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Tucker v. Gillette.

Election of remedies: 7 Enc. Pl. & Pr. pp. 361, 361-362, 362, 363, 368, 371; Barker v. Cory, 15 Ohio, 9, 13; Dixon v. Caldwell, 15 Ohio St. 412, 415 [86 Am. Dec. 487]; Klonne v. Bradstreet, 7 Ohio St. 322, 325; Bouvier's Dictionary, title, Torts; Hill on Torts; p. 1; Pollock on Torts, 4; O'Callaghan v. Cronan, 121 Mass. 114; Mahan v. Brown, 13 Wend. 261 [28 Am. Dec. 461]; Rich v. New York, etc., Co., 87 N. Y. 382; See Bishop on Contr. (Enl. Ed.) Sec. 1355; 26 Am. & Eng. Enc. Law, pp. 72, 73.

What is a continuing contract? 1 Wood on Lim. (2 ed.) p. 330; Foster v. Jack, 4 Watts (Pa.), 234; 55 Pa. St., 434; Adams v. Fort Plain Bank, 36 N. Y. 255; see also Wood on Lim. (2 ed.) Sec. 121, 122. Delay induced by defendant will prevent the bar of the statute: Mickey v. Insurance Co., 35 Iowa, 174; Curtis v. Insurance Co., 1 Biss. (U. S.) 485; Brady v. Insurance Co., 17 U. S. (4 Wheat.) 597; Ripley v. Insurance Co, 17 How. Pr. 444; Coursin v. Insurance Co., 46 Pa. St. 323; Insurance Co. v. Meyer, 93 Ill. 271; Derrick v. Insurance Co., 74 Ill. 404; Wood on Limitations (2 ed.), Sec. 49, pp. 106-7.

David R. Austin, George F. Wells and M. A. Norris, for the defendant in error.


This is a proceeding in error brought to reverse the judgment of the court of common pleas. The plaintiff in error was also plaintiff below. A judgment was rendered against her and she brings this action to reverse that judgment. The defendant, William J. Gillette, is a physician and the action was brought against him by the plaintiff to recover damages which she claims she sustained on account of his violation of his obligation to her as a physician, during his employment by her to perform a certain operation and to care for her after such surgical operation was performed.

To the petition filed in the court of common pleas a demurrer was filed, on the ground that the action was barred by the statute of limitations. This demurrer was overruled. The defendant then answered and the case came on for trial before the court and jury, and at the conclusion of the plaintifl's testimony, the defendant, through his counsel, moved the court to direct the jury to return a verdict in favor of the defendant upon the ground that the evidence showed that the cause of action, if any, arose and was created more than one year before the filing of the petition, and was therefore barred. This motion the court sustained and directed the jury to return a verdict in favor of the defendant. A motion for a new trial was filed, overruled and judgment entered upon that verdict and this judgment is sought to be reversed.

Section 4983, Rev. Stat., as amended, provides that actions are barred within one year, as follows:

"An action for libel, slander, assault, battery, malicious prosecution, talse imprisonment or malpractice."

It is claimed here by the defendant in error, and the same claim was made below, that this was an action for malpractice and it was therefore barred within one year. The plaintiff in error claims that the action was in contract and not in tort, and, therefore, would not be barred under six years. The claim of plaintiff in error is that the tort was waived and that the plaintiff elected to sue in contract and that this appears from the petition.

The petition sets forth that the plaintiff was sick, and that on or about November 1, 1897, she applied to the defendant to treat her pro

Lucas Circuit Court.

fessionally. That he accepted her retainer and thereupon entered upon the treatment and cure of the plaintiff. That he informed her that she was suffering from appendicitis and that after that she went to the Toledo hospital for the performance of a surgical operation, and then proceeds as follows:

"That on or about the first day of November, 1897, plaintiff and defendant being at said hospital, pursuant to said arrangements, the defendant undertook to, and did, perform upon plaintif, a surgical operation, opening her abdomen, and among other things, removing therefrom a tumor. That defendant while performing said operation, and in the performance thereof, did use, and did insert in the opening so made in plaintiff's abdomen, a cheese-cloth sponge, for the purpose of absorbing and taking up from said opening so made, in the performance of said operation, liberated blood, etc., which cheese-cloth sponge consisted of about eight layers of cheese-cloth sewed together, and which layers were about two inches in width by three inches in length. That defendant, without the knowledge or consent of plaintiff, did carelessly and negligently, and in violation of the obligations of his contract of employment, leave said cheese-cloth sponge in the opening by him. made in the performance of said operation, and in the abdomen of the plaintiff, and did carelessly and negligently, and without the knowledge or consent of plaintiff, close said opening without removing said cheesecloth sponge therefrom. That for more than eighteen months thereafter, plain iff was continuously sick of said malady, and for more than twelve months thereafter, viz., from about November 1, 1897, to about December 1, 1898, defendant continued under his retainer and employment to treat and counsel plaintiff concerning the same, and during all of which latter time, and upon each and every day thereof, without the knowledge or consent of said plaintiff, said defendant, knowingly, carelessly and negligently, and in disregard of his duties and obligations under said contract of employment, permitted said cheese-cloth sponge to remain in said plaintiff's abdomen. That on account of defendant's so leaving said cheese-cloth sponge in plaintiff's said abdomen, and so enclosing the same, and on account of defendant's so permitting said cheese-cloth sponge to remain enclosed as aforesaid in plaintiff's said abdomen, upon and during the days, and each and every one of the days aforesaid, a running painful sore, continually discharging offensive pus, requiring constant care and attention, was created and maintained, and plaintiff was made sick, etc."

