Molien v. Kaiser Foundation Hospitals
| Decision Date | 29 August 1979 |
| Citation | 96 Cal.App.3d 469,158 Cal.Rptr. 107 |
| Parties | Stephen H. MOLIEN, Plaintiff and Appellant, v. KAISER FOUNDATION HOSPITALS et al., Defendants and Respondents. Civ. 44676. |
| Court | California Court of Appeals Court of Appeals |
Herbert W. Yanowitz, San Francisco, for plaintiff and appellant.
McNamara, Lewis, Dodge & Houston by Richard E. Dodge, Paul M. Hoff, Walnut Creek, Cal., for defendants and respondents.
Stephen H. Molien appeals from a judgment 1 dismissing upon demurrer an action in which he sought damages from respondents Kaiser Foundation Hospitals and Thomas Kilbridge, M.D. The complaint alleged loss of marital consortium and emotional distress caused by medical negligence in diagnosing and treating appellant's wife.
Appellant alleged that he and his wife were covered by a medical plan serviced by Kaiser Foundation Hospitals. Mrs. Molien went to Kaiser for diagnostic procedures, following which she was informed by respondent Kilbridge that she had contracted syphilis. She was advised to tell her husband of the diagnosis. She was subjected to "massive . . . doses of penicillin." Appellant was subjected to a blood test, which established that he did not have syphilis.
The incident caused Mrs. Molien to suspect her husband of extramarital sexual activities. Tension and hostility arose, and the marriage broke up.
The diagnosis of Mrs. Molien was in error: she did not have syphilis.
Appellant contends that his pleading states a cause of action for loss of consortium arising from medical malpractice (citing Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669). Previous loss of consortium cases have involved physical injury to the nonplaintiff spouse. Here, appellant's claim is that loss of consortium resulted from an emotional state induced in his wife by the misdiagnosis of syphilis. The question whether a cause of action for loss of consortium can be maintained where the loss is not the result of physical injuries to the nonplaintiff spouse does not appear to have been addressed in any published California decision.
In Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d 382, 115 Cal.Rptr. 765, 525 P.2d 669, the Supreme Court disapproved prior California decisions which denied a spouse recovery for loss of consortium and held that "each spouse has a cause of action for loss of consortium, . . . caused by a negligent or intentional injury to the other spouse by a third party." (Id., at p. 408, 115 Cal.Rptr., at p. 782, 525 P.2d at p. 686; overruling Deshotel v. Atchison, T. & S.F. Ry. Co. (1958) 50 Cal.2d 664, 328 P.2d 449, and West v. City of San Diego (1960) 54 Cal.2d 469, 6 Cal.Rptr. 289, 353 P.2d 929.) In Rodriguez, the husband was struck on the head by a falling pipe weighing over 600 pounds. The blow caused severe spinal cord damage which left him almost totally paralyzed. As a consequence, his wife's social and recreational life was severely restricted, she was required to leave her employment to nurse her husband through his pain and mental anguish, view and minister to his physiological needs, and sacrifice sexual relations and all hope of bearing his children. (Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d 382, 385-386, 115 Cal.Rptr. 765, 525 P.2d 669.)
Respondents argue that the type of injury contemplated by the Supreme Court in Rodriguez as giving rise to a cause of action for loss of consortium was a "severely disabling injury." The court in Rodriguez referred to loss of consortium cases as "serious injury cases" (Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal.3d 382, 408, fn. 30, 115 Cal.Rptr. 765, 525 P.2d 669); one subsequent court has remarked that the cause of action for loss of consortium "arises out of the bodily injury to the spouse who can no longer perform the spousal functions." (United Services Automobile Assn. v. Warner (1976) 64 Cal.App.3d 957, 964, 135 Cal.Rptr. 34, 38.) It is clear from the language of the Rodriguez decision that in extending the remedy for loss of consortium in a case where defendant's negligent act caused grievous physical injury, the court contemplated essentially the situation in which the defendant engages in conduct which involves the risk of physical harm to another person.
Although these references in Rodriguez and United Services are only dicta, there are other authoritative indications that recovery for loss of marital consortium should be limited to cases of physical injury. In rejecting a claim by a child for loss of parental consortium the Supreme Court has stated: "Judicial recognition of a cause of action for loss of consortium, . . . must be narrowly circumscribed."
