Weaver v. Superior Court

• Decision Date: 27 June 1979
• Citation: 95 Cal.App.3d 166,156 Cal.Rptr. 745
• Parties: Thomas D. WEAVER, Petitioner, v. SUPERIOR COURT of the State of California, COUNTY OF ORANGE, Respondent; Marsh STEWARD, Jr., M.D., Real Party in Interest. Civ. 20942.
• Court: California Court of Appeals Court of Appeals

Page 745

156 Cal.Rptr. 745

95 Cal.App.3d 166

Thomas D. WEAVER, Petitioner, v. SUPERIOR COURT of the State of California, COUNTY OF ORANGE, Respondent Marsh STEWARD, Jr., M.D., Real Party in Interest.

Civ. 20942.

Court of Appeal, Fourth District, Division 2, California.

June 27, 1979.

Opinion on Denial of Rehearing July 23, 1979.

Hearing Denied Sept. 12, 1979.

Yusim, Cassidy, Stein & Hanger and Mal S. Duncan, Santa Ana, for petitioner

[95 Cal.App.3d 172] Beam & Di Caro and John R. Di Caro, Santa Ana, for real party in interest.

No appearance for respondent.

Hassard, Bonnington, Rogers & Huber, Howard Hassard, David E. Willett and A. Robert Singer, San Francisco, for amicus curiae California Medical Assn.

[95 Cal.App.3d 171] Robert E. Cartwright, San Francisco, Sanford M. Gage, Beverly Hills, Edward I. Pollock, Los Angeles, Stephen I. Zetterberg, Claremont, J. Nick DeMeo, Santa Rosa, and Leonard Sacks, Encino, for amicus curiae California Trial Lawyers Assn.

OPINION

McDANIEL, Associate Justice.

INTRODUCTION

In the underlying action, Marsh Steward, Jr., M.D. (Dr. Steward), the real party in interest, filed a verified complaint in Orange County Superior Court (respondent) against Barbara Harmer (Harmer) and Thomas D. Weaver (petitioner). That complaint asserted two causes of action. In the first count, Dr. Steward charged both petitioner and Harmer with malicious prosecution based on Harmer's previous filing of a medical malpractice suit against Dr. Steward. Petitioner is the attorney who presented Harmer in those earlier and now-terminated proceedings.

In the second count, Dr. Steward charged that petitioner breached a duty of care owed to both Dr. Steward and the public when, allegedly, without adequate factual investigation and legal research, he advised Harmer that she had a valid medical malpractice claim against Dr. Steward and proceeded to represent her in filing the complaint noted. Dr. Steward contends, as a consequence of the lawsuit's filing, that his insurance carrier cancelled his coverage, causing him to suffer damage to his professional reputation and significant monetary loss.

After petitioner and Harmer answered Dr. Steward's complaint, they both filed motions for summary judgment which the trial court denied. Petitioner is now before us seeking a writ of mandate to compel the respondent trial court to vacate that order and to enter an order in his favor. ¹ As we shall later explain, it is our view that the trial court properly exercised its discretion in denying petitioner's motion to the extent that it concerned the first cause of action, i. e., the count for malicious prosecution.

However, the trial court erred in ruling against petition with reference to the second cause of action. More particularly, we hold, as a matter of law, that an attorney owes no duty of care to adverse third parties in litigation. ²

SYNOPSIS OF THE FACTS

In April of 1973, Harmer, who eventually became petitioner's client, consulted Dr The events giving rise to the underlying medical malpractice action began in early April 1974. At that time, Harmer consulted Dr. Steward explaining, because she had not had a menstrual period since February 7, 1974, that she believed she was pregnant. After performing a pelvic examination and conducting a pregnancy test, Dr. Steward failed to find any evidence of pregnancy. On May 3, 1974, Harmer returned to Dr. Steward's office because her menstrual cycle had still not returned and requested another pelvic examination. Dr. Steward conducted a second examination, and again he found no evidence of pregnancy. Harmer then requested Dr. Steward to perform a tubal ligation to sterilize her permanently. Dr. Steward agreed to her request and scheduled that surgery for May 23, 1974.

Steward, a gynecologist, and requested an examination to determine whether she was pregnant. Dr. Steward performed a physical examination and a urinary pregnancy test, the results of which indicated pregnancy. Harmer, on being advised of those results, requested a therapeutic abortion, specifically, a dilation and curettage. Dr. Steward performed this procedure on April 9, 1973, and Harmer's post-operative recuperation was normal. The foregoing events had no direct bearing on the eventual malpractice claim, but they do serve to show the previous physician-patient relationship of Dr. Steward and Harmer.

At this juncture, a clear conflict in the facts enters the case. According to Harmer, on May 22, 1974, she went to Dr. Steward's office and again expressed "a real and growing concern" that she was pregnant. Harmer contends, in her declaration filed in support of her motion for summary judgment and relied upon by petitioner, that "I told Dr. Steward that I would like for him to do a D & C (dilation and curettage) procedure (in addition to the tubal ligation) to make sure that I was not pregnant." Harmer further stated that Dr. Steward responded that "he did not believe (she) was pregnant and that he did not want to perform a D & C . . ."

Contrastingly, in his declaration opposing petitioner's motion for summary judgment, Dr. Steward recalled the May 22 conversation as follows: "Prior to the operation on May 23, 1974, Mrs. Harmer was given my patient information sheet; surgical consent and my routine sterilization discussion form with a consent to be signed. She specifically requested of this declarant that I avoid any mention of pregnancy or amenorrhea on her history or physical examination or consent forms because if this occurred, her insurance company would not pay the bills. I assured her that this could not happen as there was no medical evidence whatsoever of a pregnancy. Mrs. Harmer then signed all the necessary forms. A dilation curettage (D&C) was not recommended, discussed, nor was it included on the operative (sic) forms or the informed consent forms because there was no indication for such a procedure. If Mrs. Harmer had been diagnosed pregnant and had wanted a therapeutic abortion performed at the time of the tubal ligation, this would have had to be requested in writing and the necessary permits and informed consent documents executed."

On May 23, 1974, Dr. Steward performed the tubal ligation, finding Harmer's uterus "to be in a neutral position, the upper limits of normal size, with no evidence of any pathology." Dr. Steward did not perform a D & C.

During the two months following that surgery Harmer began feeling "tired, irritable (and) run down." Moreover, her menstrual cycle did not return. On August 21, 1974, Harmer consulted Dr. Steward again, explaining her post-operative symptoms to him. Dr. Steward gave Harmer another pelvic examination and prescribed medicine to prompt a menstrual cycle. The prescription proved ineffective. Dr. Steward also suggested that Harmer see a psychologist and seek a second gynecologist's opinion.

Harmer's condition continued to deteriorate, and by November she was experiencing severe abdominal cramps. At that time she consulted a second gynecologist, Dr. Rainey, and explained her symptoms and past medical history to him. Dr. Rainey, like Dr. Steward, gave Harmer an injection to induce her menstrual cycle which again was ineffective. He then scheduled her for a dilation and curettage to be performed on November 14, 1974.

The dilation and curettage was performed without complication. According to Harmer's discharge summary, during the dilation and curettage, Dr. Rainey removed "(a) large amount of tissue appearing to be an old pregnancy . . ." In addition, the "pathology report did show products of conception." In other words, Harmer's belief that she was pregnant, communicated on numerous occasions to Dr. Steward proved to be correct. After undergoing the dilation and curettage performed by Dr. Rainey, Harmer's menstrual cycle returned.

Shortly after undergoing the dilation and curettage performed by Dr. Rainey, Harmer contacted Dr. Steward and told him the results of that surgery. According to Harmer, Dr. Steward said he believed the tubal ligation he had performed was successful and consequently she must have been pregnant Before the surgery. To determine whether the tubal ligation had been successful, Dr. Steward recommended that Harmer undergo an X-ray procedure called a hystrosalpingography. Harmer consented to the test and its results indicated the tubal ligation had been properly performed. Thus, it was highly improbable if not impossible that Harmer became pregnant After that surgery. Harmer contends, when she met again with Dr. Steward after the X-ray results were known, that he stated "he guessed he had made a mistake (in not earlier diagnosing the pregnancy) and maybe he should do the D & C as routine in the future (when performing a tubal ligation)."

Dr. Steward, in his declaration, conceded that Dr. Rainey's findings noted above were correct but attempted to qualify that concession by stating that "(t)he pathology report showed 'calcified villi' which means that the patient had at some time previously been pregnant and that some of the elements of the . . . pregnancy . . . were still present and calcified." Dr. Steward further stated, however, that "(c)ontrary to the assertions by . . . Harmer, I never told her that I guessed I made a mistake or that maybe I should do a D & C routinely . . . I informed her that it appeared possibly that she was pregnant at the time the tubal ligation was done." (Emphasis added.)

On May 28, 1975, Harmer sent Dr. Steward a letter requesting $671.95 to pay for the doctor and hospital bills she incurred during the second D & C surgery performed by Dr. Rainey. In that letter Harmer advanced the following as the primary basis for her claim: "I realize the operation (tubal ligation) was not guaranteed, but I do feel you were extremely negligent in not performing a D & C at the time of the operation, since there was every possibility that I was preganat (sic) at the time. If you will recall, I...