Peteler v. Robinson

• Citation: 81 Utah 535,17 P.2d 244
• Decision Date: 29 December 1932
• Docket Number: 4859
• Court: Supreme Court of Utah
• Parties: PETELER v. ROBINSON

17 P.2d 244

81 Utah 535

PETELER v. ROBINSON

No. 4859

Supreme Court of Utah

December 29, 1932

Petition for Rehearing Denied July 21, 1933.

Appeal from District Court, Third District, Salt Lake County; Chris Mathison, Judge.

Action by Ethel P. Peteler against Dr. J. C. Robinson. Judgment for defendant, and plaintiff appeals.

REVERSED AND REMANDED, with directions.

S. P Armstrong and J. M. Hamilton, both of Salt Lake City, for appellant.

Hurd &amp Hurd, of Salt Lake City, for respondent.

EPHRAIM HANSON, J. CHERRY, C. J., and STRAUP, ELIAS HANSEN, and FOLLAND, JJ., concur.

OPINION

EPHRAIM HANSON, J.

This case went off on a demurrer to the amended complaint. The plaintiff appeals. By the amended complaint it in substance is alleged that the defendant was a physician and surgeon engaged in the practice of his profession and specialized in the treatment of the eye, ear, nose, and throat; that on or about January 16, 1919, the plaintiff, who was "suffering from a slight and incipient sore throat," professionally consulted the defendant, who undertook to treat her and to act for her in the treatment of her ailment; that on January 18, 1919, in pursuance of the employment, the defendant performed a surgical operation on her throat and tonsils, "and cut and tore her said tonsils loose, and removed the same from both sides of her throat," and that in violation of his contract, and in disregard of his duty "and without any fault of plaintiff, negligently failed to exercise reasonable care, knowledge, prudence, skill and ability in his examination of plaintiff's throat, and in his diagnosis made of her trouble and sore throat, and in prescribing and employing the proper treatment and remedy for her sore throat, and negligently failed to exercise due and reasonable knowledge, skill, ability and prudence in employing such surgical operation, in that he negligently failed to apply well known and proper local treatment, such as medicated lotions, sprays and irrigations as a remedy, and that said surgical operation was not indicated or proper, and was wholly unnecessary in the treatment of plaintiff's sore throat for which defendant treated her, in that plaintiff's said tonsils were not affected with disease," and that it was unnecessary to remove plaintiff's tonsils, and that the defendant failed to exercise reasonable care, skill, and ability "in cutting, lacerating and removing said tonsils, and in not sterilizing the cuts and lacerations, and prescribing and employing proper treatment and remedy," whereby, and by reason of such negligence, plaintiff's throat became "poisoned and infected and inflamed, to such extent that plaintiff's jaws became locked," so that the plaintiff was unable to open her mouth and that defendant was required to "pry her jaws open." It is further alleged that at the defendant's request the plaintiff thereafter visited the defendant at his office for further and continued treatment every day for a week, and thereafter every two or three days for a period of more than one year, or until about the month of December, 1920, at which time, because of the infection created by the negligent treatment of the defendant, the plaintiff's ear became involved and infected, and that the defendant thereupon performed "a surgical operation on plaintiff's left ear, cutting and lancing the inner ear," and at the defendant's request the plaintiff thereafter visited the defendant at his office for treatment every day from thence on until July, 1921, when the defendant performed a surgical operation on plaintiff's other ear, cutting and lancing the inner ear, and that the plaintiff, thereafter at the defendant's request, visited him at his office for further and continued treatment every day up to and including April, 1926, and since April, 1926, every two or three days up to and including October 22, 1926, after which time the defendant no longer prescribed for or treated the plaintiff.

