173 S.W.2d 760 (Mo. 1943), 38484, Thatcher v. De Tar

Docket Nº:38484
Citation:173 S.W.2d 760, 351 Mo. 603
Opinion Judge:WESTHUES
Party Name:William Thatcher, Appellant, v. B. E. De Tar
Attorney:Louis N. Wolf for appellant. Seiler, Blanchard & Van Fleet, Herbert Van Fleet, McReynolds & Flanigan and John H. Flanigan, Jr., for respondent.
Judge Panel:Westhues, C. Bohling and Barrett, CC., concur.
Case Date:August 27, 1943
Court:Supreme Court of Missouri
 
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173 S.W.2d 760 (Mo. 1943)

351 Mo. 603

William Thatcher, Appellant,

v.

B. E. De Tar

No. 38484

Supreme Court of Missouri

August 27, 1943

Appeal from Jasper Circuit Court; Hon. Ray E. Watson, Judge.

Reversed and remanded.

Louis N. Wolf for appellant.

(1) The operation and the post-operative treatment should be considered as a whole, and if there occurred therein malpractice, the Statute of Limitations should begin to run when the treatment ceased. Schmit v. Esser, 178 Minn. 82, 226 N.W. 196, and subsequent appeal, 236 N.W. 622; Sly v. Van Lengen, 198 N.Y.S. 608; Gillette v. Tucker, 67 Ohio St. 106, 65 N.E. 865; Bowers v. Santee, 124 N.E. 238; Williams v. Elias, 1 N.W.2d 121; De Haan v. Winter, 241 N.W. 923; Groendal v. Westrate, 171 Mich. 92, 137 N.W. 87; Bush v. Cress, 178 Minn. 482, 227 N.W. 432; Schanil v. Branton, 181 Minn. 381, 232 N.W. 708; Lotten v. O'Brien, 146 Wis. 258, 131 N.W. 361; Huysman v. Kirch, 57 P.2d 908; Trombley v. Kolts, 29 Cal.App. (2d) 699, 85 P.2d 541; Petrucci v. Heidenreich, 111 P.2d 421; Ehlen v. Burrows, 124 P.2d 82; Pellett v. Sonotone Corp., 130 P.2d 181; Shives v. Chamberlain, 126 P.2d 28; Hotelling v. Walther, 130 P.2d 944; Peteler v. Robinson, 17 P.2d 244; Neil v. Flynn Lbr. Co., 78 W.Va. 235, 88 S.E. 1090; Burton v. Tribble, 70 S.W.2d 503. (2) Where a surgeon is employed to perform an operation, the relationship continues after the operation and until treatment ceases, during all of which time he must exercise ordinary care. Reed v. Laughlin, 58 S.W.2d 440; Boyd v. Andrae, 44 S.W.2d 891; Norton v. Amer. School of Osteopathy, 2 S.W.2d 215; Cazzell v. Schofield, 8 S.W.2d 580; Lewis v. McClellan, 1 S.W.2d 247. (3) Where the tort is continuing, the right of action is also continuing. Trembley v. Kolts, 85 P.2d 541; Huysman v. Kirch, 57 P.2d 908; Moak's Underhill on Torts, p. 69. (4) The Statute of Limitations begins to run, not when the "wrong is done or breach of duty occurs, but when the damage resulting therefrom is sustained and capable of ascertainment, and if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained." Sec. 1012, R. S. 1939. (5) Plaintiff's "cause of action" was not "capable of ascertainment," until after he had first obtained knowledge thereof on September 16, 1940, and less than two years thereafter he filed suit. Sec. 1012, supra, first proviso clause. Science & Sanity, An Introduction to Non-Aristotelian Systems and General Semantics (1941 Edition), by Alfred Korzybski; Lewis v. Thompson, 96 S.W.2d 938, 946, "Capable of ascertainment" does not mean susceptible of ascertainment; State ex rel. Fichtner v. Haid, 22 S.W.2d 1045, 1047, "Capable of ascertainment" means known, made certain, to make sure, publicly known; Huysman v. Kirch, 57 P.2d 908; Trombley v. Kolts, 85 P.2d 541; Burton v. Tribble, 70 S.W.2d 503; Colvin v. Warren, 163 S.E. 268; Petrucci v. Heidenreich, 111 P.2d 421; Groendal v. Westrate, 171 Mich. 92, 137 N.W. 87; Pellett v. Sonotone Corp., 130 P.2d 181. (6) The amended petition avers facts sufficient to state one good cause of action for negligence during an operation and post-operative treatment, and the trial court could not have sustained the demurrer for this reason. Peteler v. Robinson, 17 P.2d 244; Davidson v. St. Louis S.-F. Ry. Co., 229 S.W. 786; Cushulas v. Schroeder & Tremayne, 22 S.W.2d 872, certiorari quashed 41 S.W.2d 789; Zichler v. St. Louis Pub. Serv. Co., 59 S.W.2d 654; Reuter v. Terminal Railroad Assn., 261 S.W. 713.

