Winkler v. Southern Cal. Permanente Medical Group
| Decision Date | 23 May 1956 |
| Citation | 297 P.2d 728,141 Cal.App.2d 738 |
| Court | California Court of Appeals |
| Parties | Mabel WINKLER and Clarence M. Winkler, Plaintiffs, Respondents and Appellants, v. SOUTHERN CALIFORNIA PERMANENTE MEDICAL GROUP, a partnership, Kaiser Foundation Hospitals, Dr. Peter Vega, Dr. J. G. Hallatt, Dr. Sidney R. Garfield, Paul Steil, Dr. Jerome Ettinger, Dr. Sheldon Koff, Dr. Frederick H. Scharles, Dr. Raymond M. Kay, Dr. John H. Winkley, Dr. Clifton Portnoff, Midway Hospital, a corporation, Retail Clerks Union Local 770, John Doe One, Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten and Company One and Two, Defendants, Southern California Permanente Medical Group and Dr. Sidney R. Garfield, Appellants and Respondents. Civ. 21344, 21282. |
Reid & Champlin, D. Wendell Reid, Encino, for plaintiffs, respondents-appellants.
Chase, Rotchford, Downen & Drukker, Richard T. Drukker, Los Angeles, for appellants-respondents.
The appellants, Southern California Permanente Medical Group, a partnership, and Sidney R. Garfield, appeal from a judgment of the lower court, based upon the verdict of a jury, awarding plaintiffs the sum of $20,000 for injuries alleged to have been suffered by the respondent Mabel Winkler through the alleged negligence of the defendants, their agents, and employees. They also appeal from the order denying their motions for judgments notwithstanding the verdicts. Plaintiffs appeal from that portion of the judgment upon the verdict which was against them and in favor of the defendants Scharles, Winkley, Portnoff, and Koff.
The action is one commonly known as an action for malpractice. Plaintiff Mrs. Winkler was on June 8, 1951, a member of the Retail Clerks Union, Local 770. As a member of that union, she was entitled to medical and surgical care and treatment by the appellant Garfield, a physician, who maintained a clinic under the name of the Permanente Health Plan. The appellant Garfield employed in the clinic a number of doctors including the defendants Veger, Hallatt, Ettinger, Koff, Scharles, Kay, Winkley, and Portnoff, and an accountant, the defendant Steil. Defendant Southern California Permanente Medical Group is a partnership which was formed on January 1, 1953, and composed of certain of the defendant doctors theretofore employed by Garfield. Garfield was not a member of that partnership.
On June 8, 1951, Mrs. Winkler became ill while at work and visited the clinic, where she consulted Dr. Veger. She was examined and treated in the clinic by Dr. Veger, Dr. Hallatt, Dr. Ettinger, and Dr. Kruse until August 10, 1951, at which time she was referred to defendant Dr. Koff, who made a tentative diagnosis of gallstones and referred her to another employee of appellant Garfield, a Dr. Shapiro, for x-rays. Dr. Shapiro took a series of x-ray pictures of Mrs. Winkler's gall-bladder on August 14, and reported them negative. In taking these x-rays, Dr. Shapiro introduced a dye into plaintiff's body, but did not use a fattymeal procedure. After receiving Dr. Shapiro's report, Dr. Koff advised the plaintiff that her x-rays were negative for gallstones. In the latter part of August, 1951, plaintiff returned to the clinic for further examination and was examined by Dr. Scharles, who prescribed certain medication.
On August 31, 1951, plaintiff was examined by one Dr. Seal, who was not a member of the clinic. He made a tentative diagnosis of gallstones, and took x-rays. He used the fatty-meal procedure, and interpreted the x-rays which he took as showing the presence of one gallstone and the possible presence of two others. The plaintiff immediately entered the Valley Hospital, but was thereafter transferred to the Midway Hospital, where she remained from September 12 until September 18, 1951, during which period other x-rays were taken and a diagnosis of the presence of gallstones was made; and on the 18th defendant Dr. Winkley removed the gallbladder, which was found to contain a single gallstone. After post-operative care plaintiff was discharged from the Midway Hospital on September 25, 1951, having received care during her stay in the hospital from defendants Portnoff, Kruse, Kay, Scharles, and Winkley. In October she returned for a general check-up by Dr. Winkley.
She returned to work November 1, 1951, and in March, 1952, some of the symptoms she had had before her operation returned, and she was thereafter examined and treated by Doctors Koff, Winkley, and Portnoff until the middle of September, 1952, after which time she did not return for medical care from any of the defendants.
