Marvin v. Talbott

8 Citing cases

  1. Cobbs v. Grant

    8 Cal.3d 229 (Cal. 1972)   Cited 386 times
    Holding that a battery cause of action is only proper where a surgeon performs a surgery to which the patient has not consented

    Thus defendant insists that if experts unanimously opine that the defendant exercised due care, the jury may not substitute its judgment and find negligence. ( Sinz v. Owens (1949) 33 Cal.2d 749, 753 [ 205 P.2d 3, 8 A.L.R.2d 757]; Clemens v. Regents ofUniversity of California (1970) 8 Cal.App.3d 1, 11 [ 87 Cal.Rptr. 108]; Marvin v. Talbott (1963) 216 Cal.App.2d 383, 385 [ 30 Cal.Rptr. 893, 5 A.L.R.2d 908].) (1) Plaintiff contends the jury could reach a conclusion contrary to that of the experts because the decision to operate on his duodenal ulcer comes under the recognized exception to the need for medical testimony: the facts present a medical question resolvable by common knowledge.

  2. Guilmet v. Campbell

    385 Mich. 57 (Mich. 1971)   Cited 25 times

    That they do with an arrantly dixitized vengeance, for all of the skilled research clerks of Lansing, working with no surcease and without food or drink, never could come up with any kind of respectable or even plausible authority holding that a surgeon, said as having contracted to accomplish what none but the Great Maker could perform, may be held to respond in damages for having failed to provide it. Wilson v. Blair (1922), 65 Mont. 155 ( 211 P. 289, 27 ALR 1235); Marvin v. Talbott (1963), 216 Cal.App.2d 383 ( 30 Cal.Rptr. 893, 5 ALR3d 908); Gault v. Sideman (1963), 42 Ill. App.2d 96 ( 191 N.E.2d 436). The affirming Brethren attest on their own that no matter the skill with which these unusually competent and experienced specialist surgeons went about a perilously developing and finally successful task; that no matter they managed to save Mr. Guilmet's life by their efforts; that no matter the jury did find them not guilty of negligence, that these same specialists nonetheless "contracted" to provide — yes in "approximately three or four weeks at the most" — a "cure" for Mr. Guilmet's badly diseased and twice dangerously bleeding stomach and, having failed to have him "back at work" at end of that four week period, that they are due for mulct aggregating today more than $63,000.

  3. Depenbrok v. Kaiser Foundation Health Plan, Inc.

    79 Cal.App.3d 167 (Cal. Ct. App. 1978)   Cited 17 times
    In Depenbrok we went no further than to hold that a doctor may be held liable on a theory of breach of contract where he has clearly and unequivocally warranted that a course of treatment recommended by him will, inevitably, produce a certain result.

    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), 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). As in Marvin v. Talbott (1962) 216 Cal.App.2d 383 [ 30 Cal.Rptr. 893, 5 A.L.R.3d 908]. II

  4. Hutchison v. Southern California First Nat. Bank

    27 Cal.App.3d 572 (Cal. Ct. App. 1972)   Cited 12 times
    In Hutchison v. Southern California First National Bank, 27 Cal.App.3d 572, 103 Cal.Rptr. 816 (1972), the pledgors of stock sued the pledgee bank for an alleged breach of duty to preserve the value of collateral due to the bank's refusal to consent to a proposed transaction to sell call options and shares of pledged stock "short against the box."

    (3) Initially it should be noted, basic to the statement of a cause of action for damages premised on wrongful or negligent conduct is a showing the charged conduct caused the claimed damages. ( Petersen v. Lewis, 2 Cal.2d 569, 572 [ 42 P.2d 311]; Puckhaber v. Southern Pacific Co., 132 Cal. 363, 364 [ 64 P. 480]; Montijo v. Western Greyhound Lines, 219 Cal.App.2d 342, 346 [ 33 Cal.Rptr. 184]; Marvin v. Talbott, 216 Cal.App.2d 383, 385, 387 [ 30 Cal.Rptr. 893, 5 A.L.R.3d 908].) (4) The only allegations of causation and damage in the various causes of action are (1) as a "direct result" of defendant's breach of its duty to preserve the collateral which had been entrusted to it, i.e., defendant's refusal to consent to the transaction proposed by Blair Co., and its failure to employ "a knowledgeable person in the securities field who was assigned the duty of preserving pledged stock," plaintiffs were damaged in an amount more than $440,000; (2) if defendant "had acceded to plaintiffs' request to sell or pledge said Food Baron stock" the sale of their K.F.C. shares of stock would not have been necessary, and as a "direct result of the sale of KFC stock" [Italics ours] plaintiffs were damaged in the sum of $800,000 being the difference between the value of their K.F.C. shares of stock "which, in a normal market, would be worth $1,500,000," and the amount for which the stock was sold, i.e., approximately $700,000; and (3) as

  5. Keen v. Prisinzano

    23 Cal.App.3d 275 (Cal. Ct. App. 1972)   Cited 19 times
    In Keen, the defendant physician did not discover the full extent of a fracture to the plaintiff's heel and placed the foot in a cast but did not pin the fracture.

    (4) "Furthermore, to recover in a malpractice case it is necessary to prove that an alleged failure to exercise the care and skill required under the circumstances was a proximate cause of the condition about which complaint is made." ( Marvin v. Talbott (1963) 216 Cal.App.2d 383, 385-386 [ 30 Cal.Rptr. 893, 5 A.L.R.3d 908].) "In the absence of a showing that such result was a matter of common knowledge expert testimony [is] required."

  6. Sanchez v. Rodriguez

    226 Cal.App.2d 439 (Cal. Ct. App. 1964)   Cited 8 times
    Finding post-operative condition or the result of treatment was not within the knowledge of laymen

    Appellant left French Hospital without the knowledge of respondent and before the contemplated course of treatment had been completed. [1b] We conclude that res ipsa loquitur does not apply in this case and that appellant has produced no evidence that respondent failed to exercise the care and skill required under accepted medical standards in performing the cut-down and the subsequent treatment of her wrist, nor has she established that any alleged failure of duty by respondent was a proximate cause of the condition of her arm ( Marvin v. Talbott, 216 Cal.App.2d 383 [ 30 Cal.Rptr. 893].) [12] A doctor is not a warrantor of cures nor is he required to guarantee results and in the absence of a want of reasonable care and skill will not be held responsible for untoward results ( Huffman v. Lindquist, 37 Cal.2d 465 [ 234 P.2d 34, 29 A.L.R.2d 485]).

  7. Polikoff v. United States

    776 F. Supp. 1417 (S.D. Cal. 1991)   Cited 3 times

    Under California law, plaintiff must establish that some act or omission of the defendant physician fell below the standard of care in the community and that this act or omission was the proximate cause of plaintiff's injury. Willard v. Hagemesiter, 121 Cal.App.3d 406, 175 Cal.Rptr. 365 (1981); Marvin v. Talbot, 216 Cal.App.2d 383, 30 Cal.Rptr. 893 (1963). 7.

  8. 85 Op. Att'y Gen. 348

    85 Op. Att'y Gen. 348 (Ops.Md.Atty.Gen. 2000)

    In a case involving a "traditional" surrogacy contract, the California intermediate appellate court distinguished Johnson on the ground that the birth mother was genetically related to the child, and concluded that the state's adoption laws applied. See In re Marriage of Moschetta, 30 Cal.Rptr. 893 (Cal.Ct.App. 1994). For example, in some jurisdictions, statutes that forbid baby selling have an exception for payments between the parents of a child — an exception that is pertinent in the context of a typical surrogacy contract, under which a male party to the contract will be the child's biological parent.