McCoy v. Stevens
| Citation | 182 Wash. 55,44 P.2d 797 |
| Decision Date | 13 May 1935 |
| Docket Number | 25491. |
| Court | United States State Supreme Court of Washington |
| Parties | McCOY et ux. v. STEVENS et ux. |
Department 1.
Appeal from Superior Court, Lewis County; C. A. Studebaker, Judge.
Suit by D. D. McCoy and Hazel McCoy, his wife, against E. W. Stevens and Ethel Stevens, his wife. From a judgment of dismissal plaintiffs appeal.
Affirmed.
A. E Rice, of Chehalis, and C. D. Cunningham, of Centralia, for appellants.
Gus L Thacker, of Chehalis, for respondents.
The plaintiffs used to recover damages for the alleged malpractice of the defendant E. W. Stevens, a physician and surgeon. The suit is against Stevens and his wife, but we shall refer to him as if sole defendant, and to Hazel McCoy as if sole plaintiff.
The plaintiff's amended complaint, so far as it is material here, is as follows:
'That the defendant, E. W. Stevens, now is, and at all times herein mentioned has been, a duly and regularly licensed physician practicing his profession in Lewis County, Washington, authorized to do so under and by virtue of the laws of the state of Washington, and, as a part of his practice and as an instrumentality used in the furtherance of said practice, he used an X-ray machine in furtherance of said practice as a physician and surgeon at all times herein mentioned.
'That on or about the 17th day ofJanuary, 1928, the plaintiff, Hazel McCoy, went to the defendant, E. W. Stevens, as such physician and surgeon, and he undertook to treat the said Hazel McCoy for the purpose of preventing conception for compensation to be paid, and for that purpose the said defendant, E. W. Stevens, undertook, as such physician and surgeon, to produce the results aforesaid.
'That in the treatment of said plaintiff, Hazel McCoy, the said defendant, E. W. Stevens, failed and neglected to use due or proper skill in endeavoring to secure the results aforesaid, and he attempted to treat her with what is known as 'X-ray Treatments' by the use of a mechanical contrivance known as an X-ray machine which he recommended for the aforesaid purpose then and there owned by said defendants and in use by the said E. W. Stevens, and on or about and between the 17th day of January, 1928, and the 27th day of January, 1928, said defendant, recklessly, carelessly and negligently, by the use of said X-ray machine for the purpose aforesaid, burned the body and person of said plaintiff at a point in the lower front of her abdomen, which said burns penetrated deeply into the flesh and into her internal organs, which said carelessness and negligence upon the part of said defendant in causing said burn was either that he applied the X-ray treatment for too long a period of time or too often, or that the X-ray generated by said machine was too strong or from all of said reasons, all of which was known, or could have been known to the said defendant, and all of which was wholly unknown to the said plaintiff, Hazel McCoy, until the time hereinafter alleged, and said defendant, as such physician and surgeon, relied and knew at all times or, by the exercise of ordinary care and skill could have known of the severity of said burn and of the ultimate effect upon the said plaintiff, but the said defendant willfully, at all times, concealed the true condition of said plaintiff from her, and when said burn first manifested itself upon her person by a reddening and burning of the skin of the abdomen on or about the 28th day of January, 1928, the said defendant, E. W. Stevens, willfully and knowingly concealed the true condition of said plaintiff from her, and at all times advised her, as her physician and surgeon, that the redness and burning of the skin as aforesaid was nothing unusual as the result of said treatment that he had given her and that the same would soon pass away, the same being superficial and, not knowing otherwise, said plaintiff believed the statements of said defendant and relied upon them, and said defendant thereafter carelessly and negligently treated said plaintiff's then condition and the burns so carelessly and negligently brought about by himself as aforesaid, and at all times willfully and knowingly concealed from plaintiff her true condition by telling her that said condition would soon pass away, and that said burn was only a surface burn and abrasion of the skin, and said plaintiff relied upon and believed said statements of said defendant as aforesaid.
'That at all times said plaintiff, Hazel McCoy, suffered constant pain rendering her wholly unfit to go about and do her household duties and this condition and the pain she suffered, she was advised by the said defendant, E. W. Stevens, was brought about by nervousness and caused by recent childbirth and not from the X-ray treatment as hereinabove alleged, all of which said statements said plaintiff believed and continued to believe until on or about the 17th day of March, 1932, when said plaintiff first learned of her true condition and she was taken to a hospital in Centralia, Washington, upon the advice and consent of said defendants, where she was treated by other physicians and surgeons and was operated upon for the condition so brought about by the said defendant, E. W. Stevens, as aforesaid, which treatment and operation afforded her some relief but not to the extent of relieving her from the pain and suffering caused by the carelessness and negligence of the said defendant, E. W. Stevens, as aforesaid, and, as a result of which, said plaintiff has been rendered incapable of doing her ordinary work, and her said injuries are permanent.'
A demurrer interposed by the defendant was sustained by the trial court, presumably upon the ground that the action was barred by the three-year statute of limitations. Rem. Rev. Stat. § 159. The plaintiff declined to plead further, and judgment was entered dismissing her action. This appeal follows.
We have held in several malpractice cases arising against attorneys that the cause of action is founded upon a breach of duty arising out of a contract, and controlled by the three-year statute. Isham v. Parker, 3 Wash. 755, 29 P. 835; Cornell v. Edsen, 78 Wash. 662, 139 P. 602, 603, 51 L. R. A. (N. S.) 279; Jones v. Gregory, 125 Wash. 46, 215 P. 63; Smith v. Berkey, 134 Wash. 348, 235 P. 793; Schirmer v. Nethercutt, 157 Wash. 172, 288 P. 265.
It will be seen from the pleading that the substantial act of malpractice complained of occurred between the 17th and the 27th days of January, 1928, and the action was commenced April 2, 1934, more than six...
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