Cook v. Yager

• Decision Date: 10 January 1968
• Parties: , 42 O.O.2d 33 COOK, Appellant, v. YAGER, Appellee.
• Court: Ohio Court of Appeals

Page 1

13 Ohio App.2d 1

233 N.E.2d 326, 42 O.O.2d 33

COOK, Appellant, v. YAGER, Appellee.

Court of Appeals of Ohio, Third District, Seneca County.

Jan. 10, 1968.

Syllabus by the Court

1. Where a violation of a duty, constituting dental malpractice, causes no contemporaneous injury or damage to the patient but the forces set in motion by such violation proximately cause injury or damage thereafter, then, notwithstanding the relationship of dentist and patient has terminated between the time of the violation of the duty and the time the consequential injury or damage first manifests itself, the cause of action for malpractice does not accrue and the statute of limitations pertaining to such cause of action does not begin to run until the date such consequential injury or damage first manifests itself.

2. In such event, it is not the wrongful act which gives rise to the claim. Until there is some damage there is no claim, and a statute prescribing the time in which suit must be filed can never operate prior to the time a suit would be permitted.

3. Where a partient's petition alleges oral surgical treatment by a dentist, not claimed to be in and of itself improperly done, but claimed to be hazardous and to constitute malpractice because the dentist did same without inquiring as to the patient's previous and current physical history and condition, alleges further to the effect that forces were thus set in motion which proximately caused thereafter a cardiac condition in the patient, where it may be presumed from the allegations of the petition that the relationship of dentist and patient terminated on the date of the oral surgical treatment or, at least, before the consequential cardiac condition, and where there is no allegation in the petition as to the date on which such consequential cardiac condition first manifested itself, a demurrer will not lie to the action on the ground that same was not brought within the time limited for the commencement of such an action.

C. D. Fess, Findlay, for appellant.

Paul A. Flynn, Tiffin, for appellee.

GUERNSEY, Presiding Judge.

As here pertinent, plaintiff's petition, which was filed on May 23, 1966, alleged that on December 11, 1964, he consulted defendant dentist with respect to his dental problem; that defendant informed plaintiff that treatment would require the fitting of a partial denture which would necessitate the extraction of several teeth; that plaintiff acquiesced in defendant's proposed course of treatment and defendant thereupon subjected plaintiff to an oral surgical procedure 'in initiating his planned regimen of treatment of plaintiff's condition'; that defendant was guilty of culpable negligence in performing oral surgery on plaintiff not only on December 11 1964, but also on February 5, 1965, 'without taking, prior to performing said oral surgical procedures, any history of plaintiff's past or current condition of health, nor make any inquiry whatsoever thereunto of his patient, plaintiff herein, or of his patient's physician'; that this omission 'was the direct and proximate cause of plaintiff sustaining and suffering a foreseeable (sic) and avoidable complication of the surgical procedures performed by defendant, which complication (subacute bacterial endocarditis) endangered plaintiff's life and caused him to undergo intensive and expensive hospitalization and medical care, and which incapacitated him from his usual employment for one third of a year, which permanently aggravated a pre-existing cardiac valvular lesion as a result of which plaintiff must stay on regular and periodic prophylactic medications for the remainder of his natural life'; 'that the illness he suffered as a consequence of defendant's neglect of ordinary professional care and caution has seriously and substantially reduced his life expectancy,' etc.; and that he has been damaged to the extent of $153,479.10.

The defendant demurred setting up the bar of the statute of limitations. The Common Pleas Court sustained the demurrer, gave plaintiff thirty days to plead over and provided in its entry that 'if the plaintiff fails to plead further it is considered by the court that the defendant go hence without day.' Concurrently with the filing of this entry the plaintiff filed his notice of appeal. Eliminating from the assignments of error matter having reference to the basis of the trial court's decision, which we cannot consider because we have not been favored by an opinion by the trial court and such matter does not otherwise appear in our record, and eliminating matter which has reference to supposed facts which have not been alleged in the petition and which may not be considered on appeal from the sustaining of a demurrer, the assignments of error amount to a claim that the judgment of the trial court is contrary to law.

