Hansen v. Collett

• Decision Date: 04 April 1963
• Docket Number: No. 4562,4562
• Parties: Gwen Huston HANSEN, Appellant, v. Hugh S. COLLETT, Respondent.
• Court: Nevada Supreme Court

Page 301

380 P.2d 301

79 Nev. 159

Gwen Huston HANSEN, Appellant, v. Hugh S. COLLETT, Respondent.

No. 4562.

Supreme Court of Nevada.

April 4, 1963.

Leo J. Puccinelli, Elko, Leonard W. Elton, Salt Lake City, Utah, for appellant.

Orville R. Wilson, Elko, for respondent.

BADT, Chief Justice.

This is an appeal from a summary judgment in favor of respondent, defendant below, in an action against him as a practicing physician and surgeon for $40,000 damages, growing out of his negligent failure to X-ray the left arm and pelvis of appellant, fractured in an automobile accident resulting from the negligence of one Shelby Hatch. The basis of the summary judgment was respondent's third defense that appellant, for the sum of $4,000, had made a settlement with Hatch for all claims and damages in any way growing out of her personal injuries resulting from said accident, and releasing, acquitting, and discharging Hatch therefrom. Appellant admitted her execution of the release to Hatch, but asserted that said settlement was made with Hatch as the result of his negligence and of no other.

Appellant fairly states the issue thus: 'Whether or not a release by an injured party of one who negotiated a settlement in regard to the original injury precludes an action by the injured person against a physician or surgeon for negligent treatment of the injury where the injured person claims new and additional injury directly and proximately caused by the negligence and carelessness of the physician and surgeon and further where the injured party makes claim that there has been no compensation for the injuries received by reason of the negligence and carelessness of the said physician and surgeon.'

In pertinent part the release executed by appellant was as follows: 'FOR AND IN CONSIDERATION of the payment to me/us at this time of the sum of FOUR THOUSAND AND no/100 Dollars ($4,000.00), the receipt of which is hereby acknowledged, I/we, being of lawful age, do hereby release, acquit and forever discharge Shelby Hatch of and from any and all actions, causes of action, claims, demands, damages, costs, loss of services, expenses and compensation on account of, or in any way growing out of, any and all known and unknown personal injuries and property damage resulting or to result from accident that occurred on or about the 15th day of May, 1958, at or near Wells, Nevada.

'I/we hereby declare and represent that the injuries sustained are or may be permanent and progressive and that recovery therefrom is uncertain and indefinite, and in making this release and agreement it is understood and agreed that I/we rely wholly upon my/our own judgment, belief and knowledge of the nature, extent and duration of said injuries, and that I/we have not been influenced to any extent whatever in making this release by any representations or statements regarding said injuries, or regarding any other matters, made by the persons, firms or corporations who are hereby released, or by any person or persons representing him or them, or by any physician or surgeon by him or them employed.

'It is further understood and agreed that this settlement is the compromise of a doubtful and disputed claim, and that the payment is not to be construed as an admission of liability on the part of Shelby Hatch, by whom liability is expressly denied.

'This release contains the ENTIRE AGREEMENT between the parties hereto, and the terms of this release are contractual and not a mere recital.

'I/we further state that I/we have carefully read the foregoing release and know the contents thereof, and I/we sign the same as my/our own free act.

'WITNESS OUR hands this 30th day of January, 1961, at Provo, Utah.'

Just preceding the signatures, the following appeared: 'CAUTION: This is a release. READ IT before signing.'

Many of the cases have been determined with direct consideration to the nature of the release given. We may therefore characterize the foregoing instrument at the outset. It is by its terms a release. It is by its terms personal, and releases by its terms all further claims against Shelby Hatch and against no one else. It does not in terms contain a reservation of the right to seek compensation from the doctors treating appellant's injury, for negligence in such treatment. On the other hand, it is not a satisfaction and does not purport to acknowledge full compensation for her injuries.

Under such characterization we find two lines of authorities directly at war with each other. Most of these authorities accord recognition to the very fine annotation appearing at 40 A.L.R.2d 1075 (1955), entitled 'Release of one responsible for injury as affecting liability of physician or surgeon for negligent treatment of injury,' which supersedes an earlier annotation in 50 A.L.R. 1108, supplemented in 112 A.L.R. 553. Here we find that the cases gathered support the following statement: 'By the weight of authority, a general release of the one responsible for the releasor's original injury bars action by the injured party against a physician or surgeon for negligent treatment of the injury.'

