Gillette v. Tucker

• Decision Date: 18 November 1902
• Citation: 65 N.E. 865,67 Ohio St. 106
• Parties: GILLETTE v. TUCKER.
• Court: Ohio Supreme Court

65 N.E. 865

67 Ohio St. 106

GILLETTE v. TUCKER.

Supreme Court of Ohio.

November 18, 1902

Error to circuit court, Lucas county.

Action by Mrs. Tucker against William J. Gillette. Verdict and judgment for defendant was reversed in the circuit court, and defendant brings error. Affirmed by divided court.

In the court of common pleas, the plaintiff, now defendant in error stated her cause of action in the following petition: ‘ Plaintiff, for cause of action against the defendant, says that, at the times hereinafter mentioned, and for a long time prior thereto, defendant resided in the county and state aforesaid, and held himself out to be a physician and surgeon, skilled in the practice of his said professions that plaintiff, at the times hereinafter mentioned, and for a long time prior thereto, was, and ever since has been, a married woman, having the ordinary cares and burdens of a household. That on or about the 1st day of November, 1897 plaintiff, having theretofore fallen sick of a malady, the character and nature of which she did not understand, in company with her husband, James H. Tucker, called upon the defendant, and said plaintiff and said husband, for and on behalf of said plaintiff, then and there retained defendant as such physician and surgeon, to treat said plaintiff for her said malady. That said defendant then and there, as such physician and surgeon, accepted the retainer so by plaintiff and her husband to him offered, and thereupon entered upon the treatment and cure of plaintiff for said malady. That upon an investigation then made, and diagnosis of plaintiff's trouble, defendant informed plaintiff that she was suffering from appendicitis, and that to her proper treatment and cure a surgical operation was necessary. That in preparation therefor, and in pursuance of said employment and said treatment, defendant made arrangements for the performance of said surgical operation at the Toledo hospital, in said county and state, at which hospital, and for the purposes of said operation, plaintiff was to be taken. That on or about November 1, 1897, plaintiff and defendant being at said hospital, pursuant to said arrangements, the defendant undertook to, and did, perform upon plaintiff a surgical operation, opening her abdomen and, among other things, removing therefrom a tumor. That defendant, while performing said operation, and in the performance thereof, did use, and did insert in the opening so made in plaintiff's abdomen, a cheesecloth sponge, for the purpose of absorbing and taking up from said opening so made, in the performance of said operation, liberated blood, etc., which cheesecloth sponge consisted of about eight layers of cheesecloth sewed together, and which layers were about two inches in width by three inches in length. That defendant, without the knowledge or consent of plaintiff, did carelessly and negligently, and in violation of the obligations of his said contract of employment, leave said cheesecloth sponge in the opening by him made in the performance of said operation, and in the abdomen of the plaintiff, and did carelessly and negligently, and without the knowledge or consent of plaintiff, close said opening without removing said cheesecloth sponge therefrom. That, for more than 18 months thereafter, plaintiff was continuously sick of said malady, and for more than 12 months thereafter, viz., from about November 1, 1897, to about December 1, 1899, defendant continued, under his retainer and employment, to treat and counsel plaintiff concerning the same, and during all of which latter time, and upon each and every day thereof, without the knowledge or consent of said plaintiff, said defendant, knowingly, carelessly, and negligently, and in disregard of his duties and obligations under said contract of employment, permitted said cheesecloth sponge to remain in said plaintiff's abdomen. That on account of defendant's so leaving said cheesecloth sponge in plaintiff's said abdomen, and so inclosing the same, and on account of defendant's so permitting said cheesecloth sponge to remain inclosed as aforesaid in plaintiff's said abdomen, upon and during the days, and each and every of the days, aforesaid, a running, painful sore, continually discharging offensive pus, requiring constant care and attention, was created and maintained, and plaintiff was made sick, and during all the time aforesaid, and up to and until May 1, 1899, suffered great mental and physical distress and inconvenience, and was almost totally disabled from the performance of her family and household duties, and was put to great annoyance, trouble, and expense, to her great damage in the sum of $5,000. Wherefore plaintiff prays judgment against the defendant in the sum of $5,000, her damages so as aforesaid sustained, and for other and proper relief. James M. & Walter F. Brown, Attorneys for Plaintiff.’

