*1 Guy Schuldt et al. 29,364. December 1956.] Filed
[No. *2 Smith, Maxwell P. Logan Miller, Richard D. Smith, counsel, & Wayne, Nieter ap- of Fort for pellant.
Barrett, McNagny, Barrett Wayne, & of Fort Bowser, Warsaw, Bowser & appellees. brought J. The this action
Arterburn, against appellees damages to recover for medical malpractice. The issue arises demurrer filed *3 ground appellees the on the appellant’s that claim was year barred the two statute of limitations for mal- practice. 116, §1, Acts ch. p. being §2-627, Replacement. Burns’ The court sustained the demurrer. appellant over, plead refused to judgment was accordingly. entered appellant alleges complaint in his in substance following the facts: appellees-defendants
That the physicians as and sur- geons appellant treated from March 1937 until an unstated date in 1941 for a leg; fracture his left appellees that the in the appellant’s leg treatment of negligently broke off a bit of the drill used in the leaving operation, portion a of the metal appel- in the leg; appellees negligently lant’s that the failed to inform remaining leg, the of the bit of metal in his leg alleged failed to heal his as result of the malpractice; that piece the of metal was discovered in leg 10, 1952, appellant’s on November he after had employed X-rayed physician, appellant’s another who leg; removing upon operation portion that the leg healed; appellant’s appel- the the broken drill that lant appellees’ relied treatment and took no propriety measure ascertain the thereof until there- complaint August, after. The herein was filed in grounds The court on the sustained demurrer following complaint on showed its face that had limitations run: tained, two physicians, sional rendered, p. riums, brought “No neglect complained [2] services rendered or or being action of years others, shall contract dentists, §2-627 from of the courts unless brought, Burns’ or surgeons, hospitals, kind for of.” said tort, date of the which should have been Acts commenced action is filed within based damages, this state Replacement. upon profes- act, ch. or main- omission whether 116, §1, against sanita- general must be of limitations As a a statute rule defense and is available pleaded and treated as a way otherwise the rule of demurrer. Were anticipate plaintiff and seek compel would there complaint possible answer to avoid in his encouraged Anticipatory pleading is not since it tends to. defining there complicate of the issues. Where limitations, fact exceptions to the statute are affirmatively that the complaint does not show not make the does is within such therefore, subject defective, and, fatally limi If the statute of under such statute. demurrer *4 may plaintiff then answer pleaded in an tations is Little v. exception. ex rel. up State by reply set E. (1897), 47 N. 147 Ind. et al. Parsons 794; 110, 26 E. Shewal (1891), N. Gribling 128 Ind. Falley v. 686; 155, 23 N. E. (1890), 123 Ind. Bergman v. ter (1924), etc., 81 Ind. Trunk, R. Co. Grand Norris 98, 142 Haythorn, N. E. v. Newsom Estate of App. 276, 122 et E. 2d Dcsd. al. 125 Ind. 149. however, appellee, support The in of trial court’s sustaining complaint, demurrer to the con- a exceptions particular tends there are no statute actions, malpractice of for therefore the limitations sustaining proper of a demurrer was since would any setting up reply cut off an answer limitation. urges appellant, hand, The on the other subject special malpractice statute limitations exceptions, fraudu- particular, certain and in lent concealment defendant of a cause of action operation toll would limitations. In statute of (Spec. this connection the cites Acts being Sess.), §46, §2-609, p. ch. Burns’ 1946 Replacement, which reads as follows: “If person liable to an action shall conceal knowledge fact person the thereto, from the of the entitled may the action be commenced at time period
within the discovery limitation after cause action.” question is, therefore, any exceptions are there particular to the statute of malpractice limitations for
actions set forth above? We do not believe the passed Acts of 1881 nearly fifty years prior to the 1941 malpractice limitations on can be considered an thereto. The latter act special act, is a language. is absolute its It is unambiguous. clear and It Legislature seems to us subject would have stated it was listed in the Acts of 1881 if it had so intended. Sherfey City Brazil 13 N. E. Allen Dovell 193 Md. 66 A. 2d appellees cite the case of Burd McCullough (7th 1954), Cir. 217 F. 2d in support of this con- *5 subject That
elusion. held that the 1941 Act was case exception to an a favor of minor which tolled the period years statute for a the he of two from time majority. his reached The case somewhat weakened point by on this the Federal Rules of Procedure as set (7th 1954), forth in Kincheloe Farmer 214 F. Cir. (Cert. 2d 604 Denied 348 L. Ed. U. S. 75 S. 306). Appellant points Ct. further out that the Burd supra, McCullough, case does not deal with fraudu v. exception lent an to of limi concealment as the statute ; tations that there is a fundamental difference between exception in the Burd and a case the considered case fraudulently one a of for where conceals cause length period by such of time that the the fixed statute expired. has Schmucking Mayo appellant cites cases 183 Minn. 235 N. W. Crossett (1953), 221 Ark. Croswell
Health Center had S. 2d 548. In the latter case court before W. lim Act of 1941 which similar to the Indiana statute malpractice of an action the commencement ited wrongful com years act to the “date two from nevertheless, court, of, time.” plained and no other concealment was fraudulent held implied by law, toll thereto, and would the statute. Mayo, supra, Schmucking in consider case of In the court, page on question, ing kind the same Minnesota, said: -of 183 endangered legal property is to title “If one’s give relief; another, courts will the fraud legal remedy has rights one to which if the fraud, like title defeated establish such principle the same?” is not procedural distinction the elmination
Prior law, possible procure an equity and it was between against of limitations the use injunction grounds equitable as a bar a suit at law where such as fraudulent of a action existed. concealment cause of Jur., Actions, §411, p. 34 Am. Limitations S., Injunctions, (c), 43 C. J. p. 482. To avoid §40 multiplicity this circumlocution of action procedural equity elimination of the between differences law, *6 permitted pleading equitable and the courts of actions and law remedies as defenses in common actions. equity, fraud, granted previously of Where because injunction against an the use of the limi- statute of action, estoppel tations a law it raised an as a bar. principle was practices This based on the that one who fraud, thereby deceit or and conceals material and facts prevents discovery wrong, should not be permitted advantage to take of his own deceit or con- by asserting cealment the statute of limitations. While wrongdoer concealing injured a is person from an his wrongful act, not, through the law will a statute of limitations, injured strip party remedy against of his wrongdoer. Jur., Actions, 34 Am. Limitations of §231, p. Jur., Actions, §424, Am. Limitations of p. 335. by overwhelming weight
It established of authority equity step will its doctrine with of
estoppel prevent inequitable resort to the by statute of limitations one who has intention ally fraudulently concealed a cause of action length party a for such of from time that the statute may estoppel run. Before the doctrine has of be used limitations, use of of bar defendant’s the statute prevent such the fraud must be of character as in investigation, quiry, party or to elude or to mislead the of action. claims the cause who pre- concealment will “The rule that fraudulent running the statute of limitations has
vent of by applicable held in actions clients for the been moneys collected, by patients misappropriation of against physicians malpractice, the conver for for by personal property, the for an owner for sion of recovery property, to recover lost or stolen belonging underground mining unlawful ore another, liability against promoters a illegal corporation corporation to account mortgagee by profits, a for the acts or fraudulent concealment chattel prop removal of the erty, by unjust shipper discrimi to recover for carrier, particular a common nation and in other Actions, Jur., 34 Am. actions.” Limitations §231, p. 189; Mescall T.W. Grant Co. A.), (Cert. (7 U. C. 133 F. denied 319 S. C. Hutchens, 1176); L. Ed. 63 S. Ct. Admr. Hutchens E. 2d may deception, Fraud consist of intentional relied part prop another which induces him to with erty legal right surrender such as cause of action. have held in this state that We obtaining a formal release of a cause through deception, fraud and constitutes an actionable *7 wrong. Bailey Guarantee, (1920), London v. etc. Co. App. 84, 128; 121 E. 72 Ind. N. Jackson Jackson 238, E. Automobile 47 N. Under writers, 384, 222 Inc. Rich 53 E. 2d 775. normally of
A cause action when the accrues in although may jurious plaintiff the occurs injurious However, learn of act later. the until if prevents plain there is concealment which the a learning action, of tiff from the cause of the during Hotelling is tolled such concealment. statute P. 144 A. (1942), 169 Ore. 130 L. Walther Annotations; Esser 183 R. 205 Schmit v. A. L. R. 1312 and Anno Minn. N. W. Mayo, ; Schmucking supra, 183 Minn. tations 633. N. W.
Usually, on there must be active effort some concealment, part guilty of one to but where a be fiduciary exists, relationship or confidential such duty physician-patient, as to dis there exists parties close material information between and a do in concealment. failure to so results prevailing the doctrine “The rule is according judicial equitable decisions, may, estoppel to the in- question, proper on case relying on the prevent
voked a defendant from to limitations, statute as a ing since it has been laid down general that, principle elect- when defendant up previ- to set of limitations has ously, by duty deception or towards violation of subject plaintiff, him caused to his claim statutory bar, charged having he must be with advantage wrongfully obtained which the court estoppel plead will not limitations him to allow hold. Thus to may agreement par- arise from ties or from the defendant’s conduct or even from his duty silence when under an affirmative speak.” (Our italics.) S., J.C. Limitations Actions, §25, pp.
There are some statements to effect that in cases of fraud the action when plaintiff accrues first wrong.
learns of This is correct where the fraud of a is continuous character and active concealment continues to exist. But where the duty by to inform exists reason of a confidential re lationship, relationship when is terminated the duty terminated; inform also concealment then relationship physician ceases exist. After the patient patient is terminated the opportunity has full longer discovery and no is there a reliance patient corresponding duty physician nor a advise or inform. The statute of limitations is no longer begins tolled fraudulent concealment and *8 to run.
110
It has been said: running of the statute prevent “In order account on proceedings for relief in of limitations only fraud, appear that not it must fraud, ignorance of the in complainant was possession of he did not have that but also arrangement. detecting If the fraudulent means of ought discovered, although to have fraud, not the been discovered, if have been reasonable and could plaintiff, diligence had been exercised ought discovery time from the will run barring of an prevent To been made. have action, not only appear the fraud not was it must discovered, could not have been discovered but statutory diligence, until within the with reasonable period begun.” Jur., Am. the action was 34 before Actions, §167, pp. 134,135. also, See Limitations Surgeons, §60, p. 985; S., Physicians and J. 70 C. 21 (1946), p. Law Review 77. John’s St. delay or hindrance It that where follows operate of the action has ceased to commencement terminated, estoppel is not available for the following termination, period such and the stat begins Fidelity, ute limitations run. etc. Jasper Furniture 186 Co. Co. Ind. 117 App. E. Landers Evers Ind. N. E. 2d State ex rel. v. Jackson N. E. allegations are In this case there no direct in the although concealment, complaint of fraud or some in might be drawn in that direction. ferences We holding stating there was are It is not concealment this case. fraudulent assumption. Even province to make such our though attempt plead fraud or conceal is made anticipation complaint of defendant’s in the ment limitations, setting still up the statute that reason. Roberts demurrable for not have been would 894; Pence, 414, N. E. (1905), 165 Ind. v . Smith *9 Young (1899), Ex. v. 53 N. E. Dorsey Company McCaffrey (1894),
The
Machine
Dissenting
*10
majority opinion
in
J.
I dissent from
Bobbitt,
following
for the
reasons:
this case
operation
upon
that
complaint
its face
The
shows
complains
performed on March
was
which
leg
operation
heal
1937. His
did not
after
appellee
treat him until sometime
Baum continued to
any
as to
further
silent
in 1941. The
is
leg
plaintiff’s
until
treatment of
November
Indiana,
Wayne,
in
employed a doctor
Fort
when he
foreign
leg
x-rayed
injured
discovered the
who
affirmatively
Thus,
appears that
therein.
it
substance
years,
ten
after the relation-
period
than
more
patient
terminated
physician and
had been
ship appellees, appellant made no
appellant and
between
leg.
of the condition
his
the cause
effort to ascertain
rely,
appellees
upon which the
First:
The
328, being §2-627, Burns’ 1946
116, p.
ch.
Acts
follows:
Replacement, is as
the
of.”
unless said
dentists, surgeons, hospitals,
dered,
brought
services
“No action
date
shall
in contract or
of the
rendered or
the courts of
be
brought,
act,
is
omission or
filed
which
this state
tort,
kind for
within two
commenced
based
should have been
sanitariums,
neglect
against physicians,
damages,
upon professional
[2]
or maintained
complained
years from
or
whether
others,
ren-
provides
2-627, supra, specifically
Section
period
commences
run at the
fixed therein
limitation
wrongful
time
omission,
act
exception.
without
Indianapolis
Fearnaught
Cf:
St. R. Co. v.
App. 333,
Anno., p. 210.
I concur in the majority opinion statement in the exceptions contained 1881 Act . cannot as exceptions considered Malpractice to the 1941 Act. unambiguous. 1941 Act is clear and Burd v. Mc Cullough (1954), Cir., 217 F. 159. provisions clear, of the above section are so
unambiguous and definite that this court at not liberty interpret, modify provisions. or evade its Statutory Sutherland Construction, 2, §4502, p. Vol. In order sustain the by conclusions reached majority opinion necessary it is §2-627, to read into supra, based fraudulent concealment. This statute expressed contains no exception; and its application strict by cannot be evaded this court reading into granted specifically Legislature. McCullough, supra Burd *11 Cir., 159; 217 F. 2d (1928), Mack v. Mendels 249 N. Y. 356, 164 248, 386; E. Taylor N. 61 L. R. A. v. New York (1945), Cent. 397, R. Co. 777; 294 N. Y. 62 N. E. 2d (1894), 102, Powell v. Koehler 52 Ohio St. E. 39 N. 195, 480; 26 A. L. Jur., R. 34 Am. Limitation of Actions, §42, p. Squire 44. Cf: Gardian Trust Co. (1947), 371, 137, 79 Ohio 72 N. E. 2d in the freely
While earlier implied decisions courts exceptions limitation, years they statutes of in later unwilling Legis- been exceptions have add which the general rule, lature has not made. As a courts will not exception “read into statutes limitation an which has therein, not been embodied however reasonable such exception may seem, though exception even the would
114 Actions, Jur., Limitation of equitable Am. one.” 34 anbe §186, p. 150. court in DeMoss this rule in Indiana as stated
The 219, (1869), 31 Ind. and Another v. Newton and Others 222, is as follows: is, exceptions, the rule no act contains “The claimed, expressly unless exception can be ‘that no ” Riley Waugh et al. et al. v. also: See
mentioned.’
