Jones v. Furnell
| Decision Date | 29 April 1966 |
| Citation | 406 S.W.2d 154 |
| Parties | Coy JONES and wife, Violet M. Jones, Appellants, v. Dr. Dale FURNELL, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Farland Robbins, Mayfield, for appellants.
Francis T. Goheen, Goheen, Schultz, Shelbourne & Yaffe, Paducah, for appellee.
DAVIS, Commissioner.
In this malpractice action appellant Coy Jones sought damages against appellee Dr. Dale Furnell, and appellant Violet M. Jones, wife of Coy Jones, sought damages for loss of consortium. The trial court dismissed the action as to both appellants on the ground that the claims were barred by the one-year statute of limitation. KRS 413.--140(1)(e). As respects the claim of the wife, the trial court ruled that no recovery could be had by her on her claim for loss of consortium anyway.
The appellants contend that (1) the contract statute of limitation (five years) is applicable because of appellee's warranty to effect a cure, achieve a specific result or use a particular medical procedure; (2) a tendered amended complaint was erroneously rejected; (3) Kentucky should change the existing rule and allow a wife to recover for loss of consortium, and (4) the facts at bar warrant the wife's recovering for loss of consortium even under existing Kentucky decisions.
Since this proceeding was disposed of upon the pleadings, we will treat as true the factual allegations made by appellants. In summary, appellants alleged that early in 1962 Coy Jones consulted Dr. Furnell with regard to a constant pain suffered by Jones. The doctor advised Jones that he could clip a nerve in Jones' back and relieve the pain; that the procedure was a minor one and would not cause Jones to lose more than three or four days from work. Jones averred that the doctor did not inform him that it would be necessary to cut any sections from any ribs. On February 8, 1962, appellee performed an operative procedure upon Coy Jones, and while Jones was anesthetized the doctor removed two sections from appellant's 8th and 9th ribs and clipped the wrong nerve by careless mistake. Since the wrong nerve had been cut, the pain to Jones continued unabated, so appellee '* * * apologized for and reported to the plaintiff (Jones) that he cut the wrong ribs and nerves (sic) and that in order to cut the nerve intended it would be necessary to perform another operation * * *.' Accordingly, another operation was performed on February 10, 1962, during which two sections were removed from the 6th and 7th ribs and more nerves clipped. It is alleged that in the course of both operations the appellee cut a total of four nerves instead of one, and that the pain which Jones had suffered was in no way alleviated by the operations.
Appellants specifically pleaded that appellee by 'special contract' agreed with Coy Jones that appellee would '* * * clip plaintiff's 7th intercostal nerve * * *' but that appellee failed, in the February 8th operation, to clip that nerve, but clipped other nerves and cut out rib sections. The complaint, as amended, asserts that the appellee '* * * represented that he could and would relieve by such operations * * *' the pain theretofore suffered by Coy Jones, but the pain has not been relieved.
The present action was not filed until February 23, 1963, more than a year after the second operation. Appellants concede that KRS 413.140(1)(e) is a bar to a malpractice action premised upon negligence alone, but insist that the five year limitation period is applicable here because of the alleged special contract. KRS 413.--120(1). Heavy reliance is placed upon Noel v. Proud, 189 Kan. 6, 367 P.2d 61, and other authorities of like import. The It is not a novel one in this jurisdiction. annotation. 80 A.L.R.2d 320, et seq. It is not a novel one in this jurisdiction See Roush v. Wolfe, 243 Ky. 180, 47 S.W.2d 1021; Howard v. Middlesborough Hospital, 242 Ky. 602, 47 S.W.2d 77; Guess v. Linton, 236 Ky. 87, 32 S.W.2d 718; Columbus Mining Co. v. Walker, Ky., 271 S.W.2d 276; Carr v. Texas Eastern Transmission Corporation, Ky., 344 S.W.2d 619. While we respect the views of sister jurisdictions to the contrary, we remain convinced of the soundness of the rule as enunciated in our just cited decisions. The rule is declared in 80 A.L.R.2d, pp. 326--327:
'The weight of authority is to the effect that ordinarily a malpractice action is subject to the time limitations provided in statutes for actions in tort or malpractice, irrespective of any allegations or evidence tending to show a contract for treatment.'
It is significant, we think, that KRS 413.140(1)(e) in fixing a limitation period of one year uses this language:
'An action against a...
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Hall v. Musgrave
...of treatment or diagnosis. Guess v. Linton, 236 Ky. 87, 32 S.W.2d 718 (1930); Philpot v. Stacy, 371 S.W.2d 11 (Ky.1963); Jones v. Furnell, 406 S.W.2d 154 (Ky.1966). Tomlinson v. Siehl, supra, brought Kentucky in line with an increasing number of jurisdictions holding that a cause of action ......
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Hyman & Armstrong, P.S.C. v. Gunderson
...in 1993. Incorporated in a physician's duty of reasonable care to his patient is the duty of requisite knowledge. Jones v. Furnell, 406 S.W.2d 154, 156 (Ky.1966), overruled on other grounds, 459 S.W.2d 166 (Ky.1970). Drawing all reasonable inferences in favor of Appellees, we believe the Ap......
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Tomlinson v. Siehl
...Hospital Association, 265 Ky. 452, 97 S.W.2d 9; Philpot v. Stacy, Ky., 371 S.W.2d 11; Turner v. Rust, Ky., 385 S.W.2d 175; Jones v. Furnell, Ky., 406 S.W.2d 154. Appellants frankly admit that the foregoing cases represent the law up to now, but they earnestly insist that these cases should ......
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Thomas v. Deason, 1438.
...the propriety of the common law rule to which it had adhered, it seemed to have buttressed its position by way of dictum in Jones v. Furnell, 406 S.W.2d 154 (1966). In Jones the Court stated that it was "not disposed to depart from the views so recently expressed in Baird v. Cincinnati, New......