Weinstock v. Eissler

In Weinstock v. Eissler (1964) 224 Cal.App.2d 212, the patient was in the hospital and consented to an angiogram. He alleged that he had been improperly advised as to the necessity of the procedure and the risks involved, that he had never consented to a spinal tap, which was also performed, and as a result of the procedures had sustained partial paralysis and loss of speaking ability, as well as other injuries. The complaint was filed 15 months after the procedures were performed and pled 3 causes of action: medical malpractice, fraud and battery. The court held that none of the three causes of action were barred by the statute of limitations. The Court concluded that the allegation concerning the spinal tap procedure could be sustained on a battery theory. As plaintiff alleged that his consent to the angiogram had been induced by false representations on the part of the physician, it was in essence an unauthorized procedure and a battery. The defendants in Weinstock, supra, 224 Cal.App.2d 212, had maintained that the battery and fraud actions were new causes of action which did not relate back to the filing of the original complaint and, therefore, were barred by the statute of limitations. The court, however, held (at p. 235), that while the battery and fraud causes of action expressed a change of legal theory, they stemmed from the same legal obligation of the defendant and, therefore, were not barred by the statute of limitations. As the court in Weinstock did no more than overrule the demurrers and did not reach the merits of the case, we must, therefore, look to other authorities relating to the nature and extent of information that must be given by the physician to the patient before the patient can give a knowledgeable consent to a medical procedure or treatment. In short, the court held the one-year, malpractice limitation period applied even though the plaintiff alleged a cause of action for deceit based on the physician's false representations and fraudulent concealment of the nature and extent of injury. The false representation and concealment claim was treated as a medical malpractice claim for purposes of applying the statute of limitations. (Ibid.)