Rainer v. Grossman

CourtCalifornia Court of Appeals
Writing for the CourtCOMPTON; ROTH, P.J., and FLEMING
Citation107 Cal.Rptr. 469,31 Cal.App.3d 539
PartiesMary Margaret RAINER, Plaintiff and Appellant, v. Morton I. GROSSMAN, M.D., Defendant and Respondent. Civ. 40365.
Decision Date11 April 1973

Page 469

107 Cal.Rptr. 469
31 Cal.App.3d 539
Mary Margaret RAINER, Plaintiff and Appellant,
v.
Morton I. GROSSMAN, M.D., Defendant and Respondent.
Civ. 40365.
Court of Appeal, Second District, Division 2, California.
April 11, 1973.
Rehearing Denied May 9, 1973.
Hearing Denied June 7, 1973.

Page 470

[31 Cal.App.3d 540] Lillian Finan, Los Angeles, Edward L. Lascher and Richard E. Rader, Ventura, for plaintiff and appellant.

Fred S. Lack, Jr., Samuel E. Ericsson, Overton, Lyman & Prince, Los Angeles, for defendant and respondent.

[31 Cal.App.3d 541] COMPTON, Associate Justice.

Plaintiff appeals from a summary judgment entered in favor of Dr. Morton I. Grossman, one of several doctors joined as defendants in a complaint alleging medical malpractice in connection with a surgical operation performed on plaintiff on June 20, 1960, and seven subsequent operations from February 28, 1962, and including September 4, 1962.

Prior to instituting this action, plaintiff on February 27, 1963, commenced a malpractice action in the Superior Court of Ventura County (hereafter Ventura case) against the Buena Memorial Hospital where the surgery was performed and a number of doctors, most of whom are also named as defendants in this action. Dr. Grossman, however, was not a defendant in that action.

With one relatively minor exception, a jury in that case found in favor of all defendants on each of the various theories of recovery. Judgment was entered April 5, 1968 and plaintiff appealed. (See Rainer v. Comunity Memorial Hosp., 18 Cal.App.3d 240, 95 Cal.Rptr. 901, filed June 21, 1971, for a description of the facts surrounding the surgery which was performed on plaintiff.)

In the Ventura case one of plaintiff's theories of recovery was that Dr. David Fainer (named as defendant in both cases) negligently advised plaintiff as to the need for surgery. At the trial Dr. Grossman appeared as an expert witness and opined that under the circumstances of plaintiff's condition surgery was properly recommended. As noted, judgment was in favor of Dr. Fainer.

The present action, based on additional theories of recovery, was filed in the Superior Court of Los Angeles County on July 9, 1968, the complaint alleging in essence that Dr. Grossman (hereafter defendant) was a specialist who served as a 'consultant' with Dr. Fainer prior to plaintiff's surgery and that he negligently recommended surgery which was in fact unnecessary. The claimed negligence rests on his failure to examine plaintiff and amass sufficient information prior to making his recommendation.

In an apparent effort to avoid the application of the doctrine of res judicata or collateral estoppel, plaintiff has embellished her complaint with allegations that defendant knew that Dr. Fainer would rely on his recommendations and that Dr. Fainer did in fact rely on them.

Of course, the procedure for summary judgment is to permit the [31 Cal.App.3d 542] court to pierce the allegations in the pleadings to ascertain whether a genuine cause of action exists or whether the complaint is simply the product of artful pleading. (Property Controllers, Inc. v. Shewfelt, 245 Cal.App.2d 755, 54 Cal.Rptr. 218.)

Page 471

Thus we examine the papers offered in connection with the motion for summary judgment to determine if the facts would support a judgment for defendant and negate the existence of a triable issue. (Leggett v. DiGiorgio Corp., 276 Cal.App.2d 306, 80 Cal.Rptr. 697.)

Here the defendant's moving papers consisted principally of (1) the opinion of the Court of Appeal in the Ventura Case; (2) a deposition of defendant taken in connection with the Ventura case; (3) a transcript of defendants' testimony in the Ventura case; (4) a transcript of Dr. Fainer's testimony in the Ventura case; and (5) an affidavit by defendant. Plaintiff's opposition consists of a declaration by her counsel which is nothing more than an argument based on her interpretation of the evidence and presents no factual material.

