Swankowski v. Diethelm , 98 Ohio App. 271 ( 1953 )

I do not concur in the judgment of the majority of the court in this case.

The judgment in the Court of Common Pleas was entered on the ruling of that court on a general demurrer to the petition of the plaintiff, consequently the question to be determined is whether the petition contained sufficient well-pleaded facts to constitute a cause of action.

The action was commenced July 11, 1953, pursuant to Section 11224, General Code (now Section 2305.09, Revised Code), which is as follows:

"An action for either of the following cases, shall be brought within four years after the cause thereof accrued:

"1. For trespassing upon real property;

"2. For the recovery of personal property, or for taking or detaining it;

"3. For relief on the ground of fraud;

"4. For an injury to the rights of the plaintiff not arising on contract nor hereinafter enumerated.

"If the action be for trespassing underground or injury to mines, or for the wrongful taking of personal property, the causes thereof shall not accrue until the wrongdoer is discovered; nor, if it be for fraud, until the fraud is discovered."

It is important to keep in mind that the action is based on fraud and deceit and arose not at the time of the alleged negligent performance of the surgical operation by the defendant, but on the date of the discovery of the fraud and concealment as provided in the foregoing statute that the right of action shall not accrue "if it be for fraud, until the fraud is discovered" and "shall be brought within four years after the cause thereof accrued."

The pertinent allegations of the petition, in substance, are that the defendant is a physician and surgeon and that prior to March 21, 1943, plaintiff as a patient was treated by the defendant in reference to an internal disorder; that plaintiff's condition was diagnosed by the defendant as tumor of the bladder, requiring a surgical operation; that on March 21, 1943, while plaintiff was under an anaesthetic, the defendant performed an operation for the purpose of removing the tumor; that defendant knowingly left a surgical needle in plaintiff's abdomen and with knowledge of the presence of the needle in plaintiff's abdomen closed the incision by sewing, without informing plaintiff of the presence of the needle in her abdomen; and that "thereafter, while plaintiff still continued under defendant's care, and while the relationship of doctor and patient continued, defendant beguiled plaintiff to believe that the doctor-patient relationship between plaintiff and defendant would continue indefinitely with respect to the aforesaid surgery in that defendant advised plaintiff to return to him if at any time she felt any ill effects resulting from the surgery, although defendant knew that plaintiff would so suffer and that he had not removed his surgical needle which he had sewn in her abdomen within the field of operation prior to the closing of said incision."

Plaintiff alleged further that she did not learn of the presence of the needle in her abdomen until November 18, 1950; that after learning of the presence of the needle in her abdomen she requested the defendant to treat her concerning same but the defendant refused and neglected to render plaintiff any further service; and that thereafter plaintiff underwent another surgical operation performed by another surgeon on November 30, 1950, for the purpose of removing the surgical needle.

There are many other statements and allegations contained in the petition relating to knowledge on the part of the defendant, deceit and fraud on account of his relationship as physician to the plaintiff, and allegations in reference to damage, unnecessary to be stated here.

The gist of the action is fraud and deceit on the part of the defendant, thereby depriving plaintiff of her alleged right of action for malpractice. The rules of law controlling a decision on demurrer to the petition have been stated clearly in decisions by the Supreme Court of the state: State v. Ford MotorCo., 114 Ohio St. 221, 151 N.E. 171; Humphries v. Wheeling Steel Corp., 132 Ohio St. 263, 7 N.E.2d 230; Gugle v.Loeser, 143 Ohio St. 362, 55 N.E.2d 580.

So far as I have been able to determine, there has been no decision by an appellate court or our Supreme Court involving an analogous state of facts, or where the principal question involved the charge of fraud and deceit practiced by a physician upon a patient for the purpose of taking advantage of the statute, limiting the time within which actions for malpractice may be commenced.

The demurrer to the petition presented the question as to whether the petition contained facts sufficient to charge fraud or deceit on the part of the defendant.

If the answer to that question should be in the affirmative, then it follows under the established rules of law applicable that the demurrer should have been overruled.

It is undisputed that plaintiff did not learn of the presence of the needle in her abdomen until November 18, 1950; that defendant knew that he had carelessly lost a needle in plaintiff's abdomen; that defendant knowingly left the needle in her abdomen; that following the operation the defendant advised plaintiff to return to him if she experienced any difficulty resulting from the operation; that she did return to defendant after discovering the presence of the needle; and that defendant refused to treat plaintiff at that time.

In my view of the record before us, the cases of Gillette v.Tucker, 67 Ohio St. 106, 65 N.E. 865, 93 Am. St. Rep., 639;McArthur v. Bowers, 72 Ohio St. 656, 76 N.E. 1128; Bowers v.Santee, 99 Ohio St. 361, 124 N.E. 238; Amstutz v. King,103 Ohio St. 674, 135 N.E. 973, and the recent case decided by the Supreme Court of this state, DeLong v. Campbell, Exrx.,157 Ohio St. 22, 104 N.E.2d 177, are not controlling in a decision in the case before us for the reason that in none of those cases was relief sought on the ground of fraud.

