Stills v. Gratton

• Decision Date: 25 February 1976
• Citation: 127 Cal.Rptr. 652,55 Cal.App.3d 698
• Court: California Court of Appeals Court of Appeals
• Parties: Hannah R. STILLS and Jessie Stills, a minor, by and through his guardian ad litem, Hannah R. Stills, Plaintiffs and Appellants, v. Richard GRATTON, M.D. and Allen F. Smoot, M.D., Defendants and Respondents. Civ. 34912.

Page 652

127 Cal.Rptr. 652

55 Cal.App.3d 698

Hannah R. STILLS and Jessie Stills, a minor, by and through his guardian ad litem, Hannah R. Stills, Plaintiffs and Appellants, v. Richard GRATTON, M.D. and Allen F. Smoot, M.D., Defendants and Respondents.

Civ. 34912.

Court of Appeal, First District, Division 1, California.

Feb. 25, 1976.

P. M. Barceloux, Burton J. Goldstein, Albert E. Levy, Ralph Golub, Keith S. Humpherys, Ronald E. Stewart, Goldstein, Barceloux & Goldstein, M. Reed Hunter, San Francisco, for plaintiffs and appellants.

Robert D. Huber, Hassard, Bonnington, Rogers & Huber, San Francisco, Richard G. Logan, Oakland, for defendant and respondent Richard Gratton.

Robert L. Anderson, Anderson & Geary, Russell J. Bruno, Oakland, for defendant and respondent Allen F. Smoot.

WEINBERGER, ^* Associate Justice.

In this action for medical malpractice filed by Hannah R. Stills and her minor son, Jessie Stills, against Doctors Richard Gratton and Allen F. Smoot, judgments of nonsuit were entered at the conclusion of plaintiffs' evidence in favor of the defendants and against the plaintiffs. This appeal is from the judgments so entered.

The right to move for a judgment of nonsuit is granted by Code of Civil Procedure section 581c. As was stated in Williams v. Goodwin (1974) 41 Cal.App.3d 496, 509, 116 Cal.Rptr. 200, 209: 'The propriety of the trial court's ruling in taking the case from the jury must be tested by the stringent rule relating to nonsuit. The rule is that '(A) nonsuit may be granted only where, disregarding conflicting evidence on behalf of the defendants and giving to plaintiff's evidence all the value to which it is legally entitled, therein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff. '' (O'Keefe v. South End Rowing Club, supra, 64 Cal.2d 729, 733, 51 Cal.Rptr. 534, 414 P.2d 830; McCall v. Otis Elevator Co., supra, 219 Cal.App.2d 22, 24--25, 33 Cal.Rptr. 44.)' (See also 4 Witkin, Cal. Procedure (2d ed. 1971) Trial, § 353, pp. 3152--3153.) The following is a summary of the evidence before the trial court at the close of the plaintiffs' case to which the stated stringent rule relating to nonsuits must be applied.

In late May or early June 1969 appellant Hannah Stills suspected that she was pregnant. She was unmarried, unemployed, and a part-time art student with a history of emotional problems which she described as 'Depression and feelings of alienation.' She was frightened at the prospect of having a child.

On June 10, 1969, on the recommendation of a friend, she visited Dr. Gratton, an obstetrics-gynecology specialist, who confirmed her pregnancy, and after discussing her emotional state, advised her that it might be in her best interest to have a therapeutic abortion. He informed her that it would be necessary for her, in order to qualify for such legal abortion under the provisions of Health and Safety Code section 25951, to obtain the approval of the hospital committee and to be examined by two psychiatrists with whom appointments were scheduled. On a return visit to Dr. Gratton on June 20th, Miss Stills was advised that arrangements had been made for a therapeutic abortion to be performed by him in Children's Hospital, San Francisco, on July 8, 1969. She entered the hospital the day before the surgery and was discharged on July 9th, going to her mother's apartment in San Francisco where she remained until July 25th when she moved to Los Angeles, as she had previously informed Dr. Gratton was her intention.

An expert witness called by appellants testified that standard procedure required that a specimen of the tissue removed from a patient be submitted for pathological study and report. The report in the instant case, dated July 10, 1969, indicated that upon gross examination (with the naked eye) the material moved from the patient's uterus revealed 'placental tissue.' However, microscopic examination showed no placental tissue and the final diagnosis by the pathologist was that the specimen was 'desidua,' meaning the inner lining of the uterus. This diagnosis, according to appellants' expert, indicates that the abortion had been unsuccessful.

Dr. Gratton conceded that the report, which he testified he received about July 20th, did not confirm that the fetus had been removed, but it was his opinion that since the gross examination revealed placental tissue the pathologist had simply failed to pick it up microscopically. He did not request any further studies because he believed the operation was a success.

