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.
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.
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
(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
(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."
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]).
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.
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.