Stacey v. Pantano

• Decision Date: 30 October 1964
• Docket Number: No. 35648,35648
• Citation: 177 Neb. 694,131 N.W.2d 163
• Parties: Kathryn STACEY, Appellant, v. Anthony R. PANTANO, M.D., Appellee.
• Court: Nebraska Supreme Court

Page 163

131 N.W.2d 163

177 Neb. 694

Kathryn STACEY, Appellant, v. Anthony R. PANTANO, M.D., Appellee.

No. 35648.

Supreme Court of Nebraska.

Oct. 30, 1964,

Syllabus by the Court

1. Malpractice may be defined as the treatment of a case by a surgeon or physician in a manner contrary to the accepted rules and with injurious results to the patient; hence, any professional misconduct or any unreasonable lack of skill or fidelity in the performance of professional or fiduciary duties.

2. Mutual confidence and trust are essentials of the relationship between physician and patient.

3. Postoperative treatment and advice by the physician to the patient are an interwoven and essential part of the physician-patient relationship.

4. Generally, fraudulent representations by a physician as to previous negligence or as to the patient's condition do not alter or change the cause of action from one of malpractice to one of fraud or deceit.

5. A special statute of limitations, where applicable, controls over a general statute of limitations because the special statute is the one that more properly expresses the legislative will.

6. Where an issue is relied upon by the parties at the trial, insisted upon as a defense, and relied upon by the trial court as an issue in the case, it may not be successfully asserted for the first time on appeal that it has been waived.

Richard G. Stehno, Omaha, for appellant.

Kennedy, Holland, DeLacy & Svoboda, Joseph Cashen, Omaha, for appellee.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH and BROWER, JJ.

WHITE, Chief Justice.

On June 26, 1959, the defendant physician performed a partial thyroid removal operation on the plaintiff. A postoperative condition of tetany or faulty calcium metabolism resulted from the operation. Plaintiff alleged and testified that the defendant physician made certain false representations, both as to the nature and the cause of this postoperative condition of tetany. She asserted, among other things, that the physician represented that her condition of tetany was solely the result of her mental or psychological condition. After a period of consultation and treatment lasting over the intervening period of time, the plaintiff finally consulted a new physician on April 6, 1960, and claims that at that date she finally discovered what her true postoperative condition was and the cause of it. She brings this action for damages alleged to have resulted from these false representations. She consulted the new physician, on April 6, 1960, and this action was brought about 2 years and 4 months later, on August 16, 1962. The question in this case is whether the 2-year limitation period of malpractice action, section 25-208, R.R.S.1943, or the j-year general limitation statute on fraud actions, section 25-207, R.R.S.1943, applies. The district court, at the close of the plaintiff's evidence, dismissed the case on the grounds that it was a malpractice action and that the 2-year limitation period applied. We affirm.

Plaintiff's theory is that, independent of any claim of negligence in the original operation or treatment subsequent thereto, that she relied upon misrepresentations as to what her true condition was and its cause. She claims this is fraud, that it was not discovered until she consulted a new doctor on April 6, 1960, and that, therefore, she had 4 years from that date to bring this action under the general statute of limitations as to fraud, section 25-207, R.R.S.1943.

The plaintiff's theory is an attempt to separate the actions of a physician in fraudulently concealing the cause and nature of a patient's condition from a claim for damages for earlier negligence in diagnosis and treatment. The record shows that all of the statements and the acts of the defendant claimed to be fraudulent occurred during the course of the physician-patient relationship. They occurred during the times when the plaintiff consulted with the defendant physician as to the treatment, cause, and nature of her condition. It would seem clear that postoperative treatment and necessary advice of the physician to the patient are an interwoven and essential part of a physician-patient relationship. Mutual confidence and trust are essentials of the relationship between physician and patient. Williams v. Elias, 140 Neb. 656, 1 N.W.2d 121; Spath v. Morrow, 174 Neb. 38, 115 N.W.2d 581. We do not think that the advice and the statements of a physician as to the nature and cause of a patient's condition, as a part of the necessities of treating and consulting with the patient, are separable. They are the essentials to the performance of the physician's whole duty to the patient. We do not think that the Legislature, when it enacted the special limitation statute of 2 years on malpractice intended to separate certain portions of the whole physician-patient relationship and apply a confusing standard of 2 and 4 years to different portions of that relationship, or to require the courts to make such a nebulous and difficult fact separation and determination. The comprehensive scope of a malpractice action is contained in the definition of malpractice given in Williams v. Elias, supra, wherein the court said: "Malpractice' is defined in Webster's New International Dictionary, 2d Ed., as 'The treatment of a case by a surgeon or physician in a manner contrary to accepted rules and with injurious results to the patient; hence, any professional misconduct or any unreasonable lack of skill or fidelity in the performance of professional or fiduciary duties." (Emphasis supplied.) See, also, 41 Am.Jur. Physicians and Surgeons, ss. 70 to 73, pp. 192 to 195; Black's Law Dictionary (3d ed.), p. 1149; Swankowski v. Diethelm, 98 Ohio App. 271, 129 N.E.2d 182.

Within the meaning of the above pronouncement, the allegations and proof here are that the fraudulent misrepresentations constituted a...