As against such majority rule, we find much respectable authority, both in the decisions and in the work of eminent text writers, to the effect that such a release does not of and in itself release the attending physicians or surgeons from damages arising out of their negligent diagnosis or treatment of the injury, unless it was the intention of the injured person so to release them and unless the compensation received from the first tortfeasor was in full compensation of the injury suffered--both of such items depending upon proof and not susceptible of determination as a matter of law, but being jury questions.

The great volume of case law on the subject prevents a consideration of all but a few of what we consider the leading cases. As the matter is one of first impression in this state, we are at liberty to base our decision in the instant case on the basic rules laid down by either line of authorities. We have concluded that the later and 'more enlightened' cases, as they have been often characterized, though constituting a numerical minority, are the better reasoned, and better promote the administration of justice.

The annotation in 40 A.L.R.2d lists 21 jurisdictions that have followed the majority rule and then proceeds (id. 1079) to analyze the theories of such cases supporting the majority rule.

There are numerous cases which discuss and support the majority rule and they include varying reasons why each particular court supported it. Perhaps it is an oversimplification but it appears to us that most of these reasons are in reality variations of two basic themes. (1) As a matter of law the original tort is considered to be the proximate cause of any injuries resulting from malpractice which occurred while treating the original injury, and consequently the original tortfeasor is liable for both injuries. Therefore a release of the original tortfeasor must release the physician, because if one liable for the whole claim is released, then the entire claim must also be extinguished. Sams v. Curfman, 111 Colo. 124, 137 P.2d 1017 (1943); Keown v. Young, 129 Kan. 563, 283 P. 511 (1930); Smith v. Mann, 184 Minn. 485, 239 N.W. 223 (1931) ¹; Feinstone v. Allison Hospital, Inc., 106 Fla. 302, 143 So. 251 (1932); Wells v. Gould et al., 131 Me. 192, 160 A. 30 (1932); Adams v. De Yoe, 11 N.J.Misc. 319, 166 A. 485 (1932) ²; Milks v. McIver, 264 N.Y. 267, 190 N.E. 487 (1934); Hooyman v. Reeve, 168 Wis. 420, 170 N.W. 282 (1919) ³. (2) There should be only one satisfaction for the same injury and a failure to follow the rule might enable the injured person to recover twice for the same injury. Edmondson v. Hancock, 40 Ga.App. 587, 151 S.E. 114 (1929); Retelle v. Sullivan, 191 Wis. 576, 211 N.W. 756, 50 A.L.R. 1106 (1926) ⁴; Thompson v. Fox, 326 Pa. 209, 192 A. 107, 112 A.L.R. 550 (1937).

Respondent says: 'The split of opinion is acknowledged by all recent decisions and we choose to quote from one which did not rule either way, but it fully recognized the situation.' He then cites Trieschman v. Eaton, 224 Md. 111, 166 A.2d 892 (1961), as follows: 'Appellees' real contentions are * * * that the overwhelming weight of authority is that a release of the original wrongdoer releases the doctor. In this last contention they are right.

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'The opinions relied on by the Trieschmans in California, Minnesota and New Jersey are by Courts which either had not before followed the rule that the release of one concurrent or successive tortfeasor discharged the other, or repudiated it in reaching the result that the injured person could sue the doctor, although he had compromised his claim against the original wrongdoer. These cases hold in essence that unless the release in terms discharges the other tortfeasors or the amount paid for the release was intended to be and was full satisfaction, the earlier settlement does not bar the subsequent suit.'

Respondent then cites the case of Farrar v. Wolfe, Okl., 357 P.2d 1005 (1960), as an illustration of the modern adaptation of the majority rule. The opinion sets forth the two rules, citing all the jurisdictions adopting the majority rule, and concludes: 'Without herein evaluating the relative merits of the majority or minority view, we follow the majority rule.' We cannot reconcile ourselves, however, to using this method of disposition, in choosing to follow one rule or the other. In like manner respondent cites eight additional cases, decided after the A.L.R. annotation, which continue to follow the majority rule. These eight cases however are all from states that had theretofore followed it and apparently applied the rule of stare decisis. Such, as noted, is not the case here.

We turn, then, to an examination of the authorities and texts supporting the opposite rule, which we are inclined to follow.

We must preface this by...