Myers v. Stevenson

• Court: California Court of Appeals
• Writing for the Court: DOOLING
• Citation: 125 Cal.App.2d 399,270 P.2d 885
• Parties: MYERS v. STEVENSON et al. Civ. 15732.
• Decision Date: 21 May 1954

Page 885

270 P.2d 885 125 Cal.App.2d 399 MYERS
v.
STEVENSON et al. Civ. 15732. District Court of Appeal, First District, Division 2, California. May 21, 1954.
Rehearing Denied July 14, 1954.

Page 886

[125 Cal.App.2d 400] Arthur C. Zief and R. A. Carmazzi, San Francisco, for appellant.

Lumb, Hoge & Killion, San Francisco, for respondent Stevenson.

Hadsell, Murman & Bishop, San Francisco, for respondent Franklin General Ben. Soc.

DOOLING, Justice.

Plaintiff appeals from a judgment in favor of defendants which was entered following an order sustaining defendants' demurrers to his second amended complaint without leave to amend.

The complaint is for personal injuries alleged to have been caused to plaintiff by the negligence of defendant Stevenson, a licensed physician, and defendant Franklin Hospital, during the labor of plaintiff's mother prior to plaintiff's birth, and during the birth of plaintiff, in defendant hospital. Plaintiff was born on or about November 1, 1945 and this action was commenced on March 18, 1952, a few months over six years after plaintiff's birth.

The question is presented whether the action is barred by the provisions of section 29 of the Civil Code. That section reads:

A child conceived, but not yet born, is to be deemed an [125 Cal.App.2d 401] existing person, so far as may be necessary for its interests in the event of its subsequent birth;but any action by or on behalf of a minor for personal injuries sustained prior to or in the course of his birth must be brought within six years from the date of the birth of the minor, and the time such minor is under any disability mentioned in Section 352 of the Code of Civil Procedure shall not be excluded in computing the time limited for the commencement of the action.' (Emphasis ours.)

In Scott v. McPheeters, 33 Cal.App.2d 629, 639, 92 P.2d 678, 93 P.2d 562, the court held that an action would lie under section 29 for injuries negligently inflicted upon the plaintiff before his birth. At the next session of the legislature following this decision the legilature added the language above emphasized to the section. Stats.1941, p. 1579.

To excuse the filing of the complaint more than six years after plaintiff's birth it was alleged in the second amended complaint: (1) that plaintiff 'remained under the care and control of defendant Stevenson until on or about the month of May, 1946' and (2) '(t)hat plaintiff was unaware that he had been injured during the course of his birth by the negligence and carelessness of defendants, and each of them, until the month of July, 1951 when it became necessary for the plaintiff to be again examined and treated by other physicians and surgeons, at which time his true condition, and the causes thereof, were made known to him.'

It has become settled law in California that the statute of limitations for malpractice does not ordinarily commence to run while the physician-patient relationship continues between the defendant physician and the plaintiff. The reason for this rule was stated in the land-mark case of Huysman v. Kirsch, 6 Cal.2d 302, 312, 57 P.2d 908, 913, 'During all this time she was under the exclusive care of the respondent, a reputable and skillful physician and surgeon, and both Mrs. Huysman and her husband relied solely upon him for information as to her physical condition and as to her failure to regain her health. It cannot be said, therefore, that they had any knowledge whatever of the cause of her failure to recover from the operation, or that they could have gained that knowledge

Page 887

by the exercise of due care and diligence prior to September 26, 1932.'

The cases uniformly since this decision have followed the rule that while the physician-patient relation continues the plaintiff is not ordinarily put on notice of the negligent [125 Cal.App.2d 402] conduct of the physician upon whose skill, judgment and advice he continues to rely. Trombley v. Kolts, 29 Cal.App.2d 699, 85 P.2d 541; Petrucci v. Heidenreich, 43 Cal.App.2d 561, 111 P.2d 421; Ehlen v. Burrows, 51 Cal.App.2d 141, 124 P.2d 82; Greninger v. Fischer, 81 Cal.App.2d 549, 184 P.2d 694. If this rule is applicable to the six-year limitation of section 29, Civ.Code, the allegation that defendant Stevenson continued to treat plaintiff 'until on or about * * * May, 1946', with the further allegation of lack of knowledge of the cause of plaintiff's injuries during that period would bring the action as to defendant Stevenson fairly within this rule. It would seem also to furnish reasonable grounds for the failure in the exercise of reasonable diligence to discover the negligent conduct of the defendant hospital during the same period.

It is a further settled rule in malpractice cases that the statute of limitations only starts to run from the date of discovery of, or the date when by the exercise of reasonable diligence the plaintiff should have discovered, the wrongful act. Huysman v. Kirsch, supra, 6 Cal.2d 302, 57 P.2d 908; Costa v. Regents of University of California, 116 Cal.App.2d 445, 254 P.2d 85; Agnew v. Larson, 82 Cal.App.2d 176, 185 P.2d 851; Bowman v. McPheeters, 77 Cal.App.2d 795, 176 P.2d 745; Pellett v. Sonotone Corp., 55 Cal.App.2d 158, 130 P.2d 181; Faith v. Erhart, 52 Cal.App.2d 228, 126 P.2d 151. This rule has just been reaffirmed by the supreme court in Stafford v. Shultz, 42 Cal.2d 767, 270 P.2d 1.

No particular criticism is leveled by respondents at the sufficiency of the allegations of the second amended complaint concerning the ignorance of the cause of action and its discovery, except as hereinafter noted. If the allegations might be more explicit as to the reason for not discovering the cause of action sooner, it does not appear that they could not be...