Meighan v. Shore, B073932

Citation40 Cal.Rptr.2d 744,34 Cal.App.4th 1025
Decision Date04 May 1995
Docket NumberNo. B073932,B073932
CourtCalifornia Court of Appeals
Parties, 63 USLW 2755 Joan MEIGHAN, Plaintiff and Appellant, v. Samuel SHORE, et al., Defendants and Respondents.

Samuel Shore and James R. McGrath, for defendants and respondents.

EPSTEIN, Acting Presiding Justice.

In this case we hold that when a husband and wife consult an attorney about a personal injury action against a third party on account of personal injury to one of them, and the In this case, appellant and her husband thought that he had been the victim of medical malpractice. She sought out an attorney, and found respondent. He was a specialist in that field, and appellant arranged an appointment for herself and her husband to consult with him. They met in respondent's law office, where the case was discussed. Respondent agreed to take the case. He told appellant that her husband, rather than she, was the client, and that only he was to sign the retainer agreement. Nothing was said during the interview about appellant's right to pursue an action in her own right for loss of consortium, and neither appellant nor her husband had any idea that there was such a tort.

other spouse has a potential claim for loss of consortium of which the attorney is or ought to be aware, the attorney has a duty to inform that spouse of the consortium cause of action.

Respondent filed a suit for medical malpractice against a physician and a hospital. Appellant's husband was the only named plaintiff. More than one year later, and after they had substituted in new counsel, appellant and her husband learned of appellant's entitlement to pursue an action for loss of consortium. By that time, the right had become barred against the health care providers. The medical malpractice suit was eventually settled, and appellant brought this action for negligence against respondent.

Respondent moved for summary judgment. Given the proofs presented to the trial court, it must be assumed for purposes of the motion that appellant had a viable cause of action for loss of consortium, which was barred by the time she learned about it. The principal issue framed in respondent's motion and the opposition was whether respondent owed a duty to inform appellant of her right to pursue a cause of action, or to alert her to the need to consult another attorney about it.

Given the particular circumstances of this case, and assuming that appellant's evidence matches her proofs in opposition to the motion, we conclude that respondent had that duty. The trial court erred in ruling that he did not.

We emphasize the narrowness of our holding. It pertains to the peculiar tort of loss of consortium, where both spouses consult an attorney with respect to a personal injury suffered by one of them and the attorney knows or could readily ascertain that the other spouse has a potential claim for loss of consortium, and where that spouse is unaware of his or her rights.

FACTUAL AND PROCEDURAL SUMMARY

The lawsuit was brought by Joan Meighan, wife of Dr. Clement Meighan, an anthropologist and member on the faculty of the University of California, Los Angeles. The respondent is Samuel Shore, an attorney. Since the case reaches us on summary judgment, we apply a strict construction of the evidence presented by respondent and a liberal reading of the proofs submitted by the appellant. (See Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.)

The information available to respondent indicated that Dr. Meighan had experienced chest pains on October 8, 1988, and was taken to a hospital. He was in the emergency room for about an hour, then transferred to the coronary care unit under "coronary precaution" orders. His initial cardiogram was abnormal, but did not definitively show that a heart attack was in progress or that heart damage had occurred. In fact, he was suffering a heart attack. The first abnormal heart enzyme study was taken the next morning, at about 4 a.m. The first cardiogram to show heart damage was taken at about 7 a.m. that morning. Mrs. Meighan was with her husband for two to three hours in the coronary care unit, on the evening of October 8. She left for home about 10 p.m. after being told by the attending physician that Dr. Meighan was not having a heart attack. Respondent concluded that Dr. Meighan had a viable medical malpractice claim against the hospital and the attending physician for failing to administer medication that might have limited the extent of damage from the heart attack he suffered during the Had respondent inquired, he would have ascertained the following about Mrs. Meighan's knowledge and impressions. She "had been trained as a nurse." He also would have ascertained she knew that heart attacks are caused by blood clots, that medication is available to dissolve clots, and that it is only effective during the early hours of a heart attack. Dr. Meighan had had two previous bypass procedures, and appellant was concerned about his care. She was particularly concerned because, she understood, the on-call cardiologist did not appear and initiate therapy for 3 1/2 hours after being called. She was hysterical and afraid, and demanded that the nurses get a cardiologist to examine her husband.

