Kauchick v. Williams

• Decision Date: 25 November 1968
• Docket Number: No. 52127,52127
• Parties: Shirley KAUCHICK and Joseph Kauchick, (Plaintiffs) Appellants, v. L. R. WILLIAMS, D.O., and R. G. Mattison, D.O., Respondents.
• Court: Missouri Supreme Court

Page 342

435 S.W.2d 342

Shirley KAUCHICK and Joseph Kauchick, (Plaintiffs) Appellants, v. L. R. WILLIAMS, D.O., and R. G. Mattison, D.O., Respondents.

No. 52127.

Supreme Court of Missouri, En Banc.

Nov. 25, 1968.

James J. Raymond, Clayton, attorney for appellants.

Orville Richardson, Hullverson, Richardson & Hullverson, St. Louis, attorneys for respondents.

STORCKMAN, Judge.

This is a malpractice action by a wife and her husband in two counts. In the first count the wife seeks to recover damages in the sum of $350,000; in count two the husband prays for $60,000. Among other defenses, the defendants urged that the action was barred by the two-year statute of limitations, § 516.140, RSMo 1959, V.A.M.S. The plaintiffs contend the running of the statute of limitations was tolled because of fraudulent concealment by the defendants. Judgment was rendered on verdicts directed in favor of the defendants and the plaintiffs have appealed. After an opinion was adopted in Division One of this court affirming the judgment, the appeal was transferred to the Court En Banc. We reach the same result as the divisional opinion and considerable portions of that opinion will be incorporated herein without quotation marks.

Mrs. Shirley Kauchick consulted Dr. L. R. Williams, an osteopathic physician engaged in general practice, in February, 1958. Doctor Williams found Mrs. Kauchick pregnant and fixed her expected delivery date as October 8, 1958. Mrs. Kauchick saw Dr. Williams regularly during the course of her pregnancy and was under his exclusive care. In September 1958 at Dr. Williams's direction, X rays of Mrs. Kauchick's pelvis were made at the Normandy Osteopathic Hospital. The X rays were examined by Dr. R. G. Mattison, a doctor of osteopathy and roentgenologist at the hospital. Dr. Mattison reported that his examination of the X rays showed an intertuberous pelvic measurement of 11 centimeters. His report stated: 'The bony pelvic measurements fall within a (sic) centrally normal limits. We feel that vaginal delivery can be accomplished.' Dr. Williams made no direct measurement of Mrs. Kauchick's pelvis and, accepting Doctor Mattison's X ray report, prepared for a vaginal delivery.

On October 16, Mrs. Kauchick's labor pains began and she was admitted to the Normandy Osteopathic Hospital at about 6:00 a.m. She was placed in the labor room where Dr. Williams visited her from time to time. At approximately 2:38 p.m., the second stage of Mrs. Kauchick's labor began and she was taken to the delivery room. There Dr. Williams attempted to deliver the child vaginally without the use of forceps. He was unsuccessful. Mrs. Kauchick remained in the delivery room about four hours. At the end of that time, she was returned to the labor room and Dr. Williams called in Dr. Lloyd Olson, a specialist in obstetrics. Dr. Olson conducted a pelvic examination and then ordered Mrs. Kauchick to X ray where X rays were taken. Thereafter a saddle block anesthetic was administered and Dr. Olson unsuccessfully attempted delivery by the use of forceps. At 10:30 p.m., Dr. Olson reported that 'an adequate attempt has been made to deliver this patient vaginally. She has an acute pelvic angulation with a tense vaginal musculature * * * and therefore recommend caesarean section.' Dr. John Olson, a brother of Lloyd, was called to the hospital and at 11:40 p.m., he began the surgical procedure. 'A lower segmental transverse incision was made with failure of delivery of the fetal head because of deep placement in the birth canal. An incision was made in the midline, extending superiorly and the infant delivered breech (at 11:50 p.m.).'

Mrs. Kauchick's post-operative course was uneventful. She discussed the operation with Dr. Williams and inquired why she had the Caesarean section when she 'was supposed to be all right.' According to Mrs. Kauchick, Dr. Williams told her that he did not know, 'that it was just one of these things that happened, that he had performed Caesarean sections quite often. I asked him if he thought I could have other children, and he said well yes, I do because a Caesarean section doesn't mean that you can't have any other children.' Mrs. Kauchick did not recall any discussion of whether she would have to have a Caesarean section in such event. Mrs. Kauchick was discharged from the hospital on October 26. Shortly thereafter she saw Dr. Williams at his office and he removed stitches from the operative incision. Mrs. Kauchick took the baby to Dr. Williams for shots 'a couple of times.' According to Dr. Williams, he last saw Mrs. Kauchick or the child on February 27, 1959. Mrs. Kauchick had no complaint at that time.