The petition proceeds to state the injuries which the plaintiff claims to have sustained and asks for damages.

The answer is in the nature of a general denial, except that it is admitted the operation was performed, and pleads the bar of the statute of limitations.

The petition was filed June 27, 1899, and the summons issued and the action commenced on that day. The court, after the evidence was all in, was of the opinion that no cause of action had accrued to the plaintiff within one year before the commencement of the action, and, for that reason, directed a verdict for the defendant. (See 11 Dec. 226.)

As suggested, it is claimed by the plaintif in error that this action is not within the one year statute; that it does not sound in tort but in contract, and therefore, it comes within Sec. 4981, Rev. Stat., which provides that an action upon a contract not in writing, either express or implied, shall be commenced within six years; and attention is called to

Tucker v. Gillette.

the language of the petition, to-wit, that it is charged that the defendant, without the knowledge or consent of the plaintiff, carelessly, negligently and in violation of the obligation of his contract, left said cheesecloth sponge in the opening made by him in the performance of said operation, etc., and it is alleged that the action here is for the violation of a contract, to-wit, that he would perform this operation carefully and prudently and with ordinary care and in the exercise of ordinary skill, and that in violation of that obligation of the contract he did these things which are charged.

It is true that there is, in nearly all such cases, a contract, either express or implied, between the physician or surgeon and his patient. As was suggested in argument, if a physician should undertake the treatment of a man who was insane, or unconscious at the time he undertook his treatment, it could hardly be said that there was any contract, but in the ordinary case, there is either an express contract made by the parties or the law implies a contract of service imposing upon the physician certain duties or obligations, and, among other things that of ordinary care and skill in the treatment of the patient. And this petition sets forth the obligation and the violation of the obligation, in the ordinary way.

Is the action here upon a contract, or is it for negligence, for what is commonly known as malpractice?

The word used in Sec. 4983, Rev. Stat., limiting a right of action to one year, is "malpractice." It will not be out of place to have a definition of malpractice and to ascertain what the legislature probably had in mind when they amended that statute, in 1894, by adding the word "malpractice," there being no express provision limiting actions for malpractice prior to that time, but they being controlled by the four year statute, Sec. 4982, Rev. Stat., the general provision for injuries to the rights of persons.

Webster defines malpractice as derived from mal and practice; 44 * * * especially professional misconduct." A definition is found in 1 Witthaus & Becker's Med. Jur. 73: "Malpractice may be defined to be-First: Wilful acts on the part of a physician or surgeon toward a person under his care, by which such person suffers death or injury. Second: Acts forbidden by express statute, on the part of a physician or surgeon, toward a person under his care, by which such person suffers death or injury. Third: Negligent acts on the part of a physician or surgeon in treating a patient, by means of which such patient suffers death or unnecessary injury.'


According to these definitions, malpractice is mal or bad practice, and it may be defined generally as negligent acts committed by a physician in treating his patient.

Though the service rendered to the patient is upon contract, as suggested, it seems to us that the cause of action for malpractice--for the negligent performance of the contract-rests on negligence and that this action is in tort and not in contract. The claim of the plaintiff is, that the defendant negligently performed the duties and obligations which were imcumbent upon him to perform by virtue of a contract for service which existed between her and the physician. This question has een passed upon by the circuit court of Ohio in Shuman v. Drayton, 8 Circ. Dec. 12 (14 R. 328).

The first paragraph of the syllabus is:

Lucas Circuit Court.

"The cause of action for malpractice, though the service rendered is on contract, express or implied, arises on negligence, or the failure to exercise due care and skill and not necessarily involving either malice or wilful wrongdoing."

And on page 14 the court say, through Judge Day, delivering the opinion:

True, the service is rendered on contract, either express or implied, but the cause of action arises altogether on the negligence, the omission to exercise due care or due skill in the rendition of the service on the part of the person sought to be charged. Nor is there present necessarily, or even probably, the element of malice or wilful wrongdoing, although that element may be present."

