Schmit v. Esser
| Decision Date | 15 May 1931 |
| Docket Number | 28,375 |
| Citation | 236 N.W. 622,183 Minn. 354 |
| Parties | MARY SCHMIT v. JOHN ESSER |
| Court | Minnesota Supreme Court |
Action in the district court for Otter Tail county to recover damages for malpractice. Plaintiff recovered a verdict of $8,800, and defendant appealed from an order, Cameron, J denying his alternative motion for judgment or a new trial. Reversed and new trial granted.
Duty of physician.
1. When a physician is employed generally to treat and heal an injury he owes the duty of continued care and treatment.
Statute of limitations in malpractice action.
2. The rule followed here and stated in the former opinion, 178 Minn. 82, 226 N.W. 196, is that the statute of limitations in malpractice cases begins to run when the treatment ceases.
When negligent failure to treat is negligence.
3. Negligent failure to treat an injury at a time when the need of treatment is known to the physician and there is opportunity to apply proper treatment amounts to the same as negligent treatment.
When relation to patient ceases.
4. So long as the relation of physician and patient continues as to the particular injury or malady which he is employed to cure and the physician continues to attend and examine the patient in relation thereto and there remains something for him to do in order to effect a cure, it cannot be said that the treatment has ceased. If there is nothing further to be done by the physician in the matter or if he ceases to attend the patient in relation thereto, the treatment ordinarily ceases without any formality.
Question for jury whether action was barred.
5. The question of whether the action was barred by the statute of limitations was in this case a question of fact for the jury. Because of errors in the charge and in rulings on evidence, here referred to, a new trial should be had.
Frankberg, Berghuis & Frankberg, for appellant.
Mark & Barron, for respondent.
Defendant appeals from an order denying his alternative motion for judgment or a new trial.
Plaintiff sued to recover damages for malpractice and recovered a verdict. One of the defenses interposed was that the cause of action was barred by the two-year statute of limitations. The case was here before on appeal from an order overruling a demurrer to the complaint and is reported in 178 Minn. 82, 226 N.W. 196. The question on the former appeal was whether the complaint on its face clearly showed that the action was barred. The former decision is the law of the case only to the extent of holding that the complaint does not show on its face that the action is barred. That does not however detract from the value of the opinion in its reasoning and statement of the law relating to the time from which the statute commences to run. On this appeal the question presented is whether under the evidence introduced the action was barred. The former decision does not preclude the defendant from raising that question on this appeal.
On March 5, 1926, plaintiff suffered a dislocation of the tibia bone of her right leg at the ankle joint and a small fracture there. She was taken to defendant's office and employed defendant, a physician and surgeon, to set, care for, and heal her injury. Defendant examined the ankle and injury, manipulated and set the dislocation and fracture, and placed the ankle and leg in a cast. Plaintiff was then taken to her home and placed in bed. Defendant did not go to the home with her.
According to plaintiff's testimony, the subsequent course of events was substantially as follows:
Her home was some five or six blocks from defendant's office. He did not come to see her. About three weeks after the injury the leg pained her very much. She sent for defendant to see what he could do to relieve the pain. He came but informed her that the cast could not be opened or removed until it had been on a month. Nothing was done. On April 5, the end of the one month, defendant came and cut open the cast and examined the injured ankle. The ankle was found slightly swollen and discolored, with a small sore covered with a scab, and the tibia bone was out of place so that its end protruded to one side at the joint. Defendant instructed the plaintiff to leave the leg in the opened cast and to remain in bed for two weeks, to bathe the foot in hot water, then to remove the cast and remain in bed for a third week, and then get up and walk. She followed the instructions given. She tried but was unable to walk at the end of the three weeks except with the aid of crutches. On July 3 she again called defendant. He came and examined the foot and watched her walk. In August she went to defendant's office, and he again examined the foot. She visited his office several times after that, but no further examination of the foot was made. She testified that on several occasions defendant said she was getting along fine; that he told her once it might take two years for complete healing; that on one occasion he suggested that it might be well to clip off the protruding portion of the bone.
The evidence we have set out is disputed by defendant in many particulars, raising issues of fact for the jury. Defendant does admit that he discovered as early as April 5 that the tibia bone was not in place, had slipped out of place at the joint, and that he knew of that condition from then on. His testimony is that he asked plaintiff to go to the hospital in the first instance and have the bones there set by him and hospital care given; that she refused and stated she would take her chances on the setting being done in his office; that he attended her and went regularly to her home during the time from March 5 to April 5; that when he discovered on April 5 that the bone was out of place, he informed her as to the condition of the foot and told her that she would have to go to the hospital for a further operation so he could reset the bone; that he fixed April 19 as the date for her to come to the hospital and arranged with the hospital for her reception there; that plaintiff agreed to go to the hospital; that he went to the hospital to attend her at the time fixed, but she failed to come, and when he called on her to find out why she had not gone she informed him she had changed her mind; that he did not give her any treatment or advice about her foot after April 5.
Plaintiff denies that defendant at any time asked her to go to the hospital. The final result is that plaintiff has a crippled foot, with the tibia bone out of place at the ankle; that it is painful and prevents her to a large extent from doing work so as to earn a living; that she is a widow without means and has three children ranging from eight to eleven years of age.
Had the jury accepted defendant's testimony, it would be quite clear that this action, commenced June 5, 1928, was commenced more than two years after the cause of action accrued. But on plaintiff's evidence, although disputed by defendant, we conclude that it was a question of fact for the jury to determine whether the action was barred by the statute. Plaintiff's expert witness gave it as his opinion that the defect could have been remedied by efforts on the part of the defendant on July 3, 1926, or even in August of that year, and that it was defendant's duty then, as well as before that, to use...
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