In September 1959 Mrs. Kauchick again became pregnant. The physician then taking care of her child referred her to Dr. Michael McNalley, a doctor of medicine specializing in gynecology. Mrs. Kauchick first saw Dr. McNalley in December 1959. Dr. McNalley measured Mrs. Kauchick's pelvic structure and found it quite small, measuring 5 1/2 contimeters. In view of this finding and the previous Caesarean section, Dr. McNalley planned for a Caesarean delivery. However, on March 5, 1960, Mrs. Kauchick's membrane ruptured and a miscarriage followed. In June, 1960, Mrs. Kauchick again became pregnant, but again a miscarriage occurred, this time in August 1960 at Tuscaloosa, Alabama.

In March 1961 Mrs. Kauchick again became pregnant and saw Dr. McNalley. She visited Dr. McNalley monthly. In July, Dr. McNalley observed that the cervix had begun to dilate. He performed what is known as a Shirodkar operation on July 19. He described the operation as one in which a ribbon is placed around the cervix to prevent dilation. However, the procedure did not succeed and in August another miscarriage occurred.

The record is not entirely clear but either in connection with an examination at that time or subsequently, on September 23, 1961, Dr. McNalley discovered what he described as a 'defect in the wall of the uterus which was a scar resulting from a longitudinal incision running superiorly which was made on her uterus during the Caesarean Section operation performed at Normandy Osteopathic Hospital.' Dr. McNalley stated that because of the defect in the wall the uterus would not hold a pregnancy. On February 5, 1962, Dr. McNalley performed a surgical repair of the defect. The operation was apparently successful. In November 1964 Dr. McNalley saw Mrs. Kauchick and she was then pregnant. The expected delivery date of the pregnancy was June 27, 1965, but Dr. McNalley elected to deliver the child by Caesarean section on May 17, 1965.

This suit was filed in the St. Louis County Circuit Court on November 28, 1962. By count one of the petition, Mrs. Kauchick sought a judgment for damages against Doctors Williams Mattison and John Olson. By count two, her husband sought to recover his expenses and damages from the same defendants. Insofar as the matters relied upon on this appeal are concerned, the claim against Dr. Mattison is based on the contention that he erroneously determined from X rays taken by others that Mrs. Kauchick's pelvic measurements were adequate for vaginal delivery and that he approved delivery in that manner. Insofar as Dr. Williams is concerned, the charge was that he failed, during his care of Mrs. Kauchick, to discover her pelvic inadequacy; that because of his failure to use forceps in the attempted delivery, and his delaying the Caesarean procedure after the partient had been in secondary labor for four hours, the child became so deeply placed in the pelvis that when the operation was done a single incision was not adequate to permit the delivery and an additional longitudinal incision was required, which incision produced a weakness in the uterus wall causing three subsequent miscarriages and ultimately requiring operative repair. The claim against Dr. Olson is not pursued on this appeal and we take no note of the charges as to him.

The trial court sustained the motions of Doctors Mattison and Olson for a directed verdict at the close of plaintiffs' case. Dr. William's motion was sustained at the close of all the evidence. The issues presented by the defendants' motions were failure to make a submissible case and the bar of the two-year statute of limitations to the plaintiffs' claims. Those are the issues which have been briefed on this appeal. We find the statute of limitations issue decisive and consider only it.

Mrs. Kauchick contends that the defendants fraudulently concealed their negligent acts and omissions from her with the intention of depriving her of her cause of action, that she did not discover the true facts until August 1961 and, therefore, the statute of limitations was held in abeyance until that time. Her husband contends that his claim is separate and distinct from his wife's and is controlled by the five-year statute of limitations. The defendants contend that the two-year statute applies to both claims, that such period may not be tolled by any alleged improper acts of the defendants, and that, even if it were, plaintiffs have failed to show any improper acts of the defendants.

The general statutes of limitations are found in Chapter 516, RSMo 1959, V.A.M.S. The sections of this chapter provide various periods of limitation for different categories of litigation. The limitation period for malpractice actions is fixed by § 516.140, RSMo 1959, V.A.M.S., which provides in part as follows: 'Whithin two years: An action for libel, slander, assault, battery, false imprisonment or criminal conversation. All actions against physicians, surgeons, dentists, roentgenologists, nurses, hospitals and sanitariums for damages for malpractice, error, or mistake shall be brought within two years from the date of the act of neglect complained of, * * *.'

Section 516.280, usually associated with fraudulent concealment and chiefly relied upon by Mrs. Kauchick, reads as follows: 'If any person, by absconding...