Pulvers v. Kaiser Foundation Health Plan, Inc.

California Court of Appeal Dec 10, 1979 No. Civ. 55881Published

Before: Kingsley

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Holding. The court affirmed the judgment on the first, second, and third causes of action, affirmed the denial of judgment notwithstanding the verdict, and reversed the order granting a new trial on the wrongful death cause of action. The court held that generalized promises of high-quality care do not constitute a warranty of a specific result and that incentive payment plans for physicians are not inherently fraudulent.

Issues

Whether generalized promises of high-quality medical care constitute a warranty of a specific result.
Whether a health plan's use of physician incentive payment plans constitutes fraud.
Whether a jury instruction regarding causation in a wrongful death malpractice case was erroneous as a matter of law.

Disposition. affirmed in part and reversed in part

Quotations verified verbatim against the opinion

“We cannot see in the language here relied on by plaintiffs anything more than a similar generalized puffing to the effect that the foundation’s doctors would exercise good judgment in their care.”

“We can see in the plan no suggestion that individual doctors act negligently or that they refrain from recommending whatever diagnostic procedures or treatments the accepted standards of their profession require.”

“The giving of the instruction, as amended by the trial court, was not error.”

Opinion

KINGSLEY, Acting P. J.

Originally, Mr. Pulvers brought suit against the Kaiser Health Plan and its related agencies and Dr. Lee, for mal

[564]

practice in the treatment of a condition known as Bowen’s disease. Mr. Pulvers died during the pleading stages of that case and it was thereafter continued by his widow as administratrix and in her individual capacity. Ultimately, in the fourth amended complaint, there were added causes of action for breach of warranty (second cause), fraud (third cause), wrongful death (fourth cause) and fraud (fifth cause). In addition, Mr. Pulvers’ two children sued separately for wrongful death. The two actions were consolidated.

The jury returned a verdict for defendants on the first cause of action and for plaintiffs on the fourth cause of action. The trial court granted judgment on the pleadings on the second cause of action, a nonsuit on the third, and a new trial on the fourth and fifth.

Although plaintiffs here attack the verdict and judgment on the first cause of action, we reject that attack. The evidence was sharply conflicting on the basic issue—did defendant, Dr. Lee, fail to conform to acceptable medical standards by delaying a biopsy in her diagnosis of Mr. Pulvers’ condition. The jury was entitled to accept the defense testimony that her conduct was within approved medical standards. It is not our function to reweigh the evidence on that cause of action.

It was plaintiff’s theory in pleading the second cause of action that, by representing in their literature that they would provide “high standards” of medical service, they had warranted a standard higher than nonnegligence. They thus rely on our language in

Depenbrok

Kaiser Foundation Health Plan, Inc.

(1978) 79 Cal.App.3d 167 at p. 171 [144 Cal.Rptr. 724], reading as follows: “We conclude that, if a plaintiff can prove to a properly instructed jury that a surgeon has clearly promised a particular result (as distinguished from a mere generalized statement that the result will be good), [fn. 2 omitted] and that the patient consented to an operation or other procedure in reliance on that promise, there can be recovery on the theory of warranty (or, to give the theory its more accurate name, breach of contract).” That reliance is misplaced. In

Pulvers v. Kaiser Foundation Health Plan, Inc.

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