Freedman v. Superior Court

• Decision Date: 10 October 1989
• Docket Number: No. D010482,D010482
• Court: California Court of Appeals Court of Appeals
• Parties: Elizabeth M. FREEDMAN, Petitioner, v. SUPERIOR COURT, etc., County of San Diego, Respondent. Phillip YOUNG et al., Real Parties in Interest.

Page 1

263 Cal.Rptr. 1

214 Cal.App.3d 734

Elizabeth M. FREEDMAN, Petitioner, v. SUPERIOR COURT, etc., County of San Diego, Respondent Phillip YOUNG et al., Real Parties in Interest.

No. D010482.

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

Oct. 10, 1989.

Rehearing Denied Nov. 1, 1989.

Review Denied Jan. 17, 1990.

[214 Cal.App.3d 735] Elizabeth M. Freedman, in pro. per.

No appearance for respondent.

Neil, Dymott, Perkins, Brown & Frank, Sheila S. Trexler, and Daniel W. Kelsberg, San Diego, for real parties in interest Phillip Young, Benito Villanueva, and Obstetrics Medical Group of San Diego, Inc.

No appearance for real party in interest Scripps Memorial Hosp.

FROEHLICH, Associate Justice.

Petitioner joined physicians, a professional medical corporation and a hospital in a complaint for medical malpractice. The court sustained a demurrer without leave to amend as to the third cause of action of the first amended complaint, which purported to allege a battery. We entertain the petition because the striking of this cause of action from plaintiff's complaint would bar an allegedly substantial portion of plaintiff's case from hearing on the merits, and the issue raised appears to be novel and of significance to the resolution of an important aspect of malpractice cases. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 894, 157 Cal.Rptr. 693, 598 P.2d 854; Vasquez v. Superior Court (1971) 4 Cal.3d 800, 807, 94 Cal.Rptr. 796, 484 P.2d 964; Nazaroff v. Superior Court (1978) 80 Cal.App.3d 553, 557-558, 145 Cal.Rptr. 657; 8 Witkin, Cal. Procedure (3d ed. 1985) Extraordinary Writs, §§ 116, 118, pp. 751-755.)

PROCEDURAL BACKGROUND

The defendants interposed a general demurrer as to the third cause of action on the ground that it did not constitute a valid action in battery and that it was barred by the statute of limitations. The trial court's sustaining of the demurrer was stated to be upon the basis of inability to state a cause of action for battery, and in any event it appears that petitioner did or could have avoided the statute of limitations by pleading late discovery. We therefore direct our attention only to the issue of the pleading of battery. In this review we are The event giving rise to the malpractice claim was the birth of a child and the medical care attendant thereupon. Joined as plaintiffs are the mother in her own right and the mother as guardian ad litem for the child. The negligence causes of action set forth claims for both mother and child. The battery claim (as well as the cause of action for "fraud"), however, appears to allege an action only on behalf of the mother. Since only the battery count is in issue in this petition, we therefore deal only with the claims of the mother, referring to her as "plaintiff."

governed by the familiar principle that in testing a complaint by demurrer the trial court is bound to assume the provability of the allegations of the complaint and may not consider facts or allegations dehors the pleading. (5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 895, pp. 334-337.)

Plaintiff alleges she commenced labor on September 12, 1987, at 7:15 a.m., that she went to the hospital at 10:53 a.m., and that her delivery by caesarian section occurred at 12:22 a.m. on September 13, the following day. Before going to the hospital plaintiff called one of her physicians (all of whom are alleged to be agents of the others) to advise of her commencement of labor. She was instructed by her physicians to go to the hospital and to accept the administration of the drug Pitocin. In her negligence cause of action plaintiff states that the physicians "failed to disclose material risks of the procedure," which included augmentation of labor contractions, the resulting necessity of pain medication and anesthesia, relinquishment of control over the patient's body during labor and confinement to bed, and the possibility of requirement of caesarian section. Plaintiff alleges that Pitocin was not indicated under her circumstances and that the physicians "failed to disclose material information regarding the propriety of Pitocin administration."

