Richard H. v. Larry D.

• Decision Date: 11 February 1988
• Docket Number: No. A037782,A037782
• Citation: 198 Cal.App.3d 591,243 Cal.Rptr. 807
• Court: California Court of Appeals Court of Appeals
• Parties: RICHARD H., Plaintiff and Appellant, v. LARRY D., M.D., St. Helena Hospital and Health Center, Defendants and Respondents.

Page 807

243 Cal.Rptr. 807

198 Cal.App.3d 591

RICHARD H., Plaintiff and Appellant, v. LARRY D., M.D., St. Helena Hospital and Health Center, Defendants and Respondents.

No. A037782.

Court of Appeal, First District, Division 5, California.

Feb. 11, 1988.

Philip Borowsky, Cartwright, Slobodin, Bokelman, Borowsky, Wartnick, Moore & Harris, Inc., San Francisco, for plaintiff and appellant Richard F.H.

Susan M. Schmidt, Robert D. Huber, Hassard, Bonnington, Rogers & Huber, San Francisco, for defendant and respondent Larry H.D., M.D.

John L. Supple, William E. Grayson, LaFollette, Johnson, DeHaas & Fesler, P.C., San Francisco, for defendant and respondent St. Helena Hosp. and Health Center.

HANING, Associate Justice.

Plaintiff/appellant Richard F.H. appeals a judgment sustaining a demurrer without leave to amend in favor of defendants/respondents Larry H.D., M.D. and St. Helena Hospital and Health Center (St. Helena) on appellant's complaint for fraud, professional negligence, and negligent infliction of emotional distress.

The gist of appellant's complaint is that Dr. D., a licensed psychiatrist in the employ of St. Helena Hospital and Health Center, had surreptitious sexual relations with appellant's wife while the couple were his patients for purposes, inter alia, of receiving marital counseling. Appellant alleges that his discovery of this fact caused him severe emotional distress.

Appellant also alleges that Dr. D. represented to him and his wife that he was a qualified psychiatrist "who would act for the best interests of his patients in the scope of marital counseling and other psychiatric treatment," and that "at the time he made such representations, [Dr. D.] had the intent of using his position to promote sexual relations with [appellant's wife]."

The primary issue is whether, as the trial court ruled, appellant's claims are barred by Civil Code section 43.5, which states, in relevant part: "No cause of action arises for: [p] (a) Alienation of affection. [p] (b) Criminal conversation. [p] (c) Seduction of a person over the age of legal consent." ¹

Well settled rules govern our review of a judgment sustaining a demurrer. "The allegations of the complaint must be regarded as true. It must be assumed that plaintiff can prove all of the facts as alleged. The court must in every stage of an action disregard any defect in the pleadings that does not affect the substantial rights of the parties [citation]. Pleadings must be reasonably interpreted; they must be read as a whole and each part must be given the meaning that it derives from the context wherein it appears. All that is necessary as against a general demurrer is to plead facts showing that the plaintiff may be entitled to some relief [citation]. In passing upon the sufficiency of a pleading, its allegations must be liberally construed with a view to substantial justice between the parties [citation]." (Dale v. City of Mountain View (1976) 55 Cal.App.3d 101, 105, 127 Cal.Rptr. 520.)

Section 43.5 was enacted to eliminate a class of lawsuits which were often fruitful sources of fraud and extortion and easy methods "to embarrass, harass, and besmirch the reputation of one wholly innocent of wrongdoing." (Ikuta v. Ikuta (1950) 97 Cal.App.2d 787, 789, 218 P.2d 854; see also Boyd v. Boyd (1964) 228 Cal.App.2d 374, 377, 39 Cal.Rptr. 400.) A review of the decisional law, however, reveals that section 43.5 does not create a blanket immunization from liability for conduct which, although technically within the constraints of section 43.5, breaches a duty of care independent of the causes of action barred therein.

For instance, a physician who engages in sexual relations with a patient may be liable for professional negligence if his conduct constitutes a "breach of the duty of care owed to the patient by the physician within the scope of the patient-physician relationship." (Atienza v. Taub (1987) 194 Cal.App.3d 388, 392, 239 Cal.Rptr. 454.) In other words, if the physician induces the patient to participate in sexual conduct under the guise that it is necessary for the patient's treatment or therapy, such conduct is actionable despite section 43.5. (Id., at pp. 392-393, 239 Cal.Rptr. 454, and citations therein.) Likewise, persons who engage in sexual relations misrepresenting that they are either disease-free, or sterile, are not protected from liability for deceit by section 43.5 if their conduct injures the plaintiff, although such conduct might otherwise be protected by the statute. (See, e.g., Kathleen K. v. Robert B. (1984) 150 Cal.App.3d 992, 997, 198 Cal.Rptr. 273; Barbara A. v. John G. (1983) 145 Cal.App.3d 369, 376-377, 193 Cal.Rptr. 422.) In short, section 43.5 does not bar actions based on fraud. (See Langley v. Schumacker (1956) 46 Cal.2d 601, 603, 297 P.2d 977.)

In the instant case, the gravamen of appellant's complaint is that Dr. D.'s conduct as a physician breached the standard of care owed to appellant as a patient receiving marital counseling. " 'In performing professional services for a patient, a physician ... has the duty to have that degree of learning and skill ordinarily possessed by reputable physicians ... practicing in the same or a similar locality and under similar circumstances. [p] It is his further duty to use the care and skill ordinarily exercised in like cases by reputable members of his profession practicing in the same or a similar locality under similar circumstances, and to use reasonable diligence and his best judgment in the exercise of his skill and the application of his learning, in an effort to accomplish the purpose for which he is employed.' " (Kite v. Campbell (1983) 142 Cal.App.3d 793, 803, 191 Cal.Rptr. 363, citing BAJI No. 6.00.) Breach of that duty gives rise to an action for...