Williams v. Elias, 31194.

• Decision Date: 05 December 1941
• Docket Number: No. 31194.,31194.
• Parties: WILLIAMS v. ELIAS.
• Court: Nebraska Supreme Court

140 Neb. 656
1 N.W.2d 121

WILLIAMS
v.
ELIAS.

No. 31194.

Supreme Court of Nebraska.

Dec. 5, 1941.

Appeal from District Court, Gage County; Ellis, Judge.

Action for malpractice by George E. Williams against Dr. Francis Elias. From a judgment for the defendant, plaintiff appeals.

Reversed and remanded.

Syllabus by the Court.

The two-year statute of limitations in a malpractice suit (Comp.St.Supp.1939, sec. 20-208) does not commence to run until the treatment ends.

Loren H. Laughlin and Bruce Fullerton, both of Lincoln, for appellant.

Philip M. Everson, of Wymore, and Herman Ginsburg, of Lincoln, for appellee.

Thomas M. Davies and Hall, Cline & Williams, all of Lincoln, amici curiae.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and YEAGER, JJ.

MESSMORE, Justice.

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 has 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.

[1 N.W.2d 122]

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 sacroiliac 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 sacroiliac 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...