Selby v. Kuhns

• Decision Date: 20 March 1963
• Citation: 188 N.E.2d 861,345 Mass. 600
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Ann SELBY v. John G. KUHNS.

Page 861

188 N.E.2d 861

345 Mass. 600

Ann SELBY v. John G. KUHNS.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 8, 1962.

Decided March 20, 1963.

James D. St. Clair, Boston (Jerome P. Facher, Boston, with him), for plaintiff.

Leon F. Sargent, Boston, for defendant.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, KIRK, SPIEGEL, and REARDON, JJ.

WHITTEMORE, Justice.

These are the defendant's exceptions in an action of tort, begun July 10, 1960, for the malpractice of a physician for unskilful treatment of the plaintiff's legs (broken in an automobile accident on June 29, 1958) so that they became deformed and bowed. The plaintiff (her full name according to her testimony is Ann Sophie Selby) had a verdict for $40,000.

The defendant excepted to the exclusion of the Superior Court records of an action, begun July 31, 1958, against the operator and the owner of an automobile the negligent operation of which, on June 29, 1958, had injured Anne [sic] S. Selby, who brought the action by her father and next friend. The records showed an agreement for judgment for that plaintiff for $4,750 and judgment satisfied under date of September 10, 1959. The defendant contends also that the excluded records require that judgment be entered for him.

On July 23, 1959, the plaintiff in the prior action, in sworn answers to interrogatories, stated in substance that she had received two fractured legs which did not heal properly and as a result she would be obliged to return to the hospital for a second operation; she had steel plates in her legs and was still limping badly; she had undergone an operation on June 29, 1958, by Dr. DePrizio; she had been in the hospital for eight weeks following the injury; she was in the hospital again for six weeks from October 12, 1958; she was visited at the hospital by Dr. Kuhnes [sic], a specialist; her financial loss was 'Salary from June 29, 1958 approximately $864.00 Hospital approximately $2465.00, Dr. DePrizio $600.00, Dr. Girourd $700.00, Dr. Kuhnes, $70.00.'

Dr. Carl J. DePrizio testified in the pending action that the plaintiff was in his care until August 17, 1958, when she was discharged from the hospital; he went to Europe in September; he saw her in the hospital after his return in October at which time he recognized that she was in Dr. Kuhns's hands and he assumed no responsibility and did nothing more in the case. The plaintiff testified that she met Dr. Kuhns for the first time in the hospital on October 8, 1958 (having returned to the hospital on October 5). She 'never said anything to the defendant by way of employing him as a doctor.' Dr. Kuhns's testimony was, in substance, that he directed the plaintiff to walk before it was proper for her to do so, as it later turned out, in view of nonunion of the fractures. He advised the plaintiff in November, 1958, that 'a second operation would be required to reset her legs.' The plaintiff, subject to the defendant's exception, also testified that she visited Dr. DePrizio in August, 1959, at his office and that after examination he said that her legs were bowed 'as a result of walking too soon on them.'

1. The records of the earlier action were admissible.

Those records show that both actions arose out of the same automobile accident to the same plaintiff. The dates, the names of persons concerned, and the nature of the injuries established the necessary identity and, in the absence of an objection addressed specifically to that issue, a formal inquiry of the plaintiff or some other witness in respect thereof was not necessary. See Luce v. Dexter, 135 Mass. 23.

The records show an action against the earlier tortfeasors who were liable for the same malpractice injury, evidence of that injury in the first action, and a satisfied judgment which discharged all the liability of those tortfeasors. Sacchetti v. Springer, 303 Mass. 480, 481, 22 N.E.2d 42.

Although, as we hold below, that judgment did not discharge the cause of action for malpractice, the proceedings were admissible to show pro tanto reparation for the malpractice injury. See point 3.

The plaintiff contends that the first tortfeasors were not liable for the malpractice injuries. We disagree. 'Lack of skill on the part of a physician * * * [wisely selected] rationally may be attributed to the original tort of the defendant.' Gray v. Boston Elev. Ry. Co., 215 Mass. 143, 147-148, 102 N.E. 71, 73. Sacchetti v. Springer, 303 Mass. 480, 481, 22 N.E.2d 42, and cases cited. The circumstance that the plaintiff did not herself select the defendant as her physician but accepted him as the one who took charge when she returned to the hospital does not show lack of due care on her part. There was evidence that the defendant is a well trained and qualified surgeon and a teacher at Harvard and Boston University medical schools, with membership in national societies. There is nothing to suggest that the unfortunate outcome of the treatment resulted from the advice of an unqualified physician.

The case of Purchase v. Seelye, 231 Mass. 434, 437, 121 N.E. 413, 414, 8 A.L.R. 503, relied upon by the plaintiff in this aspect of her case, is distinguishable. There it was held that an injured railroad employee might recover against the physician (who, mistaking him for another patient, had operated on his left side rather than on the right) notwithstanding a prior release to the railroad of all claims and demands arising out of the injury to the right groin for which the operation was required. The mistake in identity was held not to be the natural, probable, and foreseeable result of the railroad's negligence. The physician's act was 'a wholly wrongful, independent and intervening cause for which the original wrongdoer was in no way responsible.'

