Becker v. Floersch

• Decision Date: 08 March 1941
• Docket Number: 35062.
• Citation: 153 Kan. 374,110 P.2d 752
• Parties: BECKER v. FLOERSCH.
• Court: Kansas Supreme Court

110 P.2d 752

153 Kan. 374

BECKER v. FLOERSCH.

No. 35062.

Supreme Court of Kansas

March 8, 1941

Rehearing Denied April 18, 1941.

Syllabus by the Court.

An action for malpractice is barred by two-year limitation statute which begins to run from the time that the malpractice was committed. Gen.St.1935, 60-306, subd. 3.

The mere fact that physician continued to treat patient after alleged malpractice occurred, would not toll two-year limitation statute. Gen.St.1935, 60-306, subd. 3.

Rule followed that an action for malpractice is barred in two years from the time such wrongdoing was committed; and the statutory time within which to bring the action was not extended beyond two years merely because plaintiff remained for a time under the professional care of defendant after the alleged malpractice was committed.

Appeal from District Court, Shawnee County, Division No. 2; Paul H Heinz, Judge.

Action by Ruth L. Becker against Dr. M. A. Floersch to recover damages for alleged malpractice. From a judgment sustaining a demurrer to the petition, the plaintiff appeals.

Judgment affirmed.

Keene Saxon, of Topeka, for appellant.

J. D M. Hamilton, Barton E. Griffith, and Peter F. Caldwell, all of Topeka, for appellee.

DAWSON Chief Justice.

This is an appeal from a judgment sustaining a demurrer to a petition in which plaintiff sought a recovery of damages for malpractice.

The trial court's ruling was based on the two-years' limitation allowed by statute within which an action of that character, sounding in tort, can be maintained. G.S. 1935 60-306, 3rd clause.

In her petition which was filed on November 16, 1939, plaintiff alleged that on January 12, 1935, she was suffering from a tumorous growth in her abdomen and was advised to consult the defendant who had been highly recommended as a physician and surgeon and as "one who could correctly advise her as to whether or not she needed an operation." Accordingly she and her husband called at defendant's office and made a full disclosure of her physical ailment and asked his advice and that defendant said he was an X-ray specialist and that he could guarantee to cure the tumorous growth that ailed her in ten X-ray treatments at $10 each, or for $75 in all. Plaintiff alleged that she paid the required amount in installments; and on January 12, 1935, she began taking X-ray treatments in defendant's office and under his direction and so continued until February 18, 1936, by which time she had taken about 90 such treatments; and that thereafter defendant began and continued to give her other types of treatment until May 1939, at which time she discharged him from further professional services.

Plaintiff also alleged that on February 18, 1936, and "for some three months thereafter" plaintiff took iodine internally as recommended by defendant; that at his special direction and request, between March 6 and May 12, 1936, she had 19 teeth extracted; that about February, 1936, plaintiff began to suffer from a new ailment, which defendant described as rheumatism and treated her therefor; that in February 1935, plaintiff ceased to menstruate and became sterile, "which this plaintiff has learned since arose from and was caused by the X-ray treatments heretofore mentioned."

Plaintiff also alleged defendant continued to treat the plaintiff until May, 1939, and that ever since she first consulted defendant in January, 1935, until she discharged defendant in 1939, she suffered continuously. Without a specific allegation that such suffering was the result of defendant's malpractice, she alleged:

"That had she been properly and skillfully cared for and treated in the winter and spring of 1938 and 1939 she would have been at least temporarily relieved of pain and possibly permanently cured; that said defendant during the fall and winter of 1938 and spring of 1939 administered to this plaintiff treatments that were wholly unsuited to the malady from which she suffered, but that all of these facts were unknown to plaintiff and concealed by the defendant and something that the plaintiff was not aware of until May, 1939.

"That all of the ninety odd X-ray treatments given by this defendant to plaintiff lasted thirty minutes to two hours each time and caused great suffering and excruciating pain to the plaintiff which plaintiff was advised by the defendant was a necessary sequel and that she must suffer and endure the suffering in order to gain the relief which she sought; that the plaintiff has learned since that time, that the same was unnecessary and that if said treatments had been properly administered she would not have suffered so."

Plaintiff's petition continued: "Plaintiff further states that after defendant ceased to administer X-ray treatments and approximately in March, 1936, the plaintiff's abdomen became hard in spots and gradually caked all over; the plaintiff began to run a temperature and that the said temperature, caking of the abdominal wall and great pain in the abdomen continued on from March 1, 1936, until November 1, 1936; that thereafter festerous sores began to break out on plaintiff's abdomen and that said sores with 'scabs' over them would be extremely painful at times and at other times not evidencing much pain; that this continued until about the 1st of February, 1937, at which time said sores became more festerous and more painful and that all of this time complained of and at times hereinafter complained of up until May, 1939, this plaintiff was under the constant treatment of the defendant and although the plaintiff asked the defendant many times what caused the pain and suffering and what caused her injuries, defendant would decline and continued to decline to advise the plaintiff the cause and nature of her injuries but told her that he would treat her free of charge. Plaintiff further states that said defendant did continue to treat said plaintiff free of charge up to the time he was discharged in May, 1939."

Recapitulating the grounds of her cause of action, plaintiff alleged that defendant was guilty of negligence in giving her 90 X-ray treatments instead of 10 as he "had promised, advised and agreed," and that defendant:

"Was guilty of

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