2 Conn. Cir. Ct. 135 | Conn. App. Ct. | 1963
As the defendant states in his brief, “the verdict having been rendered on conflicting evidence, the sole issue raised by the defendant’s motion is whether the action was barred by the Statute of Limitations governing malpractice (Sec. 52-584) or the three year statute of limitations governing oral contracts (See. 52-581).”
After the claim of fraud or misrepresentation had been removed from the case by a ruling of the court, the sole remaining claim on behalf of the plaintiff was a claim based upon an alleged contract by the defendant doctor whereby he assured or warranted that a specific result would eventuate from the operation, namely, hairline scars of a minor nature, whereas disfiguring scars of a major nature actually resulted. In essence, the defendant’s claim is that all actions against a physician arising out of an operation are included within the general term of “malpractice.”
The question then arises as to whether the three-year contracts statute (§ 52-581) or the six-year statute (§ 52-576) applies. On this point the court has relied upon Kennedy v. Johns-Manville Sales Corporation, 135 Conn. 176. That case held (p. 179) that the three-year statute only applies to executory contracts, whereas the six-year statute applies to executed contracts. No claim was made in the complaint, nor was there any offer of proof, to the effect that the defendant doctor did not perform a proper operation. The plaintiff relies solely upon a claim of a warranty or assurance that a certain result would be achieved.
The term “malpractice,” on the other hand, presupposes some improper conduct in the treatment or operative skill. In 54 C.J.S. 1111, we find the following definition of malpractice. “ ‘Malpractice,’ sometimes called ‘malapraxis,’ is a term of broad significance. ... It is defined as any professional misconduct or any unreasonable lack of skid or fidelity in the performance of professional or fiduciary duties; illegal or immoral conduct; improper or immoral conduct; misbehavior; wrongdoing; evil, bad, objectionable, or wrong practice; evil practices, acts or doings; illegal or unethical practice; practice contrary to established rules; practice contrary to rules.”
The motion to set aside the verdict is denied.