Rawlings v. Harris

• Decision Date: 30 August 1968
• Citation: 265 Cal.App.2d 452,71 Cal.Rptr. 288
• Court: California Court of Appeals Court of Appeals
• Parties: Reba RAWLINGS, Plaintiff and Appellant, v. Charles P. HARRIS, Defendant and Respondent. Civ. 876.

Page 288

71 Cal.Rptr. 288

265 Cal.App.2d 452

Reba RAWLINGS, Plaintiff and Appellant, v. Charles P. HARRIS, Defendant and Respondent.

Civ. 876.

Court of Appeal, Fifth District, California.

Aug. 30, 1968.

Rehearing Denied Sept. 26, 1968.

Hearing Denied Oct. 23, 1968.

Walkup, Downing, Wallach & Sterns, San Francisco, William B. Boone, Santa Rosa, for plaintiff and appellant.

Gallagher, Baker & Manock, John J. Gallagher and John E. Fitch, Fresno, for defendant and respondent.

CONLEY, Presiding Justice.

The appellant, Reba Rawlings, appeals from a judgment in favor of the defendant doctor, Charles P. Harris, in a malpractice suit. As the contemporaneous result of a panhysterectomy operation, the plaintiff became afflicted with a vesico-vaginal fistula; this fistula leaked urine from the bladder through the vagina of the plaintiff constantly day and night 'like a water faucet' for a considerable period of time, causing the appellant to wear diapers and bath towels to soak up the liquid.

There are two main issues to be decided. The first one is tendered by the respondent, who calls attention to the fact that the verdict of the jury was general, that there were two defenses urged by the doctor, one being that he was not guilty of any negligence and the second that the cause of action was barred by the statute of limitations, and that under the rule adopted by the Supreme Court of this state it must be legitimately assumed that the jury found in favor of the defendant and respondent on the statute of limitations defense. The second important issue, if the first above mentioned is not adopted, is whether the court committed reversible error in not instructing the jury that the plaintiff, under her theory, must have the benefit of the res ipsa loquitur doctrine and that the jury should have been so instructed.

With respect to the contention made by respondent that there was no error in connection with the special defense that the cause of action was barred by the statute of limitations, it appears without question in the evidence that the panhysterectomy was performed October 30, 1962, that from November of the same year until June 9, 1965, when the fistula was repaired by another doctor, the plaintiff suffered leakage of urine through the fistula and the vagina; the record also shows that the plaintiff consistently testified under oath that while she knew that the condition was unusual, particularly with respect to Dr. Harris, and that her condition was unfortunate and improper, she did not know or suspect that Dr. Harris was negligent, or could be charged with fault, until March of 1964. She sued within one year after that time and maintains that, under the law, the start of the action was timely.

It is contended by Dr. Harris' counsel that the jury had a right to find as a fact whether or not she should have acted by suit against the doctor within one year after the operation, and that the jury had the right to find that she was guilty of constructive negligence in failing to file her action within that time. The Supreme Court of the state has held that when there is a general verdict and a plaintiff has sued on two causes of action, the judgment in favor of a plaintiff must be affirmed if one of the causes of action is supported by ample evidence and there is no error in the record with respect to such cause of action even though there are errors with respect to the other cause of action. (Gillespie v. Rawlings, 49 Cal.2d 359, 317 P.2d 601; Tucker v. Landucci, 57 Cal.2d 762, 22 Cal.Rptr. 10, 371 P.2d 754; Moss v. Coca Cola Bottling Co., 103 Cal.App.2d 380, 384, 229 P.2d 802; Estate of Hellier, 169 Cal. 77, 83, 145 P. 1008; Shields v. Oxnard Harbor Dist., 46 Cal.App.2d 477, 491, 116 P.2d 121; Hume v. Fresno Irr. Dist., 21 Cal.App.2d 348, 356, 69 P.2d 483; King v. Schumacher, 32 Cal.App.2d 172, 179, 89 P.2d 466; Rather v. City & County of San Francisco, 81 Cal.App.2d 625, 636, 184 P.2d 727; Posz v. Burchell, 209 Cal.App.2d 324, 335, 25 Cal.Rptr. 896.) Objections to the underlying theory of these cases have been made previously but have been overruled by the Supreme Court. This court is bound by the holding of the Supreme Court (Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455-- 456, 20 Cal.Rptr. 321, 369 P.2d 937.) It is imperative, therefore, to apply the rule in question if it is supported by the evidence. However, a painstaking examination of the record leads this court to the inevitable conclusion that the special defense of the statute of limitations relied upon by the respondent is not proven. As already noted, the plaintiff herself had the greatest confidence in Dr. Harris and continued treatment with him, including curative attempts, until a time when her suspicions were first aroused by a conversation with a nurse's helper; from that time to the filing of the case only a portion of a year passed. There is no indication that she even had an earlier suspicion that Dr. Harris might be charged with negligence; there existed the greatest trust and confidence in the doctor by his patient and he continued to treat her and act for her as doctor during that period.

