Moore v. Preventive Medicine Medical Group, Inc.

• Decision Date: 11 March 1986
• Citation: Moore v. Preventive Medicine Medical Group, Inc., 223 Cal.Rptr. 859, 178 Cal.App.3d 728 (Cal. App. 1986)
• Court: California Court of Appeals
• Parties: Jimmy D. MOORE, Plaintiff and Respondent, v. PREVENTIVE MEDICINE MEDICAL GROUP, INC., Defendant and Appellant. B009312.

Page 859

223 Cal.Rptr. 859

178 Cal.App.3d 728

Jimmy D. MOORE, Plaintiff and Respondent, v. PREVENTIVE MEDICINE MEDICAL GROUP, INC., Defendant and Appellant.

B009312.

Court of Appeal, Second District, Division 7, California.

March 11, 1986.

As Modified on Denial of Rehearing April 8, 1986.

Hillsinger & Costanzo, Los Angeles, Horvitz & Levy, Barry R. Levy, David M. Axelrad, Encino, and Daniel J. Gonzalez, Los Angeles, for defendant and appellant.

Schlothauer & Ellison, William H. Newkirk, Los Angeles, and Al Schallau, Rancho Palos Verdes, for plaintiff and respondent.

JOHNSON, Associate Justice.

The appellant appeals from a judgment rendered against it in a medical malpractice case. It contends the judgment should be reversed since the trial court committed several errors in instructing the jury and the jury committed several acts of misconduct which deprived the appellant of a fair trial.

STATEMENT OF FACTS AND PROCEDURE BELOW

In 1977, the respondent, Moore, was an actor and real estate salesman. His acting credits included television and magazine advertisements, television shows, and theater and minor film productions. He was a member of the Screen Actor's Guild. Through the guild, he learned the respondent, the Preventive Medicine Medical Group (PMMG), offered a physical examination for about $100.

On November 10, 1977, Moore went to the PMMG for an examination. He did not have any specific complaints but had noticed a slight blurring of vision. He was given a battery of tests. At the end of the examination, he made an appointment for a follow-up consultation.

Moore returned to the facilities on December 8, 1977. He saw an internist, Dr. Mason. Dr. Mason went over the results of the previous examination. During this time, Moore told the doctor about a spot he had noticed on his ear lobe. He asked the doctor if it was anything to be concerned about. Dr. Moore looked at the spot and felt it. The doctor observed it was a very small skin lesion. It was about 2-3 millimeters in size. He told Moore it was a mole. He strongly recommended he see a specialist. He further told him all pigmented skin lesions are suspicious in nature and until he got it removed or studied microscopically, its exact nature wouldn't be known. ¹

Moore did not immediately heed Mason's advice. However, on April 20, 1978, he went to see Dr. David, a dermatologist. His central concern was a rash he had on the back of his leg which was causing him trouble. While he was at the doctor's office, Moore told him about the spot on his ear. The doctor looked at the spot and told Moore it should be removed immediately for a biopsy. The doctor removed it on April 24, 1978.

David sent the biopsy specimen to a lab. It was put on a slide and sent back to him. When he examined it, it looked cancerous. He sent it to a pathologist for a consultation. The pathologist agreed with David's diagnosis.

David discussed the matter with Dr. Wagner, a surgeon. He sent him the pathologist's report and the slide of the mole. David discussed the matter with Moore. He told him the biopsy came back and it was a malignant melanoma. The doctor referred him to Wagner. Moore went to see Wagner about two days after this visit.

Wagner first saw Moore on May 15, 1978. Based on the pathology report and his evaluation of Moore, Wagner determined surgery was necessary. He determined he would have to remove part of Moore's left ear, along with the glands in front of the ear and in the upper neck on the same side. He also decided to remove the lymph nodes because of fear the cancer spread to them.

Wagner operated on May 25, 1978. An analysis of the removed tissues showed no evidence of any melanoma. As a result of the surgery, the lower third of Moore's left ear was removed and there is a slight depression right below the cheek. He suffers from numbness on the left side of his face and discoloration in his chin and cheek. When Moore is extremely tired, his left eye and the corner of his mouth will droop slightly. He is embarrassed by his physical appearance.

Due to his appearance, Moore has not attempted to do any modeling, commercials, or acting since 1980. ²

On June 25, 1979, Moore filed a complaint for personal injuries and medical malpractice against PMMG and Dr. Mason. The gravamen of the complaint was the defendants failed to adequately examine and diagnose Moore's cancerous conditions. In particular, the defendants failed to adequately warn Moore of the potential dangers associated with a mole of the type he exhibited and the repercussions if he didn't have the mole properly diagnosed.

