Gross v. Allen
Decision Date | 09 February 1994 |
Docket Number | No. B073286,B073286 |
Citation | 22 Cal.App.4th 354,27 Cal.Rptr.2d 429 |
Court | California Court of Appeals Court of Appeals |
Parties | Michael GROSS, Cross-Complainant and Appellant, v. Robert ALLEN, Cross-Defendant and Appellant; and Ferris Pitts, Cross-Defendant and Respondent. |
Wilson, Elser, Moskowitz, Edelman & Dicker, Patrick M. Kelly, Vincent D'Angelo and Vincent McGonagle, Los Angeles, for cross-complainant and appellant.
Hillsinger & Costanzo, Thomas E. Tootell and Sarah Yoseloff, Los Angeles, for cross-defendant and respondent.
Dummit, Faber & Brown, Craig S. Dummit, Los Angeles, and Jeffry A. Miller, San Diego, for cross-defendant and appellant.
In this medical malpractice-equitable indemnity case, Michael Gross, a psychiatrist, appeals from a judgment notwithstanding the verdict. Robert Allen, a psychiatrist whose motion for judgment notwithstanding the verdict was denied, also appeals.
We find it was error to grant the appealed from motion for judgment notwithstanding the verdict and reverse that part of the judgment. We also find it was proper to deny Dr. Allen's motion for judgment notwithstanding the verdict, and affirm that part of the judgment.
Karen Joy Scancarello had a history of depression and attempted suicide. In 1982, her psychotherapist, Dr. Crow, referred her to Drs. Allen and Pitts, psychiatrists who primarily relied on drugs not psychotherapy to treat their patients. They prescribed Nardil, Halcion and other drugs for Ms. Scancarello. When this drug treatment proved unsuccessful Drs. Allen and Pitts used electroconvulsive therapy on Ms. Scancarello.
In December 1984, having determined the electroconvulsive therapy was also unsuccessful, Drs. Allen and Pitts had Ms. Scancarello admitted to Massachusetts General Hospital where a cingulotomy 1 was performed. But by the end of December 1984 Ms. Scancarello had returned to Los Angeles and was still suicidal. On December 29, 1984, she was admitted to Ingleside Hospital where she attempted to set her clothes on fire. She remained there until February 1, 1985. Dr. Allen was her treating psychiatrist. On February 1, 1985, she was transferred to U.S.C. Medical Center and discharged February 7, 1985.
On February 27, 1985, after driving her car into a tree and telling the emergency room doctor that she wanted to kill herself, Ms. Scancarello was readmitted to U.S.C. Medical Center. Sometime later, in the U.S.C. Medical Center, she attempted to strangle herself.
Drs. Allen and Pitts continued to treat Ms. Scancarello on an out-patient basis. In April 1985 Dr. Allen believed the risk of Ms. Scancarello committing suicide was very high.
On May 16, 1985, Ms. Scancarello overdosed on 50 Halcion tablets but survived. On May 18, 1985, she was admitted to a Los Angeles County psychiatric hospital. In early June 1985, fearing another overdose, Dr. Allen told Ms. Scancarello's mother, with whom Ms. Scancarello lived, to take away Ms. Scancarello's pills. On June 15, 1985, Dr. Pitts administered 37 and 1/2 milligrams of Prolixin Decanoate by injection to Ms. Scancarello, a 50 percent increase from her former two-week dosage.
Prior to June 24, 1985, Ms. Scancarello had two telephone conversations with Dr. Pitts about her intention to enroll as an in-patient in the eating disorder program at Northridge Hospital. Dr. Pitts told Ms. Scancarello "that her illness was too severe to be handled in a hospital on an open unit, that regular programs in eating disorder clinics ... included discontinuing medications of the type she was on because the medications themselves were what occasioned tremendous weight gain...." During the second telephone conversation Dr. Pitts "yelled" at Ms. Scancarello saying "I forbid you to do this." Ms. Scancarello was crying.
On June 24, 1985, Dr. Gross was the admitting psychiatrist for the eating disorder program at Northridge Hospital. That evening he met, interviewed, and admitted Ms. Scancarello to the program. She did not tell him about her suicide attempts.
The next morning, June 25, 1985, Dr. Gross again saw Ms. Scancarello but only briefly. She was depressed and "disagreeable." That same day Dr. Gross telephoned Dr. Allen, told him Ms. Scancarello was an eating disorder program in-patient, and asked for her psychiatric history.
Dr. Allen made no record of the conversation and had only a vague recollection of it. Dr. Gross did make a record of the conversation, summarizing it in a progress note. The summary read: "Call to Dr. Robert Allen Dr. Allen did not tell Dr. Gross about Ms. Scancarello's suicide attempts.
psychiatrist, treating patient past year. Trial and error to achieve current medications. States patient much improved since surgery and had a complete remission for several weeks after surgery only to relapse to present level. Also seemed to remit for a few days after ECT [electroconvulsive therapy]. Will return to his care after treatment here."
On the morning of June 26, 1985, Dr. Gross was informed that Ms. Scancarello was in bed, was drowsy, and did not respond to directions to get out of bed. He sent her to the emergency room where she went into a coma. It was determined she had taken an overdose of Nardil, medication prescribed by Drs. Allen and Pitts. She remained in a coma approximately five weeks and remained hospitalized approximately five months. She suffered severe neurological damage.
