Hathaway v. Spiro
| Decision Date | 01 February 1985 |
| Citation | 164 Cal.App.3d 359,210 Cal.Rptr. 421 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Leila S. HATHAWAY and Frank B. Hathaway, Plaintiffs and Respondents, v. Arnold SPIRO, M.D. and Eduardo Velayos, M.D., Defendants and Appellants. Civ. B004522. |
Bonne, Jones, Bridges, Mueller & O'Keefe, P.C., and H. Gilbert Jones and Peter R. Osinoff, Los Angeles, for defendants and appellants.
The Law Offices of Ian Herzog, P.C., and Ian Herzog, Los Angeles, for plaintiffs and respondents.
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Defendants-Appellants Arnold Spiro, M.D. and Eduardo Velayos, M.D. appeal from a judgment against them and in favor of plaintiffs-respondents Leila S. Hathaway and Frank B. Hathaway.
The plaintiffs were Leila S. Hathaway (Leila) and her husband, Frank B. Hathaway (Frank). The defendants in the trial court were Baldwin Park Community Hospital (Hospital), Robert Degnan, M.D. (Degnan), Arnold Spiro, M.D. (Spiro) and Eduardo Velayos, M.D. (Velayos).
This is a case of asserted medical malpractice. Leila was admitted to Hospital on August 15, 1977 by Degnan for delivery of her child. During the vaginal delivery, attended by Degnan, he performed an episiotomy.
Following discharge from Hospital, the laceration became a rectovaginal fistula and was so diagnosed by Spiro. Leila was readmitted to Hospital on August 27, 1977 and the fistula was repaired by defendants Spiro and Velayos. Their specialty is proctology.
While Leila was still in the hospital, the repair attempted by Spiro and Velayos began to break down. Since that time, she has had numerous problems which she attributes to the malpractice of all of the defendants. Frank's cause of action is for loss of consortium.
Plaintiffs' principal charges are as follows: against Degnan for negligently performing the episiotomy; against Spiro and Velayos for attempting prematurely to repair the fistula; against Hospital because of an allegedly inadequate review process to assure the competence of doctors having staff privileges. As for the timing of the attempted repair of the fistula, plaintiffs assert that a minimum of three months must elapse before any repair is attempted. Plaintiff asserts further that Spiro had attempted prematurely other repairs of rectovaginal fistulas at Hospital with similarly poor results and that Hospital did nothing to avoid repetitions.
The jury, after deliberating for two days, returned the following general verdicts:
1. For plaintiff Leila and against defendant Spiro in the amount of $889,500;
2. For plaintiff Frank and against defendant Spiro in the amount of $50,000;
3. For plaintiff Leila and against defendant Velayos in the amount of $889,500;
4. For plaintiff Frank and against defendant Velayos in the amount of $50,000;
5. For plaintiff Leila and against defendant Hospital in the amount of $889,500;
6. For defendant Hospital and against defendant Frank;
7. For defendant Degnan and against plaintiff Leila;
8. For defendant Degnan and against plaintiff Frank.
At the same time, the jury returned the following special findings:
When the bailiff handed him the verdicts and findings, the trial judge, after examining them, asked the bailiff to take the jury back to the jury room. After the jury had left, the trial judge informed counsel of the contents of the verdicts and findings. The question whether the verdicts were inconsistent was discussed. After discussing this matter for several minutes in open court on the record, counsel and the trial judge went into chambers where the discussion was continued with the reporter present.
The judge indicated that in his view the general verdicts and special findings were inconsistent with each other, "insofar as it finds for Doctor Degnan against the plaintiffs when the only factual basis for the joint venture is that Doctor Degnan and the hospital were in a joint venture."
The trial judge said further:
Plaintiffs' counsel then suggested that the problem of inconsistency might be solved if he were to dismiss defendants Hospital and Degnan. The trial judge, while specifically declining to make any statement regarding the propriety of plaintiffs dismissing Hospital and Degnan, did state that, in his view, if such motions were made and granted, there would no longer be inconsistent verdicts.
Plaintiffs' counsel then moved that the case be dismissed as against Degnan. The court inquired: "Is there any objection?" Degnan's attorney replied: "No, no objection." The court then stated: "The motion is granted." A similar motion to dismiss defendant Hospital was made and granted.
The court later stated: Subsequently, judgments were entered against Spiro and Velayos in accordance with the verdicts relating to them.
In their opening brief, appellant Spiro and Velayos state that the issue to be resolved is as follows: "Did the trial court abuse its discretion in resolving inconsistent general verdicts, including inconsistencies between verdicts against appellants and for codefendants, and inconsistencies between special and general verdicts, by granting plaintiffs' motion to dismiss all defendants except appellants, and by doing so after the jury's inconsistent verdicts had been disclosed to counsel, but before judgment had been entered?"
Before we reach that issue, however, we must determine whether counsel for Spiro and Velayos, by his silence, waived any objection to the dismissal of Hospital and Degnan and its consequences.
TRIAL COUNSEL FOR APPELLANTS, BY HIS SILENCE, WAIVED ANY OBJECTION TO THE DISMISSAL OF HOSPITAL AND DEGNAN AND ITS CONSEQUENCES.
At the outset, it is important to note that trial counsel for Spiro and Velayos (who is not their counsel on appeal) was present throughout the hearing in the courtroom during which the general verdicts and special findings were received and discussed and the hearing immediately following in chambers where that discussion was continued and the "solution" was proposed and effected. He was present throughout. He was mute. He did not comment concerning the inconsistencies. He made no statement, objection or otherwise, concerning the dismissal of Hospital and Degnan or the receipt of the verdicts against his clients.
A review of the transcript discloses that the trial judge was concerned about the verdicts and findings and was desirous of "talking out the problem" with counsel. What took place was a discussion in which all who were present and desired to do so could participate. When motions to dismiss Hospital and Degnan were made, the judge on two occasions asked if there were any objections. None was made on behalf of appellants nor on behalf of any party.
Appellants cite a number of cases which deal with the problem of ambiguous or inconsistent verdicts. We do not read any of those cases to be factually analogous to the case at bar. No case has been cited to us, nor do we find any, in which, as here, the granting of an unopposed motion to dismiss one or several defendants resulted in the elimination of an inconsistency in verdicts that had been...
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