These allegations are incorporated in the cause of action for battery. In addition, it is alleged that when the physician instructed plaintiff to accept the administration of Pitocin "he knowingly and intentionally misrepresented to her that Pitocin was necessary to prevent infection." Had plaintiff known the true nature and purpose of the drug, she alleges, she would not have consented to its use; therefore, her consent was fraudulently obtained and is not effective as a defense against what it is alleged turned out to be a damaging battery. Although perhaps not obvious from the strict terminology of the complaint, briefing and argument at both the trial court and appellate court level make clear that all parties as well as the trial court assumed (reasonably we believe) the pleading to acknowledge that (1) Pitocin is a drug which is acceptable for use in connection with childbirth under certain circumstances, but that (2) its purpose is not to prevent infection but to induce labor.

The trial court, in ruling from the bench on the demurrer, considered these allegations likely to amount to a claim in fraud, but discounted their effectiveness in terms of battery. The court stated:

"I think the key is whether or not the procedure was therapeutic in a medical sense. The fact that the therapy may be different than you understood it to be does not take it out of the range of being therapeutic.... [H]ere you were being administered a medication. It just turns out it's your opinion that the medication ... was not for the purpose you were told it was for, but still the medication administered, even in your own statements here, [was] for a therapeutic basis, even though it may not have been for what you wanted the medicine to be administered for."

DISCUSSION

It would appear that the trial court's decision was based upon Rains v. Superior Court (1984) 150 Cal.App.3d 933, 198 Cal.Rptr. 249. In that case the consent of psychiatric patients to violent therapy (called "sluggo therapy") was held ineffective when it had been induced by the physician's representation that its purpose was therapeutic when (as alleged) the real purpose was "the improper ulterior purpose of subjugating plaintiffs and controlling their behavior to defendants' personal advantage." (Id. at p. 936, 198 Cal.Rptr. 249.) The court in discussing its conclusion that these allegations stated a cause of action in battery emphasized the nontherapeutic versus therapeutic purpose of the physicians' ministration, stating:

"No persuasive reason is advanced by defendants, nor is any apparent to this court, why physicians, to the exclusion of all other persons, should enjoy total immunity from liability where they intentionally deceive another into submitting to otherwise offensive touching to achieve a nontherapeutic purpose known only to the physician. If a physician, for the sole secret purpose of generating a fee, intentionally misrepresented to a patient that an unneeded operation was necessary, it is beyond question that the consent so obtained would be legally ineffective.

"This court is persuaded by the authorities discussed herein that the therapeutic versus nontherapeutic purpose of touching by a psychiatrist goes to the 'essential character of the act itself' and thus vitiates consent obtained by fraud as to that character. [p] [T]he sole question is whether the plaintiffs can possibly allege facts stating a cause for battery against their psychiatrists. To prevail on such a theory plaintiffs must prove at trial that defendants' true purpose in employing violent physical contact upon plaintiffs was to achieve the secret personal purposes alleged rather than the announced purpose of curing the mental disorders of the plaintiffs." (Id. at p. 941, 198 Cal.Rptr. 249.)

In its use of the phrase "essential character of the act," the Rains court was referring to a distinction made in legal texts as to the varying kinds of misrepresentations which can give rise to mistaken consent. To vitiate consent the mistake " 'must extend to the essential character of the act itself, which is to say that which makes it harmful or offensive, [citation] rather than to some collateral matter which merely operates as an inducement....' " (Rains v. Superior Court, supra, 150 Cal.App.3d 933 at p. 939, 198 Cal.Rptr. 249.) (See also Rest.2d Torts, § 892B, com. i, pp. 374-375; Prosser & Keaton, Torts (5th ed. 1984) § 18, p. 112.)

The illuminating example given in the texts is that of the seduction of the voice pupil by the choirmaster upon the representation that it would improve her voice; as compared to the seduction of a woman by the false promise of marriage. In the first instance the physical contact is a battery because the "essential character" of the act has been misrepresented--it is not an exercise for voice improvement but for the personal gratification of the seducer. In the second case both parties know the "essential character" of ...