Rainer v. Grossman

• Decision Date: 11 April 1973
• Citation: 107 Cal.Rptr. 469,31 Cal.App.3d 539
• Court: California Court of Appeals Court of Appeals
• Parties: Mary Margaret RAINER, Plaintiff and Appellant, v. Morton I. GROSSMAN, M.D., Defendant and Respondent. Civ. 40365.

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.

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.

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 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.)

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 concerning the care or treatment of plaintiff.

The uncontroverted testimony of defendant and Dr. Fainer in the Ventura case in summary is as follows:

Defendant is a physician and surgeon speializing in gastroenterology. He is a professor of medicine teaching in his speciality at the U.C.L.A. Medical School. Sometime in 1960, he was invited to lecture to a group of some 20 to 50 physicians at a medical education meeting at the Ventura General Hospital. The session lasted approximately an hour, during which various cases and x-rays were presented for discussion.

Dr. Fainer, who at the time was treating plaintiff for a condition described as ulcerative colitis, without mentioning her name, presented the facts of plaintiff's history together with x-rays. Defendant gave an opinion that in such a case surgery was indicated. This opinion was shared by most of the physicians present at the meeting. Subsequently, Dr. Fainer made his recommendation to plaintiff and surgery followed.

A necessary element of any cause of action for negligence is, of course, the existence of a duty of care which defendant owed to the plaintiff. (Routh v. Quinn, 20 Cal.2d 488, 127 P.2d 1.) The existence of such a duty is a question of law. (Amaya v. Home Ice, Fuel & Supply Co., 59 Cal.2d 295, 29 Cal.Rptr. 33, 379 P.2d 513; Starr v. Mooslin, 14 Cal.App.3d 988, 92 Cal.Rptr. 583.)

In the usual case of medical malpractice the duty of care springs from the physician-patient relationship which is basically one of contract. (Agnew v. Parks, 172 Cal.App.2d 756, 764, 343 P.2d 118.) It is clear that the imposition on defendant of a duty of care to plaintiff here cannot rest on the physician-patient relationship. There was none.

However, as was observed in McGarvey v. Pacific Gas & Elec. Co., 18 Cal.App.3d 555, 561--562, 95 Cal.Rptr. 894, 898: 'Our Supreme Court, . . . has on a 'case-by-case basis' (citation) blazed new trails in fields in which new or rediscovered duties of care have been asserted--e.g., in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (liability of manufacturers for defective design of products); Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (extension of liability of a tortfeasor who injures a child to encompass limited liability for its parents resultant mental-physical...