Molien v. Kaiser Foundation Hospitals

• Decision Date: 25 August 1980
• Docket Number: S.F. 24084
• Citation: 27 Cal.3d 916,167 Cal.Rptr. 831,616 P.2d 813
• Court: California Supreme Court
• Parties: , 616 P.2d 813, 16 A.L.R.4th 518 Stephen H. MOLIEN, Plaintiff and Appellant, v. KAISER FOUNDATION HOSPITALS et al., Defendants and Respondents.

Page 831

167 Cal.Rptr. 831

27 Cal.3d 916, 616 P.2d 813, 16 A.L.R.4th 518

Stephen H. MOLIEN, Plaintiff and Appellant, v. KAISER FOUNDATION HOSPITALS et al., Defendants and Respondents.

S.F. 24084.

Supreme Court of California, In Bank.

Aug. 25, 1980.

Herbert W. Yanowitz, San Francisco, for plaintiff and appellant.

Wylie Aitken, Santa Ana, Robert E. Cartwright, San Francisco, Edward I. Pollock, Los Angeles, Glen T. Bashore, North Fork, Stephen I. Zetterberg, Claremont, J. Nick DeMeo, Santa Rosa, Sanford M. Gage, Beverly Hills, Stephen L. Odgers, Claremont, Harvey R. Levine, San Diego, Leonard Sacks, Encino, and Joseph Posner, Los Angeles, as amici curiae on behalf of plaintiff and appellant.

McNamara, Lewis, Dodge & Houston, Richard E. Dodge, Robert M. Slattery and Paul M. Hoff, Walnut Creek, for defendants and respondents.

MOSK, Justice.

To what extent should the law permit recovery of damages for the negligent infliction of emotional or mental distress unaccompanied by physical injury? We consider this question in two contexts, both presented by an action charging defendants with erroneously diagnosing plaintiff's wife as suffering from an infectious social disease.

Appealing from a judgment entered after a demurrer was sustained, plaintiff asks us to decide whether he may recover for negligently inflicted emotional distress and for loss of consortium, occasioned by emotional injury to his wife. As will appear, in the light of contemporary knowledge we conclude that emotional injury may be fully as severe and debilitating as physical harm, and is no less deserving of redress; the refusal to recognize a cause of action for negligently inflicted injury in the absence of some physical consequence is therefore an anachronism. We further conclude that it is no less regressive to deny recovery for loss of consortium simply because the plaintiff's spouse has suffered a disabling but non-physical injury. Accordingly, the judgment must be reversed and plaintiff permitted to go to trial.

Plaintiff Stephen H. Molien filed this action against Kaiser Foundation Hospitals (Kaiser) and Thomas Kilbridge, M.D. (Kaiser and Dr. Kilbridge are hereafter sometimes referred to collectively as defendants.) The amended complaint sets forth two causes of action. In determining its sufficiency against a demurrer we are guided by long-settled precepts: "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.)

The principal allegations of the first cause of action are as follows: Plaintiff and his wife, Valerie G. Molien, are members of the Kaiser Health Plan. Mrs. Molien went to Kaiser for a routine multiphasic physical examination. There, Dr. Kilbridge, a Kaiser staff physician, negligently examined and tested her, and subsequently advised her she had contracted an infectious type of syphilis. The diagnosis was erroneous, as she did not in fact have the disease. Nevertheless she was required to undergo treatment for syphilis, including the administration of massive and unnecessary doses of penicillin. As a result of defendants' conduct she suffered "injury to her body and shock and injury to her nervous system."

Defendants knew plaintiff husband would learn of the diagnosis, as they instructed Mrs. Molien to so advise him. Thereafter plaintiff was required to undergo blood tests himself in order to ascertain whether he had contracted syphilis and was the source of his wife's purported infection. The tests revealed that he did not have the disease.

As a result of the negligently erroneous diagnosis, plaintiff's wife became upset and suspicious that he had engaged in extramarital sexual activities; tension and hostility arose between the two, "causing a break-up of their marriage and the initiation of dissolution proceedings."

Defendants knew or should have known their diagnosis that plaintiff's wife had syphilis and that he might also have the disease would cause him emotional distress. He has in fact suffered "extreme emotional distress" as a result of the negligent misdiagnosis. Additionally, he has incurred medical expenses for counseling in an effort to save the marriage.