Defendant, in his affidavit, states flatly that he never at any time met, saw or treated plaintiff for any condition and that he had not been called in 'consultation' by any doctor...

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23 practice notes
  • Scripps Clinic v. Superior Court, No. D040569.
    • United States
    • California Court of Appeals
    • April 17, 2003
    ...relationship is a contractual one. (McNamara. v. Emmons (1939) 36 Cal.App.2d 199, 204-205, 97 P.2d 503; Rainer v. Grossman (1973) 31 Cal.App.3d 539, 543, 107 Cal. Rptr. 469.) As we discussed above, a physician can lawfully withdraw from treating a patient after notice and a reasonable time ......
  • Elam v. College Park Hospital
    • United States
    • California Court of Appeals
    • May 27, 1982
    ...§ 142, pp. 326-327.) 7 Although it constitutes "[a] necessary element of any cause of action for negligence" (Rainer v. Grossman, 31 Cal.App.3d 539, 542, 107 Cal.Rptr. 469; Hooks v. Southern Cal. Permanente Medical Group, supra, 107 Cal.App.3d 435, 443, 165 Cal.Rptr. 741), "[a]nalysis of li......
  • Clarke v. Hoek
    • United States
    • California Court of Appeals
    • November 8, 1985
    ...action is proper where the plaintiff is unable to show that the defendant owed such a duty of care. ( Rainer v. Grossman (1973) 31 Cal.App.3d 539, 542, 107 Cal.Rptr. 469.) In this case, if respondent's declarations in support of the motion for summary judgment demonstrate an absence of an e......
  • Irvin v. Smith, No. 85,063.
    • United States
    • United States State Supreme Court of Kansas
    • September 21, 2001
    ...would not be prophylactic but instead counter-productive by stifling efforts at improving medical knowledge. Rainer v. Grossman, 31 Cal. App.3d 539, 544, 107 Cal. Rptr. 469 (1973). See Hill, 186 Mich. App. at 303-06; Lopez, 852 S.W.2d at 307. A good expression of these public policy concern......
  • Request a trial to view additional results
23 cases
  • Scripps Clinic v. Superior Court, No. D040569.
    • United States
    • California Court of Appeals
    • April 17, 2003
    ...relationship is a contractual one. (McNamara. v. Emmons (1939) 36 Cal.App.2d 199, 204-205, 97 P.2d 503; Rainer v. Grossman (1973) 31 Cal.App.3d 539, 543, 107 Cal. Rptr. 469.) As we discussed above, a physician can lawfully withdraw from treating a patient after notice and a reasonable time ......
  • Elam v. College Park Hospital
    • United States
    • California Court of Appeals
    • May 27, 1982
    ...§ 142, pp. 326-327.) 7 Although it constitutes "[a] necessary element of any cause of action for negligence" (Rainer v. Grossman, 31 Cal.App.3d 539, 542, 107 Cal.Rptr. 469; Hooks v. Southern Cal. Permanente Medical Group, supra, 107 Cal.App.3d 435, 443, 165 Cal.Rptr. 741), "[a]nalysis of li......
  • Clarke v. Hoek
    • United States
    • California Court of Appeals
    • November 8, 1985
    ...action is proper where the plaintiff is unable to show that the defendant owed such a duty of care. ( Rainer v. Grossman (1973) 31 Cal.App.3d 539, 542, 107 Cal.Rptr. 469.) In this case, if respondent's declarations in support of the motion for summary judgment demonstrate an absence of an e......
  • Irvin v. Smith, No. 85,063.
    • United States
    • United States State Supreme Court of Kansas
    • September 21, 2001
    ...would not be prophylactic but instead counter-productive by stifling efforts at improving medical knowledge. Rainer v. Grossman, 31 Cal. App.3d 539, 544, 107 Cal. Rptr. 469 (1973). See Hill, 186 Mich. App. at 303-06; Lopez, 852 S.W.2d at 307. A good expression of these public policy concern......
  • Request a trial to view additional results

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