Gray v. Wright, 10833

• Decision Date: 26 February 1957
• Docket Number: No. 10833,10833
• Citation: 96 S.E.2d 671,142 W.Va. 490
• Court: West Virginia Supreme Court
• Parties: Eva GRAY v. Chauncey B. WRIGHT.

Page 671

96 S.E.2d 671

142 W.Va. 490

Eva GRAY v. Chauncey B. WRIGHT.

No. 10833.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 22, 1957.

Decided Feb. 26, 1957.

Syllabus by the Court.

1. In an action based upon an alleged wrongdoing and intentional failure of a physician to remove a hemostat, which he inserted in plaintiff's abdomen during the course of an operation, the one-year period of limitation provided by Code, 55-2-12, will serve to bar the action, unless the statute is tolled or suspended during such time as the defendant with knowledge and by fraud, concealment or other indirect ways or means obstructed plaintiff's right of action. And where in such action there is no proof of knowledge, fraud or concealment of the presence of the hemostat in plaintiff's abdomen, as required by Code, 55-2-17, and a plea of the statute of limitations under Code, 55-2-12, has been filed, this Court will not reverse the judgment of the trial court in setting aside a verdict of the jury in favor of the plaintiff and against the defendant and granting the defendant a new trial.

2. Baker v. Hendrix, 126 W.Va. 37 , distinguished.

Chad W. Ketchum, Tom T. Baker, Huntington, for plaintiff in error.

Fitzpatrick, Marshall, Huddleston & Bolen, Amos A. Bolen, William C. Beatty, Huntington, for defendant in error.

RILEY, President.

In this action of trespass on the case instituted in the Circuit Court of Cabell County by the plaintiff, Eva Gray, against the defendant, Chauncey B. Wright, a physician practicing in Huntington, West Virginia, the plaintiff sought to recover damages for the alleged negligence of the defendant in failing to remove a hemostat from plaintiff's abdomen during the course of a gall bladder operation performed on plaintiff on June 16, 1947. The action was tried during the January, 1955, term of the Circuit Court of Cabell County before a jury under the defendant's plea of the general issue to plaintiff's special replication to the defendant's plea of the statute of limitations, with the result that the jury returned a verdict in favor of the plaintiff in the amount of twelve thousand dollars. On September 12, 1955, the circuit court entered an order sustaining defendant's motion that the court set aside the verdict, which order granted the defendant a new trial. To this order of September 12, 1955, the plaintiff prosecutes this writ of error.

In setting aside the verdict of the jury and awarding the defendant a new trial, the circuit court, as shown by its written memorandum of opinion, made a part of this record, was of the opinion that actual knowledge by the defendant physician that he had left a hemostat in plaintiff's abdomen during the course of the operation was a necessary fact to be established by proof in this action, in order to toll the one-year statute of limitations provided by Code, 55-2-12, as amended by Chapter 2, Acts of the Legislature, Regular Session, 1949.

The defendant, Dr. Chauncey B. Wright, had been engaged in the practice of general surgery in the City of Huntington since 1927. Pursuant to arrangements made by plaintiff's personal physician, Dr. Leland Dillon, defendant removed plaintiff's gall bladder on June 16, 1947, at St. Marys Hospital in Huntington.

From this record it appears that plaintiff, after suffering two gall bladder attacks, without having any medical attention, entered the hospital on June 8, 1947, under the care of Dr. Dillon. After the defendant Dr. Wright was consulted, at Dr. Dillon's suggestion, both agreed on the diagnosis that plaintiff had gallstones in her gall bladder, and that surgical removal of the gall bladder was necessary. A few days delay in performing the operation was caused by the plaintiff's mother's death, so that the operation was done on June 16, 1947.

On direct examination Mrs. Gray testified that prior to her first gall bladder attack some time in May, 1947, she was in 'perfect health'; that she had been well prior to the gall bladder operation and had not been treated by any physician; that she had no prior high blood pressure or heart disease, gallstones or nervous condition; and that on June 8, 1947, the day she was admitted to St. Marys Hospital, was the first time she had ever been a patient in a hospital. On cross-examination, however, she admitted that she had consulted Dr. Sanders Goodman in Huntington prior to her hospitalization in June, 1947, but denied that she had consulted Dr. Goodman for treatment for high blood pressure.