12-hour period, 7 p.m. October 8 to 7 a.m. October 9.

Respondent did not ask appellant or her husband whether either of them had any medical training, and he assumed they had none. Appellant had not come in as a referred client, and based on "the evolution of the facts in the case, at the conclusion of the meeting" respondent "ruled out the possibility" that she might have a viable right to proceed against the defendant for loss of consortium and emotional distress. Whether or not respondent formed that opinion (as we shall discuss, the trial court rejected his disclaimer), he never discussed the subject with appellant or her husband. Appellant declared that before meeting her present counsel (who was substituted in February 1991), she "had no idea that I might have any claim at all. I have never heard of a spouse of a negligently-injured person having any possibility of suing in her own right. Dr. Shore never mentioned as [sic ] such thing to me, or my husband, in my presence or to my knowledge. [p] If I had known of any such spousal rights, I would have joined my husband in the medical malpractice lawsuit." Her husband's testimony is to the same effect.

According to appellant's declaration, after being released from the hospitalization and treatment that were the subject of the underlying lawsuit, Dr. Meighan suffered physically and she was required to take over many things that he used to do. He was unable to provide her with emotional and physical support that he previously had given. Their personal relationship was affected. Appellant declared that her husband, who had been very active despite two bypass operations, "has been unable to provide me with the same emotional support that I received before; his disability completely changed our lives. He was compelled to leave a job that he had had and had always loved for many, many years as a full Professor at UCLA due to his disability and his pervasive fear of another massive, and potentially fatal, heart attack."

When Dr. Meighan experienced lack of energy and other complaints after being released from hospitalization, appellant made inquiries to find out what remedies there were, if any, for the two of them. An attorney in San Diego was recommended, but his office was too far away. The San Diego attorney recommended respondent "as a leading professional who was really very good at this type of thing." She called respondent and set up an appointment. (Respondent's version is different: he declared that it was Dr. Meighan's cardiologist who made the referral.)

Both appellant and Dr. Meighan spoke to respondent about the case at the initial interview. Respondent said he would accept the case, and handed over a retainer agreement. The agreement had a blank space in the body for the name of the client to be inserted; it was left blank. The sole "client" signature was that of Dr. Meighan.

Although respondent does not recall making the statement, appellant testified at deposition that he said, in effect, that he was representing her husband, and not her. She described the statement, or statements, in various ways at deposition. She said that respondent "said he was not representing me, only my husband, or words to that effect." He did not say why. She and her husband had been together on everything, so she assumed "we would be together on this, and he made it very clear we were not." Respondent said "that Clem was the one that was suing, not as a couple, or something like that." She realized "yes, it's probably, you It is undisputed that appellant understood respondent was not representing her and she never thought that he was; she did not seek and he did not offer legal advice to her about a potential lawsuit on her behalf; she did not sign a retainer agreement by which respondent might be paid for such representation; and respondent did not act as her attorney. Nevertheless, respondent had several conversations with appellant in which they discussed legal matters, and in which he "repeatedly gave [her] legal advice"--presumably about the medical malpractice action on behalf of Dr. Meighan.

know, since he's the one that was injured, I had nothing to do with it."

Appellant's suit against respondent is premised on his duty to inform her of her right to sue the health care providers for loss of consortium and for negligent infliction of emotional distress. Respondent moved for summary judgment. His moving papers presented two bases for that relief. First, he argued that since appellant was...

