Nelson v. Gaunt

• Decision Date: 13 November 1981
• Citation: 178 Cal.Rptr. 167,125 Cal.App.3d 623
• Court: California Court of Appeals Court of Appeals
• Parties: Mary L. NELSON, Plaintiff and Respondent, v. Frank L. GAUNT, Defendant and Appellant. Civ. 44625.

Page 167

178 Cal.Rptr. 167

125 Cal.App.3d 623

Mary L. NELSON, Plaintiff and Respondent, v. Frank L. GAUNT, Defendant and Appellant.

Civ. 44625.

Court of Appeal, First District, Division 2, California.

Nov. 13, 1981.

Belli & Choulos, San Francisco, for plaintiff and respondent.

John F. Hassler, Pasadena, for defendant and appellant.

TAYLOR, Presiding Justice.

Defendant, Frank L. Gaunt, appeals ¹ from a judgment entered on a jury verdict awarding $450,000 in compensatory and $1,500,000 in punitive damages to a former patient, Mary L. Nelson, in her action for assault and battery, fraud and intentional infliction of emotional distress. Gaunt argues that: 1) each of Nelson's causes of action was barred by the one-year statute of limitations for malpractice; 2) his decision to represent himself was not voluntarily made; 3) the court erred in the admission of certain evidence; 4) errors in the instructions; 5) the compensatory damage award was excessive and the punitive damages award was not supported by the evidence; and 6) Nelson's counsel was guilty of prejudicial misconduct. For the reasons set forth below, we have concluded that the judgment should be affirmed.

Viewing the record in favor of the judgment and verdict, the following facts appear:

On May 28, 1968, Nelson consulted Gaunt at his San Jose office about the possibility of breast augmentation by an implant procedure. Gaunt told her that implants were not satisfactory but that he had an alternate procedure that was simple, inexpensive, free of side effects and could be done in his office. This procedure involved the use of an "inert substance" that would have "absolutely no side effects." Nelson replied that she had not brought any money or a checkbook, as she had anticipated that any procedure would have to be done in a hospital at a later date. Gaunt offered to provide her with a counter check. After Nelson unsuccessfully attempted to reach her husband by telephone, she agreed to the injections that day and paid with the proffered counter check. On June 25, 1968, Nelson went to Gaunt's office in Beverly Hills for a second set of injections. After she had been prepared for the injection, she overheard Gaunt ask his assistant to "get the silicone." This was the first time she heard the word "silicone." She received the second set of injections and paid in cash, as requested.

Nelson called Gaunt as an adverse witness. He did not recall treating her but acknowledged his signature endorsing the counter check written by Nelson. He denied having an office in San Jose in May 1968. He did not recall giving any silicone injections after 1967. Only after his arrest in 1966 or 1967 had he become aware that the State Department of Public Health (State Public Health) required an approved application to administer silicone injections. He also stated that he did not become aware of the federal and state permit requirements for silicone until 1970. Gaunt maintained that after his arrest, he ceased to inject silicone.

Nelson's witness Kathleen Woodall testified that she received a series of breast augmentation silicone injections from Gaunt between March 18 and May 20, 1968, at his San Jose office.

Nelson's witness Willis Worley testified that he had arrested Gaunt on February 8, 1968, in his San Jose office for use of silicone. State Public Health had been informed by the Federal Food and Drug Administration (FDA) that silicone was considered dangerous for use in human body tissue. In 1965 or 1966, the FDA had obtained an injunction prohibiting transportation of silicone across state lines against the sole U.S. manufacturer of medical grade silicone. Silicone was then classified as a "new drug" that could be administered only under scientific circumstances after an application for this limited use had been approved by either the FDA or State Public Health. Based on information received from the Santa Clara County District Attorney that Gaunt was using silicone to inject patients, State Public Health ascertained that neither the state nor federal records indicated that Gaunt had applied for a permit for silicone use. On February 6, 1968, State Public Health filed a sworn declaration and obtained a warrant for Gaunt's arrest on two counts of violation of former Health and Safety Code section 26288, ² a misdemeanor. On February 8, 1968, Worley and others arrested Gaunt in San Jose. At the time of the arrest, Worley informed Gaunt that use of silicone without an approved application was against the law.

