KRUEGER v. SAN FRANCISCO FORTY NINERS (1987)

On August 19, 1980, appellant filed a complaint for damages and declaratory relief against respondent San Francisco 49'ers and other defendants not involved in this appeal.   After a series of demurrers and amendments to the pleadings, the case proceeded to court trial on the sole cause of action for fraudulent concealment of medical information.   The trial court found in favor of respondent and this appeal followed.

Appellant began playing professional football with the San Francisco 49'ers (hereafter respondent or the 49'ers) in 1958.   He was a defensive lineman for the 49'ers until retiring in 1973, missing only parts of two seasons due to injuries.   During his career, however, appellant played despite suffering numerous injuries.   He broke his arm and the ring finger on each hand, cracked or broke his nose “innumerable times,” suffered multiple dislocations of the fingers and thumbs on both hands, incurred a “blow-out” fracture of the right ocular orbit, developed an eye infection or “pterygium” caused by a foreign substance becoming lodged in the eye, sprained his right knee, and developed hypertension, among other maladies.

The injuries and damages to appellant's left knee are the focus of the present suit.   While in college in 1955, appellant had surgery on his left knee to repair a torn meniscus.   Then, in October of 1963, he ruptured the medial collateral ligament in his left knee.   Dr. Lloyd Taylor, a physician who treated 49'ers' players, performed an operation on the knee which, appellant was told, effectuated a “good repair.”   Thereafter, appellant engaged in rehabilitative therapy with the team trainer and was given a knee brace which he later wore while playing until he removed it in 1967.

Dr. Taylor noted in his report of the operation that the anterior cruciate ligament—the function of which is to prevent the tibia from shifting forward on the femur—“appeared to be absent” from appellant's left knee.   Such an injury can produce instability in the knee, particularly if combined with other injuries.   According to appellant, he was not told that his left knee evidently lacked the anterior cruciate ligament.

In the spring of 1964, appellant began experiencing pain and considerable swelling in his left knee.   He again received treatment from physicians retained by the 49'ers, specifically Dr. Taylor and Dr. Lloyd Milburn, which consisted of aspiration of bloody fluid from the knee by means of a syringe and contemporaneous injection of novocain and cortisone, a steroid compound.   Appellant testified that he received approximately 50 such “Kepplemann” treatments during 1964, and an average of 14 to 20 per year from 1964 to 1973.   Dr. Milburn could not recall administering Kepplemann treatments with such frequency, and testified that his records indicated only seven such treatments.   Appellant also testified that he was never advised by the 49'ers medical staff of the dangers associated with steroid injections in the knee, such as possible rupturing of tendons, weakening of joints and cartilege, and destruction of capillaries and blood vessels.   He also offered expert medical testimony that the adverse effects of steroids were known at that time.   The same medical expert also testified that the number of steroid injections appellant claimed to have undergone would have been inappropriate and quite “unusual.”

Appellant's left knee continued to plague him during his football career, and in 1971 he underwent another operation performed by Dr. Taylor to remove “loose bodies” in the knee resulting from chronic chondromalacia patella—thinning and loss of cartilege on the undersurface of the kneecap, a condition fully consistent with known adverse reaction to prolonged steroid use.   X-rays taken between 1964 and 1971 revealed “degenerative post-traumatic changes” in appellant's left knee joint.   Appellant testified—without contradiction—that he was not told of either of these afflictions by the 49'ers medical staff.

Krueger also testified that he suffered a “hit” on the outside of the knee during a game in 1970.   He felt a piece of the knee break off.   Notwithstanding the obvious severity of the injury, appellant was given Empirin codeine and directed to return to the game.   For the remainder of the season, he could feel a “considerable piece of substance” dislodged on the outside of his left knee joint;  nevertheless, he played the remaining five games of the season.   At no time did the team doctors ever advise him that he risked permanent injury by continuing to play without surgery.   Krueger testified unequivocally that, had he been advised not to play, he would have followed that advice.

Dr. Milburn could not recall either specifically discussing appellant's x-rays with him or advising him about the chronic condition from which he was suffering.   He testified generally—without specific reference to Krueger's case—that it was his custom, and that of Dr. Taylor, to be “honest and thorough” with athletes.

Appellant retired from football following the 1973 season.   In April of 1974, he entered St. Mary's Hospital for a rhinoplasty and complete physical examination which, however, did not include either x-raying or testing of his knees.   Neither Dr. Milburn, who had arranged the physical, nor any other orthopedist examined him at that time.

Not until 1978 was appellant treated again for his injured knee.   At that time, he received a Kepplemann treatment from Dr. Milburn, and x-rays were taken of both legs.   According to appellant it was not until this visit to Dr. Milburn in 1978 that he was shown x-rays of his knees and advised for the first time that he suffered from chronic and permanent disability in the knee.

Defendant was referred to Dr. Taylor, who subsequently performed on him a tibial osteotomy, which is a shaving of planes from the leg bone followed by regrafting of the tendons and ligaments to the bone.   The operation did nothing to alleviate appellant's severe discomfort, and in fact, he thereafter developed calcification in the knee and suffered greater pain than had been the case before the surgery.   He presently suffers from traumatic arthritis and a crippling degenerative process in the left knee.   He cannot stand up for prolonged periods, and cannot run.   He is also unable to walk on stairs without severe pain.   His condition is degenerative and irreversible.

On this appeal Krueger argues error in the trial court's finding that that he failed to prove all of the elements of fraudulent concealment.   Pivotally, the court found that appellant would have continued to play football even if he had been advised of the nature and extent of his injuries—a finding which negated the element of proximate cause.

 In reviewing the trial court's findings, we are bound by the substantial evidence rule, with all presumptions and inferences to be drawn in favor of the judgment.  (Gray v. Fox (1984) 151 Cal.App.3d 482, 487, 198 Cal.Rptr. 720;  Doctor v. Lakeridge Const. Co. (1967) 252 Cal.App.2d 715, 718, 60 Cal.Rptr. 824.)  “[T]he power of an appellate court begins and ends with the determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding of fact.”   (Green Trees Enterprises, Inc. v. Palm Springs Alpine Estates, Inc. (1967) 66 Cal.2d 782, 784, 59 Cal.Rptr. 141, 427 P.2d 805, emphasis in original.)   “Factual matters are viewed most favorably to the prevailing party (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920 [101 Cal.Rptr. 568, 496 P.2d 480] ) and conflicts are decided in favor of the respondent.  (Cecka v. Beckman & Co. (1972) 28 Cal.App.3d 5 [104 Cal.Rptr. 374].)”  (12319 Corp. v. Business License Com. (1982) 137 Cal.App.3d 54, 64, 186 Cal.Rptr. 726.)

“ ‘Substantial evidence,’ ․ is evidence ‘which, if true, has probative force on the issues.’  ․ [¶ ] [T]he word cannot be deemed synonymous with ‘any’ evidence.   It must be reasonable in nature, credible, and of solid value;  it must actually be ‘substantial’ proof of the essentials which the law requires in a particular case.”  (Estate of Teed (1952) 112 Cal.App.2d 638, 644, 247 P.2d 54;  see also Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873, 197 Cal.Rptr. 925;  Pennel v. Pond Union School Dist. (1973) 29 Cal.App.3d 832, 837, 105 Cal.Rptr. 817.)

Appellant's action was for fraud or deceit.   Specifically, the claim is based upon Civil Code sections 1709 and 1710.  Section 1709 provides that “[o]ne who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers.”  Section 1710, subdivision (3) defines deceit as “[t]he suppression of a fact, by one who is bound to disclose it or who gives information of other facts which are likely to mislead for want of communication of that fact․”