Evansville,
499;
482,
etc. Co.
The
(1879),
Ind.
68
or,
(1897), 148 Ind.
by Next
et
Friend
al. Wins
689-690,
682,
In the case
bar there
Legislature are
intent
The will and
statute.
clearly expressed.
province
court
It is not
this
change
provision;
it into what we deem to be a wiser
duty
apply
statute as
is.
our
is to declare and
“
the limitation in
certain case is
Second:
‘Where
running
absolute,
and there are no
shows, upon
face,
statute,
complaint
its
and the
limited,
the time
the action was commenced after
”
question
on demurrer.’
Roberts v.
can be raised
414, 420,
E.
N.
894. See also:
Ind.
Smith
Ridge (1910),
Ind.
Co. v.
Stone
Oolitic
(1917), 186
E.
Friedrichs
Ind.
Lavene v.
Dorsey
Company
E.
Machine
115 N.
115
properly
was
Smith,
raised
demurrer. Roberts v.
supra (1905),
414, 420,
894;
165 Ind.
N. E.
74
Norris
etc.,
Trunk,
v. Grand
93,
R. Co.
81
App.
Ind.
Since there here, are no it affirmatively appears complaint from the herein that any Hence, cause does not exception. come within exception demurrer would lie also under the rule as stated in Charters Citizens Nat. Bank 84 Ind. 145 N. E. as follows: pleaded “The statute must be in bar action, affirmatively appears unless from the complaint that the cause does not come within exceptions.” It is difficult to understand how facts could be reply bring stated in a which would this case within an exception, when no exist. if exception
Third: Even of fraudulent conceal- Act, ment were contained in the a demurrer would proper procedure question to raise the of limitation under the facts as stated herein. statutory exception for fraudulent concealment
which is contained in the 1881 Act is limited to an affirmative act of concealment. There must be some thing more than mere silence —mere speak failure to Harrison, out. State ex rel. Trustee Osborn et al. (1896), 143 921; Terry Ind. 42 E.N. v. Daven port (1916), 561, 576, Ind. E.N. Jackson Jackson Boyd E.N. Boyd (1867), majority opinion, created while
covering ground goes statute, same as the and allows further for fraudulent concealment which speak consists of a mere failure to where such failure fiduiciary relationship. violation The com- negatives plaint, face, application on of this its *13 116 exception
type “fraudulent concealment” this case alleges specifically relationship that when physician patient and ceased exist between 1941, appellees and sometime in and this action was August 17,1954. not commenced until And whether the fraud be active or a failure act long fiduciary duty, it has been the in violation of “ delay . . in this that '. which has law State to be consistent with the must be shown occurred ” Brown diligence.’ Stone, requisite Administrator Here, according (1888), 18 E. 392. 116 Ind. N. years complaint, appellant after the waited eleven patient relationship had ceased before doctor and though consulting plain- physician, “. . . even another steady job to hold because of tiff has been unable lay-offs frequent condition said necesitated leg, opportunities as lost for advancement and has wages when the condition of as loss of for times well addition, leg In permit to work. would not him said bandages great expense put to plaintiff has been great pain and and has suffered and other medications anguish . . ..” affimatively show that action herein
These facts exception of fraudulent con come within such does not cealment, present; a demurrer would if were hence Stone Co. v. question limitation. Oolitic lie to the 944; supra (1910), Ind. 91 N. E. Ridge, 174 Smith, supra (1905), Ind. 74 v. Roberts Company McCaffrey, Dorsey 894; Machine E. v. 208; McCallam
supra (1894), 139 Ind. 38 N. E. v. Kent v. 542, 544; (1879), 67 Ind. Pleasants, Admr. Harlen Watson Ind. (1879), 67 Parks 143, 152; Duncan Cravens Ind. Others Smith Others Potter 231, 237. my judgment majority In opinion holds equity exception Act, has created an to the based concealment, fraudulent which is than broader any exception contained the 1881 Act. This court power presume exceptions without the to create or in a Legis- expressly provided none where are lature in the Act itself.
Furthermore, affirmatively herein shows, face, on its this cause does not even come majority within the opinion which the creates. *14 stated, For the reasons I above would affirm the judgment of the trial court. Reported in 188 E.
Note. — Department Division, Gross Tax Income of State Chicago Revenue, State Indiana District Elec- Generating Corporation. tric 29,227. Filed December [No. 1956.]