To continue reading

Request your trial
46 cases
  • Chavez v. Glock, Inc.
    • United States
    • California Court of Appeals
    • 24 d2 Julho d2 2012
    ...142 Cal.Rptr.3d 230 [“[w]ithout injury to the spouse, the plaintiff has no loss of consortium claim”]; see Meighan v. Shore (1995) 34 Cal.App.4th 1025, 1034–1035, 40 Cal.Rptr.2d 744 [“an unsuccessful personal injury suit by the physically injured spouse acts as an estoppel that bars the spo......
  • Boeken v. Philip Morris Usa, Inc.
    • United States
    • California Court of Appeals
    • 11 d1 Fevereiro d1 2008
    ...of the marriage relation, including conjugal society, comfort, affection, and companionship.' [Citations.]" (Meighan v. Shore (1995) 34 Cal.App.4th 1025, 1034, 40 Cal. Rptr.2d 744.) Loss-of-consortium damages are defined as noneconomic damages for purposes of Proposition 51 (several liabili......
  • Henderson v. Vanderbilt Univ., M2016–01876–COA–R9–CV
    • United States
    • Court of Appeals of Tennessee
    • 31 d3 Maio d3 2017
    ...awareness of the injury-producing event." Id. , 123 Cal.Rptr.2d 465, 51 P.3d at 329 (citing Meighan v. Shore , 34 Cal. App. 4th 1025, 40 Cal.Rptr.2d 744 (Cal. Ct. App. 1995) (holding that wife had no NIED claim where she, as a trained nurse, witnessed signs of an undiagnosed heart attack in......
  • Winters v. Jordan
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • 1 d3 Fevereiro d3 2012
    ...3d 461, 466, 563 P.2d 871, 874 (1977); Borer v. Am. Airlines, Inc., 19 Cal. 3d 441, 453, 563 P.2d 858, 866 (1977); Meighan v. Shore, 34 Cal. App. 4th 1025, 1034, 40 Cal. Rptr. 2d 744, 749 (Ct. App. 1995). Fourth, plaintiffs have improperly re-pled claims on behalf of Joy, Clark, and Jill Wi......
  • Request a trial to view additional results
7 books & journal articles
  • § 8.01 Personal Injury Claims
    • United States
    • Full Court Press Divorce, Separation and the Distribution of Property Title CHAPTER 8 Miscellaneous Property Interests
    • Invalid date
    ...See also, Clayton v. Clayton, 297 Ark. 342, 760 S.W.2d 875 (1988).[11] See Cal. Civ. Code § 4800(c). See, e.g., Meighan v. Shore, 34 Cal. App.4th 1025, 40 Cal. Rptr.2d 744 (1995). [12] Ark. Code Ann. § 9-12-315(b)(6).[13] Munroe v. Munroe, 119 Ohio App.3d. 530, 695 N.E.2d 1155 (1997).[14] C......
  • Emotional distress
    • United States
    • James Publishing Practical Law Books California Causes of Action
    • 31 d4 Março d4 2022
    ...husband suffered a heart attack in the hospital could not recover for negligent infliction of emotional distress. Meighan v. Shore , 34 Cal. App. 4th 1025, 1045, 40 Cal. Rptr. 2d 744, 756 (1995). A mother could recover for negligent infliction of emotional distress even though she was volun......
  • Table of Cases
    • United States
    • Washington State Bar Association Washington Legal Ethics Deskbook (WSBA) Table of Cases
    • Invalid date
    ...Montalbano, Condon & Frank v. Superior Court, 949 P.2d 1 (Cal.), cert. denied, 525 U.S. 9250 (1998): 17.4 Meighan v. Shore, 34 Cal. App. 4th 1025, 40 Cal. Rptr. 2d 744 (1995): 1.3(1) Miller v. Metzinger, 91 Cal. App. 3d 31, 154 Cal. Rptr. 22 (1979): 1.3(1) People v. Johnson, 62 Cal.App.4th ......
  • Legal Malpractice
    • United States
    • James Publishing Practical Law Books Archive Model Interrogatories. Volume 1 - 2014 Contents
    • 14 d4 Agosto d4 2014
    ...may also owe a duty to advise regarding the loss of consortium claim held by the injured party’s spouse. See e.g., Meighan v. Shore , 34 Cal. App. 4th 1025 (1995). The interrogatories set forth in this section are for use in such cases. 1. Do YOU contend that at the time you were retained t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT