Weinstock v. Eissler

• Decision Date: 22 January 1964
• Citation: 36 Cal.Rptr. 537,224 Cal.App.2d 212
• Court: California Court of Appeals Court of Appeals
• Parties: Alexander WEINSTOCK, Plaintiff and Appellant, v. Rolf EISSLER, Gordon Cless, Harold A. Hill, Glen Cross, Walter Kollman, St. Joseph's Hospital, Fourth Doe and Fifth Doe, Defendants and Respondents. Civ. 21181.

Page 537

36 Cal.Rptr. 537

224 Cal.App.2d 212

Alexander WEINSTOCK, Plaintiff and Appellant, v. Rolf EISSLER, Gordon Cless, Harold A. Hill, Glen Cross, Walter Kollman, St. Joseph's Hospital, Fourth Doe and Fifth Doe, Defendants and Respondents.

Civ. 21181.

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

Jan. 22, 1964.

Edises, Grossman & Grogan, Aubrey Grossman, Oakland, for appellant.

Peart, Baraty & Hassard, San Francisco, for respondent Glen Cross.

Pelton, Gunther, Durney & Gudmundson, San Francisco, for respondent Walter Kollman.

Clark, Heafey & Martin, Oakland, for respondent St. Joseph's Hospital.

Rankin & Anderson, Oakland, for respondents Hill and Eissler.

SULLIVAN, Justice.

Plaintiff appeals from a judgment dismissing his third amended complaint after the court sustained general demurrers thereto with leave to amend and plaintiff failed to amend. Plaintiff also 'appeals from the minute order herein dated September 5, 1962, * * *' ¹ An order sustaining a demurrer with or without leave to amend is nonappealable and the appeal must be taken from the ensuing judgment. (Carley v. City of Santa Rosa (1957) 154 Cal.App.2d 214, 215, 315 P.2d 905; see also Evans v. Dabney (1951) 37 Cal.2d 758, 759, 235 P.2d 604; 3 Witkin, Cal.Procedure, p. 2162.) The attempted appeal from the above minute order must be dismissed. We review the proceedings below on the appeal from the judgment.

The third amended complaint (hereafter for convenience referred to as 'complaint') names as defendants Doctors Rolf Eissler, Gordon Cless, Harold A. Hill, Glen Cross, Walter Kollman and St. Joseph's Hospital as well as two additional defendants sued by fictious names (Fourth Doe and Fifth Doe). ² It contains ten counts.

Counts against Dr. Cross (First, Second and Third Counts)

The first, second and third counts set forth causes of action against defendant Cross. The first count, purporting to state a cause of action for malpractice alleges in substance as follows: During the month of February 1960 Cross negligently diagnosed, cared for and treated plaintiff. On February 23, 1960, he performed a cerebral angiogram and a spinal tap on plaintiff at St. Joseph's Hospital. In order to conceal from plaintiff (a) the negligence with which the cerebral angiogram and spinal tap were performed and (b) the fact that a spinal tap was performed, Cross failed to enter or have entered in the hospital record any facts concerning the performance of these operations or even the fact that they had been done. Cross never advised plaintiff either that he intended to do, or that he had done, a spinal tap on him on the above date and plaintiff did not learn that Cross had done the spinal tap until he acquired such information through the deposition of defendant Cless, an anesthesiologist, on November 27, 1961.

As a result of the negligent diagnosis, care and treatment of plaintiff by Cross, plaintiff suffered and will suffer brain damage with resulting partial paralysis, loss of speaking ability, mental anguish and loss of earnings and earnings power all to his damage in the sum of $250,000.

During the months of February and March 1960 Cross assured plaintiff that the latter's above condition would substantially improve over a period of time but there was no substantial improvement by April of 1961. Plaintiff believed Cross' assurances and that the period between February 1960 and April 1961 was a reasonable one within which to wait in order to determine whether there was going to be substantial improvement and hence saw no reason to file suit prior to April 1961. After plaintiff developed the partial paralysis on February 23, 1960, Cross stated to him that there was no relationship between any procedure performed by Cross and said paralysis which statement was false, known by Cross to be so, and made for the purpose of precluding the commencement by plaintiff of an action for malpractice.

Plaintiff did not learn of the falsity of said statement on causation until approximately April 1, 1961, when the discovery was made by his present counsel who were consulted by plaintiff 'as to whether he had a cause of action against anyone, * * * Plaintiff could not reasonable [sic] have discovered it earlier because of the extremely technical medical questions involved.'

