Maercklein v. Smith

• Decision Date: 15 February 1954
• Docket Number: No. 17031,17031
• Citation: 129 Colo. 72,266 P.2d 1095
• Parties: MAERCKLEIN et al. v. SMITH.
• Court: Colorado Supreme Court

Page 1095

266 P.2d 1095

129 Colo. 72

MAERCKLEIN et al. v.SMITH.

No. 17031.

Supreme Court of Colorado, En Banc.

Feb. 15, 1954.

Paul M. Clark, Lawrence M. Wood, Denver, Horatio S. Ramsey, Littleton, for Wallace W. Maercklein.

Wolvington & Wormwood, Denver, for George S. Postma.

Earl J. Hower, Harold H. Harrison, Denver, for defendant in error.

Harry S. Silverstein, Jr., Denver, amicus curiae.

CLARK, Justice.

Plaintiffs in error were defendants in the trial court where judgment was entered against them in a substantial amount.Both are physicians and surgeons regularly licensed to practice their profession in the State of Colorado and were so engaged at the time of the events hereinafter related.

In his complaint plaintiff alleged that on or about December 1, 1949, he consulted the defendant Maercklein who advised him that he was then in need of a circumcision; that plaintiff again consulted Maercklein (he testified that this was about two weeks prior to June 23, 1950)'and it was agreed that the circumcision should be proceeded with, and * * * Maercklein stated that he would attempt to arrange hospital facilities for the circumcision operation; that Plaintiff then and there employed said Defendant to perform a circumcision operation upon Plaintiff.'He further alleged that on June 23, 1950, upon going to a stated hospital 'for the purpose of having the circumcision performed, Defendants, * * * acting wholly and without the knowledge, permission or consent of the Plaintiff and without Plaintiff's authorization did then and there commit an unlawful battery upon the person of the Plaintiff by performing upon Plaintiff's person a surgical operation known as a Vasectomy which rendered the Plaintiff sterile,' and that no circumcision was performed at that time; 'That as a direct and proximate result of the battery and act of malpractice,'plaintiff suffered in various ways enumerated, all to his damage.

After first disposing of various motions, including defendant's motion to dismiss, the case proceeded to trial before a jury.When the taking of evidence was concluded, defendants again interposed motions to dismiss and for directed verdict, which was overruled.The court then sustained plaintiff's motion that the jury be directed to return a verdict in favor of plaintiff on the question of liability of both defendants as a matter of law, leaving only to the jury the question of damages, which direction was later given by instruction.

First, it is contended on behalf of both defendants, that the case should have been, and should now be, ordered dismissed for the reason that it was not commenced within one year next after the cause of action accrued and is barred by section 2 of chapter 102, '35 C.S.A., being the limitation statute applicable to actions for damages arising from assault and battery.It is argued that plaintiff himself labels his action as one for unlawful battery and that no negligence in medical treatment of the plaintiff by defendants is charged.To sustain this position defendants' counsel place considerable reliance upon our opinion in the case of Cady v. Fraser, 122 Colo. 252, 222 P.2d 422, 424, and particularly upon the following:

'Negligence in treatment, * * *, and treatment without employment present basically different claims.* * * The one is based on the existence of a contract and authority for service, and the other upon the lack of such contract or authority.The one is based on lack of care or skill in the performance of services contracted for, and the other on wrongful trespass on the person regardless of the skill or care employed.The assertion of one is a denial of the other.Both cannot exist at the same time.'

Immediately following the foregoing quotation we further said in the Cady case:

'In the case before us the pleading of failure to use proper care necessarily implies authority to treat and negates trespass.'

Without analysis, it might readily be assumed that the Cady case is here controlling, but a careful comparison of the present case therewith discloses a wide difference.In the case now before us there is no question as to the employment of defendants by plaintiff.He specifically alleges in his complaint that defendant Maercklein was to render service unto plaintiff pursuant to definite contract and agreement.This case'is based on the existence of a contract and authority for service,' while it was the contention in the Cady case that no such contract existed.In the Cady casethe plaintiff, while pleading negligence by reason of lack of proper skill on the part of defendant, undertook to prove in support of his claim that defendant persisted in acting after his discharge, and without authority.In the instant case there is no contention concerning the professional skill of defendants, it being admitted that the operation they did perform was expertly done; but it is contended that they violated the contract of employment in that the operation therein agreed to be done was not performed, while another, different and wholly unrelated operation, was completed.This, then, leaves open the question to be met by proof of whether defendants, or either of them, by failing to comply with the terms of a contract, through inadvertence, lack of proper attention, or otherwise, were careless of plaintiff's welfare, and negligent in their professional practice.

