Thatcher v. De Tar

• Decision Date: 27 August 1943
• Docket Number: 38484
• Citation: 173 S.W.2d 760,351 Mo. 603
• Parties: William Thatcher, Appellant, v. B. E. De Tar
• Court: Missouri Supreme Court

173 S.W.2d 760

351 Mo. 603

William Thatcher, Appellant, v. B. E. De Tar

No. 38484

Supreme Court of Missouri

August 27, 1943

Appeal from Jasper Circuit Court; Hon. Ray E. Watson Judge.

Reversed and remanded.

Louis N. Wolf for appellant.

(1) The operation and the post-operative treatment should be considered as a whole, and if there occurred therein malpractice, the Statute of Limitations should begin to run when the treatment ceased. Schmit v. Esser, 178 Minn. 82, 226 N.W. 196, and subsequent appeal, 236 N.W. 622; Sly v. Van Lengen, 198 N.Y.S. 608; Gillette v Tucker, 67 Ohio St. 106, 65 N.E. 865; Bowers v Santee, 124 N.E. 238; Williams v. Elias, 1 N.W.2d 121; De Haan v. Winter, 241 N.W. 923; Groendal v. Westrate, 171 Mich. 92, 137 N.W. 87; Bush v. Cress, 178 Minn. 482, 227 N.W. 432; Schanil v. Branton, 181 Minn. 381, 232 N.W. 708; Lotten v. O'Brien, 146 Wis. 258, 131 N.W. 361; Huysman v. Kirch, 57 P.2d 908; Trombley v. Kolts, 29 Cal.App. (2d) 699, 85 P.2d 541; Petrucci v. Heidenreich, 111 P.2d 421; Ehlen v. Burrows, 124 P.2d 82; Pellett v. Sonotone Corp., 130 P.2d 181; Shives v. Chamberlain, 126 P.2d 28; Hotelling v. Walther, 130 P.2d 944; Peteler v. Robinson, 17 P.2d 244; Neil v. Flynn Lbr. Co., 78 W.Va. 235, 88 S.E. 1090; Burton v. Tribble, 70 S.W.2d 503. (2) Where a surgeon is employed to perform an operation, the relationship continues after the operation and until treatment ceases, during all of which time he must exercise ordinary care. Reed v. Laughlin, 58 S.W.2d 440; Boyd v. Andrae, 44 S.W.2d 891; Norton v. Amer. School of Osteopathy, 2 S.W.2d 215; Cazzell v. Schofield, 8 S.W.2d 580; Lewis v. McClellan, 1 S.W.2d 247. (3) Where the tort is continuing, the right of action is also continuing. Trembley v. Kolts, 85 P.2d 541; Huysman v. Kirch, 57 P.2d 908; Moak's Underhill on Torts, p. 69. (4) The Statute of Limitations begins to run, not when the "wrong is done or breach of duty occurs, but when the damage resulting therefrom is sustained and capable of ascertainment, and if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained." Sec. 1012, R. S. 1939. (5) Plaintiff's "cause of action" was not "capable of ascertainment," until after he had first obtained knowledge thereof on September 16, 1940, and less than two years thereafter he filed suit. Sec. 1012, supra, first proviso clause. Science & Sanity, An Introduction to Non-Aristotelian Systems and General Semantics (1941 Edition), by Alfred Korzybski; Lewis v. Thompson, 96 S.W.2d 938, 946, "Capable of ascertainment" does not mean susceptible of ascertainment; State ex rel. Fichtner v. Haid, 22 S.W.2d 1045, 1047, "Capable of ascertainment" means known, made certain, to make sure, publicly known; Huysman v. Kirch, 57 P.2d 908; Trombley v. Kolts, 85 P.2d 541; Burton v. Tribble, 70 S.W.2d 503; Colvin v. Warren, 163 S.E. 268; Petrucci v. Heidenreich, 111 P.2d 421; Groendal v. Westrate, 171 Mich. 92, 137 N.W. 87; Pellett v. Sonotone Corp., 130 P.2d 181. (6) The amended petition avers facts sufficient to state one good cause of action for negligence during an operation and post-operative treatment, and the trial court could not have sustained the demurrer for this reason. Peteler v. Robinson, 17 P.2d 244; Davidson v. St. Louis S.-F. Ry. Co., 229 S.W. 786; Cushulas v. Schroeder & Tremayne, 22 S.W.2d 872, certiorari quashed 41 S.W.2d 789; Zichler v. St. Louis Pub. Serv. Co., 59 S.W.2d 654; Reuter v. Terminal Railroad Assn., 261 S.W. 713.

Seiler, Blanchard & Van Fleet, Herbert Van Fleet, McReynolds & Flanigan and John H. Flanigan, Jr., for respondent.

