Stone v. Foster

CourtCalifornia Court of Appeals
Writing for the CourtPUGLIA, P. J., and EVANS
Citation164 Cal.Rptr. 901,106 Cal.App.3d 334
PartiesLucille STONE, Plaintiff and Respondent, v. Lawrence H. FOSTER, M. D., Defendant and Appellant. Civ. 18177.
Decision Date29 May 1980

Page 901

164 Cal.Rptr. 901
106 Cal.App.3d 334
Lucille STONE, Plaintiff and Respondent,
v.
Lawrence H. FOSTER, M. D., Defendant and Appellant.
Civ. 18177.
Court of Appeal, Third District, California.
May 29, 1980.
Hearing Denied Aug. 6, 1980.

[106 Cal.App.3d 340]

Page 903

Keenan & Tobin, P. Dennis Keenan, and William Garcia, Los Angeles, for defendant and appellant.

Gessford, Sevey & Alpar, Sacramento, Leonard Sacks, Encino, for plaintiff and respondent.

Page 904

GROSSFELD, * Associate Justice.

Defendant Lawrence H. Foster, M. D., appeals from a judgment of the Superior Court of El Dorado County entered upon a jury verdict in favor of plaintiff Lucille Stone in an action for medical malpractice and fraud. The judgment awarded plaintiff $50,000 for negligence, and $15,000 punitive damages, from which $4,000 was set off pursuant to stipulation to account for a settlement with another defendant. The trial court entered an order awarding plaintiff costs of $3,500.10.

Defendant contends (1) plaintiff's theory of fraud cannot be sustained and the submission of the case to the jury on that basis requires reversal; (2) the trial court erred in the jury instructions; (3) the trial court erred in excluding certain evidence; (4) the evidence does not support the verdict; (5) plaintiff's counsel was guilty of misconduct and that misconduct requires reversal; and (6) the trial court erred in the award of costs.

Since we reverse the judgment for the reasons hereinafter stated, we do not discuss defendant's contention that the trial court erred in the award of costs.

106 Cal.App.3d 341

FACTS

In early summer, 1975, plaintiff was a 43-year-old Blackjack dealer at Harvey's Resort at Lake Tahoe. Plaintiff's abdomen bore scarring from three prior operations: an appendectomy, a cesarean section birth, and a "tummy tuck" operation. Plaintiff had the "tummy tuck" done to remove excess skin and stretch marks left by the birth of her second child. She was satisfied with the "tummy tuck," except that it left a scar higher on her abdomen than she wished it to be.

Plaintiff heard from a friend that defendant, a plastic surgeon, was practicing in the Tahoe area. Plaintiff went to see defendant to inquire whether anything could be done to remove the scar. She testified that, "He assured me at that time that there was no risk, it was safe, that he could remove that scar, throw it away and put it down further. He says it would be a beautiful job, and he told me, he says, 'You'll be very pleased and happy with the results.' " Plaintiff, relying on defendant's representations, decided to have the surgery done. Plaintiff testified that prior to the operation defendant did not tell her that there would be risks involved, that he told her he had done a number of "tummy tuck" operations and that it was fairly simple.

Plaintiff underwent surgery for a "tummy tuck" on October 24, 1975. The "tummy tuck" operation is a procedure wherein a large patch of skin is removed from the area below the patient's navel; the skin above the navel is detached from the underlying tissue; the muscles are tightened; the skin from above the navel is stretched and pulled down to cover the portion of the abdomen that is exposed; the flaps of skin are sewn together; and a new navel is cut into the skin to which the umbilicus is attached. After the operation, a surgical dressing in the form of a cast is applied to keep the skin flat against the underlying tissue and to prevent pressure on the stitches.

When plaintiff awoke after the operation she was experiencing severe pain on a spot higher on her abdomen than the area of the stitches. Plaintiff's skin began to blister and grew progressively worse. Plaintiff testified that after her release from the hospital defendant came to her home and said, "My God, I made a terrible mistake. I don't know what caused this but whatever it is, don't worry about it, I'll take care of everything for you. Whether it involves more operations or another doctor or whatever you want, I'll take care of this for you and we'll make [106 Cal.App.3d 342] sure that your stomach is as smooth as a baby's. Don't worry about it." Plaintiff's condition grew worse before it began to heal, and when it did heal plaintiff was left with large scars on her abdomen.