It is also alleged in the first count that '[p]laintiff, as a result of the tortious acts of defendants, as set out in this complaint was, continuously from February 23, 1960 to the end of April 1960, insane.'

It is further alleged on information and belief that Cross 'was absent from the state for two months between April 23, 1960, and the date of filing of this complaint.'

It is further alleged (and incorporated by reference in the second and third counts) that defendant Doctor Kollman treated plaintiff continuously from February 23, 1960, to October 20, 1960.

The second count, purporting to set forth a cause of action based on the commission of a battery, incorporates by reference all allegations of the first count except those contained in a specified paragraph ³ alleging negligence and resulting damages and in addition alleges in substance as follows: During February 1960 Cross proposed to plaintiff the doing of a cerebral angiogram, advising that it was necessary, safe and simple. However, in making the proposal he failed to advise plaintiff (a) of the hazards involved; (b) of the existence of other diagnostic procedures involving no hazard which might have made the angiogram unnecessary; (c) that the likelihood of a condition requiring a cerebral angiogram for diagnosis was very slight; and (d) that a cerebral angiogram at a hospital other than St. Joseph's would have been much less hazardous because of the antiquated equipment at St. Joseph's.

Cross performed the cerebral angiogram and spinal tap on plaintiff at St. Joseph's Hospital on February 23, 1960, and '[i]n doing so he acted with oppression, fraud, and malice.' It is alleged that for the purpose of concealment (as alleged in the first count) Cross failed to enter any information about the operation in the hospital records. ⁴ It is further alleged as in the first count (which allegations are also incorporated by reference with consequent redundance--see footnote 4, ante) that plaintiff did not learn of Cross' improper advice until he consulted his counsel in April 1961. ⁵

As a proximate result of the batteries alleged, plaintiff suffered injuries as alleged in the first count to his damage in the sum of $250,000. 'Proper exemplary damages are $125,000.' ⁶

The third count, purporting to set forth a cause of action for deceit, incorporates by reference all allegations of the first count except those alleging negligence and resulting damage therefrom (see footnote 3, ante) and in addition alleges in substance as follows: During the month of February 1960, cross proposed to plaintiff that he should permit a cerebral angiogram to be performed on him. In order to secure plaintiff's approval Cross represented that (a) said test was usually routine and harmless, (b) no condition present in plaintiff's case would make the test other than routine and harmless, (c) there was no other test which was harmless and which might make the doing of a cerebral angiogram unnecessary and (d) said test was required to discover the cause of a certain abnormality in plaintiff's eyes and vision.

Said representations were false. Cross knew they were false or had no reasonable ground to believe them to be true, and made them with the intention of convincing plaintiff they were true and causing him to agree to the doing of the angiogram. Plaintiff believed them to be true and in reliance thereon consented to the angiogram.

The remainder of the third count repeats in substantially the same language allegations (found in the first two counts) relating to the performance of the cerebral angiogram, the resulting injury and damage and the discovery of the falsity of the representations about April 1, 1961, upon consultation with counsel. Compensatory damages of $250,000 and exemplary damages of $125,000 are sought.

Counts against Dr. Kollman (Fourth, Fifth and Sixth Counts)

It would serve no useful purpose to set forth the allegations of these three counts in detail. Suffice it to say that they are virtual repetitions of the first, second and third counts, respectively, but with defendant Dr. Kollman substituted therein for defendant Cross. This is accomplished by incorporating by reference a number of paragraphs in the preceding corresponding count and repeating, in language made applicable to Kollman but otherwise identical certain allegations therefore made applicable to Cross. ⁷

However the following must be noted: Since almost all paragraphs of the first count are incorporated by reference in the fourth, fifth and sixth counts, it is therefore alleged in such last three counts that Cross performed the angiogram and spinal tap, attempted to conceal what he did, and failed to advise plaintiff that he had done a spinal tap. The insane condition of plaintiff as a result of the tortious acts of defendants is repleaded by reference.

It is also alleged on information and belief in the fourth (negligence) count and sixth (fraud) count but not in the fifth (battery) count that defendant Kollman was absent from the state for two months between April 23, 1960, and the date of filing the original complaint (April 24, 1961).

It is also important to note that in the fifth count but not in the fourth or sixth counts it is alleged that in performing the cerebral angiogram and spinal tap on plaintiff on February 23, 1960, Cross 'acted as the agent of Kollman.'

Counts against Doctors Eissler, Cless and Hill (Seventh, Eighth and Ninth Counts)

Each of these three counts incorporates by reference the allegations of the first count (against Cross) relating to Kollman's period of treating plaintiff (paragraph 1-A); plaintiff's insane...