In actions of this nature the opinions of courts of last resort of the several jurisdictions are in conflict.The majority rule is that such an action is essentially one involving negligence and that the statute of limitation respecting negligence cases is properly applicable regardless of the form of action by which the liability is sought to be enforced.

'And in still other jurisdictions it has been recognized that an action for malpractice is neither a purely tortious nor a contractual action, but a hybrid, for which a specific limitation should be prescribed by statute, as has been done in some states.And such a statute applies to any of the causes of action therein specified regardless of the form of action, whether it sounds in contract or in tort.It is the general rule that limitation statutes relating to assault, assault and battery, malicious injury, and fraud have no application to actions for malpractice based on negligence of a physician or surgeon.'41 American Jurisprudence, page 232, section 122.

It has been held that where there is a statute of limitation relating specifically to those engaged in the practice of the healing arts, such statute shall govern in all actions against physicians and surgeons growing out of their practice and regardless of the form thereof.Barnhoff v. Aldridge, 327 Mo. 767, 38 S.W.2d 1029, 1030, 1031, 74 A.L.R. 1252.

In Colorado we have such a statute, the pertinent portions of which are as follows:

'No person shall be permitted to maintain an action * * *, whether such action sound in tort or implied contract, to recover damages from any person licensed to practice medicine, * * * on account of the alleged negligence of such person in the practice of the profession for which he is licensed or on account of his failure to possess or exercise that degree of skill which he actually or impliedly represented, * * * unless such action be instituted within two years after such cause of action accrued.'Section 7, chapter 102, '35 C.S.A.

It is to be noted that the statute applies to actions for negligence of any person covered thereby (1) in the practice of the profession for which he is licensed; (2) or on account of failure to possess or exercise due skill.With number 2, we are not here concerned.Were defendants negligent 'in the practice of the profession' by failing to perform the contract allegedly agreed upon, while at the same time, through mistake, misunderstanding or inadvertence, performing an operation not authorized?

In White v. Hirshfield, 108 Okl. 263, 236 P. 406, 407, it was held:

'Where a patient is under the care, treatment, and control of a physician, and an unnecessary operation is performed without the consent of such patient, * * * the elements of technical assault and battery include malpractice and a violated duty upon the part of the physician to his patient'.

This doctrine has more recently been expanded, and in the case of Physicians' and Dentists' Business Bureau v. Dray, 8 Wash.2d 38, 111 P.2d 568, 569, that court laid down the following rule:

'While an unauthorized operation is, in contemplation of law, an assault and battery, it also amounts to malpractice, even though negligence is not charged.'(Emphasis supplied.)

The Dray case, in 1951, was cited with approval and quoted from in Bakewell v. Kahle, 125 Mont. 89, 232 P.2d 127.An interesting and more general discussion of this subject may also be found in McClees v. Cohen, 158 Md. 60, 148 A. 124;Burke v. Maryland, 149 Minn. 481, 184 N.W. 32;Francis v. Brooks, 24 Ohio App. 136, 156 N.E. 609;Hershey v. Peake, 115 Kan. 562, 223 P. 1113.

In view of the foregoing enunciated principles we are impelled to hold that the gist of the action is defendants' alleged wrongful and negligent act; not in lack of skill, but in that degree of care which, as practitioners, they owed to their patient in the practice of their profession.This view is further strengthened where, under our present reformed and generally liberalized practice, we look to the substance rather than to the form, in the trial of civil cases.It is not a question of whether plaintiff in his complaint alleged a cause of action for either one as between battery and negligence, but, are the allegations sufficient to support a claim for negligence?We believe they are.No error was committed by the trial court in refusing to hold that the action was limited by the one-year statute.

Was the trial court in error in directing a verdict in favor of the plaintiff on the question of liability of defendants, leaving only...