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

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

Civ. 29165.

Decided: March 20, 1973

Harry Gonick, Gonick, Schmid & Bernstein, Oakland, P. M. Barceloux, Burton J. Goldstein, Albert E. Levy, Ralph Golub, Goldstein, Barceloux & Goldstein, San Francisco, for plaintiff and appellant; M. Reed Hunter, San Francisco, of counsel. Burnhill, Rode, Moffitt & Moore, Oakland, McNamara, Lewis & Craddick, Walnut Creek, for defendants and respondents Arthur Roth, M.D., and others; Cyril Viadro, San Francisco, of counsel. Crosby, Heafey, Roach & May, Edwin A. Heafey, Jr., Raoul D. Kennedy, Oakland, for defendants and respondents Glenn S. Skinner, M.D., and County of Contra Costa.

This is an appeal from (1) a judgment of nonsuit entered in favor of defendants Contra Costa County and Dr. Glenn S. Skinner, and (2) a verdict judgment in favor of the remaining doctor defendants in a malpractice action.

Since several of the major issues in this appeal revolve around the timeliness of certain actions both before and during trial, we deem it appropriate to set forth a chronological sequence of the most significant facts.

Mary Whitfield, the minor appellant herein, is the unfortunate subject of a long medical and hospitalization history manifested as early as 1961 when her school physician first detected the possibility of an intracranial neoplasm. From November 17 until December 1, 1961, Mary was in Children's Hospital of the East Bay, attended by Doctors Russo, Chin and Zimmerman. During that hospitalization, on November 18, skull X rays of Mary were taken by Dr. Peterson. During part of 1962 Mary spent much time as an outpatient at Presbyterian Medical Center. In 1963 she visited other doctors, and from October 2 until October 11, 1963, was a patient in Contra Costa County Hospital where she was examined by Dr. Skinner. From October 21–31, 1963 she was again an inpatient at Children's Hospital of the East Bay where she was examined by Doctors Browning and Zimmerman. From November 26, 1963 until June 24, 1964, she was periodically seen by Dr. Roth. Some of the physicians in the above chain concluded that Mary had anorexia nervosa, a psychiatric syndrome that sometimes presents symptomatic patterns similar to those produced by cranial tumors.

In July 1964, following further skull X rays taken at Providence Hospital, Mary's mother was advised that Mary had a tumor (craniopharyngioma). On July 10, 1964, surgery was performed at Children's Hospital of the East Bay by Dr. Weyand. Ten days later complications from the surgery resulted in a permanent paralysis and other serious sequelae.

In conjunction with Mary's medical history, the following dates and occurrences become important in the context of this appeal:

From August until October, 1964, Mary's mother consulted at least two attorneys in regard to prosecuting a malpractice action against her daughter's doctors.

On September 3, 1964, Mary's mother sent a letter and lengthy article to George Duschek at the San Francisco News-Call Bulletin describing Mary's illness, including her examination by Dr. Skinner in Contra Costa County Hospital, and detailing her complaints about the care rendered to Mary.

On February 9, 1965, Attorney Gonick was employed by Mary's mother to file a malpractice action.

On March 24, 1965, Mr. Gonick filed the instant action naming Dr. Skinner as a defendant, alleging negligent diagnosis of her condition and also alleging ‘ That the defendants concealed from this plaintiff the facts constituting her cause of action and said facts were not discovered by her until on or about July 15, 1964, when the said ill effects of said negligence and lack of skill manifested themselves.’ (Emphasis added.)

On June 16, 1965, a first amended complaint was filed, again including Dr. Skinner as a defendant, and again expressly alleging that the facts regarding her cause of action were not discovered until on or about July 15, 1964.

On October 19, 1965, Contra Costa County Hospital records were subpoenaed by Attorney Gonick. It is contended by appellants that negligence, concealment and misrepresentations of the Contra Costa County Hospital and its associated doctors were discovered for the first time upon reviewing these records.

