Whitfield v. Roth

• Decision Date: 12 March 1974
• Docket Number: S.F. 23020
• Citation: 112 Cal.Rptr. 540,10 Cal.3d 874,519 P.2d 588
• Court: California Supreme Court
• Parties: , 519 P.2d 588 Mary Katherine WHITFIELD, a minor, etc., Plaintiff and Appellant, v. Arthur ROTH et al., Defendants and Respondents.

Page 540

112 Cal.Rptr. 540

10 Cal.3d 874, 519 P.2d 588

Mary Katherine WHITFIELD, a minor, etc., Plaintiff and Appellant, v. Arthur ROTH et al., Defendants and Respondents.

S.F. 23020.

Supreme Court of California In Bank.

March 12, 1974.

As Modified on Denial of Rehearing April 10, 1974.

Gonick, Schmid & Bernstein, Harry Gonick, Oakland, Goldstein, Barceloux & Goldstein, P. M. Barceloux, Burton J. Goldstein, Albert E. Levy, Ralph Golub and M. Reed Hunter, San Francisco, for plaintiff and appellant.

Fadem & Kanner and Gideon Kanner, Beverly Hills, as amici curiae on behalf of plaintiff and appellant.

Burnhill, Rode, Moffitt & Moore, Oakland, Burnhill, Morehouse & Burford, McNamara, Lewis & Craddick, Walnut Creek, Cyril Viadro, San Francisco, Crosby, Heafey, Roach & May, Edwin A. Heafey, Jr., Raoul D. Kennedy and Peter W. Davis, Oakland, for defendants and respondents.

Evelle J. Younger, Atty. Gen., James E. Sabine, Asst. Atty. Gen., Leonard M. Sperry, Jr., Deputy Atty. Gen., Harry S. Fenton, Robert F. Carlson and Kenneth G. Nellis, Sacramento, as amici curiae on behalf of defendants and respondents.

SULLIVAN, Justice.

In this action for damages for medical malpractice, plaintiff appeals from a judgment of nonsuit entered in favor of defendant County of Contra Costa (County) and Glenn S. Skinner, M.D., and from a judgment entered on a jury verdict in favor of all the then remaining defendants. We discuss the appeals separately.

I Appeal from Judgment of Nonsuit

Viewing the evidence under the well-settled rules governing nonsuits, ¹ we set forth the following pertinent facts.

In November 1961, shortly after moving from Oregon and enrolling in the Oakland public schools, plaintiff Mary Katherine Whitfield, then 10 years old, was examined by Dr. Philip Chamberlain, the school pediatrician. He found her to be an extremely thin, cachectic ² child who appeared to have been neglected for several months. ³ Disturbed by Mary's condition, he had her admitted to Children's Hospital of the East Bay, where she remained until December 1, 1961.

On the day following her admission, Dr. Carrell A. Peterson, a radiologist at the hospital ⁴ X-rayed Mary to determine whether there was a tumor. After studying the X-ray films of Mary's skull, he concluded that they showed neither a tumor nor any other kind of abnormality. Indeed all tests conducted at the hospital failed to demonstrate any organic cause for Mary's extreme malnutrition. The staff at Children's Hospital finally diagnosed Mary's condition as anorexia nervosa, a psychiatric condition. ⁵

Mary was then sent home with the understanding that she would continue to receive treatment at the hospital as an outpatient on a long-term basis. This program included prescription of vitamin and hormone pills and continued consultation with defendant Dr. Kent A. Zimmerman, the staff psychiatrist. A concomitant of this program was intensive care at home. The hospital staff expressed concern that Mary's mother, Peggy Whitfield Chandler, would not provide the requisite home care for a number of reasons pertaining to her behavior and her attitude toward Mary's condition. Mary failed to keep many appointments and by February 1962 had stopped coming to the hospital altogether.

About eight months later Dr. Joel Levine discovered Mary late at night in the locked and unlighted outpatient clinic of the Presbyterian Medical Center. He treated her for a monkey bite. On her return two days later he attempted to ascertain the cause of her emaciated condition. Unable to discover any organic cause, he referred her to the hospital's psychiatric clinic for treatment in accordance with a diagnosis of anorexia nervosa. However, Mary's mother refused to cooperate.

Nearly a year later, Mary visited defendant Dr. Clifford L. Feiler for an earache and a respiratory condition. He also was concerned about Mary's condition and urged her mother to have Mary tested exhaustively. Her mother continued to be uncooperative. Three months later, on September 19, 1963, Mrs. Chandler took Mary to defendant Dr. David Johnson, a pediatrician, for a physical check-up, because she thought Mary had leukemia. Dr. Johnson concluded that Mary did not have leukemia, but noting among other things her emaciated condition, recommended a series of tests. His recommendations were not accepted.

