Capucci v. Barone
| Citation | 266 Mass. 578 |
| Parties | PASCUA CAPUCCI v. JOSEPH BARONE. AMETO CAPPUCI v. SAME. |
| Decision Date | 26 March 1929 |
| Court | United States State Supreme Judicial Court of Massachusetts |
February 7, 1929.
Present: RUGG, C.
Limitations Statute of. Negligence, Of surgeon. Physician and Surgeon.
An action of tort begun in September, 1926, by a woman against a surgeon for personal injuries resulting from negligent conduct on his part while performing an abdominal operation upon her in May 1924, in that he left within the abdominal cavity a foreign substance, is barred by G.L.c.
260, Section 4, St. 1921, c. 319, although the plaintiff did not discover the presence of the foreign substance until she underwent another operation by another surgeon in July, 1926.
The same statute of limitations applies to an action of tort by the husband of the plaintiff in the action above described for consequential damages.
TWO ACTIONS OF TORT, the first action for personal injuries alleged to have resulted from negligent conduct of the defendant while performing an operation upon the plaintiff on May 11, 1924 and the second action by the husband of the plaintiff in the first action for consequential damages. Writs dated September 28, 1926.
In response to a motion by the defendant that the plaintiff specify in "exactly what manner the defendant was negligent in the performance of the operation," the plaintiff specified: "By cutting into the abdominal cavity, then sewing the wound and cut, leaving within the abdominal cavity a foreign substance, namely a sponge."
In the Superior Court, the actions were heard together by Bishop, J., without a jury. Material evidence is stated in the opinion. The judge found for the defendant. The plaintiffs alleged exceptions.
J.T. Pugh, (C.E. Leonardi with him,) for the plaintiffs. M.J. Mulkern, for the defendant.
These two actions of tort were begun by writs dated September 28, 1926, and entered in the Superior Court on the first Monday of November, 1926. The first is to recover damages for the alleged negligence of the defendant in performing an abdominal surgical operation. The second is by the husband of the plaintiff in the first action to recover consequential damages. The defendant's answer in each case is a general denial, contributory negligence, assumption of risk, and the statute of limitations. The cases were tried together. The plaintiff in the first action will be hereinafter referred to as the plaintiff.
At the close of the plaintiffs' evidence, the defendant rested in each case and presented a motion, in writing, requesting the judge to rule that upon the evidence and the pleadings the plaintiff was not entitled to recover, and to make a finding in each case for the defendant. The judge thereafter found for the defendant, and the plaintiffs duly excepted.
The bill of exceptions purports to contain "all the testimony material to the questions of law herein raised," and states that "The pleadings and the specifications may be referred to." The plaintiff testified, in substance, that on May 11, 1924, she sent for the defendant; that his brother came and examined her; that in consequence of this examination she went to the Forest Hills Hospital, in Boston; that when she arrived at the hospital she saw a nurse, and about one half hour afterward the defendant came in and she was examined by him while she was in bed; that the defendant said to her, "You need an operation," and about an hour and a half later she was taken to the operating room where she saw the defendant who told her he was going to operate on her; that just before she went under ether the defendant examined her and told the nurses to prepare her for the operation room; that in the operation room were the defendant, his brother, a doctor who administered the ether, and a nurse.
She further testified, in substance, that what was done during the operation she did not know. The next thing she knew she was in bed in another room and the nurses took care of her, and in about two weeks she was able to go home. The defendant was the only doctor who talked with her or visited her from the time of her arrival at the hospital. After she came out of the ether the defendant visited her, dressed her wound, which was in the middle of the abdomen, and came every morning for two weeks, when he and a nurse took the stitches out, the defendant saying "I made a good wound there." She remained in the hospital three days more and then went home and stayed in bed two weeks. After she got out of bed at home she felt pain every day. About a month after she got up she...
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