Morgan v. Grace Hospital, Inc., 12386

• Citation: 149 W.Va. 783,144 S.E.2d 156
• Decision Date: 29 June 1965
• Docket Number: No. 12386,12386
• Court: Supreme Court of West Virginia
• Parties: Ada Mae MORGAN et al. v. GRACE HOSPITAL, INC., et al.

Page 156

144 S.E.2d 156

149 W.Va. 783

Ada Mae MORGAN et al. v. GRACE HOSPITAL, INC., et al.

No. 12386.

Supreme Court of Appeals of West Virginia.

Submitted May 11, 1965.

Decided June 29, 1965.

Syllabus by the Court

1. Where, in a civil action for damages against a private hospital and an individual, the plaintiff alleges that, in connection with a surgical operation performed upon her, a surgeon and other persons employed by the defendants negligently failed to remove from the plaintiff's abdomen a sponge placed therein in connection with the surgical operation, the period of the applicable statute of limitations does not commence to run against the plaintiff's cause of action until she learns of, or by exercise of reasonable diligence should have learned of, the presence of the sponge in her abdomen.

2. To the extent that Baker v. Hendrix, 126 W.Va. 37, 27 S.E.2d 275, and Gray v. Wright, 142 W.Va. 490, 96 S.E.2d 671, are inconsistent with legal principles decided and applied in this case, they are expressly disapproved.

W. H. Ballard II, C. Thomas Seay, Welch, for appellants.

Crockett, Tutwiler & Crockett, Charles A. Tutwiler, Barley & Goode, Welch, for appellees.

CALHOUN, Judge.

This case involves a medical malpractice action instituted in the Circuit Court of McDowell County on March 10, 1965, by Ada Mae Morgan and Thomas V. Morgan, wife and husband, against Grace Hospital, Inc., a private hospital corporation, and Ray E. Burger. The case involves the question whether the cause of action is barred by the provisions of the applicable statute of limitations.

The complaint charges that on January 16, 1953, Dr. S. Douglas Murray, a physician and surgeon who was then employed as such by the defendants, performed a hysterectomy upon Ada Mae Morgan; that she remained in the hospital thereafter until she was discharged on January 23, 1953; that she returned to the hospital and was examined by Dr. S. Douglas Murray on February 14, 1953; that following the operation, both before and after her discharge from the hospital, she suffered severe pain, nervousness and mental anguish as a consequence of negligence in the performance of the operation; that, on April 13, 1963, a physician not connected with the defendant hospital discovered by means of an X-ray examination a foreign object in Ada Mae Morgan's abdomen, as a consequence of which discovery she was admitted to Bluefield Sanitarium at Bluefield for the purpose of submitting to an operation for the removal of the foreign object from her abdomen; that on May 3, 1963, the operation was performed by a surgeon at Bluefield Sanitatrium; that the operation resulted in the discovery of a sponge in and its removal from her abdomen; that the sponge had been left in her abdomen as a result of the negligence of the defendants, acting through their employee, Dr. S. Douglas Murray, and their other employees, servants and agents in connection with the performance of the initial operation on January 16, 1953; and that Dr. S. Douglas Murray was a nonresident of this state when the civil action was instituted.

Ada Mae Morgan sues for personal injuries, pain, suffering and mental anguish. Her husband, Thomas V. Morgan, sues for recovery of medical and hospital bills and also damages for loss of services and loss of consortium.

The defendants filed a plea of the statute of limitations pursuant to Rule 12(b) of the Rules of Civil Procedure asserting 'that the several supposed causes of action in said complaint mentioned, and if any such there were or still are, did not, nor did any or either of them, accrue to the said plaintiffs, or either of them, at any time within one year before the commencement of this action * * *.' By an order entered on May 2, 1964, the trial court sustained the plea of the statute of limitations, entered judgment for the defendants and dismissed the action on its merits at the costs of the plaintiffs. From that judgment, the plaintiffs have appealed to this Court.

At the time the hysterectomy was performed, the period of limitation applicable to an action such as this was one year, but it has since been changed to two years. The applicable statute (Code, 1931, 55-2-12, as amended,) required an action of this character to be brought 'within one year next after the right to bring the same shall have accrued * * *.' Two prior decisions of this Court furnished an exact and proper basis for the trial court's ruling that the cause of action was barred at the time the civil action was instituted. It will be noted that the civil action in this case was instituted more than ten years after the date of the performance of the hysterectomy but in less than one year after the sponge was discovered in Ada Mae Morgan's abdomen by an X-ray examination.