Although standing alone the judgment appealed from might not meet the requirements of an appealable order, at least prior to the passage of thirty days from the time it was entered, the parties have raised no jurisdictional question, and we will conclude that by filing his notice of appeal the plaintiff waived any right to plead over and that such waiver operated to concurrently make the order final.

The law of malpractice in Ohio in its general application to physicians also has general application to dentists. Cox v. Cartwright, 96 Ohio App. 245, 121 N.E.2d 673; and Klema v. St. Elizabeth's Hospital of Youngstown, 170 Ohio St. 519, 521, 166 N.E.2d 765.

The application of the statute of limitations pertaining to malpractice by physicians has been developed by the Supreme Court in a long series of cases, principal of which are DeLong v. Campbell, 157 Ohio St. 22, 104 N.E.2d 177; Bowers v. Santee, 99 Ohio St. 361, 124 N.E. 238; and Gillette v. Tucker, 67 Ohio St. 106, 65 N.E. 865, 93 Am.St.Rep. 639. In the Gillette case, which involved a physician's leaving a surgical sponge in a patient and his continued failure to remove same, the Supreme Court held that 'the statute of limitations does not commence to run against a right to sue and recover on account of such want of skill, care, and attention, until the case has been so abandoned, or the professional relation otherwise terminated.' That case was approved and followed in the Bowers case which involved the continued improper treatment of a bone fracture, and the court held that 'in an action for a breach of the contract in such case (the contract of the surgeon to exercise the average degree of skill, care and diligence exercised by members of the same profession in the given situation), the statute of limitations does not begin to run until the contract relation is terminated.' In the DeLong case, which involved the leaving of a surgical sponge in a patient and no continuation of the physician-patient relationship after the completion of the surgery, the rule was slightly modified in its terms, and the court held that 'the statute of limitations begins to run at the latest upon the termination of the physician-patient relationship whether, within the time limited by the statute the act constituting malpractice is known or unknown by the one upon whom it was committed.' (Emphasis added.)

From an examination of those cases it will be observed that the rule of law expressed in each is derived from an interpretation of the statute of limitations (now Section 2305.11, Revised Code) providing that 'an action for * * * malpractice * * * shall be brought within one year after the cause thereof accrued,' as that statute relates to the peculiar facts of each case. The critical consideration in each, as well as the critical consideration here, is when does the cause of action accrue? In the Gillette case (67 Ohio St. 106, 65 N.E. 865) Judge Price recognized, at page 129 at page 871 of 65 N.E. in the opinion, that a cause of action does not accrue until the injury or damage occurs, and said:

'* * * the mere closing of the incision in question over the sponge was not the plaintiff's cause of action, if no injurious consequences followed. But if evil consequences followed, and plaintiff was injured, her cause of action accrues when her injuries occurred; and if these injuries blended and extended during the entire period the surgeon was in charge of the case, her right of action became complete when the surgeon gave up the case without performing his duty.' (Emphasis added.)

In the Bowers case the original trauma involved, the bone fracture, was not of the physicians making, and the malpractice consisted of the continued failure to give proper treatment, which extended the accrual of the cause of action or, as stated in the Gillette case, the completion of the right of action to the date upon which the physicianpatient relationship ended, which was the last date upon which that physician could fail to give proper treatment. In the DeLong case Judge Stewart differed in his conclusions from Judge Price in the Gillette case by recognizing that the closing of the incision over the sponge constituted injury and in and of itself gave plaintiff a right of action, for he says at page 27 at page 179 of 104 N.E.2d in the opinion (157 Ohio St. 22, 104 N.E.2d 177):

'* * * The cause accrues when the negligently-caused injury is inflicted. In other words, plaintiff had a right to bring an action when Campbell negligently left the sponge within her would and negligently allowed it to remain there during his professional relation...