The second cause of action, after incorporating by reference all the allegations of the first, alleges that as a consequence of defendants' acts plaintiff has been deprived of the "love, companionship, affection, society, sexual relations, solace, support, and services" of his wife.

The prayer is for damages for mental suffering and loss of consortium, together with medical expenses. The trial court sustained general demurrers to both causes of action, and plaintiff appealed from the ensuing judgment of dismissal.

I

At the outset we consider a procedural issue arising from the fact that on its face the judgment purports to dismiss only the first cause of action, i. e., for mental suffering. In its ruling the court sustained the demurrers to both causes of action, with leave to amend the first cause and without leave to amend the second. When plaintiff failed to amend, the court ordered the first cause of action dismissed; the judgment is silent, however, as to the second.

Defendants contend we are without jurisdiction to review plaintiff's purported appeal from the order sustaining the demurrer to the second cause of action, i. e., for loss of consortium. They correctly assert that such an order is neither appealable per se nor as a final judgment. (Beazell v. Schrader (1962) 205 Cal.App.2d 673, 674, 23 Cal.Rptr. 189.) Plaintiff responds, however, that "in the interest of justice and to prevent further delay" an appellate court may deem an order sustaining a demurrer to incorporate a judgment of dismissal. (Bellah v. Greenson (1978) 81 Cal.App.3d 614, 618, fn. 1, 146 Cal.Rptr. 535.) He requests that we amend the judgment of dismissal herein to apply to both causes of action, as the trial court intended.

Plaintiff's request is reasonable and finds authority in our recent decision in Tenhet v. Boswell (1976) 18 Cal.3d 150, 133 Cal.Rptr. 10, 554 P.2d 330. In Tenhet, as here, the trial court failed to dispose of all causes of action set forth in the amended complaint. Ordinarily in that event appeal would be barred by the "one final judgment" rule, i. e., "an appeal may be taken only from the final judgment in an entire action." (Id. at p. 153, 133 Cal.Rptr. at p. 13, 554 P.2d at p. 333.) But we noted with approval the disposition adopted in Gambos v. Ashe (1958) 158 Cal.App.2d 517, 322 P.2d 933: there the court amended the judgment to include a dismissal of a cause of action as to which a demurrer had been sustained. We found such procedure appropriate when "the trial court's failure to dispose of all causes of action results from inadvertence or mistake rather than an intention to retain the remaining causes of action for trial." (18 Cal.3d at p. 154, 133 Cal.Rptr. at p. 13, 554 P.2d at p. 333.)

In the present case it is evident that the failure of the court to dismiss the cause of action for loss of consortium was an oversight. We may therefore treat the dismissal as applying to both causes of action, and we amend the judgment accordingly.

II

We turn now to the merits of the appeal and first address plaintiffs' contention that he has stated a cause of action for the negligent infliction of emotional distress. Defendants maintain this issue is governed by Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912; they emphasize that plaintiff was not present when the doctor announced the erroneous diagnosis, but learned of it later from his wife. As we shall explain, however, defendants rely too heavily on Dillon : the case is apposite, but not controlling.

A

In Dillon a mother sought damages for emotional trauma and physical injury that resulted when she witnessed the negligently inflicted death of her infant daughter. The defendant contended he owed no duty to the mother because she was outside the zone of physical danger at the time of the accident. But the traditional duty approach, we explained,ed the question whether the plaintiff's interests were entitled to legal protection; the finding of a duty was simply " 'a shorthand statement of a conclusion, rather than an aid to analysis in itself.' " (68 Cal.2d at p. 734, 69 Cal.Rptr. at p. 76, 441 P.2d at p. 916.) We therefore identified foreseeability of the risk as the critical inquiry: "In order to limit the otherwise potentially infinite liability which would follow every negligent act, the law of torts holds defendant amenable only for injuries to others which to defendant at the time were reasonably foreseeable." (Id. at p. 739, 69 Cal.Rptr. at p. 79, 441 P.2d at p. 919.) And the foreseeable risk may entail not only actual physical impact, but emotional injury as well. (Id. at pp. 739-740 & fn. 5, 69 Cal.Rptr. 72, 441 P.2d 912.)

Confining our analysis to the situation in which a plaintiff's emotional shock caused by harm to a third person ripened into a physical injury, we listed three factors bearing on the determination whether the defendant should reasonably have foreseen injury to the plaintiff: "(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence...