Gangloff v. Apfelbach

Citation319 Ill.App. 596,49 N.E.2d 795
Decision Date16 June 1943
Docket NumberGen. No. 42538.
PartiesGANGLOFF v. APFELBACH.
CourtUnited States Appellate Court of Illinois

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Cook County; Henry J. Ingram, Special Judge.

Action by Paul Gangloff against Dr. George L. Apfelbach for malpractice. Judgment for defendant, and plaintiff appeals.

Affirmed.

Joseph Barbera, of Chicago, for appellant.

Rawlins & Wright, of Chicago, for appellee.

FRIEND, Justice.

Plaintiff brought suit against defendant for malpractice in the performance of an operation on his arm following an injury resulting from a fall. The cause was tried before a jury, but at the close of plaintiff's evidence the court directed a verdict in favor of defendant and entered the judgment from which plaintiff has taken an appeal.

It appears from the evidence that plaintiff was employed in a store of the National Tea Company at 2741 North Clark street, Chicago. On the morning of March 7, 1936, while putting a sign in the window, he fell backward and fractured his right elbow. He experienced considerable pain and a swelling of his arm. The following morning he called Dr. Apfelbach and was taken to the Alexian Brothers Hospital, where he was examined by defendant and X-ray pictures were made of his elbow. Heat was applied to reduce the swelling and two days later his arm was placed in a cast, with the elbow flexed so that his hand pointed toward the chin. The next day he returned to his home, and thereafter he regularly visited defendant's office for about six weeks, until the cast was removed. After the removal of the cast he had the use of his wrist and fingers, but found that his elbow was locked and would not move. Thereafter defendant gave him light treatments two or three times a week until June, 1936, when he was returned to the hospital. Defendant told him that in order to relieve the locked elbow he would have to resort to surgery and remove the head of the radius. Plaintiff testified that before the operation his fingers and wrist were perfectly normal. Following the operation his arm was bandaged and a board splint was applied so that his fingers and thumb were free, curled over the end of the board. He felt a burning sensation in his arm and noticed that his fingers had lost their power of movement. In reply to plaintiff's inquiry, defendant told him that this was probably caused by nerve involvement. Two days later the splint was removed, a new dressing was applied, the splint was reapplied, and a metal contrivance was attached. He remained in the hospital about two weeks, where defendant visited him every other day.

The function and movement of the fingers and thumb failed to improve. Plaintiff visited and was examined by another physician, Dr. Voris. Thereafter, in November, 1936, defendant performed a second operation. Plaintiff testified that defendant had told him “it would fix the involvement of the nerve” and restore the use of his fingers and hand. No noticeable improvement followed the second operation. Light and heat treatments were continued, and plaintiff states that defendant assured him of the ultimate use of his hand.

In January, 1938, defendant performed a third operation. Plaintiff testified that defendant told him it would “eradicate the nerve involvement” so that he would have the use of his fingers, but it failed to produce the desired results. The following year defendant sent plaintiff to see Dr. Steindler of Iowa City, who examined him. Upon his return he had a conversation with defendant, who told him it would be inadvisable to operate again, and recommended treatments, which continued until March 1940.

Plaintiff's suit was instituted in April, 1941. The gravamen of the complaint is that the unfortunate result was caused by defendant's failure to properly diagnose the injury, apply correct and necessary treatment to effect a cure thereof, and that he carelessly and improperly operated upon plaintiff's elbow “so that the nerves, muscles, ligaments, and the ulnar and radial nerves of the right arm and elbow were cut, severed, and otherwise irreparably injured.”

Upon this state of facts, two questions were presented for the court's determination in ruling upon the motion for a directed verdict: (1) was there any evidence tending to show, or from which it could fairly be found, that defendant was guilty of any negligence or want of skill in and about the operation and treatment of plaintiff's arm, and (2) did the statute of limitations begin to run when the alleged act of negligence was committed in 1936, or from the time when the physician ceased to treat the patient in 1940. While expressing grave doubt as to whether there was any evidence adduced by plaintiff which could properly be submitted to the jury, the court predicated its ruling on the ground that the cause had been barred by the two-year statute of limitations. Ill.Rev.Stat. 1941, ch. 83, par. 15. Although the three operations were performed more than two years before suit was instituted, the loss of movement and function of plaintiff's fingers and hand is definitely fixed by the evidence as of June, 1936, following the first operation. The evidence does not support plaintiff's charge of negligence, want of skill or omission with respect to the light and heat treatments applied after any of the operations. The gravamen of plaintiff's contention is that defendant lulled him into believing that the use of his hand and fingers would ultimately be restored by further operations and the treatments applied, and it is urged that under such circumstances the statute of limitations should not begin to run until after the relationship of physician and patient has been terminated, no matter how long it may continue. Counsel for both parties agree that the question of when the statute of limitations begins to run against physicians, surgeons and dentists for malpractice, has not been decided in any reported case in this state, and apparently there are two divergent views on the subject.