Plaintiff filed a complaint alleging that her injuries occurred due to medical negligence. Plaintiff subsequently filed an amendment to the complaint to state a

Page 905

second cause of action sounding in fraud. After a demurrer was sustained to the amendment plaintiff filed her first amended complaint to state one cause of action for negligence and one cause of action for fraud.

At trial plaintiff's expert witness, a general surgeon, testified that in his opinion the scars on plaintiff's abdomen would not have occurred in the absence of professional negligence. He testified that on the record available it was rather difficult to determine the cause of the injury that resulted in the scarring, but that since the scarring was not present prior to surgery and appeared immediately thereafter, the surgery must have caused the scarring.

Plaintiff's expert proposed four possibilities of the cause of the injury. The first, and in his opinion most probable, was cast burn. Contact with the skin by a cast can cause a burn, and plaintiff's scars appeared to be burn scars. The second possibility was any minor injury, such as abrasion, with infection. The third possibility was any kind of chemical burn. The final possibility postulated by the witness was burning from beneath the skin by liquid silicone. Plaintiff had her breasts injected with liquid silicone years earlier and liquid silicone tends to migrate. If some of the silicone from plaintiff's breast injections had migrated to her abdomen, when defendant disturbed the flesh under the skin, the silicone could have come in contact with the skin and thus caused the condition.

Plaintiff's expert testified that a plastic surgeon with defendant's training and experience who was aware that plaintiff had earlier silicone injections should have warned her of the risk of the surgery she contemplated. He further testified that when plaintiff's condition did not respond to treatment and grew worse, defendant should have called in a specialist for a consultation. He finally believed that defendant was negligent in leaving plaintiff in the care of a general practitioner while he went to San Francisco after the operation.

[106 Cal.App.3d 343] Plaintiff relied upon three types of evidence to support her allegation of fraud. The first type was the representations before the surgery that the surgery was safe and that she would be happy with the results. Plaintiff testified that she would not have undergone the surgery had she been aware that there were risks involved. The second type of evidence of fraud concerned defendant's representations after the injury occurred. Plaintiff testified that defendant promised to correct the problem, and that if further operations were necessary he would either perform them or pay to have them performed by another physician. Although defendant did provide further services and never refused to see plaintiff or to perform these promises, plaintiff stopped seeing defendant because she felt she was getting the "run around." Plaintiff's third type of fraud evidence concerned defendant's communications after she retained an attorney. After defendant received a letter from plaintiff's attorney, defendant called plaintiff and told her that defendant would either perform the operations necessary to correct the scarring or would pay for another doctor to do so; defendant offered to perform other types of cosmetic surgery free of charge; defendant asked her to drop her attorney, and told plaintiff that if she did not, he, defendant, would lease his house, plane, boat and surgical equipment to make sure that she would not get anything. 1

Page 906

Defendant denied that he had failed to inform plaintiff of the risks involved in the surgery or that he had promised a given result. In fact, prior to the operation plaintiff signed a consent form stating that the nature of the operation had been explained to her and that no warranty or guarantee had been made as to the result or cure. Defendant presented evidence that the injury incurred was not the sort of injury which could have been reasonably predicted from the surgery involved. Defendant's experts testified that x-rays taken shortly before trial showed that the silicone in plaintiff's breasts had migrated, and that the migration[106 Cal.App.3d 344] of silicone was the most probable cause of the injury. Under defendant's theory, the migration of silicone and the resulting injury were something that were not generally known or expected at the time of the surgery.

The trial court submitted verdict forms to the jury on medical negligence and fraud, with a provision for punitive damages.

The jury awarded plaintiff the sum of $50,000 general damages and the sum of $15,000 punitive damages.

The trial court entered judgment on the verdict and subsequently amended the judgment to provide for a set off of $4,000 due to the settlement of Barton Memorial Hospital as had been stipulated to previously by the parties. Plaintiff submitted a memorandum of costs in which she sought an award of costs which included her expenses for expert witnesses. Defendant moved to tax costs and for a new trial. The trial court denied the motion for a new trial. Although the court granted in part the motion to tax costs, it awarded plaintiff costs for her expert witness fees. Defendant appeals.

I

Defendant contends that the cause of action for fraud was not supported by either the allegations or the evidence. We agree.

