Hudson v. Moore

• Decision Date: 11 January 1940
• Docket Number: 6 Div. 522.
• Citation: 239 Ala. 130,194 So. 147
• Parties: HUDSON v. MOORE.
• Court: Alabama Supreme Court

194 So. 147

239 Ala. 130

HUDSON v. MOORE.

6 Div. 522.

Supreme Court of Alabama

January 11, 1940

Rehearing Denied March 7, 1940.

Appeal from Circuit Court, Jefferson County; John Denson, Judge.

Action for damages for malpractice by Florence Hudson against Chalmers Moore. By reason of adverse rulings on the pleading plaintiff takes a nonsuit and appeals.

Affirmed.

Harsh Harsh & Hare, of Birmingham, for appellant.

Taylor & Higgins, of Birmingham, for appellee.

BOULDIN Justice.

Appellant sued appellee for alleged malpractice in the performance of a surgical operation. The operation was in 1923. The action was brought in 1938.

Pleas of the statute of limitations of one year and of six years were interposed.

Several counts of the complaint contained averments intended to anticipate and avoid these defenses. Demurrers going to the sufficiency of these averments were sustained. After pleas filed, similar averments were interposed by replications. Demurrers were sustained to these replications. Plaintiff, by reason of adverse rulings on the pleadings, took a non-suit and appeals.

Admittedly the statute of limitations of one year is a bar to counts in tort and six years a bar to counts ex contractu. The parties, on this appeal, make no issue as to whether the action, as presented in the several counts, is in tort or in assumpsit. The sole inquiry is whether facts set up by plaintiff prevent the running of the statute until a discovery of the cause of action alleged to have been within twelve months of suit brought.

The gravamen of the complaint is that defendant, a surgeon, agreed and undertook to perform a surgical operation on plaintiff's gall-bladder, and in breach of his obligation to perform with professional care and skill, left in the body of plaintiff a gauze sponge used in connection with the operation resulting in her gall-bladder becoming infected, causing many complications and internal ailments, requiring painful and expensive operations and medical treatment; and causing great physical pain, sickness and disability.

The cause of action here alleged arose at the date of the operation, the point of time when the tortious act or breach of contractual duty occurred proximately resulting in the injury. An action could have been maintained at any time thereafter. That cumulative injuries developed thereafter did not postpone the right of action, nor prevent the running of the statute of limitations.

The statute defines the instances in which the running of the statute is tolled.

Ignorance of the cause of action, unless superinduced by fraud, is not one of them, nor is difficulty of ascertainment. The statute is one of repose, intended to put an end to controversy, interposing an absolute bar. It is not for the courts to invent other exceptions to meet unusual cases. Peters Mineral Land Co. v. Hooper et al., 208 Ala. 324, 94 So. 606; Kelly et al. v. Shropshire, 199 Ala. 602, 75 So. 291; Tillison v. Ewing, 91 Ala. 467, 8 So. 404.

One point raised is that the cause of action was concealed by the wrongful act itself, enclosing a foreign substance in the body to work internal injury, thereafter, a breach of duty not to be suspected. Such malfeasance, it is argued, should be treated in law as a fraudulent concealment, whether known to the surgeon or not.

The fact that the foreign substance was concealed in the body grew out of the nature of the employment. Both parties contemplated a delicate operation within the body, one in which the conditions following the operation would necessarily be concealed. The fault of the surgeon was not in concealing the results of his operation, but in his breach of duty in failing to perform the operation with due care and skill.

Fraudulent concealment implies knowledge of the facts concealed. This is settled in our decisions as elsewhere. Jordan & Sons v. Pickett, 78 Ala. 331; Southern Land Development Co. v. Meyer, 230 Ala. 40, 159 So. 245; Griel v. Lomax, 89 Ala. 420, 6 So. 741; Lovell v. Smith et al., 232 Ala. 626, 169 So. 280; Metropolitan Life Ins. Co. v. James, Ala.Sup., 191 So. 352, 355.

Cases in other jurisdictions dealing with actions for malpractice, some of them involving foreign substances left in the body, are fully reviewed in note to Schmit v. Esser, 74 A.L.R. 1318, 1320 et seq. For supplemental cases arising since this annotation, see the following: Burton v. Tribble, 189 Ark. 58, 70 S.W.2d 503; Trombley v. Kolts, 29 Cal.App.2d 699, 85 P.2d 541; Silvertooth v. Shallenberger, 49 Ga.

App. 758, 176 S.E. 829; Carter v. Harlan Hospital Ass'n, 265 Ky. 452, 97 S.W.2d 9; Maloney v. Brackett, 275 Mass. 479, 176 N.E. 604; Weast v. Duffie, 272 Mich. 534, 262 N.W. 401; Hudson v. Shoulders et al., 22 Tenn.App. 301, 122 S.W.2d 817; McCoy et ux. v. Stevens et ux., 182 Wash. 55, 44 P.2d 797.

Several cases, following the lead of Gillette v. Tucker, 67 Ohio St. 106, 65 N.E. 865, 93 Am.St.Rep. 639, postpone the running of the statute of limitations during the period of post operative treatment under the same employment. This, upon the ground that the operation is incomplete if a foreign substance is left in the body on closing the operative wound, and the surgeon has a continuing duty to discover his dereliction and remedy it while he is still treating the ailment. This inquiry is unimportant in this case.

We may say there is good reason behind the doctrine of Gillette v. Tucker, supra. Still, we would not commit ourselves to any idea that a cause of action would not have arisen for the pain and suffering entailed in re-opening the wound, if discovered during the post operative treatment, and removed.

The decisions are practically unanimously in holding, that in the absence of fraudulent concealment as above defined, the statute begins to run when the relation of surgeon and patient ends with reference to the ailment treated.

Our statute, Code, § 8966, postponing the running of the statute in cases of fraud, reads: "In actions seeking relief on the ground of fraud where the statute has created a bar, the cause of action must not be considered as having accrued until the discovery by the aggrieved party of the fact constituting the fraud, after which he must have one year within which to prosecute his suit."

While this statute is usually applicable to cases wherein fraud is the basis of the cause of action, it is the settled construction that its purpose is to make available at law the rule theretofore prevailing in equity; and applies to a fraudulent concealment of the existence of a cause of action from the party in whose favor the cause of action exists. A party cannot profit by his own wrong in concealing a cause of action against himself until barred by limitation. The statute of limitations cannot be converted into an instrument of fraud. Moses et al. v. St. Paul et al., 67 Ala. 168; Peters Mineral Land Co. v. Hooper, supra; Roquemore v. Sovereign Camp, W. O. W., 226 Ala. 279, 146 So. 619.

Where confidential relations exist, as between physician and patient, the duty to disclose may render silence fraudulent, but knowledge of the facts is a necessary element of fraudulent concealment.

In certain pleadings, designed to excuse delay in bringing the suit, plaintiff seeks to invoke actual fraudulent misrepresentation, defined by statute in these words "Misrepresentations of a material fact, made wilfully to deceive, or recklessly with out knowledge, and acted on by the opposite party, or if made by mistake and innocently, and acted on by the opposite party, constitute legal fraud." Code 1923, § 8049.

Appellee suggests this species of fraud has no place in tolling the statute of limitations in that the statute is in another chapter, dealing with frauds and perjuries, and not connected with limitations of actions.

This overlooks the fact that this is merely a statutory enactment of existing common law. This species of fraud is usually found in misrepresentations of material facts as...