Smile v. Lawson, 52183

• Decision Date: 25 November 1968
• Docket Number: No. 52183,52183
• Citation: 435 S.W.2d 325
• Parties: Mr. and Mrs. Paul J. SMILE, Appellants, v. Sidney O. LAWSON, Respondent.
• Court: Missouri Supreme Court

Page 325

435 S.W.2d 325

Mr. and Mrs. Paul J. SMILE, Appellants, v. Sidney O. LAWSON, Respondent.

No. 52183.

Supreme Court of Missouri, En Banc.

Nov. 25, 1968.

Rehearing Denied Dec. 31, 1968.

Elwyn L. Cady, Jr., Kansas City, and Independence, for appellants.

Malcolm L. Robertson, Joplin, for respondent; Blanchard & Van Fleet, Joplin, of counsel.

STORCKMAN, Judge.

This is an action by a wife and her husband in two counts against a physician and surgeon for malpractice in the performance of an operation on the wife. In the first count the wife seeks $300,000 compensatory damages and $100,000 exemplary damages. Count two is for the recovery of the husband's expenses and loss of consortium; he prays for $20,000 compensatory damages and $50,000 exemplary damages. The defendant's motion for summary judgment was sustained on the ground that the action was barred by the two-year statute of limitations, § 516.140, RSMo 1959, V.A.M.S., and judgment was rendered for the defendant. The plaintiffs contend that the defendant's conduct constituted fraudulent concealment which tolled the running of the limitation period. The pertinent facts on which the issue must be decided are established by allegations of the petition, requests for admissions, and answers to interrogatories. Portions of the divisional opinion will be used herein without quotation marks.

The facts appearing from the sources mentioned are that in May 1959 Mrs. Smile, suffering from a sore throat, consulted the defendant who is an osteopathic physician and surgeon. The physician prevailed upon her to permit him to perform a thyroidectomy on her. The operation was performed on January 14, 1960, and Mrs. Smile remained under the defendant's care and treatment until October 17, 1960. Following the operation, Mrs. Smile had a hoarse, rasping speech with no sound. While she was still in the hospital, she asked the defendant about this condition and he said it was nothing and would clear up in time; he told her to clear her throat each time before speaking. She moved from Joplin to Kansas City on November 5, 1960. On November 7, 1963, she went to a specialist in Kansas City and learned for the first time that both the right and left recurrent laryngeal nerves, branches of the vagus, had been severed and her vocal cords had been paralyzed as a result of the operation. She was treated by other physicians for various other complaints between the date the defendant's treatment ceased and November 7, 1963. She filed suit on August 4, 1965.

Mrs. Smile further alleged that the defendant misrepresented the nature of the contemplated surgery in that he failed to divulge the substantial risk of injury to a patient undergoing such surgery, that he represented that the surgery was relatively minor in nature, that there would be no aftereffects, and that she would never know that it had been done except for a small scar. The defendant made no effort to treat her with standard nonsurgical methods which included the administration of antithyroid drugs and radioiodine. She asserted that the operation was negligently and unskillfully performed in that the defendant failed to protect each recurrent layngeal nerve and that the defendant fraudulently concealed the fact of such surgical damage and did not disclose that he irreparably damaged nervous structures during the operation. The petition further states that: 'Defendant had knowledge, or the means of knowledge, and concealed the fact of this cutting of nerves, with the intention that plaintiffs, being ignorant of the true state of affairs, would desist from making claim or filing suit on account of defendant's negligence. Further, defendant assured plaintiff Mrs. Smile that her difficulty in voice was only temporary and that over a period of time, without further treatment, her symptoms would disappear. In reliance on such representations and concealment, plaintiffs did desist from making claim or filing suit, and desisted from seeking further medical attention for Mrs. Smile's symptom of hoarseness.'

The defendant contends initially, under the holdings in Thatcher v. De Tar, 351 Mo. 603, 173 S.W.2d 760, that the statute of limitations began to run on October 17, 1960, the date on which Mrs. Smile was last treated by the defendant, and that the plaintiffs' causes of action are barred under § 516.140 which insofar as pertinent reads as follows: 'Within two years: * * *. All actions against physicians, surgeons * * * for damages for malpractice, error, or mistake shall be brought within two years from the date of the act of neglect complained of, * * *.'

