Munro v. Regents of University of California

• Decision Date: 16 November 1989
• Docket Number: No. B037779,B037779
• Citation: 215 Cal.App.3d 977,263 Cal.Rptr. 878
• Court: California Court of Appeals Court of Appeals
• Parties: Alexander A. MUNRO, a Minor, etc., et al., Plaintiffs and Appellants, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.

Page 878

263 Cal.Rptr. 878

215 Cal.App.3d 977

Alexander A. MUNRO, a Minor, etc., et al., Plaintiffs and Appellants, v. REGENTS OF THE UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.

No. B037779.

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

Nov. 16, 1989.

Review Denied Feb. 15, 1990.

Harney, Drummond, Garza & Packer and Thomas Kallay, Los Angeles, for plaintiffs and appellants

Patterson, Ritner, Lockwood, Zanghi & Gartner, Robert Scholl, Los Angeles, Greines, Martin, Stein & Richland, Martin Stein and Barbara W. Ravitz, Beverly Hills, for defendants and respondents.

LILLIE, Presiding Justice.

Alexander Munro, a minor by and through his guardians ad litem Pamela and Allen Munro, and Pamela and Allen Munro, individually, sued the Regents of the University of California, dba UCLA Medical Center, and Barbara Crandall for medical malpractice and intentional and negligent infliction of emotional distress. Plaintiffs appeal from summary judgment entered against them and in favor of defendants.

FACTS

Plaintiffs Pamela and Allen Munro are a married couple. In September 1984 Mrs. Munro saw Dr. William Growdon, an obstetrician-gynecologist. Dr. Growdon confirmed that Mrs. Munro, then 37 years old, was pregnant with her second child. Because of the increased risk of Down Syndrome in children born to women over the age of 35, Dr. Growdon referred Mrs. Munro to defendant Barbara Crandall, a physician, for genetic counseling.

In October 1984 Mrs. Munro met with Dr. Crandall at the UCLA Neuropsychiatric Institute. At this meeting Dr. Crandall took a family history of Mr. and Mrs. Munro. Mrs. Munro told Dr. Crandall her father's background was "primarily German" and her mother's background was English and Canadian. She said that her husband's father's father was Scottish and his father's mother was either Scottish or Irish. Mrs. Munro also told Dr. Crandall that Mr. Munro's mother's father was Norwegian and his "mother's father's [sic ] family was some peculiar type of French." The information Dr. Crandall obtained from Mrs. Munro indicated that neither she nor Mr. Munro is of Jewish heritage. Because of the extremely low incidence of non-Jewish carriers of Tay-Sachs disease, Dr. Crandall does not recommend genetic testing for Tay-Sachs disease unless one or both parents indicate they are of Ashkenazic (eastern European) Jewish background. ¹ Accordingly, when Mrs. Munro underwent genetic testing at UCLA Medical Center in November 1984, no test was given to determine whether she or her husband had the genetic makeup for transmission of Tay-Sachs disease to their unborn child. About three weeks later an employee of the UCLA Medical Center telephoned Mrs. Munro and told her she was carrying a healthy baby boy.

On May 11, 1985, Pamela Munro gave birth to plaintiff Alexander Munro. In March 1986 Alexander was diagnosed as suffering from Tay-Sachs disease. When Mrs. Munro came to her for genetic counseling in 1984, Dr. Crandall knew that in addition to Ashkenazic Jews, there is a small inbred community in French Canada which is said to have a slightly higher prevalence of Tay-Sachs disease than the general population. Not until after the counseling session did the Munros learn that Mr. Munro's maternal grandfather's parents were French Canadian.

Plaintiffs sued defendants for medical malpractice and intentional and negligent infliction of emotional distress. The complaint's first cause of action ("negligence"), on behalf of all plaintiffs, alleged that plaintiff Alexander Munro, by his guardians ad litem plaintiffs Pamela and Allen Munro, engaged the services of defendants to care for and treat "a problem pertaining to the health and well-being" of Alexander Munro and Pamela Munro. Defendants undertook to provide genetic counseling for Pamela Munro, and consequently for Alexander Munro. In providing such counseling defendants negligently failed to possess and exercise the degree of knowledge and skill ordinarily possessed and exercised by other physicians and hospitals in the same locality as defendants. As a direct result of said negligence plaintiffs Pamela Munro and Allen Munro suffered severe, serious and permanent physical and emotional injuries. Plaintiff Alexander Munro, by and through his guardians ad litem, incurred hospital and medical expenses and will continue to incur such expenses for an indefinite period of time in the future.