Notwithstanding the foregoing the plaintiff admitted on inquiry by her counsel that she had prior to her hospitalization in June, 1947, consulted Dr. Goodman at St. Marys Hospital, and had undergone certain tests at the hospital, which revealed a pathological gall bladder condition and the presence of gallstones.

Plaintiff's husband, John Gray, admitted that in February, 1947, the plaintiff 'had begun to go down hill'; that 'her blood pressure was beginning to pick up'; and that plaintiff then entered St. Marys Hospital for a general check-up by Dr. Goodman.

The records of St. Marys Hospital, as presented by Sister M. Assumpta, who was in charge of the record department of that hospital, relating to operations performed, established the operation by the defendant, Dr. Chauncey Wright on June 16, 1947, as well as the operation performed at the hospital by Dr. H. Homer Cummings, Jr. the latter of which Dr. Cummings testified occurred 'some time in March, either the latter part of March or the first of April, 1954', which latter date was less than a year before this action was tried.

The record of the hopital as to the removal of the hemostat from plaintiff's abdomen, which record Sister Assumpta testified was prepared by the doctor performing the operation, reads as follows: 'The abdomen was prepared and draped with merthiolade. A transverse incision was made midway between the umbilicus and the xiphoid process. * * * The peritoneal cavity was opened without difficulty. Careful palpation revealed the presence of a firm object the size and shape of a seven inch hemostat. This object was completely covered by omentum with a portion of the hemostat bordering and being attached to the transverse colon which had crossed. By careful dissection the hemostat was removed in four pieces; one arm of the hemostat being attached, the other being fragmented, consisting of three fragments.

'The entire hemostat, though, was removed with no evidence of any foreign bodies being left behind. There was a terrific amount of reaction around the hemostat, areas of necrotic like material being covered by omentum. After removal of the foreign body, the wound was closed in layers with drainage.'

Following the operation of June 16, 1947, plaintiff remained at St. Marys Hospital in Huntington for two weeks, during which time Dr. Wright visited her daily. On the third day after the operation plaintiff was allowed to sit up in bed for the first time. According to her testimony and that of her husband, John Gray, she then experienced pain in her abdomen for the first time after the operation. She told Dr. Wright about these 'sticking pains', and he replied, according to her testimony, that as she had been operated on she would be 'sore and have all kinds of pains.' Plaintiff's husband likewise testified in corroboration of the plaintiff as to the conversation between Dr. Wright and his wife three days after the operation.

The plaintiff testified that she continued to have pain in her abdomen, but that Dr. Wright informed her that such pain was the natural consequence of an operation such as she had had.

The record discloses that plaintiff's husband, John Gray, was with the plaintiff at the hospital almost continuously from the time of her operation on June 16, 1947, until her discharge on June 28, 1947; that he recalled only one time, that is three days after the operation, when plaintiff specifically complained to Dr. Wright of pain in her abdomen; and that there might have been a couple of other times when she complained. He also testified that Dr. Wright had expressed in his presence the opinion that the plaintiff was 'doing fine'; that she would be 'all right'; but that it would take some time for plaintiff to completely recover from an operation of that type.

After plaintiff was permitted to leave the hospital on June 28, 1947, she made three or four visits to Dr. Wright's office in Huntington before the defendant finally discharged her. Dr. Wright's records show that plaintiff made four visits to his office following the operation for post-operative care; and both plaintiff and her husband testified that on each occasion complaints of pain in her abdomen were made.

According to plaintiff, she told Dr. Wright on her first post-operative visit that she 'still hurt in there'; and that he told her she would be all right. She testified that a week later she made a second visit to Dr. Wright's office and about the same conversation was had; that when she went to Dr. Wright's office for a final check-up she again told him that she had 'that hurting in there', to which she testified defendant replied, '* * * He said I got along just fine. Which I did; I healed up well. And I thought I was all right.'

Plaintiff's husband testified that he accompanied the plaintiff to defendant's office on the occasions of her post-operative visits; and that on the occasion of the first post-operative visit plaintiff said, 'Dr. Wright, I still have this hurting in here', to which he replied that the operation was all right, and 'You just didn't get well after an operation in a week or two weeks or three weeks; that it took time.' Plaintiff's husband further testified that about the same conversation took place on the occasions of their second and their final post-operative visits to defendant's office. He also testified in effect that Dr. Wright's reaction to his wife's complaint of pain in her abdomen appeared to...