Wilder v. Haworth

• Decision Date: 17 January 1950
• Citation: 187 Or. 688,213 P.2d 797
• Parties: WILDER v. HAWORTH.
• Court: Oregon Supreme Court

213 P.2d 797

187 Or. 688

WILDER v. HAWORTH.

Supreme Court of Oregon.

January 17, 1950

Argued and Submitted Dec. 14, 1949.

B. G Skulason, of Portland, argued the cause and filed a brief for appellant.

E. K. Oppenheimer and Wayne A. Williamson, both of Portland, argued the cause for respondent. With Wayne A Williamson on the brief were Wilbur, Beckett, Oppenheimer Mautz & Souther, of Portland.

Before LUSK, C. J., and ROSSMAN, BAILEY, HAY and PAGE, Justices.

HAY, Justice.

Plaintiff brought this action against defendant for damages for alleged medical malpractice. According to the amended complaint, defendant was a licensed physician and surgeon 'and held himself out as a specialist in X-ray diagnosis and therapy'; on or about January 10, 1937, plaintiff employed defendant in his capacity as physician and surgeon and X-ray specialist 'to treat a uterine tumor with which it was believed the plaintiff was afflicted'; on the following day, defendant subjected plaintiff to X-ray therapy, in the course of which he exposed a portion of her body to X-rays in a manner so careless, negligent and unskillful as to burn severely certain of her internal organs; as a result of such burning, plaintiff 'became nervous, weak and ill and suffered great pain and permanent injury'; at that time and thereafter until August 21, 1946, plaintiff was under the constant care of another physician, and also consulted with 'other competent physicians and surgeons', who gave her many physical examinations and various kinds of medical treatment, but without affording her any relief; on August 21, 1946, an abdominal surgical operation was performed on plaintiff [but not by defendant] and then, for the first time, she learned 'that she never had a uterine tumor and that her said condition was the proximate result of the defendant's negligence, carelessness and unskillfulness aforesaid'. She demanded $50,000 in general damages and $4,900.63 in special damages.

Defendant demurred to the amended complaint upon the ground that the action had not been instituted within the time permitted by law. The demurrer was sustained, and, plaintiff refusing to plead further, the court entered judgment dismissing the cause. Plaintiff has appealed from such judgment, assigning as error the sustaining of defendant's demurrer.

The action, being based upon alleged negligent performance by defendant of his contract with plaintiff, sounds in tort. 38 Am.Jur., Negligence, section 20; 41 Am.Jur., Physicians and Surgeons, section 122, text and note 4; Currey v. Butcher, 37 Or. 380, 384, 61 P. 631. The two-year statute of limitations, O.C.L.A. § 1-206, is applicable.

The general rule in such cases is that the statute of limitations begins to run against the cause of action at the time when the act or omission constituting the alleged malpractice takes place. Shives v. Chamberlain, 1942, 168 Or. 676, 685, 126 P.2d 28; Becker v. Floersch, 1941, 153 Kan. 374, 110 P.2d 752, 754; Gangloff v. Apfelbach, 1943, 319 Ill.App. 596, 49 N.E.2d 795, 798, 800; Albert v. Sherman, 1943, 167 Tenn. 133, 67 S.W.2d 140, 141; Carrell v. Denton, 1942, 138 Tex. 145, 157 S.W.2d 878; Weinstein v. Blanchard, 1932, 109 N.J.L. 332, 162 A. 601, 602; McCoy v. Stevens, 1935, 182 Wash. 55, 44 P.2d 797; Ogg v. Robb, 1917, 181 Iowa 145, 155, 162 N.W. 217, 220, L.R.A.1918C, 981; Annotations, 74 A.L.R. 1319; 144 A.L.R. 212; 34 Am.Jur., Limitation of Actions, section 160.