The second cause of action (intentional infliction of emotional distress), on behalf of plaintiffs Pamela and Allen Munro, incorporated the allegations of the first cause of action and further alleged: When she received genetic counseling from defendants, Pamela Munro was pregnant with Alexander and sought the services of defendants for the purpose of diagnosis and Defendants moved for summary judgment on the ground defendant Barbara Crandall acted within the operative standard of care in her genetic counseling of plaintiffs. In support of the motion defendants presented excerpts from the depositions of Dr. Crandall and plaintiffs Pamela and Allen Munro. Defendants also presented the declaration of Dr. Michael Kaback, a physician certified by the American Board of Pediatrics and the American Board of Medical Genetics. Dr. Kaback is the director of the State of California Tay-Sachs Disease Prevention Program and the director of the International Tay-Sachs Disease Testing, Quality Control and Data Collection Center. Based on his medical knowledge and expertise and his knowledge of the facts of this case, ³ Dr. Kaback expressed the opinion that plaintiffs did not meet the profile characteristics necessary to warrant performing a Tay-Sachs screening test and therefore it was within the standard of care for defendants not to perform such testing on plaintiffs.

treatment of any genetic fetal abnormality. Defendants held themselves out to the general public, including plaintiffs, as experts in the field of genetic counseling and diagnosis; plaintiffs had no education or training in that field and relied upon defendants to undertake all necessary and proper testing so as to render a professional opinion regarding potential genetic disorders in Alexander. Defendants represented to plaintiffs that all such testing would be done. Plaintiffs believed that tests to rule out Tay-Sachs disease were performed by defendants and that said tests were negative. In fact, defendants intentionally and maliciously either omitted said tests or if said tests were performed, recklessly disregarded their results and failed to inform plaintiffs Pamela and Allen Munro that Alexander, in utero, was afflicted with Tay-Sachs disease. As a result of defendants' conduct plaintiffs suffered severe emotional distress. ²

Plaintiffs opposed the motion for summary judgment, submitting the declaration of plaintiff Pamela Munro wherein she stated inter alia: If the basis of defendants' exclusion of Tay-Sachs testing was the fact that she and her husband are not Jewish, this should have been made known to plaintiffs; regardless of the rarity of the carrier status of Tay-Sachs disease in non-Jews, plaintiffs would have availed themselves of the Tay-Sachs test if the easy availability of that test had been made known to them. Plaintiffs presented no expert medical evidence. ⁴

The motion was granted as to the entire complaint. Summary judgment was entered in favor of defendants and against plaintiffs. This appeal followed.

DISCUSSION

I

A motion for summary judgment "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment must either negate a necessary

                element of the plaintiff's case or establish a complete defense.  (Fireman's Fund Ins. Co. v. Fibreboard Corp.  (1986) 182 Cal.App.3d 462, 465, 227 Cal.Rptr. 203.)  "Under well established rules governing summary judgment motions, the affidavits of the moving party are to be strictly construed and those of his opponent liberally construed.  [Citations.]  Nevertheless, a party opposing a motion for summary judgment which is supported by affidavits or declarations sufficient to sustain the motion, has the burden of showing that triable issues of fact exist."  (Chern v. Bank of America (1976) 15 Cal.3d 866, 873, 127 Cal.Rptr. 110, 544 P.2d 1310.)   If the opposing party does not sustain that burden summary judgment is proper.  (Saatzer v. Smith (1981) 122 Cal.App.3d 512, 517, 176 Cal.Rptr. 68.)
                

II

Plaintiffs' first cause of action alleged medical malpractice. The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36, 210 Cal.Rptr. 762, 694 P.2d 1134; Landeros v. Flood (1976) 17 Cal.3d 399, 408, 131 Cal.Rptr. 69, 551 P.2d 389.) " 'The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is within the common knowledge of the layman.' [Citations.]" (Landeros v. Flood, supra, 17 Cal.3d at p. 410, 131 Cal.Rptr. 69, 551 P.2d 389.) The circumstances under which genetic testing for Tay-Sachs disease is indicated, are beyond a layman's knowledge. Accordingly, expert testimony was required in order to determine whether defendants' alleged failure to administer such genetic testing to plaintiffs met the standard of care imposed on physicians.

Recognizing this, defendants submitted expert evidence in the form of Dr. Kaback's declaration wherein he stated: Since it is...