Seiler, Blanchard & Van Fleet, Herbert Van Fleet, McReynolds & Flanigan and John H. Flanigan, Jr., for respondent.

(1) It appears affirmatively on the face of appellant's amended petition that the only actionable negligence on the part of respondent consisted in permitting the needle to remain in the operative incision on August 25, 1937, more than four years before this suit was instituted. Accordingly, the appellant's cause of action is barred by the special Statute of Limitations applicable to malpractice actions. Sec. 1016, R. S. 1939; Barnhoff v. Aldridge, 38 S.W.2d 1029; 37 C. J. 897, sec. 259; 41 Am. Jur., 233, sec. 123; 21 R. C. L. 401, sec. 44 Cappuci v. Barone, 266 Mass. 578, 165 N.E. 653; Hahn v. Claybrook, 100 A. 83, L. R. A. 1917C, 1169; Ogg v. Robb, 162 N.W. 217, L. R. A. 1918C, 982; Becker v. Floersch, 153 Kan. 374, 110 P.2d 752; Allison v. Mo. P. & L. Co., 59 S.W.2d 771. (2) The appellant's failure to discover the specific cause of his pain, suffering and disability does not toll the Statute of Limitations. 1 Am. Jur. 459, sec. 60; State ex rel. State Life Ins. Co. v. Faucett, 163 S.W.2d 592; Silvertooth v. Shallenberger, 174 S.E. 365; Carter v. Harlan Hospital Assn., 97 S.W.2d 9; Murray v. Allen, 154 A. 678; Bodne v. Austin, 2 S.W.2d 104; Cappuci v. Barone, 266 Mass. 578, 165 N.E. 653; 25 Cyc., p. 1116; Barnhoff v. Aldridge, 38 S.W.2d 1029; Schmit v. Esser, 226 N.W. 196, 236 N.W. 622; Gillette v. Tucker, 65 N.E. 872; Annotation, 74 A. L. R. 1319; McArthur v. Bowers, 76 N.E. 1128; Bowers v. Santee, 124 N.E. 238.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

[351 Mo. 605] This case involves an interpretation of section 1016, Mo. Rev. St. Ann. (1939), which requires malpractice suits to be filed within two years from the date of the act of negligence complained of. Plaintiff filed suit against defendant seeking $ 10,000.00 in damages. The trial court sustained defendant's demurrer and plaintiff refused to plead further. His petition was dismissed and judgment entered whereupon plaintiff appealed.

The petition was filed on August 29, 1941. The allegations thereof in substance are, that in August, 1937, plaintiff

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employed the defendant professionally and was advised that he was suffering from appendicitis; that plaintiff submitted to an operation for the removal [351 Mo. 606] of the appendix on August 25, 1937; that during the course of the operation defendant permitted a surgical needle to remain in plaintiff's body; that thereafter defendant continued to treat plaintiff until October, 1939, without any relief from his condition; that in October, 1939, plaintiff obtained the services of other physicians and on September 16, 1940, submitted to another operation, when he learned for the first time that his pain and disability, after the operation performed by the defendant, were due to and caused by the presence of said needle.

Appellant in his statement, which was adopted by respondent, summarized the charges of negligence as follows:

"1. The defendant negligently failed to exercise proper care or skill in performing said operation in that during the course of said operation the defendant negligently caused, allowed and permitted a surgical needle to be and remain in said wound.

"2. The defendant negligently failed to remove said needle from plaintiff's body.

"3. The...

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