Cloutier v. Kasheta
| Decision Date | 03 March 1964 |
| Citation | 105 N.H. 262,197 A.2d 627 |
| Parties | Beulah CLOUTIER v. Francis J. KASHETA. William CLOUTIER v. Francis J. KASHETA. |
| Court | New Hampshire Supreme Court |
Shute & Engel, David C. Engel, Exeter, for plaintiffs.
William Maynard, Atty. Gen., and William J. O'Neil, Asst. Atty. Gen., for defendant.
By the first count contained in her writ, the plaintiff Beulah seeks to recover damages because as she alleges the defendant 'unreasonably and negligently' failed to make a diagnosis 'within a reasonable time.' Similarly the plaintiff William by the first count of his writ seeks to recover consequential damages resulting to him from the same alleged negligence.
RSA 508:4 provides as follows:
It is plain from the allegations of negligence that by the first counts of their respective writs the plaintiffs seek to recover 'for malpractice.' RSA 508:4 supra.
By leaving the Sanatorium on October 24, 1959, concededly without formal dischange, the plaintiff Beulah herself must be deemed to have terminated any opportunity for the defendant to thereafter conduct tests. The plaintiffs concede that the defendant 'performed or supervised several tests' prior to that date, but complain that he 'never told her the results of any of them.' The gist of their complaint as stated in their brief is that Beulah 'never in fact had tuberculosis and was never told this.'
Thus it is plain that any negligence on the part of the defendant must have occurred on or before October 24, 1959. According to the great weight of authority, an action for malpractice is deemed to accrue when the acts of negligence occur. Tantish v. Szendey, 158 Me. 228, 182 A.2d 660. Annot. 80 A.L.R.2d 368; Lillich, The Malpractice Statute of Limitations * * *, 47 Cornell L. Q. 339, 358 (1962). Since the plaintiff's writs were not brought until November 16, 1961, it follows that both counts in trespass are barred by the statute of limitations. Lakeman v. LaFrance, 102 N.H. 300, 156 A.2d 123.
The plaintiffs contend that the causes set forth in the second counts of their writs are not actions 'for malpractice' within the meaning of the statute. RSA 508:4 supra. Application of the limitation invoked by the defendant is to be determined according to the nature of the cause of action, rather than the form of action employed. Ferry v. Ferry, 94 N.H. 395, 397, 54 A.2d 151; Lakeman v. LaFrance, 102 N.H. 300, 156 A.2d 123 supra. Annot. 80 A.L.R.2d 320.
A special contract by which a physician undertakes to effect a cure, as distinguished from a contract to furnish medical services generally and according to applicable standards, may constitute a basis for an action for breach of contract, in which damages recoverable are governed by principles of contract law. McQuaid v. Michou, 85 N.H. 299, 157 A. 881; Hawkins v. McGee, 84 N.H. 114, 146 A. 641. It cannot be held that the counts in assumpsit in the writs before us...
To continue reading
Request your trial