256 S.W.2d 548 (Ark. 1953), 4-9989, Crossett Health Center v. Croswell

Docket Nº:4-9989
Citation:256 S.W.2d 548, 221 Ark. 874
Opinion Judge:Griffin Smith, Chief Justice.
Party Name:Crossett Health Center v. Croswell
Attorney:Leffel Gentry, for appellant. A. James Linder and Switzer & Switzer, for appellee.
Judge Panel:Griffin Smith, Chief Justice. George Rose Smith, J., dissenting. Holt, J., joins in this dissent. SMITH George Rose Smith, J., dissenting.
Case Date:March 30, 1953
Court:Supreme Court of Arkansas
 
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Page 548

256 S.W.2d 548 (Ark. 1953)

221 Ark. 874

Crossett Health Center

v.

Croswell

No. 4-9989

Supreme Court of Arkansas

March 30, 1953

Rehearing Denied April 27, 1953.

Appeal from Ashley Circuit Court; John M. Golden, Judge.

Affirmed.

Leffel Gentry, for appellant.

A. James Linder and Switzer & Switzer, for appellee.

Griffin Smith, Chief Justice. George Rose Smith, J., dissenting. Holt, J., joins in this dissent.

OPINION

Griffin Smith, Chief Justice.

[221 Ark. 875] Appellee as a patient at Crossett Health Center was operated upon July 6, 1948. Intestinal adhesions and other ailments were encountered. Steel wire was used in closing the operational wound. Discomfort resulted to such an extent that an effort was made to remove the wire. Pain and general debility continued. The Health Center treatment was unsatisfactory and in consequence of what the patient said was a refusal of the Center to further cooperate she went to Louisiana. At Bastrop Dr. J. N. Jones operated. He removed a small piece of the suture wire from an intestine, but testified that it had not fully penetrated, hence serious infection such as peritonitis had not developed. It was Dr. Jones' belief that the persistent pain experienced by the patient could have been caused by the wire, and very probably was.

Mrs. Croswell sued for $ 130,885.85 -- thirty thousand for pain and suffering, $ 50,000 because as a result of the mistreatment she became a drug addict, $ 50,000 to [221 Ark. 876] compensate humiliation because of arrest by federal narcotic agents, conviction, and a

Page 549

three-year suspended sentence, and $ 885.85 for medical and hospital expenses. From a judgment for $ 1,885.85 the Health Center has appealed.

The operation for removal of wire occurred August 8, 1948. The original complaint was filed April 30, 1951, and in order to avoid application of the two-year statute of limitations raised by demurrer, an amendment was filed July 7, 1951, alleging that the faulty work had been concealed.

Dr. W. R. Cothern, who assisted the director-surgeon with the operation, was named as a co-defendant, but the jury found in his favor. It is insisted on appeal (1) that the court erred in not sustaining the defendant's demurrer, which was renewed after the amendment was filed, and (2) the Health Center is a benevolent and charitable association and is not answerable for the torts of its agents.

First -- The Statute of Limitation. -- Act 58 of 1945, Ark. Stat's, § 37-205, reads: "All actions of contract or tort for malpractice, error, mistake, or failure to treat or cure, against physicians, surgeons, dentists, hospitals, and sanataria, shall be commenced within two years after the cause of action accrues. The date of the accrual of the cause of action shall be date of the wrongful act complained of, and no other time".

We have said in effect that fraudulent concealment will toll the statute, although the case in which the language was used held that the action was barred. See Steele v. Gann, 197 Ark. 480, 143 S.W. 2d 520, 120 A. L. R. 754, decided under Act 135 of 1935, which allowed three years.

Admittedly the operation in the case at bar was performed more than two years before suit, hence the demurrer should have been sustained unless conduct amounting to fraudulent concealment prevented appellee, as a reasonable person, from knowing that some of her [221 Ark. 877] continuing ills were traceable to appellant's failure to remove the wire.

The Act of 1935 fixed the time of accrual of the cause of action as "the date of the wrongful act complained of and no other time". Regardless of this language, construction given the Act in the Steele-Gann case recognizes an exception where fraudulent concealment has prevented the injured person from seeking redress. The identical sentence found in Act 135 of 1935 is in the enactment of 1945.

Dr. Cothern testified that the last time he saw Mrs. Croswell was March 21, 1949. At that time the following indorsement was made: "Pain in the abdomen; temperature 99; abdomen distended, but is soft with no definite areas of tenderness". This date substantially coincides with statements by Mrs. Croswell that she was refused readmittance to the Health Center; and, inferentially, this refusal continued until other physicians were consulted.

A comparatively modern case (1931) dealing with fraudulent concealment is Schmucking v. Mayo, 183 Minn. 37, 235 N.W. 633. There, as here, a demurrer was overruled and the defendant appealed. The gist of the opinion is that when, through fraudulent concealment by the tortfeasor, a party against whom a cause of action exists prevents the person alleging injury from obtaining knowledge thereof, the statute of limitation will commence to run only from the time the cause of action is discovered or might have been discovered by the exercise of diligence. "This," says the opinion of Chief Justice Wilson, "is the rule apart...

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