On October 2, 1963, Mary was admitted to Contra Costa County Hospital (County Hospital) for a diagnostic work-up. She was examined by Dr. Skinner, who initially concluded Mary might be suffering from leukemia, metabolic disorder or brain tumor. In his initial examination Dr Skinner ruled out both leukemia and thyroid disease as a cause of the metabolic disorder. On October 3, Mary was examined by Dr. Hart, a pediatrician, who ordered a psychiatric consultation on the basis of the examination, further confirmed by information from Children's Hospital that her condition had been diagnosed there as anorexia nervosa.

On October 4, Mary was examined by Dr. Cramer, a psychiatric consultant to the County Hospital. Based upon his examination of Mary, Dr. Cramer felt that organic brain disease--specifically craniopharyngioma--was the most likely possibility, and suggested that a series of tests be conducted including a skull X-ray, electroencephalogram, 'psychologicals,' a neurological examination and a visual fields test. Dr. Cramer was led to suspect craniopharyngioma because he had run across an almost identical case during his residency. Unfortunately, none of the other staff members appreciated the significance of his diagnosis and most of the tests were not performed. Dr. Hart thought Dr. Cramer's suggestion of craniopharyngioma an unusually specific diagnosis, but '(m)y interpretation was that he was really rather winging it.' Neither Dr. Hart nor Dr. Skinner had ever witnessed or treated a case of craniopharyngioma; both thought there was a possibility of brain tumor.

While she was in the hospital, Mary was very unhappy, given to repeated crying spells and unable to gain weight. Because of this condition she was discharged from the hospital on October 11, 1963. On that date, Dr. Skinner wrote the following note on Mary's chart. 'All consultations are in now. No definite diagnosis. Dr. Colony suggests arachnodactaly. Will discharge to Pediatrics Clinic for followup.' On October 15, 1963, Dr. Lee of the County Hospital telephoned Dr. Johnson and informed him that 'He and the staff at Contra Costa Hospital have come to the same conclusion independently that the primary problem is psychiatric anorexia nervosa and that there is no evidence in the studies performed to indicate organic disease. . . . (Mother) has of her own accord continued to tell people that Mary has leukemia.' On the same day Dr. Lee noted that he had told Mary's mother that Mary has no sign of leukemia or any malignant disease. Dr. Lee did not mention that the staff doctors considered the diagnosis incomplete, that there was an impression that a brain tumor was possible, or that tests to determine the existence of this tumor had not yet been completed. Upon Mary's discharge from County Hospital, notwithstanding the conclusion of the staff, ⁶ her chart contained the following notation entered by Dr. Skinner: 'Final diagnosis: anorexia nervosa.'

Eleven days later, on October 22, 1963, Mary was readmitted to Children's Hospital. Dr. Sheaff, the admitting doctor, made a report as set forth in the margin. ⁷ However, the hospital made no contact with any of the doctors or hospitals who had examined Mary since her discharge from Children's Hospital two years earlier. Dr. Browning, who was in charge of Mary's case during this period of hospitalization, concluded that the original diagnosis of anorexia nervosa had been and was still correct. Upon Mary's discharge on October 31, 1963, Dr. Browning and Mrs. Simonds, a social worker, tried hard to convince Mrs. Chandler that Mary's real problem was psychiatric and that she needed long-term treatment on an outpatient basis.

Within a month, on November 25, 1963, Mary commenced treatment with defendant Dr. Arthur Roth, a pediatrician with a psychotherapeutic backround. Dr. Roth neither saw, nor indeed requested, any of the medical or hospital records chronicling Mary's long history. Instead he telephoned Dr. Browning at Children's Hospital and Dr. Johnson, and obtained their summarized version of the medical history, namely that there was neither leukemia nor any organic disease and that the diagnosis was anorexia nervosa. Dr. Roth concurred in this diagnosis and accordingly provided Mary psychotherapeutic treatment. His treatment had quite startling success: by May 1, 1964, Mary's weight increased from 50 to 69 pounds.

However, during April, May, and increasingly in June 1964, Mary's concomitant symptoms of headache, vomiting and eye trouble, recurred and intensified. Dr. Roth, concerned about Mary's headache and eye problems, sent her to Dr. Allington, an opthalmologist. When Dr. Roth learned on June 22, 1964, that Mary was seeing double, he wrote Mrs. Chandler informing her that Dr. Allington had not completed his examination of Mary's eyes and prescribed some pills for the vomiting. Two days later Mrs. Chandler informed him that Mary was suffering from a stiff neck and backache as well as continued vomiting. Believing that she needed immediate attention, Dr. Roth sent Mary to Highland Hospital. There, defendant Dr. Richard L. Wacht, after taking a spinal tap concluded the Mary was not acutely ill and discharged her. Mrs. Chandler became incensed.

Two or three days later, Mary came under the care of another pediatrician, defendant Dr. Stanley Fischer, who sent her to Providence Hospital for a skull X-ray. On July 3, 1964, Dr. Bunche examined that X-ray and concluded that Mary had a craniopharyngioma, a type of brain tumor. On July 7, 1964, Mary was admitted for the third time, to Children's Hospital where the...