Giambozi v. Peters
| Decision Date | 05 December 1940 |
| Citation | 127 Conn. 380,16 A.2d 833 |
| Court | Connecticut Supreme Court |
| Parties | GIAMBOZI v. PETERS. |
Appeal from Superior Court, Fairfield County; Arthur F. Ells, Judge.
Malpractice action by Nicholas Giambozi, administrator of the estate of Jessie Giambozi, deceased, against H. LeBaron Peters, a physician and surgeon. From judgment upon verdict for defendant, plaintiff appeals.
In action against physician for patient's death due to physician's breach of alleged contract with patient to cure her of syphilis, patient's death, which occurred in the course of treatment, would of itself be a breach of the contract, and physician's alleged negligence in way in which he treated patient would be irrelevant.
Julius B. Kuriansky, of Stamford, for appellant.
Cyril Coleman, of Hartford, for appellee.
Argued before MALTBIE, C.J., and BROWN, JENNINGS, and BOOTH, JJ.
This is an action of malpractice, brought against the defendant, Dr Peters, a physician and surgeon of Bridgeport. Pending the action, the defendant died and his executor was substituted as a party defendant. The case was tried to the jury and the trial court directed a verdict for the defendant. The plaintiff moved to set the verdict aside, and has appealed from the denial of that motion and also from the judgment assigning in the latter appeal errors in the rulings upon evidence and in the finding. The decisive question, however is whether the court was correct in refusing to set the verdict aside. None of the rulings complained of bear upon the evidence necessary for the determination of this question. The undisputed facts are these: The plaintiff's decedent, on June 26, 1930, gave birth to a child in the Park City Hospital in Bridgeport. Her attending physician that day became alarmed because of her loss of blood and summoned the defendant, Dr. Peters, to perform a transfusion. Her brother volunteered to supply the necessary blood, and Dr. Peters used this blood without testing it for syphilis. Dr. Peters did not see the deceased again until March 11, 1931. In the meantime, it had been discovered that she had become infected with syphilis, and on that day Dr. Peters commenced to treat her for this condition. On March 26, 1931, he undertook to cure her condition. She died on April 2, 1931. This action was commenced February 14, 1933.
The case was tried upon a substituted complaint in four counts. The first count sought damages for the death of the decedent alleged to have been caused by the negligence of the defendant in administering the does of Neosalvarsan on April 2, 1931. The second count sought damages for the death of the decedent caused by the negligence of the defendant, first (by incorporating a number of allegations of the first count) in administering the Neosalvarsan and, second, in making a transfusion of the blood of a syphilitic person to the decedent on June 26, 1930; and this count contained an allegation that the defendant promised he would remedy his error by curing the decedent of the disease thereby caused. The third count sought a recovery for the ‘ disease’ alleged to have been caused by the negligence of the defendant in making the transfusion of blood, and, after incorporating certain allegations of the second count which alleged the promise of the defendant to cure the decedent, it alleged his failure to do so. The fourth count sought recovery of damages for mental and physical suffering, damage to reputation, and loss of consortium, and also for the expenditures incurred by reason of the defendant's negligence in making the transfusion. The complaint therefore asserts three distinct bases of recovery: First, damages for the death of the decedent caused by the defendant's negligence; second, damages for the ‘ disease,’ for the mental and physical suffering of the decedent and for the expenses incurred by reason of the defendant's negligence in the transfusion of blood; and, third, a recovery of damages on the basis of the breach of an agreement to cure the decedent.
The defendant's answer was, in effect, a general denial of each of the four counts; also, by way of special defense, it was alleged as to each count that the action was not brought within one year from the neglect complained of, and as to the second, third and fourth counts that the action was not brought within two years from the date of the accrual of the right of action. The applicable statutes of limitation raised by this defense are General Statutes, §§ 5987 and 6016. Section 5987 provides that no action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, or whether caused by the negligence of the defendant or by his wilful, malicious or felonious act, shall be brought but within one year from the neglect complained of or from the commission of such wilful, malicious or felonious act. Section 6016, which was in force on June 26, 1930, and at the time this action was brought, provided: ‘ No action to recover damages from any physician, surgeon, dentist, hospital or sanatorium for malpractice, error, mistake or failure to effect a cure shall be brought but within two years from the date of the accrual of the right of action.’
There is some apparent confusion among the authorities as to when the statute of limitations begins to run in actions for malpractice. In some cases, the statute has been held to run from the date of the wrongful act or omission, while in other cases the cause of action has been held to accrue when the injuries occurred. See annotation to Schmit v Esser, 183 Minn. 354, 236 N.W. 622, 74 A.L.R. 1312, 1318. In Capucci v. Barone, 266 Mass. 578, 579, 165 N.E. 653, 654, the court said: ‘ Any act of misconduct or negligence on his part in the service undertaken was a breach of his contract, which gave rise to a right of action in contract or tort, and the statutory period began to run at that time, and not when the actual damage results or is ascertained.’ In Gillette v. Tucker, 67 Ohio St. 106, 129, 65 N.E. 865, 871,93 Am.St.Rep. 639, it is said: ‘ If evil consequences followed, and plaintiff was injured, her cause of action accrues when her injuries...
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Soto v. Bushmaster Firearms Int'l, LLC, SC 19832
...controlling statute of limitations regardless of the underlying theory of liability. This court applied that rule in Giambozi v. Peters, 127 Conn. 380, 16 A.2d 833 (1940), overruled in part on other grounds by Foran v. Carangelo, 153 Conn. 356, 216 A.2d 638 (1966), in which the court held t......
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Soto v. Bushmaster Firearms Int'l, LLC, SC 19832, (SC 19833)
...controlling statute of limitations regardless of the underlying theory of liability. This court applied that rule in Giambozi v. Peters , 127 Conn. 380, 16 A.2d 833 (1940), overruled in part on other grounds by Foran v. Carangelo , 153 Conn. 356, 216 A.2d 638 (1966), in which the court held......
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Blanchette v. Barrett
...185 Conn. 390, 400, 440 A.2d 952 (1981); Handler v. Remington Arms Co., 144 Conn. 316, 321, 130 A.2d 793 (1957); Giambozi v. Peters, 127 Conn. 380, 385, 16 A.2d 833 (1940), overruled on other grounds, Foran v. Carangelo, 153 Conn. 356, 360, 216 A.2d 638 (1966). Because the plaintiff last co......
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Peterson v. Roloff
...153 So. 555; Ayers v. Morgan (1959), 397 Pa. 282, 154 A.2d 788.4 See Baum v. Turel (S.D.N.Y., 1962), 206 F.Supp. 490; Giambozi v. Peters (1940), 127 Conn. 380, 16 A.2d 833; Bowers v. Santee (1919), 99 Ohio St. 361, 124 N.E. 238; Gillette v. Tucker (1902), 67 Ohio St. 106, 65 N.E. 865, 93 Am......