Couillard v. Charles T. Miller Hospital, Inc.

Decision Date15 August 1958
Docket NumberNo. 37423,37423
Citation92 N.W.2d 96,253 Minn. 418
PartiesCelia COUILLARD, Appellant, v. The CHARLES T. MILLER HOSPITAL, Inc., Edward M. Schons and M. L. Larson, Respondents.
CourtMinnesota Supreme Court

Syllabus by the Court

1. Where affidavits are offered in support of a motion for summary judgment, they must present admissible evidence and must not only be made on personal knowledge of affiant but must show that affiant possesses the knowledge asserted. Rules of Civil Procedure, Rule 56.05.

2. Rule 56.03 should be invoked with due caution so that litigants may be permitted trial where bona fide dispute as to material facts exists.

3. Where a person is injured by the wrong of another and he himself is not negligent in the selection of a medical attendant, the wrongdoer is liable for the proximate results of his own act although the consequences of the injury would have been less serious than they proved to be if the attendant had exercised professional skill and care.

4. It is the general rule that, where the injured person gives a release to the original wrongdoer, such release bars action by the injured person against a physician or surgeon for the negligent treatment of the injury. However, the fact that an injured person has signed a release in general terms will not prevent him from showing by parol evidence that he was never compensated for and never intended to release claims based on injuries caused by the subsequent tortfeasor for which the releasee is also liable because of the rules of proximate cause. The intent of the parties on the question of actual compensation is a question of fact for the jury. The release is, however, prima facie evidence that full compensation was received from the original wrongdoer, including injuries caused by subsequent tort-feasors, and the burden is on the plaintiff to prove the contrary.

5. So long as the relationship of physician and patient continues as to a particular condition he is employed to cure, and the physician continues to attend and examine the patient in relation thereto, and there is something more to be done by the physician in order to effect a cure, the statute of limitations is suspended.

6. Where the defendant by fraud prevents plaintiff from learning of his cause of action, the statute of limitations does not begin to run until the plaintiff could by reasonable diligence have discovered the cause of action.

Robbie & Hoffman, Minneapolis, for appellant.

William P. O'Brien, Cummins, Cummins, Hammond & Ames, St. Paul, for respondent Schons.

Richard J. Leonard, Doherty, Rumble & Butler, St. Paul, for respondent The Charles T. Miller Hospital.

George G. McPartlin, St. Paul, for respondent M. L. Larson.

MURPHY, Justice.

This is an appeal from summary judgments entered against the plaintiff in a malpractice action. Defendant The Charles T. Miller Hospital, Inc., is a hospital in the city of St. Paul, Minnesota; defendants Dr. Schons and Dr. Larson are practicing physicians in that city. No appeal was taken from the judgment in favor of The Charles T. Miller Hospital, Inc.

The complaint asserts that the plaintiff sustained an injury to her lower back on April 18, 1952, as a result of a fall while she was a passenger on a bus operated by the St. Paul Street Railway Company; that in the treatment of said injury she was attended by Dr. Larson, who in trun called in Dr. Schons for the purpose of diagnosing and treating the back injury. The complaint alleges that as a matter of fact the plaintiff sustained a fracture to a vertebra as a result of the accident, but that the defendant physicians wrongfully diagnosed the condition as a cystic lesion to her second lumbar vertebra and in their treatment of the lesion the defendants negligently administered X-ray treatments from which the plaintiff received serious burns. The complaint further alleges that, through the deceit and fraud of the defendants, she was prevented from discovering their wrongful acts until the time of the present action. Because of the alleged malpractice of the defendants, the plaintiff seeks damages in a substantial amount.