2. There is general support in our precedents, in decisions in 'joint tort' cases elsewhere (166 A.L.R. 1099 et seq.), and in Restatement: Torts, §§ 879, 886, for the defendant's contention that the prior judgment is a bar, regardless of the adequacy of the reparation for the malprctice injury.

Several carefully reasoned decisions in malpractice cases in other jurisdictions, however, some quite recent, support a contrary rule, that is, settlement with the original tortfeasor, in the absence of full satisfaction in fact or intent, discharges the negligent physician only pro tanto. Ash v. Mortensen, 24 Cal.2d 654, 658-659, 150 P.2d 876 (judgment against first tortfeasor satisfied in a reduced amount); Couillard v. Charles T. Miller Hosp. Inc., 253 Minn. 418, 426-428, 92 N.W.2d 96, following Gronquist v. Olson, 242 Minn. 119, 64 N.W.2d 159 (concurrent torts); Daily v. Somberg, 28 N.J. 372, 383-384, 146 A.2d 676, 60 A.L.R.2d 1024, to be read with Breen v. Peck, 28 N.J. 351, 146 A.2d 665, 72 A.L.R.2d 390 (concurrent torts); Derby v. Prewitt, 12 N.Y.2d 100, 236 N.Y.S.2d 953, 187 N.E.2d 556. ¹ ('[N]o one suggests that a release of the doctor would completely discharge the original wrongdoer'). Accord, Wheat v. Carter, 79 N.H. 150, 106 A. 602 (1919). See Bolick v. Gallagher, 268 Wis. 421, 427, 67 N.W.2d 860; Trieschman v. Eaton, 224 Md. 111, 118, 166 A.2d 892 (partially satisfied judgment); Burkhardt v. Armour & Co. 115 Conn. 249, 161 A. 385, 90 A.L.R. 1260 (special provision in a judgment). See also the leading case of McKenna v. Austin, 77 U.S.App.D.C. 228, 134 F.2d 659, 664-665, 148 A.L.R. 1253 (Ct.App.D.C.) (concurrent torts) which stresses the injustice of the anomalous rule. Illustrative of cases contra is Wells v. Gould, 131 Me. 192, 160 A. 30 (1932) (satisfied judgment).

The decisions in the District of Columbia, Minnesota, New York, and New Jersey overrule prior cases. Although, except as noted, these malpractice cases deal with the effect of a prior release we see no basis for a more stringent rule in this case. See point 3, post.

The unsoundness of the doctrine of unity of discharge regardless of intent and satisfaction in fact, has been ably and forcefully stated by the commentators for a long time. Harper & James, Torts, § 10.1, pp. 711-714; Prosser, Torts (2d ed.) § 46, pp. 243-246; 41 B.U.L.Rev. 577; Havighurst, Settlements and Co-obligors, 45 Corn.L.Q. 1; Wigmore, Release to One Joint-Tortfeasor, 17 Ill.L.Rev. 563; Notes, 22 Minn.L.Rev. 692; 33 Notre Dame Lawyer, 291; 37 Notre Dame Lawyer, 448; Prosser, Torts (2d ed.) p. 244, concludes as to releases: 'Even as applied to cases of concerted action, the rule seems at best an antiquated survival of an arbitrary common law procedural concept, and it has no reasonable application to cases of mere concurrent negligence. The fear of double recovery is meaningless, since the amount paid under the release must be credited to the second tortfeasor in any case.'

Dissatisfaction elsewhere with the rule of unity of discharge has led to statutory modifications, to recognition of oral agreements accompanying settlements, and to liberal construction of releases as covenants not to sue. See Uniform Contribution Among Tortfeasors Act (1939, revised 1955) 9 U.L.A.; Prosser, Torts (2d ed.) § 46, pp. 244-245. It may reasonably be thought to have led to the enactment of St.1962, c. 730, which by § 1 inserted a new G.L. c. 231B ('Contribution Among Joint Tortfeasors'), effective as to torts occurring on and after January 1, 1963.

The rule of unity of discharge of tortfeasors developed in cases where there had been a release of one wrongdoer. It was originally based in the mistaken view that, as in early cases of joint trespass, there was but a single cause of action. Brown v. Cambridge, 3 Allen 474, 476 (concurrent torts, citing Cocke v. Jennor, Hob. 66 and Co. Litt. 232 a). Stone v. Dickinson, 5 Allen 29, S.C. 7 Allen 26, (a single arrest under several writs; 'a single substantive cause of action'; a release under seal showed full satisfaction). Accord (cases of multiple liability for a single wrongful act), Leddy v. Barney, 139 Mass. 394, 2 N.E. 107; Brewer v....