On June 20, 1986, Ms. Scancarello filed suit against Northridge Hospital Medical Center, Dr. Gross, and several other Northridge Hospital doctors. She did not sue either Dr. Pitts or Dr. Allen.
On November 29, 1988, Dr. Gross filed a cross-complaint for equitable indemnity against Drs. Allen and Pitts.
A pretrial settlement was reached between Ms. Scancarello, Northridge Hospital, and Dr. Gross. Ms. Scancarello settled her case for $429,008, $30,000 from Northridge Hospital, $399,008 from Dr. Gross. Other defendants, Northridge Hospital psychiatrists, were dismissed.
Thereafter, the instant trial on Dr. Gross' cross-complaint for equitable indemnity against Drs. Allen and Pitts proceeded. After a ten day trial the jury rendered special verdicts finding Drs. Allen, Pitts, and Gross each negligent, that their negligence was each a legal cause of Ms. Scancarello's injuries, that the settlement between Ms. Scancarello and Dr. Gross was reasonable, that a portion of the settlement amount "was attributable to the conduct" of Drs. Pitts and Allen, and the percentage of the settlement attributable to the conduct of each psychiatrist was: Dr. Pitts 19 percent, Dr. Allen 6 percent, and Dr. Gross 75 percent.
Both Drs. Allen and Pitts moved for judgment notwithstanding the verdict. The trial court granted Dr. Pitts' motion and denied Dr. Allen's motion. Judgment was entered accordingly.
The instant separate appeals by Dr. Gross and Dr. Allen followed.
"
The trial court granted Dr. Pitts' motion for judgment notwithstanding the verdict because it found "there is no evidence of substance to sustain Dr. Gross' case against Dr. Pitts."
On appeal, Dr. Pitts concedes there was substantial evidence of his negligence and legal responsibility for Ms. Scancarello's injury but contends the trial court's ruling was correct for another reason. (Mayflower Ins. Co. v. Pellegrino (1989) 212 Cal.App.3d 1326, 1332, 261 Cal.Rptr. 224.) That reason, according to Dr. Pitts, is "a party seeking indemnity must demonstrate that the amount paid to plaintiff was in excess of the settling defendant's proportionate share of liability." (Emphasis added.) Dr. Pitts argues that the $399,008 paid by Dr. Gross was in settlement of only his liability and did not include any amount for the potential liability of Dr. Pitts. That being the case, the argument continues, Dr. Gross failed to prove he paid in excess of For several reasons, Dr. Pitts' contention is mistaken.
his proportionate share of liability to Ms. Scancarello. Further, Dr. Pitts denies that his argument would require "that for Dr. Gross to prevail, he must first establish plaintiff's damages."
First, there was substantial evidence that the $429,008 settlement represented Ms. Scancarello's entire claim. Her attorney, who filed the complaint and secured the settlement, Richard Feinberg testified as follows:
To continue reading
Request your trial-
Kockelman v. Segal
...v. Regents of the University of California (1976) 17 Cal.3d 425, 435, 131 Cal.Rptr. 14, 551 P.2d 334; see also, Gross v. Allen (1994) 22 Cal.App.4th 354, 362, 27 Cal.Rptr.2d 429; Hedlund v. Superior Court (1983) 34 Cal.3d 695, 700, 194 Cal.Rptr. 805, 669 P.2d 41 ["... a psychotherapist stan......
-
Martin v. County of Los Angeles
...Western S.S. Lines, Inc. v. San Pedro Peninsula Hosp. (1994) 8 Cal.4th 100, 32 Cal.Rptr.2d 263, 876 P.2d 1062; Gross v. Allen (1994) 22 Cal.App.4th 354, 27 Cal.Rptr.2d 429; Blecker v. Wolbart (1985) 167 Cal.App.3d 1195, 213 Cal.Rptr. 781; Bracket v. State (1986) 180 Cal.App.3d 1171, 226 Cal......
-
Dillingham Const., N.A., Inc. v. Nadel Partnership, Inc.
...represented only a fraction of the amount plaintiff could have recovered from settling defendants alone. (See Gross v. Allen (1994) 22 Cal.App.4th 354, 361, 27 Cal.Rptr.2d 429 [to recover on an indemnity cross-claim against a nonsettling defendant, settling defendant not required to proved ......
-
Brenlar Investments, Inc. v. Lynch, A121044 (Cal. App. 1/29/2010)
...in settlement was reasonable. (Mullin Lumber Co. v. Chandler (1986) 185 Cal.App.3d 1127, 1134-1135 (Chandler); accord Gross v. Allen (1994) 22 Cal.App.4th 354, 360.) A settlement amount is reasonable "if the injured party could state a recognized cause of action against the settling defenda......
-
Negligence
...Rptr. 2d 552. A psychiatrist has a duty to warn a subsequent psychiatrist of a patient’s suicidal tendencies. Gross v. Allen (1994) 22 Cal. App. 4th 354, 361-362, 27 Cal. Rptr. 2d 429. A psychiatrist has a duty to warn parents of an adult outpatient’s suicidal tendencies. Bellah v. Green-so......