As indicated from the annotation in 74 A.L.R., pp. 1317-1325, entitled “When Statute of Limitations commences to run against actions against physicians, surgeons, or dentists for malpractice,” a substantial number of jurisdictions have adopted the rule that the limitation period does not begin to run until the treatment ceases, and decisions in California, Minnesota, New York, Ohio and Wisconsin are cited by plaintiff and urged as supporting this rule. Gillette v. Tucker, 1902, 67 Ohio St. 106, 65 N.E. 865, 872, 93 Am.St.Rep. 639 is most frequently cited as representing this view. The defendant there performed an appendectomy on the plaintiff, and neglected or carelessly forgot to remove from the abdominal cavity a sponge which he had placed therein, and closed the incision. The gauze remained within the cavity for about 18 months, unknown to either the patient or the physician, and serious consequences ensued and continued during the entire professional relationship between the parties. The Ohio statute of limitations fixed the time within which suit might be brought in cases of that character at one year, and the proceeding was not instituted until more than a year after the operation had been performed. The court held that the period of limitation did not commence with the date of the closing of the incision because “The facts in the case * * * show a continuous obligation upon the plaintiff in error [the surgeon] so long as the relation or employment continued, and each day's failure to remove the sponge was a fresh breach of the contract implied by the law. The removal of the sponge was a part of the operation, and in this respect the surgeon left the operation uncompleted.” The dissenting opinion of three judges was opposed to the principle that the negligence of the physician could be deemed to continue throughout the entire treatment, and subsequently, in 1905, the doctrine of the dissenting opinion was adopted in McArthur v. Bowers (memorandum decision), 72 Ohio St. 656, 76 N.E. 1128. However, in 1919, the McArthur case was disapproved and the doctrine of the Gillette case was reaffirmed in Bowers v. Santee, 99 Ohio St. 361, 124 N.E. 238.

In Harding et al. v. Liberty Hospital Corporation, 1918, 177 Cal. 520, 171 P. 98, the complaint charged that defendant, through its chief surgeon, failed and neglected to use proper care, diligence and skill in reducing a fracture, by reason whereof plaintiff's leg was shortened and its use impaired. The principal issue presented was whether the limitation period of one year prescribed by the California statute, constituted a bar to plaintiff's action. The court referred to the principle that the limitation period might be considered as commencing with the end of the treatment, but held that since plaintiff's complaint centered upon a specific negligent act, the period should be computed as commencing with that act.

In Schmitt v. Esser, 1929, 178 Minn. 82, 226 N.W. 196, plaintiff suffered a dislocation and fracture of the right ankle. The physician examined the injury, attempted to reduce the dislocation and set the fracture, and represented to the plaintiff that “because of the peculiar injuries, they would not heal completely for two years after the treatment was finished.” In holding that the trial court had properly overruled a demurrer based on the statute of limitations, the reviewing court said that We think the treatment and employment should be considered as a whole, and, if there occurred therein malpractice, the statute of limitations begins to run when the treatmentceases.” It is to be observed, however, that the court apparently limited the application of the principle enunciated by the following statement: “It is true that, if there be but a single act of malpractice, subsequent time and effort merely to remedy or cure that act could not toll the running of the statute.”

In Bush v. Cress, 1929, 178 Minn. 482, 227...

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  • Tom Olesker's Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc., 46554
    • United States
    • Supreme Court of Illinois
    • May 19, 1975
    ...... the decisions on the question we consider that the Limitations Act should not be given the narrow construction which was imposed in Gangloff (v. Apfelbach, 319 Ill.App. 596, 49 N.E.2d 795) and Mosby (v. Michael Reese Hospital, 49 Ill.App.2d 336, 199 N.E.2d 633). Such a construction ......
  • Tessier v. United States, 5424.
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    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • July 31, 1959
    ......529, nor can the appellant simply be said to have known at the time of the appendectomy that he was hurt, as did his counterparts in Gangloff v. Apfelbach, 1943, 319 Ill.App. 596, 49 N.E.2d 795, and Deer v. New York Central R. R. Co., 7 Cir., 1953, 202 F.2d 625.         In cases ......
  • Lipsey v. Michael Reese Hospital
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    • Supreme Court of Illinois
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    ...... (Gangloff v. Apfelbach (1943), 319 Ill.App. 596, 49 N.E.2d 795.) However, the force of this decision has been dissipated, the plaintiff argues, because ......
  • Morrison v. Acton, 4946
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    ......See. Conklin v. Draper, 229 A.D. 227, 241 N.Y.S. 529;. Weinstein v. Blachard, 109 N.J.L. 332, 162 A. 601;. Gangloff v. Apfelbach, 319 Ill.App. 596, 49 N.E.2d. 795; Anno. 74 A.L.R. 1317, 1318 (II). Another group of courts. holds that where there is a continuance ......
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