Byers v. Bacon
95 A. 711
Pa.
1915
Check Treatment

Opinion by

Mr. Justice Potter,

The defendant in this case, a physician and surgeon, was charged by the plaintiff with nеgligence 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 оf claim, the *566plaintiff alleged that the operation was performed by defendant at the York hospital, where he was head of the staff of physiciаns. That on March 21, 1910, plaintiff was discharged from the hospital as a patient by defendant, and was told to report to his family physician. It was alleged that the tube was allowed by defendant to remain in the wound, but as it was not visible from the surface, plaintiff did not know of its presence. He continued under the care of his fаmily physician, and it was not until June 8, 1911, that the tube was discovered in the wound and removеd. At the trial plaintiff offered to show these ‍​‌​​‌​‌​​​‌‌‌​​​​​‌‌‌​​​‌‌‌‌​‌​‌‌​‌​‌​​‌‌​‌‌‌​‌‌‍and other facts necessary tо sustain his charge of negligence, but as it appeared that plaintiff was discharged from the hospital on March 21, 1910, and this action was not brought until February 18,1913, the trial judge was of the opinion that the action was barred under the provisions of the Act of June 24, 1895, P. L. 236, which requires suit for damages, not resulting in death, to be brought within two years from the time when the injury was done. He, therefore, refused to admit testimony offered by plaintiff as set forth in the assignments of error, and gave binding instructions in favor of thе defendant.

' It may be that the court below was right in holding that under any aspect'in whiсh the case may be placed by additional testimony, the bar of the statutе 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 proрer purpose. It could hardly have been intended to remain permanеntly in the body of plaintiff, and he should have been allowed to show when and by whom thе tube, which was inserted by defendant, should have been removed. It may'be that goоd surgical practice required it to be kept in the' wound after plaintiff was discharged from the .hospital

*567and placed under the care of his family physiсian. If defendant was at fault in permitting the tube to remain in the wound when it should have been removed, or in failing to give notice of its presence, the time when suсh dereliction of duty occurred should have been shown, as that would constitutе the real injury, and would start the running of the statute of limitations. It may have been coincident with the date of plaintiff’s discharge from the hospital, but not necessаrily so. Then too, it should have been a question for careful consideration, as to whether the statute should properly have been regarded as running аgainst plaintiff, until such time as he could reasonably be charged with knowledge of the fact that the tube had been overlooked and left in the wound. On the other ‍​‌​​‌​‌​​​‌‌‌​​​​​‌‌‌​​​‌‌‌‌​‌​‌‌​‌​‌​​‌‌​‌‌‌​‌‌‍hand, it may be that the evidence would have clearly shown that under any asрect from which the case may fairly be regarded, the plaintiff was in full possеssion of all the facts in ample time to have brought his action before the statute of limitations had run against his claim, had he been disposed to do so. All thаt we now decide is that the court below should have admitted the evidencе offered by plaintiff, giving to it full and fair effect, and should have allowed him to makе out his case as completely as he could, before determining whether the action was barred by the statute of limitations, or whether there was anything in thе case which could properly be regarded as having the effect оf tolling the running of the statute, to an extent sufficient to save this action.

The assignments of error are sustained, and ‍​‌​​‌​‌​​​‌‌‌​​​​​‌‌‌​​​‌‌‌‌​‌​‌‌​‌​‌​​‌‌​‌‌‌​‌‌‍the judgment is reversed with a procedendo.