Mae E. Murray v. John M. Allen
| Decision Date | 05 May 1931 |
| Citation | 154 A. 678,103 Vt. 373 |
| Parties | MAE E. MURRAY v. JOHN M. ALLEN |
| Court | Vermont Supreme Court |
February Term, 1931.
Limitation of Actions---Malpractice---G. L. 1850---When Right of Action Accrues in Action for Malpractice---Fraudulent Concealment within Meaning of G. L. 1863---Insufficiency of Evidence To Show Fraudulent Concealment---Supreme Court without Power To Make Action Available in Disregard of Statute of Limitations.
1. Malpractice constitutes tort within meaning of statute of limitations.
2. Action for malpractice is "for the recovery of damages for bodily hurt * * * suffered by a person by the act or default of another" as defined, by G. L. 1850, and as such is expressly excepted from operation of G. L. 1849, and 3-year period of limitation prescribed by G. L. 1850 applies.
3. Where surgeon performing abdominal operation negligently failed to remove sponge from patient's body before wound was closed, and this fact was not discovered by patient until over five years thereafter when sponge passed from her body right of action accrued when negligent act upon which action is based took place, and not when consequential damages became known.
4. Where action for malpractice was based on failure of surgeon performing abdominal operation to remove sponge from plaintiff's body, operation having been performed more than three years before commencement of action, and, if there was negligence in after treatment of plaintiff by defendant in failing to discover presence of foreign substance in abdominal cavity, more than three years had elapsed after last examination by defendant before institution of action; statute of limitations had run, and action was barred.
5. Fraudulent concealment of cause of action, which, under G. L 1863, prevents running of statute of limitations prior to discovery of cause of action, means concealment with design to prevent discovery of facts which give rise to action.
6. Where surgeon performing abdominal operation negligently failed to remove sponge from patient's body before wound was closed, and, upon being visited by patient for treatment subsequent to operation, but more than three years prior to institution of action, told her that she was "getting along fine," cause of action was not fraudulently concealed within meaning of G. L. 1863 so as to prevent running of statute of limitations, there being no evidence that surgeon had any actual knowledge of presence of sponge.
7. Supreme Court, to make right of action available, cannot disregard plain wording of statute respecting limitation of action.
ACTION OF TORT for malpractice. Pleas, general issue and statute of limitations. Trial by jury at the June Term, 1930, Caledonia County, Sherman, J., presiding. Verdict directed for defendant, and judgment thereon. The plaintiff excepted. The opinion states the case.
Judgment affirmed.
Shields & Conant for the plaintiff.
Searles & Graves for the defendant.
Present POWERS, C. J., SLACK, MOULTON, and THOMPSON, JJ., and GRAHAM, Supr. J.
The defendant is a surgeon. On July 14, 1923, at the Brightlook Hospital in St. Johnsbury, he performed an abdominal operation upon the plaintiff. During this operation gauze sponges were placed in the abdominal cavity for the purpose of absorbing the blood and fluid, but proper practice required their removal after its completion. After the operation the plaintiff remained in the hospital for two weeks, and returned three or four times thereafter for treatment, the last time being September 25, 1923, when she saw the defendant, who told her that "she was getting along fine." She suffered thereafter pains in her side and abdomen to such an extent that she could not sleep without opiates or do her work, and her abdomen was distended and swollen. She consulted other physicians with only temporary relief until January 28, 1929, when she passed, with her stool, a surgical gauze about a yard in length, together with pus. After that her condition improved.
On May 29, 1929, she instituted this action against the defendant alleging negligence and lack of skill in the performance of the operation in that the gauze had not been removed from the wound. The defendant pleaded the general issue and the statute of limitations. On trial, at the close of the plaintiff's evidence, the defendant moved for a directed verdict on the ground that the action was barred by the statute. The motion was granted, and the plaintiff excepted.
By G. L. 1849 it is provided that: And by G. L. 1850 * * * *. "Actions for assault and battery, false imprisonment, slanderous words and libels, and for the recovery of damages for bodily hurt or injury to personal property suffered by a person by the act or default of another, shall be commenced within three years after the cause of action accrues, and not after."
That the alleged malpractice constitutes a tort is conceded by the plaintiff. It is clear that this is so, and that this action is ex delicto. Chalmers v. Southern P. Co. (C.C.A.), 8 F.2d 480, 481; Harding v. Liberty Hospital Corporation, 177 Cal. 520, 171 P. 98, 99; Frechette v. Ravn, 145 Wis. 589, 130 N.W. 453. It is equally clear that the action is "for the recovery of damages for bodily hurt * * * * suffered by a person by the act or default or another," as defined by G. L. 1850, and as such expressly excepted from the operation of G. L. 1849. In Harding v. Liberty Hospital Corporation, supra, 177 Cal. 520, 171 P. 98, 99, 100, it was held that a statute limiting the bringing of an action for injury caused by the wrongful act or neglect of another was applicable where the complaint charged the unskilful setting of a broken leg. In accord is Marty v. Somers, 35 Cal.App. 182, 169 P. 411, 412. In Klingbeil v. Saucerman, 165 Wis. 60, 160 N.W. 1051, 1 A.L.R. 1311, 1312, it is said that an action in tort for malpractice is plainly one to recover damages for injuries to the person and so covered by a statute limiting such actions. See, also, Bodne v. Austin, 156 Tenn. 353, 2 S.W.2d 100, 62 A.L.R. 1410, 1412-1414, and annotation, page 1417. The expressions "bodily hurt * * * * by the act or default of another" in G. L. 1850, and "injury caused by the wrongful act or neglect of another" or "injuries to the person" as contained in the statutes held applicable in the last-cited cases mean, so far as this form of action is concerned, the same thing.
The plaintiff argues that the right of action did not accrue until the fact that the gauze had not been removed was discovered, and that, consequently, the statutory period of limitation did not begin to run until that time. But the right of action accrued when the negligent act upon which the action is based took place, and not when the consequential damage became known. This principle has been applied in numerous cases wherein the facts were very similar to those in the case before us. In Cappuci v. Barone (1929), 266 Mass. 578, 165 N.E. 653, 654, 655, the defendant a surgeon, omitted to remove a gauze sponge from the abdominal cavity after operating upon the plaintiff. The presence of the sponge was not discovered until after the statutory period had elapsed since the operation. It was held that the statute began to run at the time of the negligent act and not when the actual damage resulted or was ascertained. The court went on...
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In the Matter of the Estate of William E. Delligan, Edward Leahy, Admr., By Joseph Duprey And Philip Delligan, Heirs
... ... the discovery of the facts which gave rise to the action ... Murray v. Allen , 103 Vt. 373, 378, 154 A ... 678; Watts v. Mulliken's Estate , 95 Vt ... 335, ... ...