It is further alleged that the defendant, "without any fault of plaintiff, negligently failed to exercise reasonable care, knowledge, prudence, skill and ability, in treating plaintiff's poisoned and infected throat, and thereby negligently allowed the septic poisons generated in plaintiff's infected throat to be, and the same were absorbed and carried into her body, where they poisoned and infected her nervous system and heart," and that the defendant "negligently failed and omitted to prescribe and employ proper and necessary constitutional treatment and remedy, such as tonics, quinine, stimulants, pure food, fresh air, and sunshine, to build up and support her vitality, and to enable nature to overcome and throw off the septic poisons from her body," and that the only remedy the defendant employed and prescribed was to cauterize her infected throat with silver nitrate. It is further alleged that, "the purpose of each and all of plaintiff's said visits to defendant's office since said tonsil operation, was that defendant might endeavor, and have opportunity to repair and lessen the evil effects of his said careless blunder in removing plaintiff's tonsils, and failing to sterilize the cuts and wounds thereby made." It is further alleged that the defendant was not only guilty of negligence in exercising proper skill in diagnosing plaintiff's sore throat and in prescribing treatment therefor, but that he was also guilty of negligence in the treatment of the "septic poisoning and infection," and that "the acts and omissions of defendant aforesaid, from the time of his said negligent operation on plaintiff's tonsils, till October 2, 1926, are a perpetual series of continuing negligence," by reason of which the plaintiff was permanently injured, which injuries were specifically and in detail alleged and described.

The plaintiff further alleged (paragraph 12 of the amended complaint) that the "defendant, with intent to deceive plaintiff, and to induce her to refrain from bringing an action against him for his malpractice, of which he well knew he was guilty, fraudulently concealed from plaintiff the facts as to his negligence, and fraudulently lulled her into the belief that the evil results were the natural sequence of the operation, and defendant baited her along by treatment, painting her poisoned and infected throat with nitrate of silver, and by his promises and representations to her that such treatment would repair and correct her infected throat, induced her to refrain from consulting other physicians from whom she might learn the facts that the poisoning and infection of her throat and consequent septic condition of her nervous system and heart were proximately caused by the negligent and unskillful treatment of defendant. That plaintiff was ignorant of the facts, and believed and relied upon the representations and promises so made to her by said defendant, her physician and surgeon, and was misled thereby. That since October 2, 1926, she first learned and became aware of the fact that the septic condition of her throat was proximately caused by the said negligence of defendant. That thereupon and by reason thereof and of said deceit, defendant is estopped, and ought not to be permitted to say or allege that plaintiff's cause of action is barred by the statute of limitations, and defendant ought to be debarred from relying on said Statute."

To such complaint the defendant demurred upon the grounds:

"1. That said Amended Complaint does not state facts sufficient to constitute a cause of action against said defendant for the reason, among others, that plaintiff's alleged cause of action, if any she ever had, is now and was at the time of the commencement thereof barred by the provisions of section 6474, Compiled Laws of Utah, 1917; and for the further reason, among others, that plaintiff has been guilty of extreme laches in the commencement of said action."

The further stated grounds of the demurrer were that the "amended complaint is uncertain," in that it did not appear and could not be ascertained from the amended complaint how or in what way plaintiff claimed that the defendant was negligent in the performance of the alleged operation of January 18, 1919, or what particular act or acts of omission or commission in the performance thereof constituted the negligence complained of; that the amended complaint further was uncertain, in that it did not appear and could not be ascertained in what way the defendant was negligent in the diagnosis and treatment of plaintiff's throat; and that the amended complaint further was uncertain, ambiguous, and unintelligible, in that it could not be ascertained therefrom whether the plaintiff "will rely, on the trial of said action, upon the alleged negligence of defendant in the performance of said alleged operation of January 18th, 1919, or whether plaintiff will rely upon the alleged negligence of defendant in diagnosing and treating plaintiff's throat."

There also was a motion interposed by the defendant to strike portions of the amended complaint.

Upon argument and a submission of the demurrer, the court "ordered that said demurrer be and the same is hereby sustained on the ground that the action is barred by the Statute of Limitations"; and, the plaintiff having elected to stand on the amended complaint, "it is ordered that said action be, and the same is hereby dismissed."

There is but one question, the statute of limitations. As is seen the demurrer interposed was not a general demurrer for want of facts to state a cause of action, but was interposed upon the ground of limitations and of uncertainty. Of course, a failure of a complaint to state facts sufficient to constitute a cause of action may be raised at any stage of the proceedings, even for the first time in the...