Dunwoody v. Trapnell

Opinion

CHRISTIAN, J.

The appeal is from judgments of dismissal which were entered after the court sustained, without leave to amend, the demurrers of two medical defendants in this malpractice action. The question presented in the appeal is whether a claim for punitive damages can, under Probate Code section 573, survive and be prosecuted after the injured person’s death by the personal representative.

The complaint of appellant, executor of the estate of Kenneth Hall Dunwoody, alleges the following facts: Dunwoody was admitted to St. Francis Memorial Hospital in San Francisco for treatment of agitated depression. Defendants-respondents, physicians employed by the hospital, administered electrical shock treatments to Dunwoody which caused him to die on the same day. Appellant further alleges that respondents had wilfully concealed from Dunwoody the nature and risks of electrical shock treatment; that respondents administered the treatment without Dun woody’s voluntary and knowing consent (an alleged battery); and that respondents had been instructed not to administer the treatment without the consent of both Dunwoody and his family as Dunwoody had a cardiac condition. Appellant also alleges that respondents intentionally

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misrepresented to Dunwoody and his family that no electro-shock treatment would be administered without their consent.

In the first two of the five causes of action, the heirs of the decedent sought damages for his wrongful death. Those causes of action are not involved in this appeal. In the third through fifth causes of action, appellant, as executor, sought punitive damages for the various intentional torts alleged.

Appellant contends that, as executor of the estate of Kenneth Hall Dunwoody, he is a proper party to seek recovery of punitive damages under Probate Code section 573.

1

As appellant emphasizes, the statute explicitly permits survival of a claim for punitive damages. Respondents suggest, however, that section 573 expresses a legislative intention to allow a plaintiff’s cause of action to survive, and with it the possibility of punitive damages, only where the action was pending at the time of plaintiff’s death.