Appellant relies on Priola v. Paulino (1977) 72 Cal.App.3d 380, 140 Cal.Rptr. 186. In that case, plaintiff's wife was injured in an automobile accident allegedly caused by the negligence of the defendants. Plaintiff sought damages for loss of consortium. Defendants demurred to the complaint and moved to strike it on the ground that it was barred by the statute of limitations because it was filed more than one year after the wife was injured. The trial court sustained the demurrer. On appeal, plaintiff argued that although his wife sustained her original injuries more than one year before he brought suit, she became permanently disabled less than one year before he brought suit. Plaintiff argued that under Rodriguez his cause of action did not arise until his wife became permanently disabled. The court did not agree, pointing out that the appropriate focus in such a case is not on the injuries sustained by the nonplaintiff spouse but on the degree of loss of conjugal society, comfort, affection, and companionship suffered by the plaintiff spouse. The court concluded "that it is not only in cases with the disastrous injuries recounted in Rodriguez that a cause of action exists for loss of consortium." When the wife was hurt, " '. . . sustaining injuries to her body,' . . . the husband's consortium was to some extent reduced and a cause of action arose." (Id., at pp. 390-391, 140 Cal.Rptr., at p. 192.) But there is no intimation in Priola that recovery for loss of marital consortium can be had in the absence of physical injury.
Only two other jurisdictions, Alabama and Massachusetts, appear to have considered the issue of whether a cause of action for loss of consortium can be maintained in the absence of physical injury. (Slovensky v. Birmingham News Co., Inc. (Ala.Civ.App.1978) 358 So.2d 474; Agis v. Howard Johnson Co. (1976) 371 Mass. 140, 355 N.E.2d 315.)
In Slovensky, plaintiff, alleging that defendants wrongfully discharged her husband, sought damages to compensate for consortium lost due to her husband's mental distress. The court concluded, without analysis, that a recovery for loss of consortium must depend on a physical injury suffered by the nonplaintiff spouse. (Slovensky v. Birmingham News Co., Inc., supra, 358 So.2d 474, 477.) The opposite conclusion was reached in Agis, without helpful analysis. (Agis v. Howard Johnson Co., supra, 371 Mass. 140, 355 N.E.2d 315, 319-320.) Thus, the two decisions are of equivocal effect.
In our view, respondents' alleged misconduct may be likened to negligent alienation of affections, and the cause of action for alienation of affections has been abolished in California. (Civ.Code, § 43.5, subd. (a); Ikuta v. Ikuta (1950) 97 Cal.App.2d 787, 218 P.2d 854; also see Lilligren v. Burns I.D. Agency (1916) 135 Minn. 60, 160 N.W. 203; Prosser, Torts (4th ed. 1971) p. 877.)
Appellant contends that he stated a cause of action for negligent infliction of emotional distress. He alleged that respondents negligently concluded that his wife had syphilis, instructed his wife to advise appellant of the diagnosis, and required appellant to submit to a blood test. Appellant alleges emotional distress as a result of these events.
Appellant's complaint for negligent infliction of emotional distress is deficient in two respects: (1) there was no corresponding physical injury and (2) the test of foreseeability is not met.
There can be no recovery for negligent infliction of emotional distress in the absence of physical injury. (Quezada v. Hart (1977) 67 Cal.App.3d 754, 136 Cal.Rptr. 815.) Because it does not allege a physical injury, appellant's complaint for negligent infliction of emotional distress fails to state a cause of action.
Appellant attempts to avoid this conclusion by suggesting that the drawing of blood was a sufficient "physical impact." This argument is unpersuasive. Where the actionable negligence results in physical impact, recovery can be had for any corresponding emotional distress. (See Witkin, Summary of Cal. Law (8th ed. 1974) § 886, p. 3171.) Thus, if the actionable negligence had been the blood test, appellant could have recovered for any emotional distress resulting from that act. But where the actionable negligence (here the misdiagnosis) does not involve any physical impact, recovery may not be had unless the emotional distress in turn precipitates some form of physical injury. (Krouse v. Graham (1977) 19 Cal.3d 59, 77, 137 Cal.Rptr. 863, 562 P.2d 1022.) Here, appellant of course does not allege that the blood test resulted from the emotional distress. Therefore, the blood test does not satisfy the physical injury requirement.
(2) Foreseeability
Foreseeability is the primary consideration in determining a defendant's duty of due care to a third party who, as a consequence of defendant's negligence, sustains emotional trauma. (Dillon v. Legg (1968) 68 Cal.2d 728, 739, 69 Cal.Rptr. 72, 79, 441 P.2d 912.) In Dillon, the Supreme Court held...
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