There was also expert testimony that the 1969 standard of care for a doctor who had performed and abortion was to read the pathology report and to examine the patient after about two weeks 'to make certain, as much as possible, that things have gone well, and the problem has been resolved.'

Dr. Gratton testified that he normally required a return visit within two or three weeks but that in this case the patient had told him she was going directly to Los Angeles and had no forwarding address there. Miss Stills testified that she had no recollection of Dr. Gratton telling her that she should have a checkup following her abortion. Dr. Gratton testified that he did tell her that, under normal conditions, he would want to see her after about two to three weeks. He did not testify that he recommended that she arrange to see some other doctor in Los Angeles.

On or about August 8, 1969, Miss Stills went to a Dr. Wood in Los Angeles for a checkup and for birth control pills. She was told by him that he thought she was pregnant and a urine test confirmed this diagnosis. On the same day, appellant called Dr. Smoot, who had been her family doctor in San Francisco for several years. Upon learning that Miss Stills had seen a doctor in Los Angeles, that she had had an earlier abortion, and the result of the new pregnancy test, Dr. Smoot asked her who had performed the operation. On being told the doctor's name he suggested that he call Dr. Gratton to try to find out what was going on. A day or so later, appellant called Dr. Smoot again. He told her that according to Dr. Gratton she had been completely aborted, explaining that the affirmative pregnancy test may be due to her 'body chemistry' not having returned to normal. He then suggested that plaintiff take a regimen of birth control pills to regulate her menstrual period, and sent her a prescription for Enovid-E. The prescription was dated August 14, 1969, and was sent to her Los Angeles address. Appellant had it filled on August 19, 1969, and took the pills for 20 days as advised by Dr. Smoot. When her menstrual period did not begin within a few days after discontinuing the use of the Enovid-E, Miss Stills decided to return to San Francisco to see Dr. Smoot. She visited him in mid-September. He confirmed that she was pregnant and referred her to a Dr. Soldati for prenatal care. At this point, appellant believed that she was 'too far along' to have a repeat abortion.

Dr. Soldati examined Miss Stills on September 30, 1969, and concluded she was 23 to 24 weeks pregnant. Abortion was no longer advisable because the legal deadline had passed, and because it was medically unsafe. He testified that on or about August 11, 1969, at 17 weeks, it would have been medically permissible to do a second abortion.

Doctors Gratton and Smoot agreed in essentials about their telephone conversation. After Dr. Smoot relayed what the patient had said, Dr. Gratton told him that decidual tissue was found by the pathologist, but that in his opinion the abortion was satisfactory. He told Dr. Smoot that if there was any question at all, plaintiff should be checked by him or Dr. Smoot or some other doctor. Dr. Smoot relayed to Miss Stills the opinion of Dr. Gratton that the abortion had been completed without mentioning the pathology report. He volunteered the possibility of 'body chemistry' masking the fact that a former pregnancy had been terminated by an abortion.

With regard to the prescription of Enovid-E, Dr. Smoot testified that he prescribed it in order to bring on menstrual flow and that there is no reason to use the drug if a woman is pregnant. A drug called Gestest, if taken for a short time, for example, two a day for two days, would produce the same effect as Enovid-E, if the patient is not pregnant. If no menstruction occurs after the Gestest regimen, then further testing is called for. Cr. Smoot did not use Gestest because if the plaintiff was not pregnant, it would not protect her against conception. Dr. Gratton agreed that Enovid-E is not the 'treatment of choice' if a woman is pregnant.

Under Dr. Soldati's care the appellant Hannah Stills gave birth on January 10, 1970, to plaintiff, Jessie Stills, who was described by his counsel in an opening statement as 'a beautiful healthy baby boy . . . and there did not appear to be, and to this day (three and one-half years later) there does not appear to be, anything wrong with that little boy.'

The issues raised by appellants are:

1. Did the trial court err in granting a nonsuit in favor of the two respondent doctors?

2. If appellants are successful in establishing liability, what is the proper measure of damages?

As regards the cause of action asserted by Hannah Stills, we conclude that the judgment of nonsuit must be reversed. The stringent rule by which a trial court's ruling on a motion for such judgment must be tested has already been stated. We must disregard conflicting evidence and give to plaintiffs' evidence all the value to which it is legally entitled, as well as indulge in every legitimate inference which may be drawn from the evidence. (Estate of Lances (1932) 216 Cal. 397, 400, 14 P.2d 768; Balido v. Improved Machinery, Inc. (1972) 29 Cal.App.3d 633, 637, 105 Cal.Rptr. 890; Martin v. Tully (1941) 44 Cal.App.2d...