We are of the opinion that the ordinary meaning of malpractice, the meaning with which it is used generally, is the negligent pertormance by a physician of the duties which are devolved and incumbent upon him on account of his contractual relations with his patient, and that the legislature in adding the term mal practice, to this statute intended to cover all of that class of cases and to use the word with its ordinary meaning. We, therefore, are o! the opinion that this action falls within the one year limitation. Sec. 4983, Rev. Stat.

The question for consideration then, is: Whether the court erred, after the plaintiff's evidence was in, in directing a verdict for the defendant on the ground that the acts as they appeared showed that no cause of action had accrued within one year before June 27, 1899, the day the action was commenced.

The general duties of a physician are well established by the authorities, and, as laid down everywhere, practically, he is bound to use ordinary care and skill in the practice of his profession where he is situated, and it is his duty when he once enters upon the treatment of a patient to continue the treatment and to continue the exercise of such ordinary care and skill until he has been discharged by the patient or has himself withdrawn from such service; and, before he can withdraw, it is necessary for him to give reasonable notice to the patient, in order that another physician may be procured, the character of the services of a physician being such and his relation to his patient being such, that he is not permitted, under the law, to arbitrarily quit the service at any time, without any cause, and leave his patient without medical attendance, but he must give reasonable notice, though the patient may discharge him at any time.

These general principles bear upon the duty of the defendant in this case and upon the question as to when his relation with plaintiff as a physician ceased. The Supreme Court say in Craig v. Chambers,

17 Ohio St. 254:

"The implied liability of a surgeon, retained to treat a case protessionally, extends no further, in the absence of a special agreement, than that he will indemnify his patient against any injurious consequences resulting from his want of the proper degree of skill, care or diligence in the execution of his employment. And in an action against the surgeon for malpractice, the plaintiff, if he shows no injury resulting from negligence, or want of due skill in the defendant, will not be entitled to recover nominal damages.


The question is discussed in Shearman & Redfield on Negligence, Sec. 606:

Tucker v. Gillette.

"The general rule, therefore, is that a medical man who attends for a tee, is liable for such amount of ordinary care, diligence or skill on his part as leads to the injury of his patient.

"Section 613. The peculiar nature of the services which a medical man undertakes to render often makes it his duty to continue them long after he would gladly cease to do so. He may, indeed, decline absolutely to take charge of a case, but having once begun the task, he cannot abandon it freely. Even if his services are gratuitous, he must continue them until a reasonable time has been given to procure other attendance, and it he is attending gratuitously he has no right to desert a patient before the end of an illness which he undertook to treat, without reasonable cause. The propriety of this rule is obvious in some instances and is easily demonstrable in all cases. Thus, no one can doubt that even where his attendance was gratuitous, a surgeon could not be allowed to cut off a limb and then leave him to stop the flow of blood as best he could; and this, although an extreme case, proves that there must be a rule adequate to secure justice for such a case. That a paid physician must continue his attendance, if desired, until the emergency which he was called to meet is past, seems to be not only reason. able in itself but to be sustained by analogy from the rule which requires lawyers to take their client's cases to trial and judgment after they have once undertaken them. If personal attendance is no longer necessary, as in the treatment of an injured limb, he should, if the case calls for it, give the patient instructions as to its care, and a failure to do so is actionable negligence."

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And this states the rule substantially as laid down in most of the cases, some of which will be referred to later.

The duty, then, of the defendant was to perform this operation with ordinary care and skill and to treat the plaintiff thereafter as long as she required personal attention in healing and curing her of the injury caused by the operation. It appears that this operation was performed November 3, 1897. She remained at the hospital until December b, following; and the defendant alleges in his answer that he had no further charge of her after that, and it is claimed that the evidence does not show that he had any charge of her or did anything for her as a physician alter April, 1898--which was more than a year before the commencement of the action-and that therefore the court was justified in directing a verdict for the defendant.

It will be necessary to look at some of the evidence which was offered by the plaintiff to determine this question. It appears from the testimony that in the latter part of October or the first of November, 1897, the plaintiff was, and for sometime had been, suttering pain in the abdominal region, and, not knowing what the nature of the malady was, she applied to the defendant, Dr. Gillette, about November 1, or the latter part of October, and he made an examination of her in the presence of her husband, and pronounced her trouble appendicitis and told her and her husband that it would be necessary to have an operation performed to cure her, and they appeared to be willing that such an operation should be performed. Soon after that she went to the hospital, and on November 3, 1897, an operation was performed, at the hospital in Toledo, where Dr. Gillettte had a room for his own operations. He made an incision on the right side of the abdomen, the inguinal region, it is called, in the presence of the plaintiff's husband and of the nurses and attendants at the hospital and one or two

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