It is said in the opinion in DeVault v. Logan, 223 Cal.App.2d 802, 806--807, 36 Cal.Rptr. 145, 148:

'* * * it has been held that the statute (of limitations) does not commence to run while the patient and physician relationship continues (citing cases); or until the plaintiff discovers the injury, or through the use of reasonable diligence should have discovered it (citing cases) whether such actual or constructive discovery occurs prior to or after termination of the doctor-patient relationship (citing cases); or if there is an act or omission on the part of the doctor which would toll or interrupt the running of the statute or estop the doctor from asserting that the action is barred (citing cases), such as fraudulent concealment of the facts giving rise to the cause of action (citing cases).'

In Hundley v. St. Francis Hospital, 161 Cal.App.2d 800, 806, 327 P.2d 131, 135 80 A.L.R.2d 360, it is said:

'The rule is clear, as to malpractice actions, that 'while the physician-patient relation continues the plaintiff is not ordinarily put on notice of the negligent conduct of the physician upon whose skill, judgment and advice he continues to rely.' Myers v. Stevenson, 125 Cal.App.2d 399, 401--402, 270 P.2d 885, 887. Thus, in the absence of actual discovery of the negligence, the statute does not commence to run during such period (Huysman v. Kirsch, 6 Cal.2d 302, 57 P.2d 908), and this is true even though the condition itself is known to the plaintiff, so long as its negligent cause and its deleterious effect is not discovered (Trombley v. Kolts, 29 Cal.App.2d 699, 85 P.2d 541).'

The situation is thus treated in Huysman v. Kirsch, 6 Cal.2d 302, 309, 57 P.2d 908, 911, through an approving reference to the Ohio case of Gillette v. Tucker, 67 Ohio St. 106 (65 N.E. 865, 93 Am.St.Rept. 639):

"Indeed, it would be inconsistent to say, that the plaintiff might sue for her injuries while the surgeon was still in charge of the case and advising and assuring her that proper patience would witness a complete recovery. It would be trifling with the law and the courts to exact compliance with such a rule, in order to have a standing in court for the vindiction of her rights. It would impose upon her an improper burden to hold, that in order to prevent the statute from running against her right of action, she must sue while she was following the advice of the surgeon and upon which she all the time relied.

"The facts in the case at bar show a continuous obligation upon the plaintiff in error, so long as the relation or employment continued, and each day's failure to remove the sponge was a fresh breach of the contract implied by the law. The removal of the sponge was a part of the operation, and in this respect the surgeon left the operation uncompleted. See Akridge v. Noble, 114 Ga. 949, 41 S.E. 78, where this is expressly held."

Stafford v. Shultz, 42 Cal.2d 767, 776--778, 270 P.2d 1, 7 holds:

'The rule has been stated, Pellett v. Sonotone Corp., 55 Cal.App.2d 158, 160, 130 P.2d 181, that the statute of limitations does not commence to run until the plaintiff discovered his injury, or through the use or reasonable diligence, should have discovered it, Bowman v. McPheeters, 77 Cal.App.2d 795, 798, 176 P.2d 745; Sears v. Rule, 27 Cal.2d 131, 147, 163 P.2d 443. We must then determine whether the knowledge received by plaintiff on September 2, 1949, that his leg must be amputated put him on notice that defendants had been guilty of negligence in the treatment and care thereof. See also Agnew v. Larson, 82 Cal.App.2d 176, 182, 185 P.2d 851; Faith v. Erhart, 52 Cal.App.2d 228, 230, 126 P.2d 151; Petrucci v. Heidenreich, 43 Cal.App.2d 561, 562, 111 [265 Cal.App.2d 457] P.2d 421; Marsh v. Industrial Accident Comm., 217 Cal. 338, 18 P.2d 933, 86 A.L.R. 563.

'In Bowman v. McPheeters, 77 Cal.App.2d 795, 800, 176 P.2d 745, 748, the court said: 'Perhaps the most significant feature in the present case which makes inapplicable the doctrine of constructive notice is the existence of the relationship between the parties of physician and patient, which in contemplation of law is a fiduciary one. 20 Cal.Jur., p. 1072, sec. 20. As fiduciaries it was the duty of defendants to make a full and fair disclosure to plaintiff of all facts which materially affected his rights and interests. This principle has been applied and expressed in one form or another in several recent decisions dealing specifically with the question of fraudulent concealment of a cause of action in its relation to the statute of limitation. (Citations.)'

'In Hobart v. Hobart Estate Co., 26 Cal.2d 412, 440, 159 P.2d 958, 973, it was said that it was recognized in cases involving a fiduciary relationship that 'facts which would ordinarily require investigation may not excite suspicion, and...