Maloney v. Brackett

• Decision Date: 02 June 1931
• Citation: 275 Mass. 479,176 N.E. 604
• Parties: MALONEY v. BRACKETT. SAME v. SMITH-PETERSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

275 Mass. 479

176 N.E. 604

MALONEY

v.BRACKETT.

SAME

v.SMITH-PETERSON.

Supreme Judicial Court of Massachusetts, Suffolk.

June 2, 1931.

Exceptions from Superior Court, Suffolk County; Cox, Judge.

Actions by Elizabeth L. Maloney against Elliot G. Brackett and against M. N. Smith-Peterson. Verdicts for defendants, and plaintiff brings exception.

Exceptions overruled.

J. H. Devine, of Boston, for palintiff.

J. N. Clark, of Boston, for defendant Brackett.

Joseph Wentworth, of Boston, for defendant Smith-Peterson.

SANDERSON, J.

[1] These are actions of tort for alleged malpractice brought against two physicians who participatedin the performance of an operation on the plaintiff on March 23, 1921. The writs were dated November 5, 1926. The negligence relied upon in each case is that the operation performed was unnecessary, unwise and impractical, and each declaration alleges, in substance, that until August, 1925, the defendant fraudulently concealed from the knowledge of the plaintiff her cause of action. The answer in each case is a general denial, contributory negligence and that the action was barred by the statute of limitations. The record states that ‘At the close of all the evidence on the question of liability the judge ordered verdicts for the defendant in each case and the plaintiff duly excepted thereto.’ The reason for the order was that the evidence would not warrant a finding of fraudulent concealment of the cause of action. Before the order was made the judge ascertained from the plaintiff that all evidence bearing on that issue, except such as was cumulative, had been introduced or was contained in an offer of proof made by the plaintiff. When satisfied that the plaintiff had thus submitted all of the material evidence in support of this issue, the judge was justified in making a ruling thereon without taking the time of the court to hear further evidence on other issues. Hall v. Wakefield & Stoneham Street Railway, 178 Mass. 98, 100, 59 N. E. 668. The plaintiff has been deprived of none of her rights by the order made unless upon the evidence introduced and that contained in the offer of proof the issue of fraudulent concealment should have been submitted to the jury.

St. 1921, c. 319, amending G. L. c. 260, § 4, provides in part that actions of tort for malpractice, error or mistake against physicians and surgeons shall be commenced only within two years next after the cause of action accrues. This act took effect January 1, 1922. The cause of action arose on March 23, 1921, when the operation was performed. Capucci v. Barone, 266 Mass. 578, 165 N. E. 653. The statute may be set up as a defence although it became effective after the accident. Mulvey v. Boston, 197 Mass. 178, 83 N. E. 402,14 Ann. Cas. 349;Tabolsky v. Crandon, 259 Mass. 32, 155 N. E. 657. By G. L. c. 260, § 12, it is provided that ‘If a person liable to a personal action fraudulently conceals the cause of such action from the knowledge of the person entitled to bring it, the period prior to the discovery of his cause of action by the person so entitled shall be excluded in determining the time limited for the commencement of the action.’

Upon the plaintiff's testimony she received an injury to her knee in 1918, and between that time and March, 1921, when she first saw the defendants, she had consulted several doctors and had been treated by some of them, she had been told that she was suffering from a sacroiliac strain and this diagnosis was confirmed by the defendants who, after having her under observation for a few days, advised an operation. She testified that both defendants told her that if the operation was performed she would leave the hospital in six weeks and be well in two months, and that she consented to the operation because of that assurance. The purpose of the operation was to produce the fixation of the right sacroiliac joint, by inserting between the sacrum and ilium a piece of bone taken from the ilium, the result being accomplished by the union of this bone to the ilium and sacrum. Upon the undisputed evidence the fixation of the joint was accomplished by the operation. Both defendants saw her at the hospital almost daily from the time of her operation until she left for her home in Hartford, July 1, 1921, and they both saw her again at a hospital in Boston in the fall of 1921. Thereafter she saw the defendant Smith-Peterson but once and that was in August, 1925, but during these years she frequently wrote the defendant Brackett about her condition and occasionally consulted him personally. She testified that in August, 1925, the defendant Smith-Peterson told her that the reason the first operation was not a success was that they used a too small piece of bone, that if he then operated on her and used a larger piece of bone she would be well in a short time, otherwise she would be a cripple and useless to herself and others. She also testified that the defendant Brackett at about this time told her that too small a piece of bone had been used and he advised her to go back to Dr. Smith-Peterson and submit to an operation, assuming her that this would make her well.

[5] The prediction by the defendants as to her recovery made before the operation was performed had no tendency to prove that the doctors did not...