there seemed to be evidence of a favorable response, and ordinarily we have found it good practice to skip a day in between each treatment * * * to observe the reaction to the individual treatment * * *.' Pursuant to this practice a second treatment was given to plaintiff on September 1, but between five and ten seconds after the current was applied and while plaintiff was in a convulsive state a snapping or 'crunching' sound was heard by Dr. Wayne and the attending nurses. Dr. Wayne, suspecting fractures of the patient's bones, ordered X rays, and it was discovered that both femur bones had broken close to the heads. Plaintiff was thereupon taken to Temple Hospital for treatment of the fractures, and was kept in hospitals and at his father's home until March, 1949, when at the request of the Department the father returned him to Camarillo. Following the fractures, plaintiff's hips have become permanently deformed.

As grounds for reversal, plaintiff contends that as he was an incompetent without understanding and at the time of the shock treatment here involved had no court appointed guardian, the treatment was administered without any authorized consent thereto on plaintiff's behalf and therefore as a matter of law constituted an assault. Plaintiff further contends that the case should have gone to the jury on the issue of negligence, both under the doctrine of res ipsa loquitur and because the evidence allegedly would support a finding that defendants negligently failed to properly and adequately restrain plaintiff's body when the treatment was given.

Some 450 patients are paroled from Camarillo each month. In 1947 plaintiff's father requested that plaintiff be paroled. The request for parole was taken up at a meeting of the hospital's staff of physicians in April, 1947, and after considering the plaintiff's 'hopeless mental condition' and unfortunate personal habits an 'indefinite parole direct to licensed mental sanitarium' was recommended. The father upon being informed that 'I should find a licensed place,' made arrangements for plaintiff to be cared for at the Institute, which is a mental hospital licensed under sections 5700 et seq., of the Welfare and Institutions Code and under Division XI ³ of the Rules and Regulations of the Department (which were introduced into evidence). The father also signed the customary parole agreement or 'bond' with the Medical Superintendent of Camarillo, which provides that the father 'does hereby accept custody of said patient, with the understanding that he will continue under the jurisdiction of the Division of Extramural Care of the State Department of Institutions. It is further agreed to care for and maintain him and to see that he is promptly returned to the Hospital without any expense to the State in the event return is found necessary or advisable, or is recommended by the Division of Extramural Care.' Plaintiff was thereupon, on August 8, 1947, 'paroled to Los Angeles Neurological Institute' for an indefinite period and was taken to the Institute, as related hereinabove.

An officer of Camarillo testified that at the time plaintiff was paroled it was customary for parolees 'to be furnished medical care by either a State licensed institution or the person to whom they were paroled,' and that the Department 'looked to the person to whom the patient was paroled to furnish the custodial care and also the medical care as they might require * * *'; that plaintiff 'was paroled to the Los Angeles Neurological Institute and to no one else,' and that both the Institute and the father had the responsibility to see that plaintiff had such medical care and maintenance as he might require. The witness further stated that the Department knew that the Institute was 'a licensed mental hospital at the time * * *. And * * * a place where medical and psychiatric care could be furnished,' and affirmed that as specified by Rule 10, of Division XI of the Department's Rules and Regulations 'All patients who are confined or reside in (licensed, private) institutions, except those whose religious beliefs are in opposition to the receiving of medical attention, must be supervised and visited by a regularly licensed physician, and treatment must be outlined and shown in the records'; ⁴ that from the time plaintiff was paroled to the Institute in August, 1947, until the parole was terminated by the Department in March, 1949, there was 'in accordance with the last agreement signed (by the father) at the time he (plaintiff) left (Camarillo)' no other place authorized to furnish medical care to plaintiff except the Institute.

The Superintendent of Camarillo 'may grant a parole or leave of absence to a patient under general conditions prescribed by the Department'. Welf. & Inst. Code, § 6726. The conditions prescribed by the Department are found in Rule 21 of Division III of its Rules and Regulations, and include provisions that the person and the place to which the patient shall be paroled must be specified, that the Department may transfer the patient from time to time as may seem most beneficial to the patient, and that 'No person shall have the authority to change the conditions of any parole without full approval of the Department.' Plaintiff does not suggest that the Superintendent did not exercise a proper discretion in paroling him to the Institute, nor that the 28 shock treatments which the record shows were administered to plaintiff by Camarillo were unauthorized (indeed, plaintiff concedes that the Superintendent is directed by section 6559 of the Welfare and Institutions Code to treat the patients), but it is contended that because plaintiff was an incompetent adult rather than a minor neither his father nor the Institute...