Is a plaintiff entitled to recover for medical malpractice on a variety of theories?

Relying primarily on Cobbs v. Grant (1972) 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1, defendants contend that a recovery for medical malpractice can be had only on a theory of negligence. That reliance is misplaced. Cobbs involved a case submitted to a jury only on the theories of

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In Crawford v. Duncan (1923) 61 Cal.App. 647, 215 P. 573, plaintiff alleged that she had consented to radium treatments in reliance on the express oral statement of defendant doctor "that no permanent scar of any kind would result from the treatment," a warranty that proved to be false. The court held that she was entitled to recover on the theory of a breach of an express contract, a cause of action on which the statute of limitations had not run.

In Custodio v. Bauer (1967) 251 Cal.App.2d 303, 59 Cal.Rptr. 463, the court considered the sufficiency, as against general demurrer, of a complaint for medical malpractice based on a variety of theories. One of those theories was a breach of an express contract that a proposed operation would result in sterilization of the plaintiff wife. After pointing out that, absent an express contract, there could be recovery only for negligence, the court said (at p. 351, 59 Cal.Rptr. at 471):