Tillery v. Richland

• Decision Date: 01 August 1984
• Citation: 205 Cal.Rptr. 191,158 Cal.App.3d 957
• Court: California Court of Appeals Court of Appeals
• Parties: Virgil U. TILLERY, Plaintiff and Appellant, v. Kenneth J. RICHLAND, M.D., Defendant and Respondent. Civ. 66381.

Page 191

205 Cal.Rptr. 191

158 Cal.App.3d 957

Virgil U. TILLERY, Plaintiff and Appellant, v. Kenneth J. RICHLAND, M.D., Defendant and Respondent.

Civ. 66381.

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

Aug. 1, 1984.

Hearing Denied Oct. 4, 1984.

[158 Cal.App.3d 961] Arthur B. Kalnit, Woodland Hills, for plaintiff and appellant.

Omansky & Lazarus, Alfred W. Omansky, Horvitz & Levy, Ellis J. Horvitz, Greines, Martin, Stein & Richland, Kent L. Richland, Encino, for defendant and respondent.

CARSTAIRS, Associate Justice. ^*

Appellant in this action sought compensatory and punitive damages against two physicians on a number of intentional tort theories alleging inter alia that their medical treatment of appellant's deceased wife resulted in her personal injury and wrongful death, and alleging fraud, and willful infliction of emotional distress, upon him and her.

This is an appeal from a judgment entered after a jury verdict in favor of defendant, respondent Richland. Appellant purports to appeal from the order denying his motion for a new trial. Such an order is nonappealable. (Code Civ.Proc., § 904.1.) However we will deem it to constitute an appeal from the judgment. (La Count v. Hensel Phelps Constr. Co. (1978) 79 Cal.App.3d 754, 145 Cal.Rptr. 244.)

The jury rendered a verdict in favor of plaintiff against Dr. Rothman, the codefendant, in the amount of $51,000, in compensatory damages only. The judgment was satisfied and Dr. Rothman is not a party to this appeal.

Appellant urges as a principal ground of appeal that statements attributed to certain jurors improperly influenced the verdict in violation of section 1150 of the Evidence Code, and that certain jurors concealed bias during the voir dire.

He also advances errors in law on the part of the trial judge and urges that the verdict is "contrary to the weight of the evidence" as a third ground.

THE STANDARD OF APPEAL

As to his third ground, appellant sets forth an incorrect standard, and argues the credibility of defendant's witnesses at length.

It is well settled that appellate review of the sufficiency of evidence is governed by the substantial evidence rule. (Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907, 80 Cal.Rptr. 89, 458 P.2d 33; Bixby v. Pierno (1971) 4 Cal.3d 130, 93 Cal.Rptr. 234, 481 P.2d 242.) "[T]he power of an appellate court begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact." (Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc. (1967) 66 Cal.2d 782, 784, 59 Cal.Rptr. 141, 427 P.2d 805; emphasis in original.)

"Moreover, 'in examining the sufficiency of the evidence to support a questioned finding an appellate court must accept as true all evidence tending to establish the correctness of the finding as made, taking into account, as well, all inferences which might reasonably have been thought by the trial court to lead to the same conclusion.' " (Board of Education v. Jack M. (1977) 19 Cal.3d 691, 697, 139 Cal.Rptr. 700, 566 P.2d 602; Bancroft-Whitney Co. v. McHugh (1913) 166 Cal. 140, 142, 134 P. 1157.)

Factual matters will be viewed most favorably to the prevailing party (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 101 Cal.Rptr. 568, 496 P.2d 480) and conflicts in the evidence will be decided in favor of the respondent. (Cecka v. Beckman & Co. (1972) 28 Cal.App.3d 5, 104 Cal.Rptr. 374.)

Twelve causes of action were alleged all framed as intentional torts arising from the medical care and treatment given Mrs. Tillery. Appellant asked for compensatory damages according to proof and punitive damages on each cause of action of $10 million making a total of $120 million. At the trial in his final argument he modified his demand to $800,000 compensatory and $300,000 punitive damages.

Appellant during the trial was relying not on a theory of negligence but on one of intentional infliction of emotional distress and willful failure to provide medical assistance resulting in wrongful death. His theory was that Dr. Richland as well as Dr. Rothman withheld knowledge of the cancerous condition of the patient and Dr. Richland particularly withheld knowledge of the cancer so that he could go forward with an unnecessary laminectomy and be paid. His objective was money. The linchpin of this theory is the claim of the plaintiff that Richland told the husband that Mrs. Tillery's lungs were clear.