The rule under which the statute of limitations begins to run at the time of the occurrence of the negligent act or omission in such cases has been criticized. Even with no lack of diligence on the part of the patient, he may not, within two years after the commission of the tort, become aware of the physician's negligence or of the resultant injury. Bowers v. Santee, 1919, 99 Ohio St. 361, 366, 124 N.E. 238; Oppenheimer, Medical Jurisprudence (1935) section 37, at p. 113. In Missouri, the criticism has been met by a statutory proviso, to the effect that the cause of action shall not be deemed to accrue when the wrong is done, but when the damage resulting therefrom is sustained and is capable of ascertainment. Mo.Rev.Stat.1939, § 1012, Mo.R.S.A. See Thatcher v. De Tar, 1943, 351 Mo. 603, 173 S.W.2d 760.

In some jurisdictions, including Oregon, in cases where the malpractice consisted of negligent acts or omissions extending throughout the whole course of treatment of the patient by the physician, the courts have to some extent mitigated the harshness of the rule of strict application of the statute of limitations, by ruling that the negligence is in the nature of a continuing tort, and that the statute does not begin to run until the termination of the treatment. It was so held by this court in Shives v. Chamberlain, supra, 168 Or. 676, 685, 126 P.2d 28 and in Hotelling v. Walther, 1942, 169 Or. 559, 565, 130 P.2d 944, 144 A.L.R. 205. The Shives case was based upon negligence in treatment of plaintiff's eyes, which were afflicted with glaucoma, the treatment extending over a period of one year. In the Hotelling case, the defendant, a dentist, extracted a wisdom tooth for plaintiff, and infection resulted from broken parts of the tooth being left in the tooth socket. We held that the negligent treatment in such cases must be considered as a whole, and constitutes but a single cause of action. The statute of limitations begins to run thereon from the last date of the continuous negligent treatment. See also Bush v. Cress, 1929, 178 Minn. 482, 227 N.W. 432; De Haan v. Winter, 1932, 258 Mich. 293, 241 N.W. 923, 924; Peteler v. Robinson, 1932, 81 Utah 535, 17 P.2d 244, 249; Williams v. Elias, 1941, 140 Neb. 656, 1 N.W.2d 121, 124; Trombley v. Kolts, 1938, 29 Cal.App.2d 699, 85 P.2d 541, 546.

Plaintiff appears to concede that, as a general rule, the two-year statute of limitations governs cases of tort to the person, but contends that there is an exception to such general rule in malpractice cases, and that the statute in such cases does not begin to run until the patient discovers or, by reasonable diligence, should have discovered the negligence of the physician and its consequences. This appears to be the rule in California, and plaintiff cites a number of decisions from that jurisdiction. The rule was applied in Ehlen v. Burrows, 1942, 51 Cal.App.2d 141, 124 P.2d 82, where the defendant surgeon had left broken roots of teeth in a patient's jaw after extraction of the teeth. The court held that there was no difference in principle between leaving in the patient's body fragments of teeth which the surgeon had undertaken to remove, and leaving in a patient's body a sponge or a drainage tube which had served its purpose and should have been removed. In Pellett v. Sonotone Corporation, 1942, 55 Cal.App.2d 158, 130 P.2d 181, in which defendants left pieces of plaster of paris in a person's ear after making a plaster cast of the ear, the same rule was followed.

In Marsh v Industrial Accident Commission, 1933, 217 Cal. 338, 18 P.2d 933, 86 A.L.R. 563, a case involving claims for compensation under the workmen's compensation law by miners who had contracted the disease commonly called silicosis, by inhalation of dust-laden atmosphere in the course of their employment, the court held that the date of the injury was not the date of their exposure to the dust-laden atmosphere, nor even the date of their last exposure thereto, but rather the time when they became aware, or, by the exercise of reasonable care and diligence, ought to have become aware, that their injuries were due to such exposure. In Huysman v. Kirsch, 1936, 6 Cal.2d 302, 57 P.2d 908, a malpractice case, the defendant physician had performed a surgical operation upon plaintiff, and, in closing the incision, had negligently left therein a piece of rubber drainage tubing, the presence of which resulted in an infection from which the patient thereafter suffered for several years. The defendant, without being aware of the cause of the infection, continued to treat the patient, and finally, having reopened the incision, he found the tubing and removed it. The...