Hemingway v. Waxler, 16061

• Decision Date: 13 October 1954
• Docket Number: No. 16061,16061
• Citation: 128 Cal.App.2d 68,274 P.2d 699
• Parties: Warren HEMINGWAY, Plaintiff and Appellant, v. Samuel H. WAXLER, Lawler A. Drees, Junipero Serra Hospital, et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

Page 699

274 P.2d 699

128 Cal.App.2d 68

Warren HEMINGWAY, Plaintiff and Appellant, v. Samuel H. WAXLER, Lawler A. Drees, Junipero Serra Hospital, et al., Defendants and Respondents.

No. 16061.

District Court of Appeal, First District, Division 1, California.

Oct. 13, 1954.

E. F. Delger, Edward A. Friend, San Francisco, for appellant.

Lamb, Hoge & Killion, San Francisco, for Lawler A. Drees and Junipero Serra Hospital.

Dana, Bledsoe & Smith, Joseph W. Rogers, Jr., San Francisco, of counsel for Samuel H. Waxler.

BRAY, Justice.

In a malpractice action plaintiff appeals from a judgment against him on the special defense of the statute of limitations.

Questions Presented.

1. Sufficiency of the evidence. 2. Do rulings on demurrer as to the statute of limitations bar the right to a trial concerning that issue?

1. Sufficiency of the Evidence.

December 31, 1950, plaintiff, a truck driver, sustained a broken leg in a motorcycle accident. He was taken immediately to defendant hospital where he was seen by defendant Waxler, a medical doctor. Dr. Waxler ordered X-rays taken of the leg, and after examining them informed plaintiff that his leg was not fractured, only bruised and some ligaments pulled. Dr. Waxler placed ace bandages on the leg and informed plaintiff that it would be all right to put weight on it in a day or two. After about two hours in the hospital, plaintiff returned home. He did not return to the hospital nor see Dr. Waxler again. Two days later, January 2, 1951, he tried to walk and experienced extreme pain in the leg. He then called his family doctor who saw him January 3rd, but who could not tell him without X-rays whether or not his leg was broken. Plaintiff had difficulty in being admitted to a hospital, but on January 8, 1951, entered San Mateo Community Hospital. The next day, after X-rays had been taken, a cast was applied to his leg. A second cast was applied on January 12th. While in this hospital, Dr. Freyberger and Dr. Cleary informed him that his leg was broken. After taking further X-rays they told him that the X-rays showed 'some subsequent' and 'additional splintering.' This was possibly the 10th of January. In spite of the last statement he claims that no one informed him that the condition of the leg was any more serious than it had been originally in the accident. He claims that he did not know that he had suffered any injury during the interval between treatment by defendant Waxler and the treatment given him by the other doctors. Plaintiff was in the San Mateo hospital for 38 days. The cast was removed May 15th. He returned to work July 1st, but was forced to use crutches. He remained on crutches nearly a year until about July, 1952. Complaint was filed May 16, 1952. He testified that in January, 1951, he knew that Dr. Waxler's diagnosis of torn ligaments was wrong and that he had a broken bone instead, but that it was not until after he went to work and discovered that he would probably have trouble with his leg for the rest of his life, that he first realized that he might have suffered further injury because of Dr. Waxler's incorrect diagnosis.

The court found that the action was commenced more than one year after the relationship of physician and patient between plaintiff and defendants had ceased, that the acts or omissions by Dr. Waxler were known to plaintiff more than one year prior to commencement of suit, and that plaintiff more than one year prior to commencement of suit could have discovered by the exercise of reasonable care that he was injured thereby. Therefore, the action was barred by section 340, subdivision 3, Code of Civil Procedure, the one-year statute.

The rules governing the application of the statute of limitations are well settled in this state. They are set forth in Costa v. Regents of University of California, 116 Cal.App.2d 445, 454, 254 P.2d 85, 91: '* * * in malpractice cases the statute cited does not start to run until the date of discovery, or the date when, by the exercise of reasonable care plaintiff should have discovered the wrongful injury. * * * As in compensation cases, Pacific Indemnity Co. v. Industrial Accident Comm., 34 Cal.2d 726, 729, 214 P.2d 530, the issues when the plaintiff discovered his injury and its actionable origin, or should have discovered them by the exercise of reasonable care are questions for the trier of facts.' (Emphasis added.) In Ehlen v. Burrows, 51 Cal.App.2d 141, 144, 124 P.2d 82, 84, another rule is expressed, which is not applicable here because the relationship of physician and patient between plaintiff and defendants did not continue after the first...