On November 19, 1965, a claim was submitted by appellants through Attorney Gonick to the Contra Costa County Board of Supervisors in the amount of $1,020,000.

On November 23, 1965, the claim was denied. It is conceded that on attempt to seek leave to file a late claim was ever made.

On January 28, 1966, a second amended complaint was filed, and for the first time Contra Costa County was named as a defendant. This pleading again alleged negligent diagnosis, and further alleged that the facts constituting a cause of action against both Dr. Skinner and Contra Costa County were concealed by those defendants and not discovered by appellant until October 19, 1965, when the medical records were obtained by her counsel.

March 3, 1969, trial commenced.

March 11, 1969, the wife of Attorney Craddick gave birth, and court was not held.

March 12, 1969, Attorney Craddick gave cigars and candy to jury.

March 14, and 19, 1969, plaintiff twice moved for mistrial, each motion coming after a news article mentioned the candy and cigars incident. Both motions were denied.

April 11, 1969, judgment of nonsuit was entered in favor of Contra Costa County and Dr. Skinner.

April 18, 1969, trial ended with verdict in favor of the remaining defendants.

The Nonsuit Appeal

As to the nonsuit, appellant contends (a) she fully complied with the provisions of the applicable claims statute (Gov.Code, § 911.2), since the date of the accrual of the cause of action against the county and Dr. Skinner could not have been before October 19, 1965 when the Contra Costa County Hospital records came into the hands of her attorney; (b) alternatively, she contends that (1) the question of compliance or noncompliance with the controlling claims statute should have been submitted to the jury, (2) the defendants were estopped from asserting noncompliance with the statute as a result of their alleged concealment of information from, and affirmative misrepresentations made to, appellant's mother, and (3) the California claim statutes are unconstitutional as applied to her.

In order to assert an action against a public entity a plaintiff must plead and prove compliance with the applicable claims statute (Solis v. County of Contra Costa (1967) 251 Cal.App.2d 844, 846, 60 Cal.Rptr. 99). Failure to do so is ‘fatal to the cause of action’ (Tietz v. Los Angeles Unified Sch. Dist. (1965) 238 Cal.App.2d 905, 911, 48 Cal.Rptr. 245, 249). It has consistently been held that these claim requirements are applicable to minors, and that the time to file a claim is not tolled by reason of minority (Wozniak v. Peninsula Hospital (1969) 1 Cal.App.3d 716, 723, 82 Cal.Rptr. 84; Van Alstyne, California Government Tory Liability Supplement (Cont.Ed.Bar, 1969) § 8.6, pp. 91–92). And, when the claimant is a minor, it is the parents' knowledge or lack of knowledge that is controlling in determining compliance with the claims requirement (Wozniak v. Peninsula Hospital, supra at p. 723, 82 Cal.Rptr. 84).

Since appellant attempted to assert a cause of action for personal injuries, her claim is governed by section 911.2 of the Government Code, which provides, in pertinent part, as follows: ‘Time for presentment of claims. A claim relating to a cause of action for death or for injury to person . . . shall be presented as provided in Article 2 (commencing with Section 915) of this chapter not later than the 100th day after the accrual of the cause of action.’

The date of accrual of a cause of action for the purpose of computing the time limit of the claims statute is the same as for the statute of limitations which would otherwise be applicable (Gov.Code, § 901). Thus, in a malpractice action, both the statute of limitations and the claims statute begin ‘to run when the plaintiff discovers the injury and its negligent cause or through the exercise of reasonable diligence should have discovered it.’ (Wozniak v. Peninsula Hospital, supra at p. 722, 82 Cal.Rptr. at p. 88, emphasis added; Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 185, 186, fn. 16, 98 Cal.Rptr. 837, 491 P.2d 421.)

The motion of respondents Contra Costa County and Dr. Skinner for nonsuit was urged on the theory that the cause of action accrued as of the day the mother was advised that Mary had a craniopharyngioma, i. e., July 1964. The trial court granted this motion, and while it did not specify what it considered to be the date of accrual, the logical inference must be that respondents' contention was accepted.