In Baker v. Hendrix, 126 W.Va. 37, 27 S.E.2d 275, the defendant surgeon left a sponge in the abdomen of the plaintiff following an appendectomy performed by him. Slightly more than seven years later, another physician performed an operation on the plaintiff in connection with which he discovered and removed the sponge left by the defendant in the plaintiff's abdomen in connection with the previous operation. The case was certified to this Court on the sufficiency of a replication to a plea of the statute of limitations. The Court held, pursuant to the allegations of the replication, that the one-year period of limitation is suspended in such a case 'during such time as the defendant by fraud or other indirect ways or means obstructs the prosecution of plaintiff's right of action.' The Court also held that mere silence on part of the guilty party in such a case will not prevent the running of the statute. Gray v. Wright, 142 W.Va. 490, 96 S.E.2d 671, involved an allegation that the defendant surgeon negligently failed to remove a hemostat from the plaintiff's abdomen in connection with a gall bladder operation performed by him. The Court held that the cause of action, if any, against the surgeon accrued at the time of the operation and that 'in the absence of actual knowledge, fraud, or concealment on the part of the defendant,' the running of the statute of limitation would not be delayed or tolled.

The complaint in the present case does not allege that defendants, through their employees, servants or agents, had actual knowledge of the fact that the sponge was left in the plaintiff's abdomen or that they were guilty of actual fraud or concealment of any facts within their knowledge. It follows that the present case was not brought within the rule of the two prior cases which would prevent the running of the applicable statute of limitations. The appeal was granted in this case by a divided Court in order to permit a reexamination of the principles announced in the Baker case and in the Gray case, in the light of other decisions of this Court in similar or analogous situations.

The application of statutes of limitations has been considered by appellate courts in innumerable medical malpractice cases. This has resulted in various exceptions to or qualifications of the rule that the period of limitation commences to run from the date of the act of malpractice rather than from the date of its discovery. Some of these rules may be stated as follows: (1) The statute does not commence to run so long as the physician's treatment of the patient continues; (2) the statute commences to run at the time of the commission of the tort or at the time of the injury, these terms being sometimes used interchangeably; (3) the statute commences to run from the date of the patient's injury rather than from the date of the commission of the tort; (4) the statute does not commence to run until the termination of the physician's treatment of the patient, except where the patient, prior to such termination discovers, or by the exercise of reasonable diligence could have discovered, his injury; (5) the statute will not run so long as the physician fraudulently conceals the cause of action, unless the patient in the meantime discovers, or by the exercise of reasonable care should have discovered, the injury, but the cases differ as to what constitutes a fraudulent concealment; and (6) the period of limitation commences to run only from the time the patient discovers, or in the exercise of reasonable care should have discovered, the wrong committed by the surgeon. Exhaustive annotations, pointing out the variety of legal principles applied in such cases, are found in 80 A.L.R.2d 368; 144 A.L.R. 209; and 74 A.L.R. 1317. To the same effect see 41 Am.Jur., Physicians and Surgeons, Section 123, page 233; 54 C.J.S. Limitations of Actions § 174b, pages 142-144; 70 C.J.S. Physicians and Surgeons § 60, pages 983-985. It has been said that the rule that the period of limitation commences to run from the date of the tort or wrong is subject to various exceptions and, therefore, it cannot be said to represent the general rule. Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224.

By the Baker case and the Gray case this Court is apparently committed to the rule that, in cases such as this, the statute commences to run from the date the surgeon negligently failed to remove the foreign object from the abdomen of the patient, in the absence of proof, by a preponderance of the evidence, of actual knowledge, fraud or concealment on the part of the surgeon; and that the rule must be applied even though the patient did not know and had no reasonable means of knowing of the wrong until after the expiration of the period of limitation. We believe that the Court in this respect is committed to a rule which is unrealistic and cruelly harsh and a rule which places a burden upon the wronged plaintiff which he or she would rarely, if ever, be able to carry. Furthermore, we believe the Court in this respect is out of harmony with a more reasonable rule first applied by the Court in a striking analogous situation in 1920, long before the...