The defendant below filed the following demurrer to the petition: ‘ Now comes the said defendant, and demurs to the petition of the said plaintiff, because said petition does not state facts sufficient to constitute a cause of action, for the reason that the cause of action therein stated is barred by the statute of limitations.’ This demurrer was overruled; and the following amended answer was filed: ‘ The said defendant, William J. Gillette, for answer to the said plaintiff's petition, says that he admits that during the month of November, 1897, and prior thereto, he was a practicing physician and surgeon in the city of Toledo, Ohio; admits that on or about November 3, 1897, defendant, at the request of plaintiff and her husband, performed a surgical operation upon the plaintiff at the Toledo hospital, in the city of Toledo, Ohio. Defendant denies each and every other allegation in said petition contained. Defendant, further answering, says that he performed said operation upon the said plaintiff on November 3, 1897, and that she remained in said hospital under his care until December 5, 1897, when she left the same, and defendant had no further charge or care of her; and defendant avers that, if plaintiff thereafter suffered any pain or inconvenience on account of said operation, it was due to her own negligence in failing and refusing to follow defendant's advice, and to her own negligence and want of care in other respects. Defendant, further answering, says that he did not treat plaintiff or perform any professional services of any kind for her during the period of more than one year next preceding the commencement of this action, and that the cause of action stated in plaintiff's petition did not accrue within one year before the commencement of this action.’ The averments of this answer were denied by a reply, and the case went to trial to a jury. The plaintiff introduced all of her testimony and rested her case. Thereupon the defendant moved the court to instruct the jury to find and bring in a verdict for the defendant, for the reason that plaintiff's case was barred by the statute of limitations, which motion was granted, and the jury was instructed to find for the defendant on the ground stated in the motion. In obedience to the instruction, the jury returned a verdict for the defendant. A motion for new trial was overruled and judgment entered. The circuit court reversed this judgment, and the defendant in error in that court is plaintiff in error here, asking that the judgment of the circuit court be reversed, and that of the court of common pleas affirmed.

The important facts developed at the trial are stated in the opinion of the court.

One holding himself out as a general practitioner of medicine and surgery is bound to possess and exercise an average degree of skill possessed by members of the profession practicing in similar localities in the light of the present state of medical science.

Syllabus by the Court

1. A surgeon and physician, employed to treat a case professionally, is under an obligation, which the law implies from the employment, to exercise the average degree of skill, care, and diligence exercised by members of the same profession, practicing in the same or a similar locality, in the light of the present state of medical and surgical science; and that he will indemnify the patient against any injurious consequences which may result from his want of ordinary skill, care, and attention in the execution of his employment.

2. It is the duty of the physician and surgeon to exercise due and ordinary skill, care, and attention, not only in and about an operation which he decides to be necessary, but also, in the absence of a mutual understanding or notice to the contrary, to render such continued further care and treatment as the necessity of the case requires; and he is liable for injuries and damages which proximately result from the want of such ordinary skill, care, and attention.

3. Where the physician and surgeon so engaged operates upon the patient for what (as in this case) he pronounces to be appendicitis, and neglects or carelessly forgets to remove from the abdominal cavity a sponge which he had placed therein, and closes the incision, with the sponge remaining therein, and this condition continues during his entire professional relation to the case, and is present when he abandons or otherwise retires therefrom, 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.

Davis, Shauck, and Orew, JJ., dissenting.

D. R. Austin, M. A. Norris, and George F. Wells, for plaintiff in error.

James M. & Walter F. Brown, for defendant in error.

PRICE, J. (after stating the facts).

When the plaintiff below...