Appellant argues that October 19, 1965, the date that her attorney obtained by subpoena the medical records of Contra Costa County Hospital, must be the proper date of accrual. She contends that before a cause of action for malpractice accrues, the injured party must be aware not only of the fact of injury but also of its causative agent, and of the facts and circumstances which show wherein the defendant charged was negligent (Howe v. Pioneer Mfg. Co. (1968) 262 Cal.App.2d 330, 342, 68 Cal.Rptr. 617; and Rawlings v. Harris (1968) 265 Cal.App.2d 452, 462, 71 Cal.Rptr. 288). She admits that in July 1964 she might have been charged with knowledge of her condition, but argues that not until the October date can it be responsibly asserted that she had actual or constructive knowledge of the causative agents, i. e., Contra Costa County Hospital and Dr. Skinner. Appellant argues that the gravamen of this action against Dr. Skinner and/or Contra Costa County Hospital could only have been discovered upon obtaining the hospital records, a situation which she claims was only made possible by the filing of a lawsuit. We disagree.

To determine the accrual date in the present case one need look no further than the appellant's original and first amended complaints, both of which named Dr. Skinner as a defendant and alleged that appellant discovered the facts giving rise to her malpractice cause of action ‘on or about July 15, 1964.’ Appellant's claimed ignorance of the negligence of Contra Costa County Hospital and its associated doctors prior to October 19, 1965, is irreconcilable with the undisputed facts of this case. As pointed out earlier, Mary's mother made multiple efforts in the latter part of 1964 to obtain a lawyer to prosecute a malpractice action. In September 1964 she attempted to have an article published in a newspaper detailing her complaints about the medical treatment received by Mary.

Appellant also argues that prior to the adoption of Evidence Code, section 1158, she could not have obtained her own medical records without first filing a lawsuit. This simply is not true. It has always been possible to get the client's authorization and obtain medical records prior to institution of a lawsuit. In fact, the record shows that appellant had provided such authorizations to one of the several attorneys whom she had earlier consulted. In addition, the records could have been obtained by perpetration of testimony proceedings (Code Civ.Proc. § 2017). More importantly, however, the problem—if any—attendant upon obtaining the Contra Costa County Hospital records is irrelevant to the inquiry as to when the cause of action accrued. That date, as stated before, is ‘when the plaintiff [or in the case of a minor when the minor's parent or guardian] discovers the injury and its negligent cause or through the exercise or reasonable diligence should have discovered it.’ (Wozniak v. Peninsula Hospital, supra.)

Appellant argues that until her attorney obtained the records the ‘negligent cause’ of the injury could not have been discovered. This is legalistic sophistry. The ‘negligent cause’ as used in the context of the accrual of a cause of a action can realistically only refer to the general source of claimed liability—in this case medical malpractice as opposed to other bases of fault such as negligent maintenance of premises, for example. Under appellant's reasoning, a cause of action would never accrue until the claimant discovered or should have discovered the precise, evidentiary factors involved in the ultimate makeup of causation. The anomalous results from such a concept are readily apparent. Thus, for example, a pedestrian injured by a known vehicle driver could avoid the statute of limitations simply by alleging a failure to discover the precise facts of the driver's negligence.

It is beyond dispute that in July 1964 Mary's mother signed a consent for the tumor operation to be performed by Dr. Weyand. It follows that, as of that date at the latest, Mary's mother—and by operation of law Mary herself—had knowledge that (1) a tumor in fact existed and (2) any claim of misdiagnosis or failure to diagnose its existence would necessarily include Dr. Skinner and/or Contra Costa County Hospital agents.

For the above reasons, appellant's contention that the accrual date of the cause of action against these two defendants was October 19, 1965, cannot be accepted.

