Carter v. Harlan Hosp. Ass'n, Inc.

• Citation: 265 Ky. 452,97 S.W.2d 9
• Parties: CARTER v. HARLAN HOSPITAL ASS'N, Inc., et al.
• Decision Date: 06 October 1936
• Court: Kentucky Court of Appeals

97 S.W.2d 9

265 Ky. 452

CARTER v. HARLAN HOSPITAL ASS'N, Inc., et al.

Court of Appeals of Kentucky

October 6, 1936

Appeal from Circuit Court, Harlan County.

Action by Matt Carter against the Harlan Hospital Association Incorporated, and another. Judgment for defendants, and plaintiff appeals.

Affirmed.

J. B Johnson, of Williamsburg, and Pope & Baker, of Harlan, for appellant.

J. B Snyder, of Harlan, and W. T. Davis, of Pineville, for appellees.

CLAY Chief Justice.

Matt Carter brought this action against the Harlan Hospital Association, Inc., and Dr. W. P. Cawood to recover damages for malpractice. The facts relied on are: In February, 1932 Nannie Carter, the wife of Matt Carter, went to the hospital for treatment. Dr. W. P. Cawood was the surgeon in charge. On February 17, 1932, he operated on Mrs. Carter for the purpose of removing a tumor from her abdomen. Mrs. Carter was taken back to her home and continued to suffer great pain. In August, 1934, thirty months after the operation, there was discharged from her bowels one-half of a surgeon's forceps. Mrs. Carter was immediately taken back to the hospital, where an X-ray examination revealed that the other half of the forceps was still in her abdomen. There was performed immediately a second operation "made necessary by the negligence of the defendants in the original operation complained of on February 17th, 1932." By reason of the acts of negligence of the defendants, plaintiff lost the society and services of his wife, to his damage in the sum of $5,000, and incurred medical bills for the sum of $500, for all of which he prayed judgment. In addition to a special demurrer, motion to elect, and general demurrer, the defendants filed an answer in three paragraphs. The first paragraph was a general denial. The second paragraph pleaded in substance that Mrs. Carter herself placed the forceps in her rectum. The third paragraph pleaded the one-year statute of limitations. To the answer plaintiff filed a reply pleading in substance that it was utterly impossible for plaintiff's wife to have determined that the defendants had negligently left a pair of forceps in her abdomen, or to determine what was causing her pain and suffering at any time prior to the second operation, and that he himself did not know the cause of her trouble, but the defendants either knew, or by the exercise of ordinary care and skill should have known, the cause of her trouble, "but they fraudulently and wrongfully failed and neglected to advise her of said malpractice and wrongfully kept the same concealed from her until the second operation was performed," "and for that reason, owing to the facts and circumstances and the technical knowledge necessary to determine the wrongs in such a case as this, his cause of action did not arise at the time of the first operation nor at any other time until the second operation was performed, and at which time his cause of action first accrued to her and this suit was filed within less than one year thereafter, and he states that, by reason of these facts which he now pleads, these defendants and each of them are barred and estopped from setting up the one year Statute of...