(1) It appears affirmatively on the face of appellant's amended petition that the only actionable negligence on the part of respondent consisted in permitting the needle to remain in the operative incision on August 25, 1937, more than four years before this suit was instituted. Accordingly, the appellant's cause of action is barred by the special Statute of Limitations applicable to malpractice actions. Sec. 1016, R. S. 1939; Barnhoff v. Aldridge, 38 S.W.2d 1029; 37 C. J. 897, sec. 259; 41 Am. Jur., 233, sec. 123; 21 R. C. L. 401, sec. 44 Cappuci v. Barone, 266 Mass. 578, 165 N.E. 653; Hahn v. Claybrook, 100 A. 83, L. R. A. 1917C, 1169; Ogg v. Robb, 162 N.W. 217, L. R. A. 1918C, 982; Becker v. Floersch, 153 Kan. 374, 110 P.2d 752; Allison v. Mo. P. & L. Co., 59 S.W.2d 771. (2) The appellant's failure to discover the specific cause of his pain, suffering and disability does not toll the Statute of Limitations. 1 Am. Jur. 459, sec. 60; State ex rel. State Life Ins. Co. v. Faucett, 163 S.W.2d 592; Silvertooth v. Shallenberger, 174 S.E. 365; Carter v. Harlan Hospital Assn., 97 S.W.2d 9; Murray v. Allen, 154 A. 678; Bodne v. Austin, 2 S.W.2d 104; Cappuci v. Barone, 266 Mass. 578, 165 N.E. 653; 25 Cyc., p. 1116; Barnhoff v. Aldridge, 38 S.W.2d 1029; Schmit v. Esser, 226 N.W. 196, 236 N.W. 622; Gillette v. Tucker, 65 N.E. 872; Annotation, 74 A. L. R. 1319; McArthur v. Bowers, 76 N.E. 1128; Bowers v. Santee, 124 N.E. 238.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

This case involves an interpretation of section 1016, Mo. Rev. St. Ann. (1939), which requires malpractice suits to be filed within two years from the date of the act of negligence complained of. Plaintiff filed suit against defendant seeking $ 10,000.00 in damages. The trial court sustained defendant's demurrer and plaintiff refused to plead further. His petition was dismissed and judgment entered whereupon plaintiff appealed.

The petition was filed on August 29, 1941. The allegations thereof in substance are, that in August, 1937, plaintiff employed the defendant professionally and was advised that he was suffering from appendicitis; that plaintiff submitted to an operation for the removal of the appendix on August 25, 1937; that during the course of the operation defendant permitted a surgical needle to remain in plaintiff's body; that thereafter defendant continued to treat plaintiff until October, 1939, without any relief from his condition; that in October, 1939, plaintiff obtained the services of other physicians and on September 16, 1940, submitted to another operation, when he learned for the first time that his pain and disability, after the operation performed by the defendant, were due to and caused by the presence of said needle.

Appellant in his statement, which was adopted by respondent, summarized the charges of negligence as follows:

"1. The defendant negligently failed to exercise proper care or skill in performing said operation in that during the course of said operation the defendant negligently caused, allowed and permitted a surgical needle to be and remain in said wound.

"2. The defendant negligently failed to remove said needle from plaintiff's body.

"3. The defendant after said operation negligently treated the plaintiff until October, 1939.

"4. The defendant, during said period from said operation to October, 1939, negligently failed to discover the presence of said needle.

"5. The defendant during said period following said appendectomy up to October, 1939, negligently failed to X-ray the plaintiff although the defendant knew, as he stated in his deposition given on August 5, 1942, that such X-ray of plaintiff was advisable.

"6. The defendant, in the respects aforementioned, negligently failed to exercise the degree of care and skill commonly exercised by physicians and surgeons in Joplin and in the State of Missouri in the performance of such appendectomy and in the post-operative treatment."

Respondent contends that plaintiff's cause of action was barred by the statute of limitations because the only actionable negligence on part of the defendant consisted in permitting the needle to remain in the operative incision on August 25, 1937, and that therefore the demurrer was properly sustained.

Appellant, under points and authorities, states:

"Suit was brought August 29, 1941, for defendant's negligence which began on August 25, 1937, when the appendectomy was performed, and ended in October, 1939, when defendant's post-operative treatment ceased. Thus, the suit was within two years after the 'act(s) of neglect complained of.'"

Appellant and respondent in their briefs assert that no appellate court in this state has directly passed upon the point in question. Many cases from other jurisdictions were cited. In considering this question we should keep in mind that statutes of limitation are statutes of repose enacted for the purpose of preventing the assertion of stale claims. 37 C. J. 684, sec. 2. The statute in question, section 1016, supra, provides:

"Within two years: An action for libel, slander, assault, battery, false imprisonment or criminal conversation. All actions against physicians, surgeons, dentists, roentgenologists, nurses, hospitals and sanitariums for damages for malpractice, error, or mistake shall be brought within two years from the date of the act of neglect complained of."

Article IX, ch. 6 of the statutes governs limitations of actions. The first section of this article, being section 1012, provides as follows:

"Civil actions, other than those for the recovery of real property, can only be commenced within the periods prescribed in the following sections, after the causes of action shall have accrued: Provided, that for the purposes of this article, the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief...