Opinion
C041913.
11-7-2003
ROBERT DENNIS, Plaintiff and Appellant, v. RIGOBERTO GUTIERREZ, Defendant and Respondent.
Robert Dennis (plaintiff) appeals from a judgment in favor of Rigoberto Gutierrez, M.D. (defendant), following the grant of a nonsuit on plaintiffs complaint. As plaintiffs 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 plaintiffs 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 wifes vaginal area, and wife was diagnosed with severe oligohydramnios. Defendant recommended induction of labor, to which wife agreed. The fetus was stillborn. Wifes 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 defendants motion for nonsuit on plaintiffs 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.
Plaintiffs claim for negligent infliction of emotional distress required proof of negligence on defendants part. (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072-1073.) Similarly, plaintiffs claim for loss of consortium also required proof of defendants negligence. (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 408.) In order to prove defendants negligence in connection with a diagnostic laparoscopy, expert testimony was required to establish the duty of care and defendants 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 defendants motion for nonsuit. (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.)
Plaintiff asserts he was incarcerated when the motion for nonsuit was filed, and that his attorneys failure to contest the motion should not be imputed to him. Again, plaintiff is mistaken. "`In civil litigation, the attorney, as the clients 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 special instructions, the conduct and management of the action is entrusted to the attorneys judgment; he decides what should be contested, what points should be taken, and what should be abandoned. This authority is, however, subject to the qualification that an attorney ordinarily does not have implied authority to do an act which will effect the surrender or loss of a clients substantial rights, for the client determines "the objectives to be attended." [Citation.] There is, however, a presumption that he has authority to compromise his clients action which he is prosecuting. [Citations.]" (Gagnon Co., Inc. v. Nevada Desert Inn (1955) 45 Cal.2d 448, 460.) The person attacking the attorneys authority to act on his clients behalf bears the burden of proof. (Kallman v. Henderson (1965) 234 Cal.App.2d 91, 98.) Plaintiff points to no matter of record that would rebut the presumption that his attorney was authorized to enter into the stipulation that ultimately formed the basis of the courts decision to grant a nonsuit on plaintiffs claims. His argument thus lacks merit.
DISPOSITION
The judgment is affirmed, with costs on appeal to defendant.
We concur: BLEASE, Acting P.J. and HULL, J.