Murray v. Allen

• Decision Date: 05 May 1931
• Citation: 154 A. 678
• Parties: MURRAY v. ALLEN.
• Court: Vermont Supreme Court

154 A. 678

MURRAY

v. ALLEN.

Supreme Court of Vermont. Caledonia.

May 5, 1931.

Exceptions from Caledonia County Court; Alfred L. Sherman, Judge.

Action by Mae E. Murray against John M. Allen. Defendant's motion for a directed verdict was granted, and plaintiff brings exceptions.

Judgment affirmed.

Argued before POWERS, C. J., and SLACK, MOULTON, and THOMPSON, JJ., and GRAHAM, Superior Judge.

Shields & Conant, of St. Johnsbury, for plaintiff.

Searles & Graves, of St. Johnsbury, for defendant.

MOULTON, J.

The defendant is a surgeon. On July 14, 1923, at the Brightlook Hospital in St. Johnsbury, he performed an abdominal operation upon the plaintiff. During this operation gauze sponges were placed in the abdominal cavity for the purpose of absorbing the blood and fluid, but proper practice required their removal after its completion. After the operation, the plaintiff remained in the hospital for two weeks, and returned three or four times thereafter for treatment; the last time being September 25, 1923, when she saw the defendant, who told her that "she was getting along fine." She suffered thereafter pains in her side and abdomen to such an extent that she could not sleep without opiates or do her work, and her abdomen was distended and swollen. She consulted other physicians with only temporary relief until January 28, 1929, when she passed, with her stool, a surgical gauze about a yard in length, together with pus. After that her condition improved.

On May 29, 1929, she instituted this action against the defendant, alleging negligence and lack of skill in the performance of the operation in that the gauze had not been removed from the wound. The defendant pleaded the general issue and the statute of limitations. On trial, at the close of the plaintiff's evidence, the defendant moved for a directed verdict on the ground that the action was barred by the statute. The motion was granted, and the plaintiff excepted.

By G. L. 1849, it is provided that: "The following actions shall be commenced within six years after cause of action accrues, and not after. * * * Actions of tort, except as otherwise provided." And by G. L. 1850: "Actions for assault and battery, false imprisonment, slanderous words and libels, and for the recovery of damages for bodily hurt or injury to personal property suffered by a person by the act or default of another, shall be commenced within three years after the cause of action accrues, and not after."

That the alleged malpractice constitutes a tort is conceded by the plaintiff. It is clear that this is so, and that this action is ex delicto. Chalmers v. Southern Pac. Co. (C. C. A.) 8 F.(2d) 480, 481; Harding v. Liberty Hospital Corporation, 177 Cal. 520, 171 P. 98, 99; Frechette v. Ravn, 145 Wis. 589, 130 N. W. 453. It is equally clear that the action is "for the recovery of damages for bodily hurt * * * suffered by a person by the act or default of another," as defined by G. L. 1850, and as such expressly excepted from the operation of G. L 1849. In Harding v. Liberty Hospital Corporation, supra, 177 Cal. 520, 171 P. pages 99, 100, it was held that a statute limiting the bringing of an action for injury caused by the wrongful act or neglect of another was applicable where the complaint charged the unskillful setting of a broken leg. In accord is Marty v. Somers, 35 Cal. App. 182. 169 P. 411, 412. In Klingbeil v. Saucerman. 105 Wis. 60, 160 N. W. 1051, 1 A. L. R. 1311, 1312, it is said that an action in tort for malpractice is plainly one to recover damages for injuries to the person and so covered by a statute limiting such actions. See, also, Bodne v. Austin, 156 Tenu. 353, 2 S.W.(2d) 100, 62 A. L. B. 1410, 1412-1414, and annotation, page 1417. The expressions "bodily hurt * * * by the act or default of another" in G. L. 1850, and "injury caused by the wrongful act or neglect of another" or "injuries to the person," as contained in the statutes held applicable in the last-cited cases, mean, so far as this form of action is concerned, the same thing.

The plaintiff argues that the right of action did not accrue until the fact that the gauze had not been removed was discovered, and that, consequently, the statutory period of limitation did not begin to run until that time. But the right of action accrued when the negligent act upon which the action is based took place, and not when the consequential damage became known. This principle has been applied in numerous cases wherein the facts were very similar to those in the case before us.

In Cappucci v. Barone (1929) 266 Mass. 578, 165 N. E. 653, 654, 655, the defendant, a surgeon, omitted to remove a gauze sponge from the abdominal cavity after operating upon the plaintiff. The presence of the sponge was not discovered until after the statutory period had elapsed since the operation. It was held that the statute began to run at the time of the negligent act and not when the actual damage resulted or was ascertained. The court went on to say: "The damage sustained by the wrong done is not the cause of action; and the statute is a bar to the original cause of action although the damages may lie nominal, and, to all the consequential damages resulting from it though such damages may be substantial and not foreseen. * * * There is nothing in the suggestion that, in the facts and in the law applicable thereto, the statute should he construed liberally, and the consequential damages when discovered be considered as a fresh ground of action as in 'the case of a nuisance, where every new dropping is a new act.'"

In Conklin v. Draper, 229 App. Div. 227, 241 N. Y. S. 529, 532 (1930) a forceps was left in the plaintiff's abdomen after an operation for appendicitis, performed by the defendant. The plaintiff visited the defendant subsequently, and was told that she was progressing satisfactorily. Two years after this the forceps was discovered and removed, but by this time the statute of limitation had run. The action was held to be barred. Lotten v. O'Brien, 146 Wis. 258, 131 N. W. 361, 362, was an action against a...