The same may be said concerning the principal case relied upon by counsel for the defendant and the cases cited in the opinion in that case, being: Pickett v. Aglinsky,110 F.2d 628.

The rule respecting the time at which the statute of limitation for malpractice commences to run has been determined by the Supreme Court in Bowers v. Santee, supra, approving and following the case of Gillette v. Tucker, supra, in that regard. Paragraph two of the syllabus is as follows:

"In an action for a breach of the contract in such case, the statute of limitations does not begin to run until the contract relation is terminated. (Gillette v. Tucker, 67 Ohio St. 106, approved and followed. McArthur v. Bowers, 72 Ohio St. 656, disapproved.)"

Unquestionably there are allegations in the petition in this case to the effect that the relationship of physician and patient was not terminated until the plaintiff discovered the presence of the needle in her abdomen on November 18, 1950, and that the defendant refused thereafter to treat the plaintiff.

The question whether concealment or misrepresentation amounting to fraud could be proved by the plaintiff is not necessary to be determined here. However, in considering whether the petition is sufficient in that regard, the duty of the defendant as a physician under the circumstances as shown by the allegations in the petition should be taken into consideration.

In 19 Ohio Jurisprudence, 345, Section 35, the duty of one in a fiduciary relation is defined:

"Where confidential relations exist in general. Where parties dealing directly stand toward each other in a fiduciary or quasi-fiduciary relation, the obligation not only to abstain from false suggestions, but to make full disclosure, is imperative. One standing in a confidential relation who conceals or fails to make a full disclosure of facts within his knowledge, knowing the other party to be ignorant of those facts, is guilty of fraud, both in law and equity. The relationship of confidence and trust, whereunder it becomes the duty of one party not to conceal fraudulently or misrepresent the true facts of the situation is not confined to those well-known relations of trustee and beneficiary, guardian and ward, and attorney and client. It applies to every case where influence is acquired and abused and where confidence is reposed and betrayed. The duty rests upon parties in the relationship of trustee and cestui que trust, guardian and ward, attorney and client, and such like because the court presumes confidence put and influence exerted. In all other cases where these relations do not exist, the confidence and influence must be extrinsically proved; but once so proved, the rules of reason and common sense and the rules of equity are just as applicable in one case as in the other."

Concerning the question of concealment generally, as supplying the place of an actual false statement, it is stated in 19 Ohio Jurisprudence, 339, Section 29, as follows:

"Concealment in general. Concealment or suppression of the truth may supply the place of an actual false statement and be the equivalent of a false representation. It seems obvious enough that the nondisclosure of a material fact with the object of inducing one to act in a way different from the way he would have acted had he known the truth is a representation that that which is actually true does not exist. And it has been held in Ohio that allowing a party to proceed upon an erroneous belief contributed to by one's acts is active concealment, equivalent to misrepresentation. A false impression may be produced by the concealment or nondisclosure of facts which there is a duty under the circumstances to disclose.

"Accordingly, inasmuch as fraud may be committed by the suppression of the truth as well as by the suggestion of falsehood, suppression or concealment of a material fact is fraud."

The distinction applicable here, where the plaintiff charges fraud in addition to her lack of knowledge concerning the action of the defendant and the presence of the needle in her abdomen, in reference to the bearing of such fraud upon the running of the statute of limitations, was recognized by the Supreme Court in State, ex rel. Watson, Atty. Genl., v. Standard Oil Co.,49 Ohio St. 137, 30 N.E. 279, 34 Am. St. Rep., 541, 15 L.R.A., 145, where, in the opinion of the court, page 188, it is stated as follows:

"It is further contended that the provision does not apply by reason of the fact, as averred in the petition, `that the plaintiff had no knowledge of the existence of either of the aforesaid agreements, or of the acts hereinbefore recited, until the latter part of the year 1889.' The general rule is that a party's want of knowledge does not prevent the running of the statute of limitations against an action that has accrued in his favor; and the only exception is concealment or fraud on the part of the defendant, which is expressly confined by our statute to `an action for relief on the ground of fraud.' Section 4982, Revised Statutes. This is not such an action; and fraud in fact is not averred, it is simply want of knowledge on the part of the plaintiff."

It seems to me in harmony with the foregoing statement of the Supreme Court to be inconceivable that fraud, if proved as alleged, would not effectually toll the running of the statute of limitations in this case.

Especially must it be true that fraud may be shown as an effective bar to the running of the statute of limitations in malpractice, since no exception appears in the provision contained in Section 2305.09, Revised Code, supra, and that provision relates specifically and exclusively to the time limitation applicable in actions involving fraud, although our Supreme Court has not determined the specific question involved in this case.