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Dennis v. Gutierrez11/7/2003
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Robert Dennis (plaintiff) appeals from a judgment in favor of Rigoberto Gutierrez, M.D. (defendant), following the grant of a non-suit on plaintiff's complaint. As plaintiff's claims of error lack merit, we shall affirm the judgment.
Background
Plaintiff and his wife, Cathleen Dennis (wife), filed a complaint against defendant, Chih-Jung Shieh, M.D. (Shieh), and Oroville Hospital (Hospital) alleging, inter alia, claims for medical malpractice, negligent infliction of emotional distress, and loss of consortium. Plaintiff thereafter dismissed his claims against Shieh and the Hospital, while wife dismissed her action as to all three defendants.
The matter came on for a trial readiness conference on May 2, 2002, and plaintiff, through counsel, stipulated to the following facts regarding plaintiff's claims against defendant. On January 18, 2000, wife (who was 18 weeks pregnant at the time) appeared at the Hospital emergency room complaining of abdominal pain. Defendant performed a diagnostic laparoscopy which was complicated by an accidental hysterotomy and amniotomy. Defendant repaired the complications by a "mini laparotomy" and appendectomy. On the morning of her scheduled discharge date (January 21, 2000), fluid began streaming from wife's vaginal area, and wife was diagnosed with severe oligohydramnios. Defendant recommended induction of labor, to which wife agreed. The fetus was stillborn. Wife's claim against defendant was premised on negligent perforation of the amniotic sack during the diagnostic laparoscopy on January 18, 2000.
Defendant served a demand for expert witnesses on plaintiff, but he failed to disclose any expert witnesses. As a result, the court granted defendant's motion for non-suit on plaintiff's claims for negligent infliction of emotional distress and loss of consortium. Judgment for defendant followed, and plaintiff appealed.
Discussion
Plaintiff argues his claims for negligent infliction of emotional distress and loss of consortium did not require expert testimony, and thus the failure to designate an expert was of no moment. Plaintiff is mistaken.
Plaintiff's claim for negligent infliction of emotional distress required proof of negligence on defendant's part. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072-1073.) Similarly, plaintiff's claim for loss of consortium also required proof of defendant's negligence. (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 408.) In order to prove defendant's negligence in connection with a diagnostic laparoscopy, expert testimony was required to establish the duty of care and defendant's breach thereof. (Sinz v. Owens (1949) 33 Cal.2d 749, 753; Wickoff v. James (1958) 159 Cal.App.2d 664, 669.) In the absence of proof relating to liability or causation, it was appropriate for the superior court to grant defendant's motion for non-suit. (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.)
Plaintiff asserts he was incarcerated when the motion for non-suit was filed, and that his attorney's failure to contest the motion should not be imputed to him. Again, plaintiff is mistaken. "`In civil litigation, the attorney, as the client's agent, and in the absence of fraud, has authority to bind his client in all matters pertaining to the regular conduct of a case. . . . In the absence of such
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