270 F.2d 839 (5th Cir. 1959), 17687, Kozan v. Comstock

Docket Nº:17687.
Citation:270 F.2d 839
Party Name:Stephen J. KOZAN, Appellant, v. Dr. Glenn E. COMSTOCK, Appellee.
Case Date:September 30, 1959
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 839

270 F.2d 839 (5th Cir. 1959)

Stephen J. KOZAN, Appellant,


Dr. Glenn E. COMSTOCK, Appellee.

No. 17687.

United States Court of Appeals, Fifth Circuit.

September 30, 1959

Page 840

Sylvia Roberts, New Orleans, La., Robert J. Mack, Joseph A. Sims, Hammond, La., H. Alva Brumfield, Baton Rouge, La., for appellant.

Peter H. Beer, Montgomery, Barnett, Brown & Read, New Orleans, La., for appellee.

Before HUTCHESON, BROWN and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

This is an appeal from an order of the United States District Court of the Eastern District of Louisiana dismissing, on a plea of prescription, the plaintiff's action for personal injuries based on allegations of malpractice. The decision turns on whether the one year prescription for torts or the ten year prescription for contracts applies. We hold that a malpractice suit sounds in tort, and we affirm the judgment of the district court.

The defendant, Dr. Glenn E. Comstock, is a licensed physician and surgeon, now practicing in New Orleans, Louisiana. Before World War II Dr. Comstock practiced in Gary, Indiana. The plaintiff, Stephen J. Kozan, a resident of Indiana, was one of the defendant's patients. Nineteen years ago Dr. Comstock treated a skin abrasion on Kozan's right leg. A cancer developed. April 21, 1940, Kozan's

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leg was amputated at the hip. The complaint avers that the loss of Kozan's leg was caused by Dr. Comstock's negligence and lack of skill in failing to diagnose and treat the cancer.

Kozan filed suit against Dr. Comstock in the Lake Circuit Court of Lake County, Indiana on July 14, 1941. The defendant was never served. At the time, Dr. Comstock was on active duty as a medical officer in the United States Army and he served in this capacity during World War II. On March 17, 1954, the Lake Circuit Court ordered the case dropped from the docket, taxing the plaintiff with costs. There was no docket entry between the time when the suit was filed and the time when it was dropped. Kozan filed the present suit October 3, 1958 in the United States District Court for the Eastern District of Louisiana. On December 1, 1958, the Indiana court expunged the 1954 order and reinstated the suit on the pending calendar. 1


The suit is in federal court on the basis of diversity of citizenship. In diversity cases federal courts are bound by the conflict of law rules of the state in which they are sitting. Wells v. Simond Abrasive Co., 1953, 345 U.S. 514, 73 S.Ct. 856, 97 L.Ed. 1211, 1214; 28 Tul.L.Rev. 856; Metropolitan Like Ins. Co., v. Haack, D.C.E.D.La.1943, 50 F.Supp. 55.

The problem then is the determination of the proper Louisiana conflict of laws rule. Article 13 of the Louisiana Code of Practice provides: 'The forms, the effects, and the prescription of actions, are governed by the law of the place where they are brought * * *' This article expresses the general rule, supported by ample Louisiana authority, 2 that prescription is procedural and the law of the forum governs. 3

The principle that the prescriptive law of the forum governs is not without exceptions. If a foreign statute of limitations not only bars the remedy but extinguishes the substantive right as well, then the forum will apply the limitation period of the foreign jurisdiction. 4 A statute of limitations extinguishes a substantive right only when the right was not known at common law but was created by a statute. 5 The present case does not fall within any exception to the general rule. An action in Indiana for personal injuries in a case such as this was well recognized by the common law of that state. The right is not one that was created by statute and no statute of limitations extinguishes the right. An Indiana statute bars an action against

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a physician or surgeon unless it is filed within two years, 6 but the statute does not destroy the substantive right after the expiration of two years.