Appellant next contends that compliance or noncompliance is a question of fact and that the trial court erred in not submitting the question to the jury. Appellant primarily relies on Wozniak v. Peninsula Hospital, supra, in which the appellate court found that a question of fact did exist as to the time of accrual of that particular plaintiff's cause of action and reversed a summary judgment granted by the trial court. Appellant's reliance on Wozniak in the present case, however, is misplaced. Here, respondents were granted a judgment of nonsuit only appellant had presented her entire case at trial. As pointed out previously, appellant has made no showing whatever to support her contention that information was concealed from her regarding her medical care which could not have been obtained earlier than October 19, 1965 by her mother. In fact, the precise quote from Wozniak cited by appellant recognizes that where reasonable minds can draw but one conclusion from the evidence the question becomes a matter of law.

In light of the evidence presented in this appeal, reasonable minds could only arrive at the same conclusion reached by the trial court. Accordingly, the question of compliance with the claims statute was properly determined as a matter of law.

Appellant also argues that respondents should have been estopped from asserting noncompliance with the claim statute as a result of their concealment of information from and affirmative misrepresentations to her in regard to her physical condition. This contention is totally lacking in merit for the simple reason that appellant fails to point out any evidence in the record showing concealment or misrepresentation by Dr. Skinner or Contra Costa County.1

Appellant's last contention as to the nonsuit concerns the constitutionality of the California claims statute as it applies to her. She relies heavily on the recent Michigan decisions of Reich v. State Highway Department (1972) 386 Mich. 617, 194 N.W.2d 700, and Grubaugh v. City of St. Johns (1970) 384 Mich. 165, 180 N.W.2d 778, in which the Supreme Court of that state held a comparable statutory structure unconstitutional. Appellant argues, as the Michigan court found, that the historical reasons which may have once justified claims statutes, namely, (1) that the governmental body is put on notice that a claim is being asserted against it, and (2) that the agency is presented with a sufficient statement of facts to permit appropriate investigation, are totally anachronistic to modern life. The Michigan court also supports appellant's contention that claim statutes work an injustice and violate due process when applied to minors or incapacitated persons and that equal protection rights are violated by claim states since public bodies benefit from a special notice benefit, and a special limitations period, not enjoyed by private individuals.

At oral argument, appellant correctly predicted that the California Supreme Court would declare the ‘automobile guest statute‘ (Veh.Code, § 17158) unconstitutional in a case then under submission (Brown v. Merlo, Cal., 106 Cal.Rptr. 388, 506 P.2d 212), and requested this court to reserve its judgment herein until rendition of the opinion by the Supreme Court. We have done so, and in addition to our review of that opinion, have had the benefit of letter-briefs from opposing counsel.

We are impressed with the logic and reasoning of the Michigan court. We agree also that a persuasive argument can be made on the basis of language and the rationale expressed in Brown v. Merlo that California's claim statutes are constitutionally infirm.

On the other hand, there is a good deal to be said for the proposition that judicial repeal of legislation through the elastic expedient of the constitutional concept of equal protection of the laws is hazardous. While the executive and legislative branches are directly answerable to the electorate and are thereby prevented from ignoring the doctrine of separation of powers, the judicial branch, particularly at the appellate level, is generally not so restricted. Therefore the full vitality of the doctrine, as envisaged by the founding fathers, is, to a very great extent, dependent upon the scrupulous and conscientious self-imposed discipline of judicial restraint. (See Reich v. State Highway Dept., supra, 194 N.W.2d 700, p. 703, dissenting opinion of Brennan, J.)

Therefore, despite any misgivings regarding the continued vitality of claim statutes, this court must recognize and honor decisions of our Supreme Court which have upheld the claim statutes against constitutional attack (Tammen v. County of San Diego (1967) 66 Cal.2d 468, 480, 58 Cal.Rptr. 249, 426 P.2d 753; Dias v. Eden Township Hospital Dist. (1962) 57 Cal.2d 502, 504, 20 Cal.Rptr. 630, 370 P.2d 334). In the face of such clear-cut decisions, we, as an intermediate appellate tribunal, must reject appellant's request to declare the statutes unconstitutional.

