Rosenberg v. Feigin

SCOTT (Robert H.), J. pro tem.

Plaintiff appeals from judgment of dismissal pursuant to an order sustaining demurrer to plaintiff’s third amended complaint without leave to amend. The latter order was made on November 24, 1950. Plaintiff, on January 12, 1951, moved to set aside the ruling previously made, and this motion was denied. Plaintiff then undertook to appeal from the order denying the motion to set aside the ruling, and this appeal was dismissed. (110 Cal.App.2d 56 [241 P.2d 1043].) The remittitur was filed with the county clerk on May 27, 1952, and was entered in the minutes of June 30, 1952. Thereafter, on August 4, 1952, the judgment was signed from which this appeal is taken.

The eight and one-half pages of the third amended complaint undertake to set out two causes of action by plaintiff, an allegedly aggrieved husband, against defendant who was the personal physician of plaintiff’s wife. The wife does not join in this action.

Plaintiff alleges that his wife on February 18, 1950, was pregnant and that she retained defendant, a licensed physician, to attend her, but without plaintiff’s authority or consent; that defendant knew or should have known (1) that the wife did not require the care defendant gave her and (2) that it might cause a miscarriage. He further alleges that defendant was told by the wife that plaintiff had opposed any such treatment unless it was required for her general health and well-being; that plaintiff did not know his wife was to undergo care or treatment other than in the ordinary course of her pregnancy; that he did not consent to it, and that it was not necessary; that the treatment “was in the nature of an examination with instruments which included therein probing, so as to amount to or constitute surgery”; that defendant’s failure to notify plaintiff and get his consent

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amounted to malpractice; that the wife had a miscarriage that would not have occurred except for defendant’s treatment of her.

It is then alleged: “that plaintiff who had been joyously anticipating the supplementation of his family was thereby caused grievous mental disturbance, suffering and injury, and will continue to suffer grievous mental anguish throughout the entire lifetime of plaintiff, all to plaintiff’s damage in the sum of $50,000.” He also asks $600 medical expenses for the wife.