Williams v. Elias
| Decision Date | 05 December 1941 |
| Docket Number | 31194 |
| Citation | 1 N.W.2d 121,140 Neb. 656 |
| Parties | GEORGE E. WILLIAMS, APPELLANT, v. FRANCIS ELIAS, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Gage county: CLOYDE B. ELLIS JUDGE. Reversed.
REVERSED.
Bruce Fullerton and Loren H. Laughlin, for appellant.
Philip M. Everson and Herman Ginsburg, contra.
Thomas M. Davies and Hall, Cline & Williams, amici curiae.
Heard before SIMMONS, C. J., ROSE, EBERLY, PAINE, CARTER, MESSMORE and YEAGER, JJ.
This is a malpractice suit. The original petition was filed April 20 1940; an amended petition was filed July 19, 1940. Defendant on August 9, 1940, demurred to the amended petition for the reason that, on its face, it shows that more than two years have elapsed between the time of plaintiff's injury and the filing of the petition in the district court, and the statute of limitations bars any action on the alleged injury. The demurrer was sustained, and plaintiff's action dismissed. Plaintiff appeals.
The only question to determine on this appeal is whether or not the plaintiff's cause of action is barred by the provisions of section 20-208, Comp. St. Supp. 1939, the statute of limitations, which limits the bringing of malpractice actions to two years.
The substance of the amended petition follows. It alleges the qualifications of the defendant to practice his profession in this state and in his community; that plaintiff, a laborer, was injured April 4, 1938, while working in a rock quarry in the process of lifting a heavy rock, when he fell against the sharp edges of a rock wall, injured the left sacroilliac joint and fractured the laminae of the fifth lumbar vertebra on the lower left side, displaced, tore and strained the muscles, cords and tendons surrounding and connected with the left sacroilliac joint of the fifth lumbar vertebra, and by reason of such injuries and because of neglect in treatment of the same, the left sciatic nerve became and was impinged.
On April 9, 1938, plaintiff employed defendant as his physician and surgeon to perform such services in the treatment of plaintiff's injuries as were necessary and proper in such case, gave to defendant a full and complete history thereof, stating where he was suffering pain, and answered all interrogatories propounded by defendant. Plaintiff alleges that it was defendant's duty to make a thorough examination of his injuries for the purpose of ascertaining the nature and extent thereof, and to use the means generally and commonly employed by physicians and surgeons for diagnosis and treatment of such case; that the proper and thorough examination of plaintiff's injuries, commonly used in the vicinity, is by hand, feeling and manipulating the parts affected. Such parts alleged to be affected are described in detail, as well as the examination to be made to determine the nature and extent of the injuries, and the further allegation appears in the petition that an X-ray should be taken of the parts affected. Plaintiff alleges that defendant failed to make such examination and to properly ascertain the nature and extent of plaintiff's injuries, and in this respect was negligent. The amended petition alleges further treatment of the plaintiff by defendant and the dates thereof, and oral request made of defendant by plaintiff for an X-ray June 10, 1938, which was denied him; that the defendant treated the plaintiff until August 15, 1938, when he sent plaintiff to a hospital in Omaha, Nebraska, where he was examined, X-rayed and the nature of his injuries ascertained and treated. Plaintiff was placed in a plaster cast to immobilize the fractures. Other details of treatment and diagnosis, not necessary to be here set out, are contained in the amended petition.
The question presented in the instant case has not been passed upon by this court. The district court adopted the following rule:
"It is generally held that the period of limitations for actions of this kind commences from the date of the wrongful act or omission, rather than from the date of the damage caused"--citing Fadden v. Satterlee, 43 F. 568 (under Iowa statute). Annotation, 74 A. L. R. 1318. The foregoing rule is the prevailing one in California, Iowa, Maryland, Massachusetts, Montana and Vermont.
In Capucci v. Barone, 266 Mass. 578, 165 N.E. 653, the court said: "The damage sustained by the wrong done is not the cause of action; and the statute is a bar to the original cause of action although the damages may be nominal, and to all the consequential damages resulting from it though such damages may be substantial and not foreseen." And in Coady v. Reins, 1 Mont. 424, decided in 1872, the court held that the statute begins to run from the time of the negligent act or the breach of duty.
In applying the above rule to the instant case, the malpractice charged is a breach of duty to correctly diagnose the nature and cause of plaintiff's disability. Therefore, treatment and prescription must necessarily be distinguished from diagnosis. The trial court reasoned: "The injury to the patient's legal rights which gives rise to his cause of action occurs at the time that it is charged the correct diagnosis should have been made (April 9, 1938), for that is when the physician breached his duty." The reasoning is supported by the above rule. Decisions which have not applied the foregoing rule follow.
In Gillette v. Tucker, 67 Ohio St. 106, 65 N.E. 865, 93 Am. St. Rep. 639, the court held: "It is the duty of the physician and surgeon to exercise due and ordinary skill, care and attention, not only in and about an operation which he decides to be necessary, but also, in the absence of a mutual understanding, or notice to the contrary, to render such continued further care and treatment as the necessity of the case requires; and he is liable for injuries and damages which proximately result from the want of such ordinary skill, care and attention." The court made the following pronouncement (p. 129): "But if evil consequences followed (the diagnosis), and plaintiff was injured, her cause of action accrues when her injuries occurred; and if these injuries blended and extended during the entire period the surgeon was in charge of the case, her right of action became complete when the surgeon gave up the case without performing his duty." The foregoing decision was rendered by a divided court. The dissenting opinion therein held that the period would start running at the time of the act complained of, rather than the date the injurious consequences became apparent. This rule was adopted in McArthur v. Bowers, 72 Ohio St. 656, 76 N.E. 1128; subsequently, in Bowers v. Santee, 99 Ohio St. 361, 124 N.E. 238, the McArthur case was overruled and the doctrine announced in Gillette v. Tucker, supra, reaffirmed.
The contention is made that the Ohio cases cited involve a breach of contract of employment, as distinguished from a tort. The holdings in such cases are not strictly confined to the contract of employment alone, but conclude, in any event, the diagnosis and treatment cannot be separate, but must be considered together in determining malpractice. During the period from the first diagnosis to and including the date of the last treatment, the relation of physician and patient existed.
The Minnesota supreme court held in Schmitt v. Esser 178 Minn. 82, 226 N.W. 196: "The statute of limitations does not commence to run against a cause for malpractice of a surgeon employed to treat a fracture until his treatment ends." The court said: ...
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