GITA LANDEROS, a Minor, etc., Plaintiff and Appellant, v. A.J. FLOOD et al., Defendants and Respondents

S.F. No. 23359

Supreme Court of California

17 Cal. 3d 399; 551 P.2d 389

June 30, 1976

PRIOR HISTORY: Superior Court of Santa Clara County, No. 260674, Albert F. DeMarco, Judge.

DISPOSITION: The judgment is reversed.

PROCEDURAL POSTURE: Appellant, a minor, sought review of a judgment of the Superior Court of Santa Clara County (California), which sustained general demurrers and dismissed her medical malpractice action against appellees, a physician and a hospital, for injuries sustained when they failed to properly diagnose and treat the condition from which she was suffering.

OVERVIEW: Appellant minor argued trial court error in sustaining the demurrer of appellees, doctor and hospital, to her malpractice suit against them, because issues existed as to whether they had a duty to recognize a case of battered child syndrome that was to be reported to authorities, and whether their conduct proximately caused appellant's injuries. The court agreed, noting first that appellant was returned to parental custody after having been treated for injuries not appearing to be accidental, and that she then was traumatically abused. Because it was unclear whether treating physicians should have recognized the syndrome for treatment purposes, appellant was entitled to prove by expert testimony the standard of care against which appellees were to be held. And as appellees could not escape liability if it was foreseeable that appellant would suffer further injury, appellant was entitled to prove that appellees' conduct proximately caused her injuries, even if the parent's intervening act was the actual cause. Finally, appellant was entitled to show that appellees failed to exercise due care in not reporting her injuries to authorities who would have shielded her from further harm.

COUNSEL: Caputo & Liccardo, Caputo, Liccardo & Rossi, Richard P. Caputo and Richard J. Kohlman for Plaintiff and Appellant.

Rankin, Oneal, Center, Luckhardt, Marlais, Lund & Hinshaw, G. David Landsness, Campbell, Warburton, Britton, Fitzsimmons & Smith and Alfred B. Britton, Jr., for Defendants and Respondents.

JUDGES: Opinion by Mosk, J., expressing the unanimous view of the court. Wright, C. J., McComb, J., Tobriner, J., Sullivan, J., Clark, J., and Richardson, J., concurred.

OPINIONBY: MOSK

OPINION: In this medical malpractice action plaintiff Gita Landeros, a minor, appeals from a judgment of dismissal entered upon an order sustaining general demurrers to her amended complaint. As will appear, we have concluded that the complaint states a cause of action and hence that the judgment must be reversed.

Plaintiff brought the action by her guardian ad litem against A. J. Flood, a physician, and The San Jose Hospitals & Health Center, Inc. (hereinafter called the San Jose Hospital). The amended complaint purports to allege four "causes of action." of recovery alleged in support of a single cause of action for compensatory damages for personal injuries caused by defendants' negligence in failing to properly diagnose and treat the condition from which plaintiff was suffering; the fourth "cause of action" merely adds a claim for punitive damages on allegations that defendants' conduct in this respect was wilful and wanton. Defendants filed general demurrers. The court sustained the demurrers as to the first and second "causes of action" with leave to amend, and as to the third and fourth "causes of action" without leave to amend. Plaintiff elected to stand on her complaint as previously amended, and a judgment dismissing the entire action was therefore entered. n1

The material factual allegations of the amended complaint are as follows. Plaintiff was born on May 14, 1970. which was then in the process of healing. n3 Plaintiff demonstrated fear and apprehension when approached. Inasmuch as all plaintiff's injuries gave the appearance of having been intentionally inflicted by other persons, she exhibited the medical condition known as the battered child syndrome.

It is alleged that proper diagnosis of plaintiff's condition would have included taking X-rays of her entire skeletal structure, and that such procedure would have revealed the fracture of her skull. Defendants negligently failed to take such X-rays, and thereby negligently failed to diagnose her true condition. It is further alleged that proper medical treatment of plaintiff's battered child syndrome would have included reporting her injuries to local law enforcement authorities or juvenile probation department. Such a report would have resulted in an investigation by the concerned agencies, followed by a placement of plaintiff in protective custody until her safety was assured. Defendants negligently failed to make such report.

