Gopaul v. Herrick Memorial Hosp.

• Decision Date: 03 May 1974
• Citation: 113 Cal.Rptr. 811,38 Cal.App.3d 1002
• Court: California Court of Appeals Court of Appeals
• Parties: Helen L. GOPAUL, Plaintiff and Appellant, v. HERRICK MEMORIAL HOSPITAL, Defendant and Respondent. Civ. 31648.

Page 811

113 Cal.Rptr. 811

38 Cal.App.3d 1002

Helen L. GOPAUL, Plaintiff and Appellant, v. HERRICK MEMORIAL HOSPITAL, Defendant and Respondent.

Civ. 31648.

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

May 3, 1974.

Rehearing Denied May 30, 1974.

Hearing Denied June 26, 1974.

Conklin, Davids & Friedman, San Francisco, for plaintiff and appellant.

Crosby, Heafey, Roach & May, E. Melville McKinney, L. Douglas Pipes, Oakland, for defendant and respondent.

ELKINGTON, Associate Justice.

A judgment of nonsuit was entered against plaintiff Helen Gopaul in her 'malpractice' action against defendant Herrick Memorial Hospital. The trial court had concluded that the one-year statute of limitations of Code of Civil Procedure section 340, subdivision 3, had run before commencement of her action. Her appeal is from the judgment.

Viewed in a light most favorable to plaintiff (see Reuther v. Viall, 62 Cal.2d 470, 474--475, 42 Cal.Rptr. 456, 398 P.2d 792), we state the relevant evidence.

Plaintiff presented herself to the hospital one night 'because she didn't feel well.' Her condition, which appeared serious, was later diagnosed as bronchial pneumonia. Her private physician was called by telephone and, with other instructions, he directed the hospital to take x-rays of the patient. Hospital employees then placed her on a gurney and wheeled her to a room where the x-ray pictures were taken. She was then replaced on, but not strapped to, the gurney, after which she was left unattended while the hospital's technician developed the x-ray film. While so unattended she developed a fit of coughing and fell to the floor. She knew that she had fallen and complained about back pain. Several days later, her pneumonia cured, she was discharged from the hospital. About a year after the accident plaintiff visited another doctor complaining among other things, of pain in her lower back. The doctor asked if she had ever had any falls. She told him of the fall from the hospital gurney, whereupon he advised her that it was 'probably how you hurt your back.' Tests revealed a vertebral disc protrusion. This was the first knowledge or information plaintiff had of the relation of the fall to her back condition. The vertebral disc protrusion was thereafter corrected by surgery.

Fifteen months after the fall plaintiff commenced an action against the hospital for injuries alleged to have proximately resulted from its negligence in leaving her unattended and unstrapped to the gurney.

The hospital concedes, at least for the purpose of this appeal, that plaintiff's fall proximately resulted from the negligence of its technician, and by operation of respondeat superior, itself. The principal question presented is whether that negligence was 'ordinary negligence' or 'professional malpractice.'

An action founded on ordinary negligence must generally be commenced within one year of the commission of the negligent act. (Code Civ.Proc., § 340, subd. 3.) The plaintiff's ignorance of the cause of action, or of the identity of the wrongdoer does not toll the statute. (Neel v. Magana, etc., 6 Cal.3d 176, 187, 98 Cal.Rptr. 837, 491 P.2d 421; Howe v. Pioneer Mfg. Co., 262 Cal.App.2d 330, 340, 68 Cal.Rptr. 617.)

An action based on 'professional malpractice' is covered by the same statute of limitations. ^* But decisional law has modified the rule to provide that the statute does not commence running until the plaintiff has discovered, or through the use of reasonable diligence should have discovered, the tortious injury. See Neel v. Magana, etc., supra, 6 Cal.3d 176, 98 Cal.Rptr. 837, 491 P.2d 421, which must now be deemed California's leading case on the application of the statute of limitations to professional malpractice actions.

As might be expected, plaintiff relies upon the 'professional malpractice' rule. She argues that substantial evidence supported her claim that she did not know, and through the exercise of reasonable diligence would not have known, that her back injury probably resulted from the fall until she was so advised by the doctor about three months prior to commencement of her action.

' Malpractice' is commonly defined as 'any professional misconduct or any unreasonable lack of skill in the performance of professional or fiduciary duties.' (Webster's New Internat. Dict. (2d ed.).) And a hospital may be guilty of malpractice in the performance of its professional or fiduciary duties or as was said in Tunkl v. Regents of University of California, 60 Cal.2d 92, 101, 32 Cal.Rptr. 33, 39, 383 P.2d 441, 447 in the area of the 'particular skill of its staff and facilities.'

It will be seen that inherent in the concept of 'professional malpractice' is that it must have occurred in the 'performance of professional or fiduciary duties.' It follows that not every tortious injury inflicted upon one's client or patient or fiducial beneficiary amounts to such malpractice. No reasonable person would suggest that 'professional malpractice' was the cause of injury to a patient from a collapsing chair in a doctor's office, or to a client from his attorney's negligent driving en route to the court house, or to a hospital patient from a chandelier falling onto his bed. Such injuries would, no doubt, have proximately resulted from 'ordinary negligence,' but they would not be brought about from 'professional malpractice.'

The nature of 'professional malpractice,' and the rationale for application to it of the liberalized statute of limitations, are made clear by Neel v. Magana, etc., supra, 6 Cal.3d 176, 98 Cal.Rptr. 837, 491 P.2d 421. There (pp. 187--189, 98 Cal.Rptr. pp. 844--845, 491 P.2d pp. 428--429) the court said:

'In ordinary tort and contract actions, the statute of limitations, it is true, begins to run upon the occurrence of the last element essential to the cause of action. The plaintiff's ignorance of the cause of action, or of the identity of the wrongdoer, does not toll the statute. In cases of professional malpractice, however, postponement of the period of limitations until discovery finds justification in the special nature of the relationship between the professional man and his client.

'In the first place, the special obligation of the professional is exemplified by his duty not merely to perform his work with ordinary care but to use the skill, prudence, and diligence commonly exercised by practitioners of his profession. If he further specializes within the profession, he must meet the standards of knowledge and skill of such specialists.

'Corollary to this expertise is the inability of the layman to detect its misapplication; the client may not recognize the negligence of the professional when he sees it. He cannot be expected to know the relative medical merits of alternative anesthetics, nor the various legal exceptions to the hearsay rule. If he must ascertain malpractice at the moment of its incidence, the client must hire a second professional to observe the work of the first, an expensive and impractical duplication, clearly destructive of the confidential relationship...