82 N.E.2d 874 | Ohio Ct. App. | 1948
This appeal is on questions of law from a judgment dismissing plaintiff's amended petition after the sustaining of a demurrer thereto. *256
The amended petition asserts that defendant examined plaintiff's wife, advised and performed a surgical operation upon her and without the knowledge and consent of the plaintiff or his wife, did negligently, carelessly and maliciously and in violation of his duties as a surgeon as a part of such operation, cause the vaginal opening in the body of his wife to be partially closed; and that by reason of such negligent acts plaintiff has suffered damages in medical expenses, for money expended for domestic services and for the loss of consortium of the wife and for punitive damages. Defendant demurred to the amended petition for the reason that it was not brought within the time limited for the commencement of such actions. Two common pleas judges who passed upon the amended petition and upon the original petition, in which were substantially the same averments, sustained the demurrer, holding that the action was for malpractice and that the limitation provided in Section 11225, General Code, controlled. That section provides:
"An action for * * * malpractice * * * shall be brought within one year after the cause thereof accrued, * * *."
There is no dispute as to the time when the cause of action accrued and that more than one year elapsed thereafter before it was instituted.
Plaintiff assigns as error that the court improperly applied Section 11225, General Code, to the amended petition and that it should be controlled by Section 11224, General Code, and paragraph 4 thereof. That section provides:
"An action for either of the following causes, shall be brought within four years after the cause thereof accrued: * * * (4) For an injury to the rights of the plaintiff not arising on contract nor hereinafter enumerated * * *." *257
Plaintiff insists that his action is for damages for loss of his wife's consortium and that an action for malpractice could not be properly instituted by him because his injuries were consequential only and his wife's were direct. Plaintiff citesKraut v. Cleveland Ry. Co.,
But here, although the wife had a cause of action for malpractice which is defined as negligent or unlawful wilful acts committed by a physician in treating his patient, by which such person suffers death or injury (Shuman v. Drayton, 14 C.C., 328, 329, 330, 8 C.D., 12), the husband also could recover his damages, loss of services, etc., in the same type of action.Shaweker v. Spinell,
The language of paragraph 4 in Section 11224, General Code, is significant, "for an injury * * * not arising on contract nor hereinafter enumerated." There is no uniformity outside Ohio to the effect that the action of malpractice may not arise on contract. Annotation to Braun v. Riel (Mo.),
Section 11225, General Code, succeeding Section 11224, General Code, and expressly enumerating and defining the limitation which shall control an action for malpractice, causes the case here to be controlled by Section 11225, General Code. Clearly, then, the averments of the amended petition do not bring the cause of action stated within the four-year limitation of Section 11224, General Code.
All the malpractice cases which we have cited recognize that such acts are controlled by the one-year statute of limitations.
We are, therefore, of opinion that the action is barred by the express language of Section 11225, General Code, and may not be controlled by paragraph 4 of Section 11224, General Code. The demurrer was properly sustained.
The judgment will be affirmed.
Judgment affirmed.
WISEMAN, P.J., and MILLER, J., concur. *259