250 Pa. 564 | Pa. | 1915
Opinion by
The defendant in this case, a physician and surgeon, was charged by the plaintiff with negligence in failing to remove at the proper time, a rubber tube, which during the progress of a surgical operation performed on the plaintiff by defendant, had been inserted in the wound for drainage purposes. In the statement of claim, the
' It may be that the court below was right in holding that under any aspect'in which the case may be placed by additional testimony, the bar of the statute of limitations is fatal to the claim of plaintiff. But we do not see that this is necessarily so. The negligence charged was not in the insertion of the tube, but it was in the failure to remove it at the proper time, or in the failure to give notice of its presence, that it might be removed by another, when it had served its proper purpose. It could hardly have been intended to remain permanently in the body of plaintiff, and he should have been allowed to show when and by whom the tube, which was inserted by defendant, should have been removed. It may'be that good surgical practice required it to be kept in the' wound after plaintiff was discharged from the .hospital
The assignments of error are sustained, and the judgment is reversed with a procedendo.