The Verdict Appeal

Appellant first contends that the act of Mr. Craddick, the attorney for certain of the respondents, in passing out cigars and candy to the jurors, constituted prejudicial misconduct. She cites many American and California cases which allegedly stand for the concept that the type of conduct involved here is an offense per se against the integrity of our judicial system requiring automatic reversal. In addition, appellant argues that Mr. Craddick's motivations in passing cigars and candy to the jury are clearly set forth in the record: (1) to commemorate the birth of his child, and (2) to protect his clients' interests from any misunderstanding that might have resulted when the trial was postponed due to his absence when the child was born. Appellant also argues that her counsel was not aware of the passing out of the gifts at the time of the occurrence, but vigorously protested as soon as he did become aware, and moved for a mistrial (which motion was repeated a week later when the distribution received additional publicity). Appellant anticipates respondent' argument that she waived this point on appeal when she did not request a jury instruction to disregard the episode by claiming no such requirement exists in aggravated situations where an admonition would not have neutralized the effect of the misconduct (People v. Alverson (1964) 60 Cal.2d 803, 808, 36 Cal.Rptr. 479, 388 P.2d 711).

Respondents, on the other hand, contend that it must be deemed that the trial judge found that appellant's counsel did in fact know about the distribution when it happened and that appellant's failure to object when the alleged misconduct took place plus her delay in making the motion constituted a waiver of her right to make it. In addition, respondents claim that appellant's own counsel made it clear that the only reason he made the first motion for a mistrial was because respondents' counsel had successfully objected to certain questions asked of a witness, not because of the prejudicial effect of the distribution episode.

The prejudicial effect of an attorney's conduct is best left to the discretion of the trial judge. In this case, there were two separate motions for a mistrial and one motion for a new trial in which the judge was required to face this issue. Since all three motions were denied, it is obvious that the trial judge found that Mr. Craddick's actions were not prejudicial. While we do not think that Mr. Craddick's absence to attend the birth of his child was adequately explained by the trial judge or that the cigars and candy were necessary, we do not find anything in the record which would suggest that a different verdict would have been returned had the cigars and candy not been distributed.

Appellant next argues that the trial court erred in admitting hearsay opinion testimony of four radiologists and fifty other anonymous physicians in relation to the interpretation of the skull film is the primary diagnostic tool in craniopharyngioma cases and the 1961 films were the only ones taken of appellant's skull prior to the X rays of July 3, 1964, shortly before her operation, the interpretation of the 1961 films was of great importance. Appellant urges that during the testimony of Dr. Newton, a radiological expert, and Dr. Arnstein, a neurological surgeon, (1) hearsay evidence was introduced which dealt with occurrences which were not part of the opinion formation of the witness doctors; (2) even if these occurrences had been part of these processes, the evidence would have still been inadmissible; and (3) that the evidence was highly prejudicial for it led the jury to believe that 54 doctors had examined the 1961 films and found them to be normal. After a careful reading of the testimony of these two doctors and recognizing that Evidence Code, sections 801–802, provide a wide latitude to the expert witness in arriving at his opinion (and that consultation with colleagues is one step often taken), we hold that the trial court did not err in permitting the introduction of the challenged testimony.

Appellant lastly argues that the trial court made numerous incorrect rulings which cumulatively had a highly injurious effect to her case. Among the errors cited by appellant were: (1) her participation in her own trial was prejudicially limited; (2) the unwarranted limitation of previously admitted medical text material to limited use; and (3) the introduction of interrogatory answers containing admissions and showing inconsistencies was not permitted. Upon careful consideration of the trial transcript and briefs regarding these points, we must conclude that the trial court did not abuse its discretion in these rulings.

The nonsuit and verdict judgments are, and each is, affirmed.


1.  The evidence upon which appellant does rely might very well support a finding of negligence in failing to carry out sufficient diagnostic procedures to adequately rule out or rule in a brain tumor. It is entirely insufficient, however, to support an inference of concealment of a known diagnosis let alone an affirmative misrepresentation.

KANE, Associate Justice.

TAYLOR, P. J., ROUSE, J., concur.

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