The plaintiffs contend that the period of limitations was tolled because the defendant fraudulently concealed her cause of action from her. The defendant's response is that fraudulent concealment does not toll the running of the statute of limitations in the absence of statutory authority and that the plaintiffs have not brought themselves within any such exception in that they have 'failed to show that defendant committed any improper act preventing the commencement of this action'.

Section 516.280 provides: 'If any person, by absconding or concealing himself, or by any other improper act, prevent the commencement of an action, such action may be commenced within the time herein limited, after the commencement of such action shall have ceased to be so prevented.' In Kauchick v. Williams, Mo., 435 S.W.2d 342, decided concurrently herewith, this court has held that § 516.280 is applicable to the statutory limitations period in malpractice actions. We, therefore, rule in this case that § 516.280 is statutory authority for the proposition that fraudulent concealment of a cause of action is an 'improper act' which, if established, will toll the running of limitations under § 516.140. The defendant's contention to the contrary is denied.

The nature and kinds of concealment that will toll the running of statutes of limitations have been considered in Missouri decisions although as might be expected such questions arise rather infrequently. State ex rel. Bell v. Yates, 231 Mo. 276, 132 S.W. 672, cited in Kauchick, involved the tolling of a statute of limitations in an action on the bond of a former treasurer of a state hospital. In explaining the doctrine of fraudulent concealment and its basis, this court stated, 132 S.W. at p. 674: 'If there be fraudulent concealments--'any improper act'--preventing the discovery of the facts constituting the cause of action by the exercise of due diligence, then the statute does not begin to run until the fraud is discovered, and the facts constituting the cause of action, theretofore concealed by the fraud and improper acts, come to light. This independent equitable principle of use in the administration of the law of limitations is somewhat shadowed forth in Rev.St.1909, § 1905, (now § 516.280) reading: 'If any person, by absconding or concealing himself, or by any other improper act, prevent the commencement of an action, such action may be commenced within the time herein limited, after the commencement of such action shall have ceased to be prevented.' See section 1889, Rev.St.1909, (now § 516.120(5)) where the same idea is expressed as controlling actions for fraud.'

The Yates case relied on previous decisions including Shelby County v. Bragg, 135 Mo. 291, 36 S.W. 600, 601, which was also a suit for fees retained by a county official, wherein this court stated: 'But it is well settled in this state, whether by force of the statute or independent of it, that a fraudulent concealment of a cause of action will delay the operation of the statute of limitation until after discovery of the fraud. * * *. The question is whether the statements made by defendant were such fraudulent concealments of the facts as delayed the operation of the statute until a discovery of the truth. The question is not whether the county, or its agent, the county court, was merely ignorant of the facts constituting the cause of action. Such ignorance will not suspend the operation of the statute unless it can be properly attributed to the fraudulent concealment of the facts by defendant.' See also Siler v. Kessinger, Mo.App., 149 S.W.2d 890, 893(3), and Womack v. Callaway County, Mo., 159 S.W.2d 630, 633(7).

The Missouri rule relating to the fraudulent concealment of a cause of action as it affects the tolling of statutes of limitations is in keeping with the decisions in a majority of the states. See 34 Am.Jur., Limitation of Actions § 231, p. 188; 54 C.J.S. Limitations of Actions § 206, pp. 219--220; and 80 A.L.R.2d Anno: Statute of Limitations--Malpractice, p. 371. This annotation at page 401 states the general rule as follows: 'In many jurisdictions the rule prevails that where the existence of a cause of action is fraudulently concealed by false representations made by the defendant for that purpose, the commencement of the running of the statute of limitations is postponed until the plaintiff discovers, or by exercise of reasonable diligence could have discovered, that he has a cause of action.' In 1944, Dean Glenn A. McCleary in a treatise entitled, 'Malpractice--When Statute of Limitations Commences in Malpractice Actions', published in 9 Missouri Law Review at pp. 103--104, stated: 'But where there is concealment of the fact by the person liable for malpractice so that the injured party is prevented from learning thereof the period of limitations does not start to run until the cause of action is discovered or could have been discovered through reasonable diligence. The confidential relationship between physician and patient imposes a duty to inform the patient of the nature and character of any operation which he has performed on the patient, and disclose any injury inflicted by his negligence in the performance thereof.' See also 29 University of Kansas City Law Review at pages 95--97, and 33 Missouri Law Review at pages 204--207. Recent...