 The elements of a cause of action for fraud or deceit are as follows:  a misrepresentation or suppression of a material fact;  knowledge of any falsity;  intent to induce reliance;  actual and justifiable reliance;  and resulting damages.  (Muraoka v. Budget Rent-A-Car, Inc. (1984) 160 Cal.App.3d 107, 119, 206 Cal.Rptr. 476;  Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 414–415, 196 Cal.Rptr. 117;  Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 635, 178 Cal.Rptr. 167.)  “ ‘Deceit may be negative as well as affirmative;  it may consist in suppression of that which it is one's duty to disclose, as well as in the declaration of that which is false.’  (Gillespie v. Ormsby [1954], 126 Cal.App.2d 513, 527 [272 P.2d 949].)”  (Stevens v. Marco (1956) 147 Cal.App.2d 357, 379, 305 P.2d 669.)   Under section 1710, the intentional concealment of a material fact is actionable fraud only if there is a fiduciary relationship giving rise to a duty to disclose it.   (Moe v. Transamerica Title Ins. Co. (1971) 21 Cal.App.3d 289, 306, 98 Cal.Rptr. 547;  Nece v. Bennett (1963) 212 Cal.App.2d 494, 496, 28 Cal.Rptr. 117;  Stevens v. Marco, supra, 147 Cal.App.2d at p. 378, 305 P.2d 669.)   The relationship between physician and patient is fiduciary in nature and creates a duty to disclose.  (Nelson v. Gaunt, supra, 125 Cal.App.3d 623, 635, 178 Cal.Rptr. 167;  Bowman v. McPheeters (1947) 77 Cal.App.2d 795, 176 P.2d 745.)

Respondent submits that the record fails to substantiate appellant's claim that material medical information was concealed from him.   We disagree.   Appellant testified unequivocally that the team's physicians never disclosed to him the adverse effects of steroid injections, or the true nature and extent of the damage to his left knee, particularly the dangers associated with the prolonged violent traumatic impact inherent in professional football.   Nor, he testified, was he informed that x-rays taken of his legs revealed the severely degenerated condition of his left knee.

The evidence offered by respondent never directly contradicted appellant's testimony.   Thus, Dr. Milburn was able to recall only that he customarily discussed and reviewed player's injuries with them, sometimes using anatomical models.   Dr. Milburn was “sure” that appellant was aware of “the type of injury that he had,” and testified he had neither concealed information from appellant nor advised anyone else to do so.   The testimony of other physicians and orthopedic consultants who treated appellant was consistent with Dr. Milburn's.

If the case were simply one of conflicting evidence, we would of course affirm the judgment.   As to the crucial issue of full disclosure, however, we find the evidence uncontradicted;  as will appear, the requisite disclosure was never made.   That the team physicians withheld no material information from Krueger is not, in our view, the proper focus of inquiry.   The critical question is whether full disclosure of his medical condition was ever made to Krueger.

 In Cobbs v. Grant (1972) 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1, our high court announced the “informed consent doctrine,” which requires “as an integral part of the physician's overall obligation to the patient ․ a duty of reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each.”  (Id., at p. 243, 104 Cal.Rptr. 505, 502 P.2d 1;  see also Truman v. Thomas (1980) 27 Cal.3d 285, 291, 165 Cal.Rptr. 308, 611 P.2d 902.)   The physician must disclose to the patient all information necessary to make a knowledgeable decision about proposed treatment.  (Cobbs v. Grant, supra, 8 Cal.3d at p. 242, 104 Cal.Rptr. 505, 502 P.2d 1;  Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 738, 223 Cal.Rptr. 859.)   The duty to disclose is imposed so that patients might meaningfully exercise their right to make decisions affecting their own bodies.  (Truman v. Thomas, supra, 27 Cal.3d at p. 292, 165 Cal.Rptr. 308, 611 P.2d 902.)   Hence, even if the patient rejects a recommended procedure, the duty to disclose is nonetheless recognized.  (Ibid;  see also Moore v. Preventive Medicine Medical Group, Inc., supra, 178 Cal.App.3d at p. 737, 223 Cal.Rptr. 859.)

 In our opinion, the duty of full disclosure within the context of a doctor-patient relationship defines the test for concealment or suppression of facts under Civil Code section 1710, subdivision (3).   The failure to make such disclosure constitutes not only negligence, but—where the requisite intent is shown—fraud or concealment as well.   A physician cannot avoid responsibility for failure to make full disclosure by simply claiming that information was not withheld.

The testimony that, following his knee surgery in 1963, Krueger was not advised of the adverse effects of steroid injections, or of the risks associated with the continued pursuit of his profession, was uncontradicted.   That is, while respondent produced testimony that the physicians treating appellant told him of the general nature of his injury, and did not conceal certain information from him, there is no evidence that appellant was ever informed of the continuing risks associated with his injuries.   Hence, the requisite disclosure was never made.

