Blegen v. Superior Court

Opinion

STEPHENS, Acting P. J.

Petitioner is the plaintiff in a pending legal malpractice action. Real parties in interest are defendants in that action. Petitioner has filed a petition for writ of mandate to challenge respondent court’s order striking a claim for punitive damages. We issued an alternative writ of mandate to review that order.

Petitioner’s complaint

1

alleges that he retained real parties on October 23, 1973, to represent him in prosecuting a medical malpractice action against Kaiser Foundation Hospital and others. The complaint further alleges that petitioner learned of his injuries on July 13, 1973, but that real parties failed to file a lawsuit on his behalf until July 19, 1974. That suit, in addition to being untimely, was defective in that it failed to allege the date of injury or the date of discovery of injury. A demurrer to the medical malpractice action was filed in 1975, but never heard. The medical malpractice action was dismissed with prejudice in 1979,

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apparently for failure to prosecute. (Code Civ. Proc., § 583,

[962]

subd. (a).)

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Petitioner alleges that had real parties exercised proper care and skill in prosecuting the medical malpractice action, petitioner would have been granted judgment.

Petitioner’s complaint alleges that real parties were negligent in failing to file suit within the statute of limitations, failing to actively pursue the case, to conduct discovery, to notify petitioner of problems with the case or to respond to his request for settlement.

The allegations upon which petitioner bases his claim for punitive damages are: That real party W. F. Dunbar, who possessed a medical degree as well as a legal degree, knew that petitioner was in pain and in need of immediate remedial surgery; that Dunbar understood the degree of pain and discomfort that petitioner was experiencing; that he understood the extent of permanent injury which would and did result from petitioner’s postponing the needed remedial surgery, but that Dunbar nonetheless advised petitioner to forego surgery pending resolution of his medical malpractice action; that he did this to increase the monetary value of the medical malpractice case; that he continued to advise petitioner to forego surgery even after he knew that he had failed to file suit within the statutory time limit; that he misrepresented to petitioner that a valid cause of action existed when he knew that it no longer did; and that he continued to advise petitioner to . forego surgery and failed to advise him that he no longer had a valid cause of action, because of the expiration of the statute of limitations, so as to avoid a legal malpractice action against himself.