Noel v. Proud

• Decision Date: 09 December 1961
• Docket Number: No. 42352,42352
• Citation: 367 P.2d 61,189 Kan. 6
• Parties: Marvin D. NOEL, Appellee, v. G. O. PROUD, Appellant.
• Court: Kansas Supreme Court

Page 61

367 P.2d 61

189 Kan. 6

Marvin D. NOEL, Appellee, v. G. O. PROUD, Appellant.

No. 42352.

Supreme Court of Kansas.

Dec. 9, 1961.

Rehearing Denied Jan. 31, 1962.

Syllabus by the Court.

1. In an action against a physician by a patient the petition alleged breach of an express warranty as the basis for the recovery of damages, and on appeal from an order of the trial court overruling a demurrer thereto, the petition is examined and it is held to state a valid cause of action sounding in contract which is governed by the three-year statute of limitations, all as more particularly set forth in the opinion.

2. A doctor and his patient are at liberty to contract for a particular result, and if that result be not attained, the plaintiff has a cause of action for breach of contract. This cause of action is entirely separate from malpractice, even though both may arise out of the same transaction. Malpractice is predicated upon the failure to exercise requisite medical skill and is tortious in nature, while an action in contract is based upon a failure to perform a special agreement. Negligence, the basis of the one, is foreign to the other.

John J. Alder, Kansas City, argued the cause, and H. S. Roberts, Kansas City, was with him on the briefs for appellant.

Stanley L. Lind, Kansas City, argued the cause and was on the briefs for appellee.

SCHROEDER, Justice.

This is an action against a physician by a patient wherein breach of an express warranty is alleged as the basis for the recovery of damages. Appeal has been duly perfected by the defendant physician from an order of the trial court overruling a demurrer to the amended petition.

The question presented is whether the petition states a good cause of action sounding in contract or one in tort for malpractice. The statute of limitations would bar the latter but not the former.

The petition was filed January 30, 1960, in the district court of Wyandotte County, Kansas. After giving the plaintiff's residence as Sedgwick County and the defendant's residence as Johnson County, the amended petition alleges that the defendant is a duly licensed physician and surgeon under the laws of the State of Kansas and engaged in the practice of his profession at the University of Kansas Medical Center in Kansas City, Kansas. It then alleges:

'3. That prior to May of the year 1957, plaintiff was suffering from partial loss of hearing in both ears, but was able to hear and understand normal oral communications with either ear.

'4. That sometime during the middle of the month of May, 1957, the exact date being unknown to this plaintiff, plaintiff consulted with the defendant regarding this condition; that defendant examined the plaintiff and informed him that he was a good candidate for an operation known as a 'Stapes Mobilization' operation; that defendant undertook to treat plaintiff and agreed to perform such an operation on the hearing structures of each of plaintiff's ears and at the same time orally agreed and warranted that while the operations might not have any beneficial effect the plaintiff's hearing would not be worsened as a result of the operations.

'5. That in reliance on and in consideration for defendant's promises and warranties plaintiff agreed to accept defendant's services and to pay the reasonable cost therefor; that plaintiff allowed defendant to perform three of the aforesaid operations on his hearing structures. The first operation was performed by defendant on the hearing structure of plaintiff's right ear on or about June 11, 1957. The second operation was performed by the defendant on the hearing structure of plaintiff's left ear during the month of August, 1957. That approximately ten days thereafter and in accordance with defendant's request, plaintiff returned to defendant for a postoperative examination; that defendant then informed plaintiff that he could do nothing more in the hearing structure of the left ear but that another such operation would be performed on the right ear in January of 1958. The third operation was performed by defendant on the hearing structure of plaintiff's right ear on or about January 6, 1958; that about ten days later and at defendant's request, plaintiff returned to defendant for a postoperative examination and was informed by defendant that nothing more could be done for the hearing structure of plaintiff's right ear.

'6. That at some time during the operation of January 6, 1958, or very shortly thereafter, and as a direct result of said operation, the plaintiff suffered a severe decrease of hearing in his right ear to such an extent that he could no longer distinguish sounds, including oral communications, either with or without the use of artificial hearing aid; that this condition has continued to the present date and will continue for the rest of plaintiff's life.