 The element of intent also must be established in all fraudulent concealment cases.  (Doctor v. Lakeridge Const. Co., supra, 252 Cal.App.2d 715, 718, 60 Cal.Rptr. 824.)   While actual “intent to deceive” need not be shown, a plaintiff must establish that at the time information was concealed defendant had the intent to induce plaintiff to adopt or abandon a course of action (Peskin v. Squires (1957) 156 Cal.App.2d 240, 243, 319 P.2d 405)—in the present case, to induce him to continue playing football despite his injuries.

Dr. Milburn testified that he neither minimized nor concealed appellant's medical condition for the purpose of prolonging the latter's career.   Nor, he testified, did he tell any of the other treating physicians to do so.   Likewise, he testified, the 49'ers never advised him to suppress information regarding the condition of appellant's knee.   Such testimony was corroborated by that of other involved medical personnel.

 Nevertheless, we think the record unequivocally demonstrates that, in its desire to keep appellant on the playing field, respondent consciously failed to make full, meaningful disclosure to him respecting the magnitude of the risk he took in continuing to play a violent contact sport with a profoundly damaged left knee.   The uncontradicted record shows that Krueger was in acute pain from 1963 on, that he was regularly anesthetized between and during games, and endured repeated, questionable steroid treatments administered by the team physician.¹  X-rays had been taken which fully depicted the extent of his degenerative condition, but he was never so informed.   In 1970, part of his knee broke away and yet he was still not given an honest assessment of the seriousness of his condition.   Respondent's claim of no concealment cannot be substituted for the professional warnings to which Krueger was at this point so clearly entitled.   And it is in this palpable failure to disclose, viewed in the light of the 49'ers compelling obvious interest in prolonging appellant's career, that we find the intent requisite for a finding of fraudulent concealment.

Respecting the element of reliance, appellant's testimony was that he accepted and acted upon the medical advice of the physicians as provided by respondent.   No contradictory evidence appears.  “ ‘[P]atients are generally persons unlearned in the medical sciences, ․’ ” and consequently are entitled to rely upon physicians for full disclosure of material medical information.   (Truman v. Thomas, supra, 27 Cal.3d 285, 291, 165 Cal.Rptr. 308, 611 P.2d 902.)   Reliance is thus established.

Respondent contends that appellant was or should have been cognizant of the seriousness and permanent nature of the injury to his left knee, but we find no credible evidence supportive of this claim.   Certainly, appellant knew that his injury was serious.   He was entitled, however, to rely upon respondent's physicians for medical treatment and advice without consulting outside sources or undertaking independent investigation.  (Stevens v. Marco, supra, 147 Cal.App.2d 357, 378–379, 305 P.2d 669;  Hayter v. Fulmor (1949) 92 Cal.App.2d 392, 400, 206 Cal.Rptr. 1101.)

Turning to the issues of proximate cause and damages, we note the trial court's finding that appellant's desire to continue playing was so intense that he would have continued even had he been informed of the magnitude of the risk involved.   This finding seems to us mere conjecture.   Appellant demonstrated throughout his football career a courageous—some might say foolhardy—willingness to endure pain and injuries for the sake of his team and employer, but no credible evidence suggests that he ever assessed and accepted the prospect of permanent disability.   On the contrary, he testified that he would have retired had respondent's physicians recommended that course of action, and no contrary evidence was offered by respondent.

 Accordingly, we conclude there is no substantial evidence to support the judgment entered by the trial court;  and conversely, that appellant established all the elements of a fraudulent concealment case based upon nondisclosure of material medical information.

The judgment is reversed and the cause is remanded to the trial court, judgment to be entered in favor of appellant, with damages as established by the evidence upon retrial limited to that single issue.   Costs to appellant.

FOOTNOTES

1.   In addition to the novocain regularly injected in his knee, Krueger was directed by a team physician to use amphetamines during games.

NEWSOM, Associate Justice.

RACANELLI, P.J., and ELKINGTON, J., concur.