The defendants in their answers allege that the plaintiff had commenced an action against the St. Paul Street Railway Company in which she sought to recover damages in full compensation for all injuries sustained as a result of her fall described in the complaint. The answers assert two affirmative defenses: (1) They set up the 2-year statute of limitations for actions against physicians and hospitals (M.S.A. § 541.07); and (2) they assert there was a compromise settlement in which the street railway company paid the plaintiff $10,000, in return for which she signed a release discharging the company 'from all claims and demands of every kind and nature for all injuries and damages and all effects and results thereof, whether past, present or future that ever may be thought of as resulting or ever developing at any time in the future from such accident and injuries.'

1. The motion for summary judgment was made at a pretrial conference. We are told on oral argument that a record was made of those preceedings. In the printed record before us, however, there appear certain affidavits of counsel for the plaintiff, Dr. Schons, and The Charles T. Miller Hospital, Inc. The defendants to not reply on these affidavits. Counsel for Dr. Schons agrees that these affidavits are not competent and that they fail to meet the requirements of Rule 56.05. That rule requires that on motion for summary judgment 'Supporting and opposing affidavits shall be made on Personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.' (Italics supplied.) Aside from the affidavit of the plaintiff's attorneys with reference to certain facts in connection with the original trial against the street railway company, there is nothing in the supporting affidavits of the parties to indicate that they were made on personal knowledge or upon facts which would be admissible as evidence, nor is there any showing that the affiants are competent to testify as to the matters stated. The record does not show if the trial court considered these affidavits or the facts stated in the them on the motion, and on this appeal from the summary judgment we will not do so. We shall consider this motion as having been made on the pleadings and on the release.

2. Rule 56.03 provides that on a motion for summary judgment 'The judgment sought shall be rendered forthwith if the pleadings, depositions, and adminissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' The judgment appealed from in this case is somewhat different from those usually presented in appeals from summary judgment in which the court has before it competent affidavits, depositions, and other materials in addition to the pleadings. 1 We have before us for consideration a construction of the plaintiff's complaint, the answers, the release, and the affidavit of the attorney for the plaintiff to the effect that the release is in fact a partial release and does not include a settlement of the claim against the defendant physicians. If any statement of facts consistent with the complaint can avoid the defenses of the release and the statute of limitations, the summary judgment must be reversed and the plaintiff given an opportunity to prove at the trial that such a statement of facts is true.

3--4. The first and most important question before us is whether the release is a bar to plaintiff's action under any set of facts which might be proved consistent with the complaint. It is recognized that, where a person is injured by the wrong or negligence of another and he himself is not negligent in the selection of a medical attendant, the wrongdoer is liable for all the proximate results of his own act although the consequences of his injury would have been less serious than they proved to be if the attendant had exercised proper professional skill and care. Benesh v. Garvais, 221 Minn. 1, 20 N.W.2d 532; Smith v. Mann, 184 Minn. 485, 239 N.W. 223; Annotation, 40 A.L.R.2d 1075. It is also recognized that a general release of one responsible for the original injury bars action by the injured person against a physician or surgeon for the negligent treatment of the injury. This rule is based upon the proposition that, since the one causing the original injury is liable for the consequences of the physician's negligence which would not have occurred except for the original wrongful act, where the physician was selected with due care by the injured party, a release of one so liable must be considered to have been a release of the claim based upon the physician's negligence as well as the negligence of the original wrongdoer. The underlying reason for the rule is that there should be no double recovery for the same injury. See, Annotation, 40 A.L.R.2d 1075. In Smith v. Mann, supra, however, we seem to have relied on the conclusive character of a release, reasoning that it is an instrument contractual in nature and within the rule prohibiting the admission of parol evidence to vary or contradict its terms.

It appears to be the contention of the plaintiff here that she should be permitted to prove that this action in no way involves 'double recovery for the same injury.' The plaintiff asserts that the settlement with the street railway company was entered into after trial had been commenced and certain evidence introduced and that in the course of the trial the court ruled that the injuries sustained by the plaintiff as a result of the treatment of the doctors constituted a separate cause of action 'for which the St. Paul Street Railway Company cannot be held liable.' The plaintiff argues that...

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