The complaint avers that as a proximate result of the foregoing negligence plaintiff was released from the San Jose Hospital without proper diagnosis and treatment of her battered child syndrome, and was returned to the custody of her mother and Reyes who resumed physically abusing her until she sustained traumatic blows to her right eye and back, puncture wounds over her left lower leg and across her back, severe bites on her face, and second and third degree burns on her left hand.

On July 1, 1971, plaintiff was again brought in for medical care, but to a different doctor and hospital. Her battered child syndrome was immediately diagnosed and reported to local police and juvenile probation authorities, and she was taken into protective custody. Following hospitalization and surgery she was placed with foster parents, and the latter subsequently undertook proceedings to adopt her. Plaintiff's mother and Reyes fled the state, but were apprehended, returned for trial, and convicted of the crime of child abuse. (Pen. Code, § 273a.)

With respect to damages the complaint alleges that as a proximate result of defendants' negligence plaintiff suffered painful permanent physical injuries and great mental distress, including the probable loss of use or amputation of her left hand.

The second and third "causes of action" are predicated on defendants' failure to comply with three related sections of the Penal Code. Section 11160 provides in relevant part that every hospital to which any person is brought who is suffering from any injuries inflicted "in violation of any penal law of this State" n4 must report that fact immediately, by telephone and in writing, to the local law enforcement authorities. Section 11161 imposes the identical duty on every physician who has under his care any person suffering from any such injuries. Section 11161.5 deals specifically with child abuse, and declares in pertinent part that in any case in which a minor is under a physician's care or is brought to him for diagnosis, examination or treatment, and "it appears to the physician" from observation of the minor that the latter has any physical injuries "which appear to have been inflicted upon him by other than accidental means by any person," he must report that fact by telephone and in writing to the local law enforcement authorities and the juvenile probation department. n5 All three sections require the report to state the name of the victim, if known, together with his whereabouts and the character and extent of his injuries; and a violation of any of the sections is a misdemeanor (§ 11162).

By means of allegations phrased largely in the statutory language plaintiff undertakes to charge defendants with a duty to comply with section 11161.5 (second "cause of action") and sections 11160 and 11161 (third "cause of action"), and avers that they failed to make the reports thus required by law. Her allegations of proximate cause and damages on these counts are essentially identical to those of the first count.

We have found no case directly in point, but the issues may be decided by reference to well settled principles. Succinctly stated, the rules governing our consideration of this appeal are "that a general demurrer admits the truth of all material factual allegations in the complaint [citation]; that the question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court [citations]; and that plaintiff need only plead facts showing that he may be .)

The standard of care in malpractice cases is also well known. With unimportant variations in phrasing, we have consistently held that a physician is required to possess and exercise, in both diagnosis and treatment, .)

The first question presented, accordingly, is whether the foregoing standard of care includes a requirement that the physician know how to diagnose and treat the battered child syndrome.

It appears from the literature that the battered child syndrome was first tentatively identified and reported to the medical profession in the early 1950s. Further surveys and analyses of the syndrome followed, culminating in a landmark article published in 1962 in the Journal of the American Medical Association. (Kempe et al., The Battered-Child Syndrome (1962) 181 A.M.A.J. 17.) Since that date numerous additional studies of the condition have been undertaken, and their results and recommendations publicized in the medical journals. n6

While helpful, the foregoing general history of the battered child syndrome is not conclusive on the precise question in the case at bar. The question is whether a reasonably prudent physician examining this plaintiff in 1971 would have been led to suspect she was a victim of the battered child syndrome from the particular injuries and circumstances presented to him, would have confirmed that diagnosis by ordering X-rays of her entire skeleton, and would have promptly reported his findings to appropriate authorities to prevent a recurrence of the injuries. There are numerous recommendations to follow each of these diagnostic and treatment procedures in the medical literature cited above. n7

Inasmuch as the "common knowledge" exception to the foregoing rule does not apply on the facts here alleged, the trial court could not properly conclude as a matter of law that defendants' standard of professional care did not include the diagnostic and treatment procedures outlined in the complaint. Plaintiff is therefore entitled to the opportunity to prove by way of expert testimony that in the circumstances of this case a reasonably prudent physician would have followed those procedures. n8

third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby." (Italics added.) (See Vesely v. Sager, supra, at p. 164 of 5 Cal.3d, and cases cited.)

