Landeros v. Flood

• Citation: 131 Cal.Rptr. 69,551 P.2d 389,17 Cal.3d 399
• Decision Date: 30 June 1976
• Docket Number: S.F. 23359
• Court: United States State Supreme Court (California)
• Parties: , 551 P.2d 389, 97 A.L.R.3d 324 Gita LANDEROS, a minor, etc., Plaintiff and Appellant, v. A. J. FLOOD et al., Defendants and Respondents

Page 69

131 Cal.Rptr. 69

17 Cal.3d 399, 551 P.2d 389, 97 A.L.R.3d 324

Gita LANDEROS, a minor, etc., Plaintiff and Appellant, v. A. J. FLOOD et al., Defendants and Respondents.

S.F. 23359.

Supreme Court of California

June 30, 1976.

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

Rankin, Oneal, Center, Luckhardt, Marlais, Lund & Hinshaw, G. David Landsness, Campbell, Warburton, Britton, Fitzsimmons & Smith and Alfred B. Britton, Jr., San Jose, for defendants and respondents.

MOSK, Justice.

In this medical malpractice action plaintiff Gita Landeros, a minor, appeals from a judgment of dismissal entered upon an order sustaining general demurrers to her amended complaint. As will appear, we have concluded that the complaint states a cause of action and hence that the judgment must be reversed.

Plaintiff brought the action by her guardian ad litem against A. J. Flood, a physician, and The San Jose Hospitals & Health Center, Inc. (hereinafter called the San Jose Hospital). The amended complaint purports to allege four 'causes of action.' As we shall explain, the first three of these are actually alternative theories of recovery alleged in support of a single cause of action for compensatory damages for personal injuries caused by defendants' negligence in failing to properly diagnose and treat the condition from which plaintiff was suffering; the fourth 'cause of action' merely adds a claim for punitive damages on allegations that defendants' conduct in this respect was wilful and wanton. Defendants filed general demurrers. The court sustained the demurrers as to the first and second 'causes of action' with leave to amend, and as to the third and fourth 'causes of action' without leave to amend. Plaintiff elected to stand on her complaint as previously amended, and a judgment dismissing the entire action was therefore entered. ¹

The material factual allegations of the amended complaint are as follows. Plaintiff was born on May 14, 1970. On repeated occasions during the first year of her life she was severely beaten by her mother and the latter's common law husband, one Reyes. On April 26, 1971, when plaintiff was 11 months old, her mother took her to the San Jose Hospital for examination, diagnosis, and treatment. The attending physician was defendant Flood, acting on his own behalf and as agent of defendant San Jose Hospital. At the time plaintiff was suffering from a comminuted spiral fracture of the right tibia and fibula, which gave the appearance of having been caused by a twisting force. ² Plaintiff's mother had no explanation for this injury. Plaintiff also had bruises over her entire back, together with superficial abrasions on other parts of her body. In addition, she had a nondepressed linear fracture of the skull, which was then in the process of healing. ³ Plaintiff demonstrated fear and apprehension when approached. Inasmuch as all plaintiff's injuries gave the appearance of having been intentionally inflicted by other persons, she exhibited the medical condition known as the battered child syndrome.

It is alleged that proper diagnosis of plaintiff's condition would have included taking X-rays of her entire skeletal structure, and that such procedure would have revealed the fracture of her skull. Defendants negligently failed to take such X-rays, and thereby negligently failed to diagnose her true condition. It is further alleged that proper medical treatment of plaintiff's battered child syndrome would have included reporting her injuries to local law enforcement authorities or juvenile probation department. Such a report would have resulted in an investigation by the concerned agencies, followed by a placement of plaintiff in protective custody until her safety was assured. Defendants negligently failed to make such report.

The complaint avers that as a proximate result of the foregoing negligence plaintiff was released from the San Jose Hospital without proper diagnosis and treatment of her battered child syndrome, and was returned to the custody of her mother and Reyes who resumed physically abusing her until she sustained traumatic blows to her right eye and back, puncture wounds over her left lower leg and across her back, severe bites on her face, and second and third degree burns of her left hand.

On July 1, 1971, plaintiff was again brought in for medical care, but to a different doctor and hospital. Her battered child syndrome was immediately diagnosed and reported to local police and juvenile probation authorities, and she was taken into protective custody. Following hospitalization and surgery she was placed with foster parents, and the latter subsequently undertook proceedings to adopt her. Plaintiff's mother and Reyes fled the state, but were apprehended, returned for trial and convicted of the crime of child abuse. (Pen.Code, 273a.)

