Hershey v. Peake

• Decision Date: 08 March 1924
• Docket Number: 24,774
• Citation: 223 P. 1113,115 Kan. 562
• Parties: JAMES H. HERSHEY, Appellant, v. O. H. PEAKE, Appellee
• Court: Kansas Supreme Court

223 P. 1113

115 Kan. 562

JAMES H. HERSHEY, Appellant, v. O. H. PEAKE, Appellee

No. 24,774

Supreme Court of Kansas

March 8, 1924

Decided January, 1924.

Appeal from Labette district court; ELMER C. CLARK, judge.

Cause reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PHYSICIAN AND SURGEON--Distinction between Assault and Battery and Negligence Constituting Malpractice. As applied to a surgical operation, the distinction, ordinarily, between an unauthorized operation amounting to assault and battery on the one hand, and negligence such as would constitute malpractice on the other, is that the former is intentional while the latter is unintentional.

2. SAME--Action for Malpractice. The petition examined, and held to state a cause of action for malpractice, rather than one for assault and battery.

Thomas E. Wagstaff, of Independence, for the appellant.

W. W Brown, Alfred G. Armstrong, both of Parsons, and A. R. Lamb of Coffeyville, for the appellee.

OPINION

HARVEY, J.:

This is an action for damages. The trial court rendered judgment for defendant upon the pleadings and the opening statements of counsel. The plaintiff has appealed.

The question for decision is the statute of limitations. Does the petition state a cause of action for assault and battery or a cause of action for malpractice? If the former, the one-year statute of limitations applies (R. S. 60-306, 4th clause); if the latter, the two-year statute applies (R. S. 60-306, 3d clause) if the action is in tort, and a longer period if on contract. (30 Cyc. 1582; 21 R. C. L. 400.) The injury complained of is alleged to have been sustained April 2, 1919, and this action was filed January 18, 1921. Hence, if the one-year statute applies the action was barred and the judgment of the court was correct; if the two-year statute, or a longer one, applies, the action was brought in time and the case should be reversed. That part of the petition necessary to be examined reads as follows:

"That on the 2nd day of April, 1919, the plaintiff went to the office of the defendant at Parsons, Kansas, where he met the defendant and verbally stated to him that he had an X-ray picture or photograph of his jaw and teeth, told the defendant that said X-ray picture of photograph was taken by E. C. Glass of Independence, Kansas, and that said picture disclosed among other things, the roots of the first and second bicuspids and first molar teeth on the upper left side of plaintiff's jaw infected and the gums and tissues surrounding said roots inflamed. That plaintiff verbally advised defendant at said time that he had been sent to defendant by Dr. A. S. DeVore of Independence, Kansas, to have said three teeth so infected as hereinbefore alleged pulled. That thereupon the plaintiff gave the defendant the said X-ray photograph or picture of his teeth and jaw aforesaid, whereupon the defendant took the said photograph into his hands, looked at the same and thereupon said that photograph, which defendant then had and held in his hand, disclosed that said teeth had pus at the roots thereof, and pointing to the said photograph with a steel instrument about six inches long and one-eighth of an inch thick said to plaintiff, 'You can see for yourself the teeth are badly infected and pus sacks at the base.' Thereupon the defendant examined plaintiff's jaw and teeth, probed said teeth with the dental tool aforesaid, and thereupon stated to plaintiff that the photograph and defendant's examination of plaintiff's jaw and teeth disclosed that the teeth were badly infected. He then exclaimed: 'I will pull the teeth. You will have to take gas.' Thereupon plaintiff told defendant that he consented to the pulling of said teeth. Whereupon the defendant immediately administered gas to plaintiff and when plaintiff was under the influence of said gas the defendant proceeded to operate upon plaintiff by pulling the first and second bicuspids and first molar teeth on the upper right side of plaintiff's jaw instead of pulling the first and second bicuspids and first molar teeth on the upper left side of plaintiff's jaw, which last mentioned teeth the defendant stated he would pull and which plaintiff consented for the defendant to pull. That the teeth that defendant did pull, as mentioned and hereinbefore alleged, were in a healthy condition and in no way infected or ulcerated, all of which the defendant then knew when he pulled the same. That when plaintiff discovered the defendant had pulled the teeth aforesaid he verbally called the defendant's attention to the fact that he had pulled the teeth on the right side instead of those on the left side. That at said time defendant had one of the teeth in an instrument in his hand. He thereupon threw the tooth on the floor and exclaimed: 'By G I have pulled the wrong tooth." He thereupon washed out plaintiff's jaw and gum from which he had pulled the teeth and then said, 'You take or use salt water, listerine or lavoris and as soon as your gum heals come back over here and I will pull the ulcerated teeth on the left side. I don't know why I pulled the wrong teeth as the X-ray picture plainly showed which teeth were infected, and I followed up the X-ray by examining the gums and teeth. It is just one of those things that I cannot explain as I certainly knew which teeth to pull.' That the defendant wantonly, recklessly and negligently pulled said healthy teeth while plaintiff was under the influence of said gas, and in so doing neglected to use reasonable and ordinary care and skill ordinarily possessed by dentists and the wanton, reckless and careless disregard of the knowledge the defendant had obtained from said X-ray photograph and his examination of plaintiff's jaw and teeth, all as hereinbefore alleged, the defendant caused plaintiff to forever lose said teeth and the use thereof to plaintiff's damage as hereinafter alleged."

The appellee contends that the petition states a cause of action for assault and battery and cites and relies upon Mohr v. Williams, 95 Minn. 261, 104 N.W. 12, and allied cases; Pratt v. Davis, 224 Ill. 300, 79 N.E. 562; Rolater v. Strain, 39 Okla. 572, 137 P. 96; Throne v. Wandell, 176 Wis. 97, 186 N.W. 146; Schloendorff v. New York Hospital, 211 N.Y. 125, 105 N.E. 92; Rishworth v. Moss, 159 S.W. 122 (Tex.); 191 S.W. 843, 222 S.W. 225. Generally speaking, these cases announce and apply the rule (a) that a person (in possession of his faculties and in such physical health as to be able to be consulted as to his condition and no emergency existing making it impracticable to confer with him) has the right to say whether or not any contemplated surgical operation shall be performed upon him; (b) that a surgical operation performed upon such a person without his consent is wrongful and unlawful and amounts to a trespass upon the person and is assault and battery; (c) that such person may maintain an action against the surgeon for damages, if any have been sustained, because of such wrongful operation, and (d) such an action may be maintained though the surgeon was learned and skillful and exercised due care and skill in all he did.

The doctrine announced in the leading case, Mohr v. Williams, supra, is seriously criticized and its strict applicability to modern surgical operations is denied in Bennan v. Parsonnet, 83 N.J.L. 20, 83 A. 948. The case of Rolater v. Strain, supra, is based upon an exceedingly narrow ground, which the same court in effect modified in the later case of King v. Carney, 85 Okla. 62, 204 P. 270. But it will not be necessary in this case for us to approve or to disapprove the principles announced and applied in these cases.

Appellant contends that the petition states a cause of action for malpractice based upon...