Miller v. Werner

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM; HENLEY, P.J., SEILER, J., and VARDEMAN; STORCKMAN
• Citation: Miller v. Werner, 431 S.W.2d 116 (Mo. 1968)
• Decision Date: 08 July 1968
• Docket Number: No. 1,No. 53228,53228,1
• Parties: Sarah K. MILLER, Appellant, v. F. C. WERNER, M.D., Respondent

Page 116

431 S.W.2d 116

Sarah K. MILLER, Appellant, v. F. C. WERNER, M.D., Respondent.

No. 53228.

Supreme Court of Missouri, Division No. 1.

July 8, 1968.

Motion for Rehearing or for Transfer to Court En Banc Denied

Sept. 9, 1968.

Joseph R. Schlozman, Kansas City, for appellant, Rope, Shanberg & Rope, Kansas City, of counsel.

Spencer, Fane, Britt & Browne, William H. Woodson, Kansas City, for respondent.

HIGGINS, Commissioner.

Action for $25,000 damages for malpractice. Plaintiff appeals from the verdict directed for defendant at close of all the evidence.

Plaintiff began experiencing sebaceous cysts in 1956 and, by 1963, several had been removed surgically. In October 1963, she came under the care of Dr. John Balhuizen who, after treatment by lotion and antibiotics, recommended she see Doctor Werner about surgical removal of some cysts. She first saw Doctor Werner November 1, 1961, and on November 7, 1963, Doctor Werner performed surgery for removal of a sebaceous csyt on the right side of her chin. The surgery was successful but, due to her acneiform skin, plaintiff experienced difficulty with the surgical scar and ultimately sought plastic surgery from Dr. Robert Chandler for revision of the scar.

Plaintiff filed her original petition for damages November 3, 1965, alleging that on November 7, 1963, she employed defendant to remove cysts located on her chin and facial area; that defendant negligently and unskillfully conducted himself in the removal of said cysts 'in that he negligently omitted and failed to use and exercise ordinary care and skill in operating upon the plaintiff and in the removal of said cysts * * * and that through his negligence and unskillfullness scars resulted * * *, by reason whereof it became necessary to have plastic surgery done * * * and that said surgical operation of the defendant was the proximate cause of the permanent scars to the face of the plaintiff' to her damage.

Plaintiff filed a first amended petition January 16, 1967, alleging, among other things, that Doctor Werner 'was negligent and guilty of malpractice' in that 'The defendant knew, or should have known, that he was employed by the plaintiff to remove certain cysts for cosmetic purposes, that the defendant failed to warn the plaintiff of the likelihood of an unsightly scar resulting from his operation that would be more noticeable, * * * more unsightly and more distracting from her looks than the imperfection being removed.'

Defendant moved for the dismissal of this part of the amended petition on the ground it was barred by the statute of limitations, Section 516.140, V.A.M.S., providing that 'All actions * * * for malpractice * * * shall be brought within two years from the date of the act of neglect complained of * * *.' The motion was overruled; defendant filed answer, again raising the bar of the statute of limitations, and the parties went to trial April 17, 1967.

At the close of all the evidence defendant moved for a directed verdict on grounds that plaintiff failed to make a submissible case on any of the theories alleged in her original and amended petitions and, particularly, there is no evidence 'that defendant failed to possess and use the skill and care of a reasonable prudent general surgeon in this or a similar locality in operating upon the plaintiff and in the removal of the cysts * * * and any further or different or additional claim of plaintiff is barred by the two year statute of limitations for alleged malpractice actions, * * * V.A.M.S. 516.140.'

The court entered its order that 'At the close of all of the...