Mock v. Santa Monica Hospital

CourtCalifornia Court of Appeals
Writing for the CourtFORD; SHINN, P. J., and VALLEE
Citation187 Cal.App.2d 57,9 Cal.Rptr. 555
PartiesBessie MOCK, Plaintiff and Appellant, v. SANTA MONICA HOSPITAL, The Santa Monica Hospital, Inc., a corporation, Lutheran Hospital Society of Southern California, a corporation, Allan E. Bayless, M. D., E. Loopesko, M. D., R. L. Smith, M. D., et al., Defendants, E. Loopesko, M. D., and Eldon E. Smith, M. D. (sued as R. L. Smith, M. D.), Respondents. Civ. 24528.
Decision Date02 December 1960

Page 555

9 Cal.Rptr. 555
187 Cal.App.2d 57
Bessie MOCK, Plaintiff and Appellant,
v.
SANTA MONICA HOSPITAL, The Santa Monica Hospital, Inc., a corporation, Lutheran Hospital Society of Southern California, a corporation, Allan E. Bayless, M. D., E. Loopesko, M. D., R. L. Smith, M. D., et al., Defendants,
E. Loopesko, M. D., and Eldon E. Smith, M. D. (sued as R. L. Smith, M. D.), Respondents.
Civ. 24528.
District Court of Appeal, Second District, Division 3, California.
Dec. 2, 1960.

Page 557

[187 Cal.App.2d 59] William J. MacCabe, Gardena, for appellant.

Overton, Lyman & Prince and Ried Bridges, Los Angeles, for respondents.

FORD, Justice.

This is an appeal by the plaintiff from a judgment of dismissal in favor of defendants Loopesko and Smith entered after their demurrer to the fifth amended complaint had been sustained without leave to amend. While the demurrer of the defendant hospital was also sustained without leave to amend, the record discloses no judgment in favor of that defendant.

The action was one for damages arising from alleged malpractice on the part of the respondents. The demurrer was sustained on the ground that the cause of action alleged was barred by the statute of limitations. Code Civ.Proc. § 340, subd. 3. The correctness of that determination is the sole question presented on this appeal. Accordingly, we must examine the pleading of the plaintiff in the light of the rule that a demurrer admits the truth of all allegations which are well pleaded. Lee v. Hensley, 103 Cal.App.2d 697, 704, 230 P.2d 159; Hitson v. Dwyer, 61 Cal.App.2d 803, 807, 143 P.2d 952. The original complaint was filed on April 17, 1958.

Pertinent allegations found in the fifth amended complaint, which was verified, are as follows: 1. Defendants Loopesko and Smith were duly licensed physicians and surgeons. 2. They were employed by the plaintiff to perform a surgical operation on the lumbo-sacral region of her back. 1 3. They negligently performed the operation. 4. By reason thereof, the plaintiff sustained injury to her arms, shoulders and upper back, which injury was proximately caused by the negligence of the defendants. 5. The plaintiff secured the services of the defendants 'in connection with an injury plaintiff sustained during the course of her employment as a saleslady for a department store and more particularly, while lifting a heavy roll of plastic from a metal bin; and that subsequent to the aforesaid operation plaintiff believed that said injuries to her arms, [187 Cal.App.2d 60] shoulder and back were solely and directly a proximate and direct result, and continuing result, of said prior injury sustained during the course of her employment and not related to nor connected with any negligence or carelessness on the part of the aforesaid defendants during said operation; that plaintiff, subsequent to said operation, was not informed and had no reason to believe that her pain and suffering and her aofresaid injuries to her upper extremities were a direct and proximate result of the aforesaid negligence of defendants during said operation until September 30, 1957, at which time plaintiff was informed by John R. Black, M.D. that her aforesaid injuries were in some manner directly and solely connected with the aforesaid operation upon plaintiff and not connected with or related to the prior injury plaintiff sustained during the course of her employment.'

In the determination of whether the plaintiff's cause of action is barred by

Page 558

the statute of limitations, the amended complaint is treated as though it had been filed on the date of the original complaint. Wennerholm v. Stanford University School of Medicine, 20 Cal.2d 713, 717-718, 128 P.2d 522, 141 A.L.R. 1358. Moreover, as stated in the Wennerholm case, 20 Cal.2d at page 716, 128 P.2d at page 524: 'If any verified pleading contains an allegation which renders a complaint vulnerable, the defect cannot be cured simply by omitting the allegation, without explanation, in a later pleading.' In Owens v. Traverso, 125 Cal.App.2d 803, at page 804, 271 P.2d 164, at page 165, the applicable law is stated as follows, '* * * although prior complaints are normally superseded by subsequent ones, and should be disregarded, a pleader cannot cure a defect in a verified complaint by simply, without legal explanation, omitting such allegations from subsequently filed pleadings. In such a case the original defect infects the subsequent pleading so as to render it vulnerable to a demurrer.' See also, Regus v. Schartkoff, 156 Cal.App.2d 382, 391-392, 319 P.2d 721. In the light of such authorities, we turn to an examination of the earlier verified complaints.

In the original complaint it is alleged as follows: 'As a result of Plaintiff's injuries during her employment, she instituted an action before the Industrial Accident Commission, which action demanded and received prolonged hearings up until June of 1957. It was only during said hearings, and particularly after the submission of reports from examining physicians in said hearings, that Plaintiff discovered that her injuries, and particularly the injury to her shoulder, was the [187 Cal.App.2d 61] direct and proximate result of the negligence and malpractice of the Defendants herein alleged.' (Emphasis added.)