As we recently observed with respect to a determination of duty, however, "foreseeability is a question of fact for the jury." ( Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46 [123 Cal.Rptr. 468, 539 P.2d 36].) The same rule applies when the issue is whether the intervening act of a third person was foreseeable and therefore did not constitute a superseding cause: in such circumstances "The foreseeability of the risk generally frames a question for the trier of fact" ( Weaver v. Bank of America (1963) 59 Cal.2d 428, 434 [30 Cal.Rptr. 4, 380 P.2d 644]; accord, Rest.2d Torts, § 453, com. b).

Restatement the fact that the risk eventuates does not relieve him of responsibility.

Accordingly, the trial court in the case at bar could not properly rule as a matter of law that the defendants' negligence was not the proximate cause of plaintiff's injuries. Plaintiff is entitled to prove by expert testimony that defendants should reasonably have foreseen that her caretakers were likely to resume their physical abuse and inflict further injuries on her if she were returned directly to their custody. n10

pleaded at all, as the trial court is required to take judicial notice of acts of the Legislature (Evid. Code, § 451, subd. (a)).

Pursuant to our duty to liberally construe pleadings with a view to achieving substantial justice (Code Civ. Proc., § 452), we therefore treat the second and third "causes of action" as alternative counts setting forth plaintiff's theory of statutory liability. The purpose of that theory is manifestly to raise a presumption that by omitting to report plaintiff's injuries to the authorities as required by law, defendants failed to exercise due care -- a presumption now codified in Evidence Code section 669. n11 Defendant Flood correctly concedes that the complaint alleges facts showing compliance with the first, third and fourth of the conditions specified of rebutting that presumption. n12

Finally, defendants raise two questions of statutory interpretation. They contend that even if plaintiff may rely on Penal Code section 11161.5 in this case, she cannot invoke sections 11160 and 11161 because the latter are "general" statutes which have assertedly been superseded by the former as a "special" statute on the same topic. But such supersession occurs only when the provisions are "inconsistent" (Code Civ. Proc., § 1859), which is not here the case. Sections 11160 and 11161.5 are directed to different classes of persons, and hence are not inconsistent but complementary. Sections 11161 and 11161.5, on the other hand, are duplicative of each other to the extent that the former deals with physical injuries unlawfully inflicted on minors and the latter deals with the observation of such injuries by a physician. (See generally Note, The California Legislative Approach to Problems of Willful Child Abuse (1966) 54 Cal.L.Rev. 1805, 1814-1815.) But inasmuch as the same penalty is provided for a violation of each section (Pen. Code, § 11162), they do not present an irreconcilable conflict requiring one to give way to the other. (Compare People v. Gilbert (1969) , and cases cited.) There is nothing to prevent the Legislature from imposing a reporting requirement on physicians in two separate statutes, even if their coverage apparently overlaps.

Defendants next contend that plaintiff can rely on section 11161.5 only if she can prove that Dr. Flood in fact observed her various injuries and in fact formed the opinion they were caused by other than accidental means and by another person -- in other words, that his failure to comply with the reporting requirement of the statute was intentional rather than negligent. We first note that the complaint in effect so alleges, thereby mooting the issue at this pleading stage. For the guidance of the court at the trial, however, we briefly address the point of proof.

The provision of section 11161.5 is ambiguous with respect to the required state of mind of the physician. It has been suggested that for the purposes of a criminal prosecution "the more reasonable interpretation of the statutory language is that no physician can be convicted unless it is shown that it actually appeared to him that the injuries were inflicted injuries and formed the opinion they were intentionally inflicted on her. n13

The judgment is reversed.