Schmitt v. Esser

• Decision Date: 28 June 1929
• Docket Number: No. 27286.,27286.
• Citation: 226 N.W. 196,178 Minn. 82
• Parties: SCHMITT v. ESSER.
• Court: Minnesota Supreme Court

226 N.W. 196

178 Minn. 82

SCHMITT v. ESSER.

No. 27286.

Supreme Court of Minnesota.

June 28, 1929.

Appeal from District Court, Otter Tail County; Carroll A. Nye, Judge.

Action by Mary Schmitt against John Esser. Demurrer to the amended complaint was overruled, and questions certified as important and doubtful, and defendant appeals. Affirmed.

Frankberg, Berghuis & Frankberg, of Fergus Falls, for appellant.

Mark & Barron, of Wadena, for respondent.

HOLT, J.

A demurrer to the amended complaint was overruled, but the question presented was certified as important and doubtful. Defendant appeals.

The action is for malpractice. Plaintiff alleges that on March 5, 1926, she employed defendant, a duly licensed physician and surgeon, to set, adjust, care for, and heal plaintiff's right ankle, which was then broken and dislocated; that he undertook so to do, treating for the injury from March 5, 1926, to July 1, 1926, and representing that, because of the peculiar injuries, they would not heal completely for two years after the treatment was finished; that defendant so negligently and unskillfully conducted himself in such employment that the fracture never set, the dislocation was never reduced, and the bones in the ankle did not unite; that he failed to take proper X-ray pictures of the injuries at any time during the treatment and after the cast was removed; that plaintiff had confidence in defendant, followed his instructions, and believed his statements; that, to conceal his negligent treatment, defendant falsely and fraudulently stated to plaintiff at all times during the treatment that the fracture was one which from its nature required two years time in which to heal, after the fractured bones were set and the dislocation reduced; that the statements were false, known by defendant to be false, and were made to deceive plaintiff; and that plaintiff did not discover their falsity until June 1, 1928, wherefore damages are sought. The demurrer was on the ground that the complaint disclosed the action was barred. The summons was served June 5, 1928. Two questions are presented: (1) Is the cause of action barred by the statute of limitations? (2) Does the allegation of fraud suspend the operation of the statute?

In the cure of a fracture, there is not only the act of setting the bones, that is, bringing the broken ends into juxtaposition, but also to so keep them by splints or casts until nature unites the fracture. There is a tendency for the ends to overlap because of muscle tension. And it is common knowledge that, to counteract this tension, it is often necessary to resort to the use of weights and mechanical contrivances which may need constant attention and adjustment. Change of casts may also be necessary at intervals. So that, even if the ends of the bones were brought into perfect apposition by the first treatment, days or perhaps weeks thereafter they may slip out of place through some mishap or because of fault of the surgeon or nurse in the management of the cast, weights, or mechanical contrivances. It is also true that a surgeon employed in a case of fracture may find conditions such that it is inadvisable to immediately reduce. Because of swelling and laceration, the so-called setting may have to be delayed for days. Again, cases are not unknown where with the utmost skill and care either no union has formed or has resulted so badly that a surgical operation is necessary in order to effect a cure. Such operation is part of the treatment necessitated not by any previous neglect or failure to use proper skill, but arising from some condition or cause for which the surgeon is not responsible.

In malpractice cases, there is, of course, difficulty in determining the precise moment when the act or omission which caused the damage took place. The neglectful or unskillful act may occur at some particular moment in months of attendance upon the patient, or it may persist and characterize the whole treatment. Therefore it would seem advisable not to apply the bar of the statute on demurrer, unless it clearly appears from the complaint that the unskillful or negligent act which caused the injury took place at a date more than two years before the action was brought. It is true that, if there be but a single act of malpractice, subsequent time and effort to merely remedy or cure that act could not toll the running of the statute. This is applicable to a case of a radium burn. Ogg v. Robb, 181 Iowa, 145, 162 N. W. 217, L. R. A. 1918C, 981; Furgason v. Bellaire, 197 Iowa, 277, 197 N. W. 13. Appellant relies on California decisions that, where the malpractice charged is failure to properly reduce bone fracture, a demurrer is properly sustained to a complaint which shows that, between...