The language of the first amended complaint is not entirely consistent with the allegation just quoted that it was 'only during said hearings, and particularly after the submission of reports from examining physicians in said hearings,' that the plaintiff discovered that her injury to her shoulder was due to the negligence of the defendants. In the first amended complaint the plaintiff makes the following allegations: 'Plaintiff instituted an action before the Industrial Accident Commission which action demanded and received numerous and prolonged hearings and rehearings up until June of 1957. Until the conclusion of said hearings and the submission of numerous medical reports which were a result of numerous physical examinations ordered by the Commission, Plaintiff was neither aware nor could she reasonably have known with the exercise of reasonable diligence and inquiry the cause or cuases of her injury and especially the cause or causes of her continued pain and discomfort in her back and particularly her shoulder. The reason for said hearings was to determine and adjudicate the causes for said injuries and pain. It was only after said hearings and within one (1) year from refiling of this Complaint that Plaintiff learned from the medical reports submitted before the Commission and from subsequent physical examinations that her injuries, pain and discomfort and particularly the injury to her shoulder was the direct and proximate result of the negligence and malpractice of the Defendants herein alleged.' (Emphasis added.) No explanation was offered with respect to such inconsistency.

Portions of the second amended complaint appear to be inconsistent with allegations of the original...

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30 practice notes
  • Brown v. Bleiberg
    • United States
    • United States State Supreme Court (California)
    • September 27, 1982
    ...(1974) 10 Cal.3d 874, 885, 519 P.2d 588; Stafford v. Shultz (1954) 42 Cal.2d 767, 776, 270 P.2d 1; Mock v. Santa Monica Hospital (1960) 187 Cal.App.2d 57, 64, 9 Cal.Rptr. Repeated efforts to modify this "open-ended" discovery doctrine culminated in the enactment in 1970 of Code of Civil Pro......
  • Gutierrez v. Mofid
    • United States
    • United States State Supreme Court (California)
    • September 26, 1985
    ...Cal.Rptr. 657, 553 P.2d 1129, citing Stafford v. Shultz (1954) 42 Cal.2d 767, 776-777, 270 P.2d 1; Mock v. Santa Monica Hospital (1960) 187 Cal.App.2d 57, 64, 9 Cal.Rptr. 555; see also Brown v. Bleiberg (1982) 32 Cal.3d 426, 433-435, 186 Cal.Rptr. 228, 651 P.2d 815; italics in original.) Th......
  • Howe v. Pioneer Mfg. Co.
    • United States
    • California Court of Appeals
    • May 21, 1968
    ...Cal.Rptr. 894, 366 P.2d 310; Bustamente v. Haet (1963) 222 Cal.App.2d 413, 415, 35 Cal.Rptr. 176; Mock v. Santa Monica Hospital (1960) 187 Cal.App.2d 57, 60, 9 Cal.Rptr. Page 621 The defendants allege before this court that 'the original transcripts (of the depositions) were before the cour......
  • International Engine Parts, Inc. v. Feddersen & Co., No. S037753
    • United States
    • United States State Supreme Court (California)
    • March 2, 1995
    ...(See Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 97, 132 Cal.Rptr. 657, 553 P.2d 1129; Mock v. Santa Monica Hospital (1960) 187 Cal.App.2d 57, 64, 9 Cal.Rptr. In 1970, the Legislature established a special limitations provision for medical malpractice--Code of Civil Procedure sect......
  • Request a trial to view additional results
30 cases
  • Brown v. Bleiberg
    • United States
    • United States State Supreme Court (California)
    • September 27, 1982
    ...(1974) 10 Cal.3d 874, 885, 519 P.2d 588; Stafford v. Shultz (1954) 42 Cal.2d 767, 776, 270 P.2d 1; Mock v. Santa Monica Hospital (1960) 187 Cal.App.2d 57, 64, 9 Cal.Rptr. Repeated efforts to modify this "open-ended" discovery doctrine culminated in the enactment in 1970 of Code of Civil Pro......
  • Gutierrez v. Mofid
    • United States
    • United States State Supreme Court (California)
    • September 26, 1985
    ...Cal.Rptr. 657, 553 P.2d 1129, citing Stafford v. Shultz (1954) 42 Cal.2d 767, 776-777, 270 P.2d 1; Mock v. Santa Monica Hospital (1960) 187 Cal.App.2d 57, 64, 9 Cal.Rptr. 555; see also Brown v. Bleiberg (1982) 32 Cal.3d 426, 433-435, 186 Cal.Rptr. 228, 651 P.2d 815; italics in original.) Th......
  • Howe v. Pioneer Mfg. Co.
    • United States
    • California Court of Appeals
    • May 21, 1968
    ...Cal.Rptr. 894, 366 P.2d 310; Bustamente v. Haet (1963) 222 Cal.App.2d 413, 415, 35 Cal.Rptr. 176; Mock v. Santa Monica Hospital (1960) 187 Cal.App.2d 57, 60, 9 Cal.Rptr. Page 621 The defendants allege before this court that 'the original transcripts (of the depositions) were before the cour......
  • International Engine Parts, Inc. v. Feddersen & Co., No. S037753
    • United States
    • United States State Supreme Court (California)
    • March 2, 1995
    ...(See Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 97, 132 Cal.Rptr. 657, 553 P.2d 1129; Mock v. Santa Monica Hospital (1960) 187 Cal.App.2d 57, 64, 9 Cal.Rptr. In 1970, the Legislature established a special limitations provision for medical malpractice--Code of Civil Procedure sect......
  • Request a trial to view additional results

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