On October 1, 1952, she consulted a Dr. Peterson, who made a diagnosis of stricture of the common duct, and pancreatitis. He them operated upon her and found a stricture in the common duct, together with acute hepatitis. The stricture was in the sphincter of Oddi where the common duct joins the duodenum. He dilated this sphincter, and thereafter bile flowed from the liver into the duodenum. Thereafter plaintiff suffered from hemorrhoids and a rectal fistula, and in November, 1953, she was treated for a kidney stone.
At the trial the plaintiffs produced qualified physicians who testified that Dr. Shapiro did not use accepted technique in x-raying the gall-bladder, and that he did not use the degree of skill, care, and diligence ordinarily possessed by radiologists in this community, either in taking or interpreting the x-rays.
Dr. Peterson testified, in answer to a hypothetical question, that the defendant physicians who cared for plaintiff Mrs. Winkler after her gall-bladder operating had not exercised the degree of skill and care which is possessed by doctors in the general practice of medicine in the community. All of the evidence showed that the operation for the removal of plaintiff's gall-bladder was skillfully performed. The testimony of plaintiffs' witnesses as to the negligence of Dr. Shapiro in the taking and reading of the x-rays, and of the other defendants in the post-operative care of the plaintiff, was disputed by evidence produced by the defendants.
On September 2, 1953, plaintiffs commenced this action. They joined as parties defendant the appellant Southern California Permanente Medical Group, a partnership (they did not allege of what persons the partnership was composed); the appellant Garfield; Kaiser Foundation Hospitals; Midway Hospital; Retail Clerks Union, Local 770; and Doctors Veger, Hallatt, Ettinger, Koff, Scharles, Kay, Winkley, and Portnoff; and Steil (sued as Styles). Their complaint was set forth in ten counts.
By the first count they charged that the defendants undertook to operate upon the plaintiff for the removal of gallstones, and so carelessly and negligently performed the operation, and so carelessly and negligently administered post-operative care, as to cause the plaintiff severe pain, vomiting, and diarrhea, and a second operation, which was performed on October 11, 1952. They further charged that the defendant Garfield negligently failed to select and employ physicians and surgeons possessed of or capable of exercising that degree of care, skill, or learning possessed and exercised by physicians and surgeons practicing their profession in the community.
By their second count they sought to charge the defendant union only, alleging the same injuries and damages as named in the first cause of action. By their third count they sought to charge the defendant Veger only, alleging that on or about the 8th of June, 1951, plaintiff Mrs. Winkler presented herself to Dr. Veger for physical examination, which was made by said defendant, and that he conducted said examination negligently and carelessly, and wrongfully diagnosed plaintiff's illness. By the fourth count they sought to charge the defendant Hallatt only, making the same charges of negligence against him as were made in the third cause of action against Veger, and alleging the same injuries and damage. The fifth count is an exact duplicate of the third, except that the defendant Ettinger is named as the negligent physician. The sixth count is also a duplicate of the third, except that the defendant Koff is named as the negligent physician. The seventh count is also a duplicate of the third, except that Scharles is named as the negligent physician. By the eighth count, plaintiffs sought to charge the defendant Kay only, alleging that he negligently performed the gall-bladder operation on the 18th of September, 1951. The ninth count charges the defendant Portnoff with negligence in carelessly, negligently, and wrongfully diagnosing plaintiff's illness, and negligence in the interpretation of plaintiff's x-rays. By the tenth count of the complaint, plaintiffs sought to charge only Dr. Winkley, alleging that he was negligent in the performance of the operation for the removal of plaintiff's gall-bladder.
By paragraph XII of the first count of the complaint (which paragraph is incorporated by reference in each of the other counts) there are allegations from which we may assume that the plaintiffs were attempting to plead that the defendant physicians who were charged with negligence in operating upon and in caring for plaintiff Mrs. Winkler were the servants and agents of the defendant Garfield, and the case was apparently tried upon the theory that this paragraph did so allege.
At the outset of the trial, judgment on the pleadings was rendered in favor of the defendant Midway Hospital. This judgment is final.
Motions for a judgment of nonsuit made by the defendants Retail Clerks Union, Steil, Hallatt, Ettinger, Veger, and Kay were granted, and the judgment entered in favor of these defendants is now final. The only defendants against whom plaintiffs' case was submitted to the jury are the appellants Southern California Permanente Medical Group, a partnership, and Dr. Garfield; and the defendants Kaiser Foundation Hospitals, Dr. Scharles, Dr....
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