'7. That during the operation of August, 1957, or very shortly thereafter, and as a direct result of said operation, the plaintiff suffered a sever decrease of hearing in his left ear to approximately fifty per cent (50%) of that which he had had prior to said operation and that he could no longer distinguish sounds, including oral communications, without the use of artificial hearing aid; that this condition has continued to the present date and will continue for the rest of plaintiff's life.

'8. That the aforesaid resultant condition constituted a breach by the defendant of the contract entered into between the plaintiff and defendant in May of 1957 as heretofore set out; that plaintiff was not aware of the increased loss of hearing in his left ear until he suffered the complete loss of hearing in his right ear following the operation in January of 1958 and that upon learning of said condition plaintiff notified defendant in person during the month of January, 1958 and again in either February or March of 1958 by letter; that plaintiff is not sure of the exact date of said letter but that defendant is fully aware of the date upon which receipt was had by the defendant; that these communications constituted notification of the breach of warranty as aforesaid.

'9. That plaintiff has fully paid the defendant for the services rendered plaintiff under and by virtue of the aforesaid contract.

'10. That as a direct result of the breach of contract by the defendant and the resultant loss of hearing in plaintiff's ears, plaintiff has been damaged * * *' (Emphasis added.)

The demurrer lodged against the amended petition charges that it (a) does not state facts sufficient to constitute a cause of action; (b) shows on its face that the cause is barred by the statute of limitations; and (c) contains a confusion of theories.

It is readily apparent from the foregoing allegations of the amended petition that no allegations of negligence have been made concerning the conduct of the appellant physician. Negligence is an essential element of malpractice, and for a patient to allege a cause of action on the theory of malpractice he must allege a causal connection between the negligent act of the physician and his injury. (Natanson v. Kline, 187 Kan. 186, 354 P.2d 670.) Therefore, the appellee has not stated a cause of action on the theory of malpractice.

We fail to see any confusion of theories set forth in the petition. The cause of action is based on a breach of an express warranty made by the appellant for a consideration and upon which the appellee relied. The appellant contends, however, that irrespective of any express warranties made by a physician to a patient the only cause of action predicated thereon must sound in tort and allege malpractice.

As early as 1870 the Kansas court recognized the general rule that a physician may contract specially for a particular result. In Tefft v. Wilcox, 6 Kan. 46, the law was stated as follows:

'A practicing physician and surgeon is not considered as warranting a cure, unless under a special contract for such purpose. * * *' (Syl. p8.)

It is generally recognized that a physician or surgeon may bind himself by express contract to perform a cure or obtain specific results by treatment or an operation. (41 Am.jur., Physicians and Surgeons, § 105, p. 220; 70 C.J.S. Physicians and Surgeons § 37, p. 942; 27 A.L.R. 1235, and supporting cases cited in these works.) In Colvin v. Smith, [1949], 276 App.Div. 9, 92 N.Y.S.2d 794, a physician and surgeon was unsuccessful in his attempt to remove a cataract from the plaintiff's eye. An action based on the alleged breach of a special contract for the removal of the cataract followed. The court said in the opinion:

'A doctor and has patient are at liberty to contract for a particular result, and if that result be not attained, the plaintiff has a cause of action for breach of contract. * * * This cause of action is entirely separate from malpractice, even though they both, as here, may arise out of the same transaction. * * * The two causes of action are dissimilar as to theory, proof and damages recoverable. Malpractice is predicated upon the failure to exercise requisite medical skill and is tortious in nature. The action in contract is based upon a failure to perform a special agreement. Negligence, the basis of the one, is foreign to the other. The damages recoverable in malpractice are for personal injuries, including the pain and suffering which naturally flow from the tortious act. In the contract action they are restricted to the payments made and to the expenditures for nurses and medicines or other damages that flow from the breach thereof. * * *' (92 N.Y.S.2d p. 795.)

A decision by the New York Court of Appeals to the same effect is Robins v. Finestone, [1955] 308 N.Y. 543, 127 N.E.2d 330.

In his brief the appellant relies upon Travis v. Bishoff, 143 Kan. 283, 54 P.2d 955; Graham v. Updegraph, 144 Kan. 45, 58 P.2d 475; Coulter v. Sharp, 145 Kan. 28, 64 P.2d 564; Foster v. Kopp, 151 Kan. 650, 100 P.2d 660; Becker v. Floersch, 153 Kan. 374, 110 P.2d...