Foster

Defendant Lawrence H. Foster, M.D., appeals from a judgment of the Superior Court of El Dorado County entered upon a jury verdict in favor of plaintiff Lucille Stone in an action for medical malpractice and fraud. The judgment awarded plaintiff $50,000 for negligence, and $15,000 punitive damages, from which $4,000 was set off pursuant to stipulation to account for a settlement with another defendant. The trial court entered an order awarding plaintiff costs of $3,500.10.

Defendant contends (1) plaintiff’s theory of fraud cannot be sustained and the submission of the case to the jury on that basis requires reversal; (2) the trial court erred in the jury instructions; (3) the trial court erred in excluding certain evidence; (4) the evidence does not support the verdict; (5) plaintiff’s counsel was guilty of misconduct and that misconduct requires reversal; and (6) the trial court erred in the award of costs.

Since we reverse the judgment for the reasons hereinafter stated, we do not discuss defendant’s contention that the trial court erred in the award of costs.

Facts

In early summer, 1975, plaintiff was a 43-year-old blackjack dealer at Harvey’s Resort at Lake Tahoe.…