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Pleasant v. Celli9/7/1993
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT DISTRICT, DIVISION TWO
No. B062550.
1993.CA.42466 ; 18 Cal. App. 4th 841; 22 Cal. Rptr. 2d 663
Decided: September 7, 1993.
PENNY PLEASANT, PLAINTIFF AND RESPONDENT,
v.
THOMAS M. CELLI ET AL., DEFENDANTS AND APPELLANTS.
Superior Court of Los Angeles County, No. C604829, Coleman A. Swart and Harold J. Ackerman,
McKay, Byrne & Graham, Michael Byrne, Douglas G. Benedon, Esner, Marylander & Zakheim, Esner, Marylander, Zakheim & Higa, Stuart B. Esner, Grant Marylander and Rosalyn S. Zakheim for Defendants and Appellants.
Michael J. Piuze and John Keiser for Plaintiff and Respondent.
Opinion by Boren, P. J., with Fukuto and Nott, JJ., Concurring.
Boren
An attorney was sued for allowing the statute of limitations to expire on his client's medical malpractice claim. A jury found the attorney liable for malpractice, and assessed damages for negligent infliction of emotional distress against him as well.
On appeal, the attorney contends that the suit against him is barred by the statute of limitations. We conclude that the action was timely filed. He also contends that the award for negligent infliction of emotional distress is barred as a matter of law. Under the circumstances presented here, we agree, and modify the judgment accordingly.
FACTS
Respondent Penny Pleasant gave birth to a daughter, Deja, in April of 1980. On September 1, 1981, Pleasant took Deja to their family physician because the child was feverish, sleepless, had cold sweats, was not urinating, and lacked appetite. Several courses of antibiotics and cough syrup were
prescribed, but Deja's condition steadily worsened. Although the child had scarcely eaten in 10 days, and there was a rash around her mouth, Pleasant was told by a physician that she was being an overprotective mother. The rash began to spread down Deja's chin and throat, but still no blood tests or cultures were recommended by her doctor.
Finally, on September 19, 1981, Deja stopped breathing. She was dead on arrival at the hospital. Pleasant's experts opined that (1) the cause of Deja's death was esophagitis and gastritis contributed to by dehydration, and (2) the physician's conduct fell below the standard of care required of family physicians. The autopsy report concluded that the most likely cause of death was "acute esophagogastritis and regional lymphadenitis, with nonspecific myocardiopathy and sickle cell trait."
In October of 1981, Pleasant contacted appellant Thomas M. Celli regarding Deja's death. Pleasant told Celli she did not know what went wrong, but that she felt the child should not have died. Celli told her he understood how she felt because he, too, had an infant. He agreed to investigate the possibility of a suit for medical malpractice. An expert retained by Celli in 1981 informed him that he did not have a case against the hospital or the physician who treated Deja.
In 1983, Celli told Pleasant her case lacked merit. Pleasant became tearful and upset. She could not understand why it had taken so long to tell her she had no case. Celli could not explain the two-year delay. Although Pleasant was told her case was unmeritorious, Celli's firm had actually filed a medical malpractice suit on Pleasant's behalf on November 24, 1982. The suit alleged causes of
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