The serious question before us is determining which prescriptive period is applicable. If the action sounds in contract the prescriptive period is ten years. 7 If it is a tort action then the suit is barred after one year. 8

Louisiana courts have not passed directly on the question. The plaintiff cites various cases to support his contention that it is a contract suit. 9 With the exception of O'Ferrall v. Nashville Bridge Co., 1928, 165 La. 963, 116 So. 399, the cases cited do not involve a suit between physician and patient. 10 The other cases are authority only for the broad principle that often a plaintiff may elect to sue in tort or on an implied contract, but they provide small enlightenment on the problem of whether a malpractice suit against a physician sounds in tort or in contract. The O'Ferrall case did involve a physician, but he appeared in the role of a plaintiff who was suing an employer for the cost of treatment rendered to employees of the defendant at the request of the defendant. The court, properly, treated the action as one in implied contract. The case did not involve and the court did not discuss the question of whether the suit was in tort or in contract.

The plaintiff argues that the O'Ferrall case established that the physician-patient relationship is one of contract and if a physician may sue for his fee in contract then the patient should have a corresponding right to sue in contract. 11 There is a substantial difference between a physician suing an employer of persons whom the physician treated for his fee and a patient suing a physician for injuries suffered. In the first situation the establishment of a contractual relationship is essential, for otherwise there is no basis upon which a third party can be sued. In a suit by a patient against a physician for injuries suffered it is not essential that a contractual relationship exist. The duty owed by the physician to the patient arises as a matter of law and the physician is liable for a breach of this duty.

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The cases relied upon by the defendant also are not decisive. Mournet v. Sumner, 1932, 19 La.App. 346, 139 So. 728, was a suit against a dentist for the wrongful death of the plaintiff's wife. The suit was brought under Article 2315 of the LSA-Civil Code and was, naturally enough, treated by the court as a tort suit. The case did not involve any question of prescription or election of remedies. Perrin v. Rodriguez, La.App. 1934, 153 So. 55 5, was a malpractice suit against a dentist. The defendant pleaded one year prescription. The court referred to the action as being ex delicto, and both parties evidently considered it as a tort action, but the court was not squarely faced with the issue before us.

We find that the Louisiana cases are inconclusive, although the author of a thoughtful note in 23 Tulane Law Review 536 (1948) states that Article 2315 and 2316 12Seem to have been relied upon in Louisiana to the exclusion of the theory of implied contract between physician and patient. 13

Decisions in other states may be divided into three categories. 14 Some states hold that the action sounds in tort and is subject to the shorter statute of limitations applicable to tort actions. Other states hold that it may be brought in tort or in implied contract. A third approach is represented by those states which have a specific statute of limitations that applies to malpractice suits against physicians and surgeons. 15

The causes of action in tort and in breach of contract for malpractice are

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dissimilar as to theory, proof, and recoverable damages. 16 Here, in order to prove negligence Kozan would have to show that Dr. Comstock failed to use the degree of medical skill that other physicians in Gary, Indiana, would have used under similar circumstances. To prove breach of contract, Kozan would have to prove that the defendant did not perform as he agreed to do.

It is the nature of the duty breached that should determine whether the action is in tort or in contract. To determine the duty one must examine the patient-physician relationship. It is true that usually a consensual relationship exists and the physician agrees impliedly to treat the patient in a proper manner. Thus, a malpractice suit is inextricably bound up with the idea of breach of implied contract. However, the patient-physician relationship, and the corresponding duty that is owed, is not one that is completely dependent upon a contract

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theory. There are instances in which the relationship exists though there is clearly no contractual relationship between the patient and the physician. Thus, the patient may be incapable of contracting or a third person may have contracted with the physician for the treatment of the patient. Even in these instances in which no contract is present the physician still owes a duty to the patient. The duty of due care is imposed by law and is something over and above any contractual duty. Certainly, a physician could not avoid liability for negligent conduct by having contracted not to be liable for negligence. The duty is owed in all cases, and a breach of this duty constitutes a tort. On principle then, we consider a malpractice action as tortious in nature whether the duty grows out of a contractual relation or has no origin in contract. This view that malpractice suits are tortious in nature probably represents the majority view. 17

We do not mean to say that there can never be a contractual action against a physician. Generally, a physician undertakes only to utilize his best skill and judgment. When he negligently fails to do so he may have committed a tort. However, a physician may, by express contract, agree to effect a cure or warrant that a particular result well be obtained. In such instances an action in...

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