Dr. Mason subsequently settled out-of-court with Moore for $5,000.

The case was tried before a jury in June 1984. The jury returned a verdict on June 22, 1984. The jury found PMMG was negligent, the negligence was a legal cause of the injury to the plaintiff, Moore was also negligent, his negligence was a legal cause of his injury, the total amount of Moore's injury was $733,000, and PMMG was 75 percent responsible while Moore was 25 percent responsible.

On July 20, 1984, PMMG filed a motion for judgment notwithstanding the verdict or, in the alternative, motion for a new trial. Among the arguments raised by PMMG was that jury misconduct prejudiced PMMG's right to a fair trial and the trial court committed prejudicial error in instructing the jury. PMMG submitted juror declarations from three jurors to establish the acts of jury misconduct. Moore did not file counter affidavits.

Both of PMMG's motions were denied on August 24, 1984.

PMMG filed a notice of appeal on September 21, 1984.

I. THE TRIAL COURT DID NOT ERR IN GIVING AN INSTRUCTION DEFINING DR. MASON'S DUTY OF DISCLOSURE

PMMG contends the trial court erred in giving the jury BAJI 6.11.5. ³ PMMG argues the instruction was erroneously given since by its terms it applies to doctors who provide diagnosis or treatment, not to doctors such as Mason who simply refer patients to specialists. Moreover, it was a question of fact whether Mason's advice to Moore was adequate, yet by instructing the jury in this manner, the court implicitly instructed them Mason had an affirmative duty to tell Moore about the potential cancer and the risks involved if he failed to see a specialist about the mole.

In Truman v. Thomas (1980) 27 Cal.3d 285, 165 Cal.Rptr. 308, 611 P.2d 902, the Supreme Court established what has been termed the "informed refusal" doctrine. This doctrine describes a physician's responsibilities to a patient when that patient refuses diagnostic testing before a diagnosis is made and treatment recommended. In a nutshell, a doctor has a duty to disclose all material information to his patient which will enable that patient to make an informed decision regarding the taking or refusal to take such a test.

In Truman, the respondent was the Truman's family doctor. He saw the appellant frequently for a six-year period. During that period, the doctor on several occasions informed Truman she should have a pap smear. She refused to take the test since she could not afford the cost. The doctor never informed Truman of the potential consequences of failing to take a pap smear, i.e., fatal cervical cancer. In April 1969, Truman contacted a urologist. Based on his examination, he made an appointment for her to see a gynecologist. The gynecologist subsequently discovered a cancerous tumor had largely replaced her cervix. Although treatment was attempted, Truman died as a result of this cancer. Her children brought a wrongful death action against the doctor arguing the failure of the doctor to give a pap smear proximately caused Truman's death. In instructing the jury, the trial court refused to give the appellants' proposed instruction based on the theory of informed refusal. The jury returned a verdict finding Thomas free of any negligence. The appellate court affirmed.

The Supreme Court, in reversing the decision, concluded a jury could properly find Thomas breached his duty of care when he failed to inform Truman of the consequences of failing to take a pap smear and the appellants' proposed instruction should have been given. In describing a physician's duty of care in this context, the court stated: "... [a] physician recommending a risk-free procedure [whether for treatment or diagnosis] may safely forego discussion beyond that necessary to conform to competent medical practice and to obtain the patient's consent. (Cite omitted.) If a patient indicates that he or she is going to decline the risk-free test or treatment, then the doctor has the additional duty of advising of all material risks of which a reasonable person would want to be informed before deciding not to undergo the procedure." (Truman v. Thomas, supra, 27 Cal.3d at p. 292, 165 Cal.Rptr. 308, 611 P.2d 902.)

In making its analysis, the court relied substantially on the principles established in Cobbs v. Grant (1972) 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1, the case in which the court established the "informed consent" doctrine. In this case, the court held "as an integral part of the physician's overall obligation to the patient there is a duty of reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each." (Id., at p. 243, 104 Cal.Rptr. 505, 502 P.2d 1.) This holding was based on four essential postulates. First, the knowledge of patient and doctor are not in parity. Second, an adult of sound mind exercises control over his own body and, in exercising this control, has the right to determine whether or not to undergo medical treatment. Third, a patient's consent to a proposed treatment must be an informed one. Fourth, due to the nature of the physician-patient relationship, the physician has an obligation to the patient which transcends arms-length transactions. Based on these postulates, a physician has a duty to inform his patient of all information necessary...