Landeros v. Flood

• Citation: 50 Cal.App.3d 189,123 Cal.Rptr. 713
• Court: California Court of Appeals
• Decision Date: 29 July 1975
• Parties: Gita LANDEROS, a minor, by her guardian ad Litem, Stephen Manley, Plaintiff and Appellant, v. A. J. FLOOD, M.D., and the San Jose Hospitals & Health Center, Inc., a corporation, Defendants and Respondents. Civ. 33141.

Page 713

123 Cal.Rptr. 713

50 Cal.App.3d 189

Gita LANDEROS, a minor, by her guardian ad Litem, Stephen Manley, Plaintiff and Appellant, v. A. J. FLOOD, M.D., and the San Jose Hospitals & Health Center, Inc., a corporation, Defendants and Respondents.

Civ. 33141.

Court of Appeal, First District, Division 2, California.

July 29, 1975.

For Opinion on Hearing see 131 Cal.Rptr. 69, 551 P.2d 389.

Caputo & Liccardo, Richard P. Caputo, Richard J. Kohlman, San Jose, for plaintiff-appellant.

G. David Landsness, Rankin, Oneal, Center, Luckhardt, Marlais, Lund & Hinshaw, San Jose, for respondent A. J. Flood, M.D.

Campbell, Warburton, Britton, Fitzsimmons & Smith, Alfred B. Brittion, Jr., San Jose, for respondent The San Jose Hospitals & Health Center, Inc.

KANE, Associate Justice.

Plaintiff, Gita Landeros, appeals from a judgment of dismissal entered on an order sustaining respondents' demurrers to her amended complaint.

Appellant, a minor, through her guardian ad litem, commenced this malpractice action against A. J. Flood, a medical doctor, and The San Jose Hospitals & Health Center, Inc. ('respondents') on April 27, 1972. The amended complaint in dispute purports to allege four causes of action. The first cause of action charges respondents with general negligence for failing to properly diagnose the so-called battered child syndrome and for failure to report the same to the proper authorities. The second and third causes of action are based on an alleged violation of the reporting statutes, claiming that by failing to report the battered child syndrome respondents violated both Penal Code, section 11161.5 (second cause of action) and Penal Code, sections 11160 and 11161 (third cause of action). The fourth cause of action sets out a claim for punitive damages for willful and wanton violation of the statutes and for reckless disregard of appellant's rights. Respondents filed general demurrers to all causes of action of the amended complaint. After a hearing, the trial court sustained respondents' demurrers as to all counts, granting leave to amend the first and second causes of action, but sustaining the demurrers to the third and fourth causes of action without leave to amend. Appellant declined to further amend, and as a result a judgment dismissing the entire action was entered.

Before discussing the merits of the case, which incidentally presents a question of first impression in the United States, we set out the principles governing general demurrers. Accordingly, in ruling upon a general demurrer the allegations of the complaint must be regarded as true. It is assumed that plaintiff can prove all the facts as alleged; defects in the pleadings which do not affect the substantial rights of the parties are disregarded; pleadings must be reasonably interpreted must be read as a whole, and each part must be given the meaning it derives from the context wherein it appears. All that is necessary as against a general demurrer is to plead facts entitling the plaintiff to some relief. In passing upon the sufficiency of the complaint, its allegations must be liberally construed with a view to substantial justice between the parties, and the administration of justice shall not be impeded or embarrassed by technicalities (Custodio v. Bauer (1967) 251 Cal.App.2d 303, 310, 59 Cal.Rptr. 463; Mercer v. Elliott (1962) 208 Cal.App.2d 275, 277-278, 25 Cal.Rptr. 217; M. G. Chamberlain & Co. v. Simpson (1959) 173 Cal.App.2d 263, 267, 343 P.2d 438). Bearing these principles in mind, we now proceed to closely examine and analyze whether the facts alleged in the first, second and third causes of action ¹ of the amended complaint are sufficient to entitle appellant to some relief and thereby withstand a general demurrer.

First Cause of Action: The first cause of action sets forth, in essence, that on April 26, 1971, appellant, an eleven-month-old child, was taken to respondents for diagnosis and treatment of a comminuted spiral fracture of the tibia and fibula of her right leg which gave the appearace of having been caused by a twisting force. The mother, who took appellant to the hospital, provided no explanation with respect to the cause of the fractures. It is also alleged that at the time of her admission to the hospital appellant was suffering from bruises and lacerations on certain parts of her body and had a linear skull fracture which was in the process of healing. It is alleged in conclusory terms that the symptoms above described demonstrated a medical condition known as the battered child syndrome. It is asserted that respondents were negligent in failing to take X-ray pictures of appellant's bones and skull in order to confirm the syndrome and to report the case to the proper authorities. Finally, it is alleged that as a proximate result of respondents' negligence in failing to detect and report the battered child syndrome, plaintiff was released to her 'parents' ² instead of having been placed in protective custody, and that as a further proximate result she suffered permanent injury due to the subsequent willful and criminal acts of her parents.

