Latson v. Zeiler

The plaintiffs have given notice that they appealed from these three matters: (1) the order of October 8,1965, granting the motion of defendant Meyer Zeiler to dismiss the complaint and enter a summary judgment;

Stated in quite general terms, this is an action to recover from the defendants, who are doctors and hospitals, the damages resulting from an unwisely recommended removal of the plaintiff-wife’s gall bladder, and the subsequent false writeup of the condition said to exist in the bladder as a means of justifying its removal, and excusing the delay in filing this action. The complaint is drafted in six counts, the first three on behalf of plaintiff Janet L. Latson, the last three on behalf of her husband, Prank Latson. Only the third and sixth causes apply to defendant Meyer Zeiler who is the respondent, but by apt reference the first 10 and the fourteenth paragraphs of the first count are incorporated as a part of the third count. Our reason for reversing the summary judgment will appear from a consideration of the third count, so fortified.

In her third count the plaintiff-wife alleges the loss of her gall bladder. Pour of the defendants were members of the medical profession, the three of these named Horowitz were partners, the fourth doctor was our defendant-respondent. During almost all of the first five months of 1962, the plaintiff-wife, so she alleges, “placed herself in and remained under the sole and exclusive examination, diagnosis, care, advice, treatment, control of defendants and each of them”; at all times “each of the defendants herein was the agent, servant and employee of each other and of his said co-defendants and was acting within the time, place, purpose and scope of the said agency and employment. ’ ’

“During said period while plaintiff Janet L. Latson was under the sole and exclusive care, management and control of defendants and each of them . . . defendants and each of them negligently, carelessly and unskillfully examined, diagnosed . .. treated, performed surgery upon and otherwise treated plaintiff” causing her to be “hurt and injured in her health, strength and activity. ...”

Getting down a bit closer to the point, plaintiff-wife further

Our respondent filed an answer to the complaint that contained the allegations just recited. He begins: “Under the provisions of section 437 of the California Code of Civil Procedure this answering defendant denies each and every and all of the allegations of said complaint. ’ ’ He continues: “Further . . . this answering defendant denies that the plaintiffs have sustained any injury, damage or loss, if any, by reason of any act or omission of this answering defendant or his agents or employees. ’ ’

With the issues of fact thus established by the pleadings, our defendant-respondent gave notice that he was going to move to have plaintiffs’ complaint dismissed and for a summary judgment. In his declaration filed in support of his motion, he states: that he is a physician, specializing in pathology ; periodically he receives speciments of tissue from the Broadway Hospital (one of the defendants) and received plaintiff’s gallbladder—or one so labeled. Then appears this paragraph:

‘ ‘ Affiant did not examine this gall bladder, or make any report as to its condition, until after the operation removing it; he did not engage in the operation which resulted in the removal of said gall bladder; he did not talk to Dr. Horowitz concerning this case prior to said operation; in fact, affiant’s only connection with the operation of Janet Latson on January 26, 1962, was to examine the gall bladder removed during the operation after the operation was completed and give a pathologist’s report to the Broadway Hospital. ’ ’

As we undertake to put this declaration to the test we should remember: “In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed . . . and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.” (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412 , 417 [ 42 Cal.Rptr. 449 ,452, 398 P.2d 785 , 788].)

So it remains quite possible that the defendant-

The judgment is reversed.

Jefferson, Acting P. J., and Kingsley, J., concurred.