Seitz v. Jones

Citation370 P.2d 300,1961 OK 283
Decision Date05 December 1961
Docket NumberNo. 38631,38631
PartiesFlorence F. SEITZ, Plaintiff in Error, v. J. E. JONES and R. L. Detjen, Defendants in Error.
CourtSupreme Court of Oklahoma

Syllabus by the Court

1. Demurrer to a petition admits truth of all facts well pleaded, together with all inferences which may be reasonably drawn therefrom.

2. Where a foreign object or substance is negligently left in a patient's body by an operating physician and surgeon, and the patient is in ignorance of the fact, the limitation period does not begin to run against a malpractice action until the patient learns, or in the exercise of reasonable care and diligence, should have learned of the presence of such foreign substance in his body.

Appeal from the District Court of Mayes County; Josh J. Evans, Judge.

Appeal from the action of the District Court of Mayes County, Oklahoma, upon sustaining defendants' demurrer to plaintiff's petition. Reversed and remanded.

Hunt & Lock, by Richard W. Lock, Jay, for plaintiff in error.

Rhodes, Crowe, Hieronymus & Holloway, Philip N. Landa, Tulsa, for defendants in error.

WELCH, Justice.

The order of the trial court shows that demurrer was sustained because the petition showed on its face that the alleged cause of action stated did not accrue to the plaintiff within two years next before the commencement of the suit, and was therefore barred by the statute of limitations as provided in Title 12 O.S.A. § 95, subd. 3.

This action is based upon malpractice which allegedly occurred on January 13, 1952. The action was first commenced in the district court of Tulsa County, Oklahoma, on July 1, 1955, and was dismissed for lack of jurisdiction on March 22, 1957, and refiled in Mayes County on March 21, 1958.

It is agreed that the second action was timely filed within one year from dismissal of the first action. However, it is obvious that the first action was not commenced within two years from the accrual thereof, and is barred by statute of limitations unless said statute was tolled. Plaintiff contends that the statute was tolled here by reason of the concealment disclosed by allegation of plaintiff's petition.

The petition does not use the term fraudulent concealment in its allegations, however, it does allege fact which, if true, could constitute complete concealment.

It alleges that the plaintiff was a patient of the defendants at all times mentioned, and complained to them of pain in the lower abdominal region of her body after the caesarean operation performed by defendants on January 13, 1952, and that they gave her no relief or explanation for her pain, until September, 1953, when she was then informed by defendant R. L. Detjen that an x-ray taken by defendants in June, 1953, revealed that they had left in her body in or about the womb a hypodermic needle when they operated on her on January 13, 1952.

The allegations in the petition reveal that when plaintiff complained of her pain the defendants apparently remained silent when they could have and should have made investigation as to what was causing the pain. By such silence the plaintiff, having confidence in defendants' professional ability, could have well assumed pain to be a normal result from her operation.

In the case of Morrison v. Action, 68 Ariz. 27, 198 P.2d 590, the court held:

'A dentist who in removing an impacted tooth of patient left part of the instrument in patient's jaw bone was guilty of constructive fraud tolling limitations on patient's cause of action for malpractice, where dentist knew or was chargeable with knowledge of breaking of his instrument and assured patient that there was nothing about his jaw that should cause further trouble.'

In the case of Rosane v. Senger, et al., 112 Colo. 363, 149 P.2d 372, 373, the court held:

'Where patient, though diligent in attempting to discover cause of her constant pain, did not discover until more than ten years after performance of abdominal operation that doctors had left a gauze pad in incision, patient's action against doctors brought within two years from date of such discovery was not barred by two-year statute of limitations. ' 35 C.S.A. c. 102, § 7.'

Also see Bowman v. McPheeters, et al., 77 Cal.App.2d 795, 176 P.2d 745.

Many of our courts follow the rule that where defendant physician, employed to attend a patient, continues treatment of patient after alleged wrongful act occurred, the statute does not commence to run until treatment ceases. Bush v. Cress, 178 Minn. 482, 227 N.W. 432; Schanil v. Branton, 181 Minn. 381, 232 N.W. 708; Gillette v. Tucker, 67 Ohio St. 106, 65 N.E. 865, 93 Am.St.Rep. 639; Bowers v. Santee, 99 Ohio St. 361, 124 N.E. 238; Netzel v. Todd, 24 Ohio App. 219, 157 N.E. 405.

See also notes 74 A.L.R. pages 1323 and 1324.

Various courts have held that the limitation period does not begin to run against a malpractice action on facts similar to those here involved until the patient learns, or in the exercise of reasonable care and diligence, should have learned of the presence of such foreign substance in his body. Huysman v. Kirsch, 6 Cal.2d 302, 57 P.2d 908; Ehlen v. Burrows, 51 Cal.App.2d 141, 124 P.2d 82; Pellett v. Sonotone Corp., 55 Cal.App.2d 158, 130 P.2d 181, and Perrin v. Rodriguez, (La.App.) 153 So. 555. See also notes at 144 A.L.R. 215.

In resolving the question of the correctness of the court's order, the legislative policy in...

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58 cases
  • Billings v. Sisters of Mercy of Idaho, 9382
    • United States
    • Idaho Supreme Court
    • 24 Enero 1964
    ...v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959); New Jersey, Fernandi v. Strully, 35 N.J. 434, 173 A.2d 277 (1961); Oklahoma, Seitz v. Jones, Okla., 370 P.2d 300 (1961); Nebraska, Spath v. Morrow, 174 Neb. 38, 115 N.W.2d 581 (1962); Missouri, (by statute) Mo.Rev.Stat. § 516.140, cited in Thatch......
  • Resolution Trust Corp. v. Grant
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    • 27 Junio 1995
    ...Samuel Roberts Noble Found., Inc. v. Vick, 840 P.2d 619, 623 (Okla.1992); Reynolds v. Porter, 760 P.2d 816, 820 (Okla.1988); Seitz v. Jones, 370 P.2d 300, 302 (1961); Continental Oil Co. v. Williams, 207 Okla. 501, 250 P.2d 439, 441 (1952).22 Resolution Trust Corp. v. Farmer, see note 7, su......
  • Morgan v. Grace Hospital, Inc., 12386
    • United States
    • West Virginia Supreme Court
    • 29 Junio 1965
    ...care and diligence, should have learned of the presence of such foreign substance in his body.' Seitz v. Jones, Okl., pt. 2 syl., 370 P.2d 300. To the same effect see Fernandi v. Strully et al., 35 N.J. 434, 173 A.2d 277; Johnson v. Caldwell, 371 Mich. 368, 123 N.W.2d 785; Hemingway v. Waxl......
  • Berry v. Branner
    • United States
    • Oregon Supreme Court
    • 28 Diciembre 1966
    ...Perrin v. Rodriguez, 153 So. 555 (La.App.1934).13 Waldman v. Rohrbaugh, 241 Md. 137, 215 A.2d 825, 830 (1966).14 Seitz v. Jones, 370 P.2d 300 (Okl.1961).15 Kossick v. United States, 300 F.2d 933, 7 A.L.R.3d 726, cert. den. 379 U.S. 837, 85 S.Ct. 73, 13 L.Ed.2d 44 (1964), disagreeing with Te......
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