Although in the last decade or so, much has been said and written about child abuse, not infrequently with emotional overtones ³ (e. g., Kempe, Silverman, Steele, Droegermueller and Silver, The Battered-Child Syndrome (1962) 181 J.A.M.A. 17; Paulsen and Blake, The Abused, Battered and Maltreated Child: A Review (1967) 9 Trauma 4:7; Paulsen, The Legal Framework for Child Protection (1966) 66 Colum.L.Rev. 679; MeCoid, The Battered Child and Other Assaults Upon the Family, 50 MinnL.Rev. 1; Reporting of Child Abuse (1963-1965) 22 Assembly Interim Com. Report No. 8; Part 5, Criminal Procedure; The California Legislative Approach to Problems of Willful Child Abuse (1966) 54 CalL.Rev. 1805), the question presented to us is purely a legal one which calls for a determination of whether the allegations of the first count are sufficient to constitute a cause of action for medical malpractice under the common law.

The elements of a cause of action for professional negligence are, of course, well defined. They are: (1) the duty of the professional to use such skill, prudence and diligence as other members of his profession commonly possess and exercise; (2) breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage stemming from the professional negligence (Ventura County Humane Society v. Holloway (1974) 40 Cal.App.3d 897, 902, 115 Cal.Rptr. 464). The cases dealing with medical malpractice consistently emphasize that a physician or surgeon is not liable for every untoward result which may occur in his medical practice. The law requires only that a physician or surgeon have the degree of learning and skill possessed by practitioners of the medical profession in the same locality and that he exercise ordinary care in applying such learning and skill to the treatment of his patient. A mere error of judgment will not render a doctor responsible for untoward consequences in the treatment of his patient, because the doctor is not a guarantor of cures or required to guarantee results (Lawless v. Calaway (1944) 24 Cal.2d 81, 86, 147 P.2d 604; Huffman v. Lindquist (1951) 37 Cal.2d 465, 473, 234 P.2d 34; Custodio v. Bauer, supra, 251 Cal.App.2d at 311-312, 59 Cal.Rptr. 463; see also : Hesler v. California Hospital Co. (1918) 178 Cal. 764, 766-767, 174 P. 654; Johnston v. Brother (1961) 190 Cal.App.2d 464, 471, 12 Cal.Rptr. 23). We entertain no doubt that in light of the foregoing principles the first cause of action fails to establish common law malpractice liability for a number of reasons.

First, although it has been said by way of dictum that the battered child syndrome has become an accepted medical diagnosis (People v. Jackson (1971) 18 Cal.App.3d 504, 507, 95 Cal.Rptr. 919), the very legal, medical and sociological articles and essays referred to by appellant negate that proposition and indicate that the clinichild syndrome is far from being well decal condition designated as the battered fined or clear-cut. Rather, it includes a vast array of phenomena, such as physical, sexual and emotional abuse, as well as nutritional and medical care neglect of the child. Dr. Kempe, considered to be the founder of the battered child syndrome, himself acknowledges that the condition has been described by radiologists, orthopedists, pediatricians and social workers as "unrecognized trauma" (Kempe, et al.: The Battered-Child Syndrome, supra, p. 17.) Other articles dealing with the problem likewise point out that 'The meaning and scope of many basic terms and concepts associated with the understanding and description of varying degrees of neglect and abuse are not clear . . .' (Silver, Dublin and Lourie, Child Abuse Syndrome: The 'Gray Areas' in Establishing Diagnosis (Oct. 1969) 44 Pediatrics, 595; emphasis added), and that the 'Identification of the abused child is tempered by awareness of the fact that children may suffer physical mars, bruises, and scratches due neither to parental neglect nor intent, and at any one time may coincidentally show a variety of types of physical marks (e. g., a black eye, cut lip, bruised ear, scratches, and diaper rash burns), even though their parents may be loving, concerned, and reasonably careful.' (The Battered Child (1971) 8 San Diego L.Rev. 364, fn. 2 at p. 365.)

In addition, the symptoms characteristic of the battered child syndrome are described in differing terms. While it has been stated that a marked discrepancy between the clinical findings and the history of the injury supplied by the parents is a major diagnostic feature of the battered child syndrome, the authorities set out additional factors which must also be taken into account in making the diagnosis. These additional factors include subdural hematomas, multiple fractures in various stages of resolution,...