In October 1968, Nelson discovered two lumps in her left breast. On November 9, 1968, she consulted Dr. Harrison Kornfield and told him that she had received silicone injections in both breasts. Dr. Kornfield opined that in 1968, it was not known whether or not silicone was a safe substance to inject into a human body. However, silicone had not been approved by the FDA for such a purpose and, therefore, should not be used until proved safe. It was known that silicone might be unstable and metabolize, and could move from one place to another within the body; the degree of reaction in humans was not known but malignant cancer was a potential.

Dr. Kornfield's examination of Nelson revealed additional lumps that she had not detected. Kornfield suspected that these lumps were silicone granuloma or nodules of silicone rather than an intrinsic breast problem; however, he was unable to make certain. Nelson's X-rays showed shadows that were more compatible with a diagnosis of loose fluid than malignancy. Kornfield consulted with his associates and then referred Nelson to Dr. Robert Chase, chief of surgery and chief of plastic and reconstructive surgery at Stanford, for further evaluation. The physicians agreed that her situation was unusual and dangerous because of the presence of silicone, the inability to detect normal breast tissue and to determine whether or not the lumps were cancer. No biopsy was performed as it would only prove the presence of silicone granuloma which was not necessary since the presence of silicone was already known. Any biopsy surgery would leave scar tissue that might compromise later surgery and the possibility of reconstructive implants. A syringe could not be used to withdraw the liquid silicone since it was in droplets throughout the breasts and not in one large identifiable mass. The physicians agreed to wait to remove the breast tissue and monitor Nelson closely for any change in her condition.

Nelson was frequently reexamined by Dr. Kornfield. After his examination on July 28, 1971, Kornfield concluded that her condition had changed substantially and that surgery was now imperative. Although the X-rays showed no shadows generally associated with malignancy, a mass in each breast had overtaken the normal breast tissue. Nelson also had enlarged lymph nodes under both arms, a symptom usually associated with malignancy. Again, Kornfield was unable to determine if Nelson's condition was due to the presence of silicone, whether the silicone had caused any malignancy or if any malignancy was present. On August 10, 1971, Nelson had a double mastectomy; in addition, masses were removed from her waist and shoulders. Pathology reports revealed that silicone was present and the tissue removed was infarcted (dead due to lack of blood supply), but no malignancy was found. In 1973, additional silicone was removed from her rib area. A second set of protheses was implanted in 1974. These had to be removed in 1975 when a third set was implanted and proved successful.

During the time Nelson was involved in the above mentioned medical consultations and surgeries, she developed several emotional distress reactions. She was afraid that the lumps developing in her breasts were malignant, had nightmares about dying, and became sufficiently withdrawn and depressed to seek psychiatric help for that condition. Her family life was disrupted; she was unable to care for her children and required help with household responsibilities. Her husband left her on several occasions and ultimately they were divorced.

Plaintiff's original complaint filed on November 4, 1971, alleged malpractice and assault and battery by use of an illegal substance. The amended complaint filed on September 29, 1972, added fraud. The court granted Gaunt's motion for a summary judgment on the cause of action for malpractice on grounds of the one-year statute of limitations of former Code of Civil Procedure section 340.5. ³ As to the fraud causes of action, the court ruled that the applicable statute of limitations was the three-year period of Code of Civil Procedure section 338, ⁴ and that the existence of fraud, as well as the application of the statute of limitations was a question of fact for the jury. Thus, as to the causes of action for assault and battery, the application of the statute of limitations was a jury question also. At the conclusion of the trial, the court granted Nelson's motion to amend the complaint to conform to proof to add a cause of action for intentional infliction of emotional distress. The verdict in favor of Nelson awarded her general and special damages of $450,000 and punitive damages of $1,500,000. The special interrogatories indicated that the verdict was based on fraud, battery and intentional infliction of emotional distress.

Gaunt maintains that all of Nelson's causes of action are for injuries as a result of medical treatment and, therefore, are controlled by the one-year statute of limitations for medical malpractice. He contends that since Nelson discovered her injuries when she first consulted Dr. Kornfield on November 9, 1968, all of her causes of action were barred by former Code of Civil Procedure section 340.5, as of November 9, 1969.

Gaunt relies on Tell v. Taylor, 191 Cal.App.2d 266, 12 Cal.Rptr. 648, Garlock v Cole, 199 Cal.App.2d 11, 18 Cal.Rptr. 393, and Weinstock v. Eissler, 224 Cal.App.2d 212, 36 Cal.Rptr. 537, which held...