The elements of a cause of action in fraud are: (1) misrepresentation; (2) knowledge of falsity; (3) intent to defraud, i. e., to induce reliance; (4) justifiable reliance; and (5)...

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33 practice notes
  • Las Palmas Associates v. Las Palmas Center Associates, No. B051688
    • United States
    • California Court of Appeals
    • November 5, 1991
    ...attacks on opposing parties and their attorneys, whether outright or by insinuation, constitute misconduct. (Stone v. Foster (1980) 106 Cal.App.3d 334, 335, 164 Cal.Rptr. 901.) Such behavior only serves to inflame the passion and prejudice of the jury, distracting them from fulfilling their......
  • McKeon v. Hastings College
    • United States
    • California Court of Appeals
    • September 22, 1986
    ...891, 649 P.2d 224; Harris v. Irish Truck Lines, Inc. (1974) 11 Cal.3d 373, 378, 113 Cal.Rptr. 489, 521 P.2d 481; Stone v. Foster (1980) 106 Cal.App.3d 334, 348, 164 Cal.Rptr. 901; cf. Summers v. Tice (1948) 33 Cal.2d 80, 86, 199 P.2d 1; Ybarra v. Spangard (1944) 25 Cal.2d 486, 492, 154 P.2d......
  • Sprague v. Equifax, Inc.
    • United States
    • California Court of Appeals
    • April 16, 1985
    ...a reversal on that basis is rare, and is reserved for those cases in which prejudicial error can be shown. (See Stone v. Foster (1980) 106 Cal.App.3d 334, 350, 164 Cal.Rptr. In Bertero v. National General Corp. (1974) 13 Cal.3d 43, 57-59, 118 Cal.Rptr. 184, 529 P.2d 608, the Supreme Court h......
  • Stevens v. Owens-Corning Fiberglas Corp., OWENS-CORNING
    • United States
    • California Court of Appeals
    • October 11, 1996
    ...error, see Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, 255, 259 Cal.Rptr. 311 [BAJI instructions]; Stone v. Foster (1980) 106 Cal.App.3d 334, 350, 164 Cal.Rptr. 901 [instruction on future medical expenses as element of damages]; Gherman v. Colburn (1977) 72 Cal.App.3d 544, 567, 140 Ca......
  • Request a trial to view additional results
32 cases
  • Las Palmas Associates v. Las Palmas Center Associates, No. B051688
    • United States
    • California Court of Appeals
    • November 5, 1991
    ...attacks on opposing parties and their attorneys, whether outright or by insinuation, constitute misconduct. (Stone v. Foster (1980) 106 Cal.App.3d 334, 335, 164 Cal.Rptr. 901.) Such behavior only serves to inflame the passion and prejudice of the jury, distracting them from fulfilling their......
  • McKeon v. Hastings College
    • United States
    • California Court of Appeals
    • September 22, 1986
    ...891, 649 P.2d 224; Harris v. Irish Truck Lines, Inc. (1974) 11 Cal.3d 373, 378, 113 Cal.Rptr. 489, 521 P.2d 481; Stone v. Foster (1980) 106 Cal.App.3d 334, 348, 164 Cal.Rptr. 901; cf. Summers v. Tice (1948) 33 Cal.2d 80, 86, 199 P.2d 1; Ybarra v. Spangard (1944) 25 Cal.2d 486, 492, 154 P.2d......
  • Sprague v. Equifax, Inc.
    • United States
    • California Court of Appeals
    • April 16, 1985
    ...a reversal on that basis is rare, and is reserved for those cases in which prejudicial error can be shown. (See Stone v. Foster (1980) 106 Cal.App.3d 334, 350, 164 Cal.Rptr. In Bertero v. National General Corp. (1974) 13 Cal.3d 43, 57-59, 118 Cal.Rptr. 184, 529 P.2d 608, the Supreme Court h......
  • Stevens v. Owens-Corning Fiberglas Corp., OWENS-CORNING
    • United States
    • California Court of Appeals
    • October 11, 1996
    ...error, see Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, 255, 259 Cal.Rptr. 311 [BAJI instructions]; Stone v. Foster (1980) 106 Cal.App.3d 334, 350, 164 Cal.Rptr. 901 [instruction on future medical expenses as element of damages]; Gherman v. Colburn (1977) 72 Cal.App.3d 544, 567, 140 Ca......
  • Request a trial to view additional results

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