With respect to damages the complaint alleges that as a proximate result of defendants' negligence plaintiff suffered painful permanent physicial injuries and great mental distress, including the probable loss of use or amputation of her left hand.

The second and third 'causes of action' are predicated on defendants' failure to comply with three related sections of the Penal Code. Section 11160 provides in relevant part that every hospital to which any person is brought who is suffering from any injuries inflicted 'in violation of any penal law of this State' ⁴ must report that fact immediately, by telephone and in writing, to the local law enforcement authorities. Section 11161 imposes the identical duty on every physician who has under his care any person suffering from any such injuries. Section 11161.5 deals specifically with child abuse, and declares in pertinent part that in any case in which a minor is under a physician's care or is brought to him for diagnosis, examination or treatment, and 'it appears to the physician' from observation of the minor that the latter has any physicial injuries 'which appear to have been inflicted upon him by other than accidental means by any person,' he must report that fact by telephone and in writing to the local law enforcement authorities and the juvenile probation department. ⁵ All three sections require the report to state the name of the victim, if known, together with his whereabouts and the character and extent of his injuries; and a violation of any of the sections is a misdemeanor (§ 11162).

By means of allegations phrased largely in the statutory language plaintiff undertakes to charge defendants with a duty to comply with section 11161.5 (second 'cause of action') and sections 11160 and 11161 (third 'cause of action'), and avers that they failed to make the reports thus required by law. Her allegations of proximate cause and damages on these counts are essentially identical to those of the first count.

We have found no case directly in point, but the issues may be decided by reference to well settled principles. Succinctly stated, the rules governing our consideration of this appeal are 'that a general demurrer admits the truth of all material factual allegations in the complaint (citation); that the question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court (citations); and that plaintiff need only plead facts showing that he may be entitled to some relief (citation).' (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 89, 468 P.2d 216, 217; accord, Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 123, 109 Cal.Rptr. 799, 514 P.2d 111; Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 572, 108 Cal.Rptr. 480, 510 P.2d 1032.) On the latter point it is clear that "In this state negligence may be pleaded in general terms, and that is as true of malpractice cases as it is of other types of negligence cases." (Stafford v. Shultz (1954) 42 Cal.2d 767, 774, 270 P.2d 1, 5, quoting from Greninger v. Fischer (1947) 81 Cal.App.2d 549, 552, 184 P.2d 694; accord, Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 154--157, 157 P.2d 1; Guilliams v. Hollywood Hospital (1941) 18 Cal.2d 9, 99--103, 114 P.2d 1; Weinstock v. Eissler (1964) 224 Cal.App.2d 212, 236, 36 Cal.Rptr. 537.)

The standard of care in malpractice cases is also well known. With unimportant variations in phrasing, we have consistently held that a physician is required to possess and exercise, in both diagnosis and treatment, that reasonable de gree of knowledge and skill which is ordinarily possessed and exercised by other members of his profession in similar circumstances. (Brown v. Colm (1974) 11 Cal.3d 639, 642--643, 114 Cal.Rptr. 128, 522 P.2d 688; Bardessono v. Michels (1970) 3 Cal.3d 780, 788, 91 Cal.Rptr. 760, 478 P.2d 480; Lawless v. Calaway (1944) 24 Cal.2d 81, 86, 147 P.2d 604; Hesler v. California Hospital Co. (1918) 178 Cal. 764, 766--767, 174 P. 654.)

The first question presented, accordingly, is whether the foregoing standard of care includes a requirement that the physician know how to diagnose and treat the battered child syndrome.

It appears from the literature that the battered child syndrome was first tentatively identified and reported to the medical profession in the early 1950s. Further surveys and analyses of the syndrome followed, culminating in a landmark article published in 1962 in the Journal of the American Medical Association. (Kempe et al., The Battered-Child Syndrome (1962) 181 A.M.A.J. 17.) Since that date numerous additional studies of the condition have been undertaken, and their results and recommendations publicized in the medical journals. ⁶

California courts have not been oblivious to this development. In a prosecution for child abuse reviewed in 1971--the same year as the events here in issue--the Court of Appeal held admissible the testimony of a physician identifying the typical elements...