Dr. Rothman's counsel all but admitted that Dr. Rothman had allowed himself to be intimidated by the plaintiff into the mistake of not telling him of his wife's cancer before March 7. He told him that there was a suspicion of cancer in the chest but he did not tell him that they had ascertained that there was in all likelihood a serious carcinoma condition. The jury returned a verdict of $51,000, in compensatory damages only, against Dr. Rothman, but found against the plaintiff and in favor Dr. Richland.

Cognizant of our obligation, we have reviewed the entire record to determine whether there existed substantial evidence justifying this outcome in respect to Dr. Richland.

THE SUBSTANTIAL EVIDENCE IN SUPPORT OF THE VERDICT

Complaining of back pain Mrs. Tillery, age 67, came to the office of Dr. George Rothman. He examined her and found tenderness in the lower portion of her back and prescribed medication and referred her for X-rays. On February 17, Dr. Rothman received a telephone call from plaintiff who was very angry. He said the medication appeared to be making his wife sick and her back was worse. He was advised to have her discontinue the medication for pain and have X-rays taken immediately. The X-rays were taken and she was hospitalized at Tarzana Medical Center where Dr. Rothman was a member of the staff. He learned that the X-rays of the back showed a spondylolisthesis, which is a slippage forward of one vertebra on top of another. He concluded that this could be the cause of the pain, and recommended conservative treatment, that is, bed rest, traction, hot packs and massage. He also ordered chest X-rays as a part of the routine physical examination. When her back pain continued to worsen he called Dr. Richland on February 20.

Dr. Richland has been a neurological surgeon for over 30 years and was on the staff of four hospitals. He is a Board certified member of the American Board of Neurological Surgeons, was a member of faculty of several medical schools, and at the time of his attendance on Mrs. Tillery was Associated Clinical Professor of Surgery at U.C.L.A., teaching neurological surgery. He is a member of a number of neurological surgeons' societies and a fellow of the American College of Surgeons and of the International College of Surgeons.

Dr. Rothman asked Dr. Richland to examine Mrs. Tillery with regard to possible surgery. Although informed by Dr. Rothman that there appeared to be no insurance, Dr. Richland nevertheless said he would see her as soon as he could and did so on February 21. Dr. Richland found evidence of compression of nerve roots and recommended bed rest and traction for about a week before deciding on surgery. Meanwhile, Dr. Rothman did receive and read the radiologist report on the chest X-rays which indicated that she might have a cancerous tumor in her chest. Dr. Richland was informed by Dr. Rothman of the possible chest tumor. When the patient's pain continued to get worse Dr. Richland ordered a myelogram on March 3. When Dr. Richland reviewed the myelogram he concluded that the patient was suffering from a slippage of the fourth lumbar vertebra onto the fifth. In addition he found a defect of one of the vertebrae which was consistent with metastasis of the lung cancer to the spinal region.

Once Mrs. Tillery was in the hospital the relationship between Mr. Tillery and Dr. Rothman deteriorated greatly. Early on, Mr. Tillery asked Dr. Rothman what business he had taking chest X-rays when the problem was with her back and asked that the report on the X-rays be given to him. On other occasions he demanded that Dr. Rothman stop urging his wife to stop smoking which she was continuing to do while in the hospital, and shortly thereafter attempted to bar Dr. Rothman from entering his wife's room and demanded that he stop bothering her about smoking and leave her alone. Dr. Rothman testified that he was stunned by Mr. Tillery's belligerent attitude and hence did not tell him about the cancer. As will be later set forth in more detail there was substantial medical testimony to the effect that from the very outset her cancer was inoperable and untreatable.

In view of her continuing severe pain Dr. Richland recommended performance of a laminectomy, which consists of surgical removal of some of the bones lying over the spinal canal and cord, to take pressure off the cord for pain relief and also to see if there was metastasis of the cancer to the lumbar region. He explained the procedure to both of the Tillerys, explained the risks, and explicitly described the possibility of spinal fluid leakage. Mrs. Tillery consented to the surgery. It was scheduled for March 7, at 3 or 3:30 p.m.

On the afternoon of March 7, while both Drs. Rothman and Richland were preparing for surgery in the locker room adjacent to the operating room, Dr. Richland asked Dr. Rothman if he had told the Tillerys that the patient had chest cancer. Rothman answered that he had not done so. Richland was surprised and concerned and said that it was necessary to tell Mr. Tillery immediately. They did so, Dr. Richland doing the talking, because Dr. Rothman had no rapport with Mr. Tillery. Dr. Richland told Mr. Tillery that they needed a consultant for her cancer and Tillery asked Dr. Richland if he could get her through the surgery. Dr. Richland responded he was most certain that he could. Tillery then said he wanted the back problem addressed immediately because that was the one that was...