This cause involves a suit by William Gr. Hall, deceased, which has been revived in the name of his widow and executrix, Mrs. Janice C. Hall, against Dr. Richard L. DeSaussure, a neuro-surgeon, for damages for
For convenience, the parties will be styled as in the lower court, plaintiff and defendant, or referred to by their respective names.
The declaration filed in this cause is in two counts. The first count alleges that plaintiff was suffering great physical pain, which crossed the left clavicle, traveled down through the shoulder and left arm and to the left hand, as well as laterally across the left chest, and that plaintiff was referred to the defendant to get his advice about what could be done to relieve this pain. Plaintiff was advised by defendant that he should have a rhizotomy performed, which operation, defendant assured plaintiff was a very simple operation, consisting of a clipping or severance of the nerves leading through the pain area, by making an incision on the left side of the spine, parallel with same and approximately an inch to an inch and a half therefrom, the operation to be performed under a local anesthetic. This count of the declaration further alleges that plaintiff emphatically stated to defendant that if the operation involved surgery upon plaintiff’s spinal column, he would not consider it nor allow it under any circumstances; and that defendant assured plaintiff that he would not enter the spinal column in performing the operation, but that same would be performed outside of the spinal column. It was further alleged that in response to an inquiry from plaintiff as to the effect upon his arm and hand, he was assured by defendant that there would be no loss of use, except for the loss of muscle
tone, which would be negligible, and that the only uncomfortable result of the operation would be a deadening of sensation in the little finger, the ring finger, and the middle finger of the left hand. The declaration further alleges that upon the assurance of defendant that no spinal surgery would be performed, plaintiff entered into a contract with defendant to perform the operation above described and no other; and that thereafter on September 8, 1952, plaintiff, pursuant to said contract, submitted to an operation at the hands of defendant; that subsequent to the operation, plaintiff continued to suffer excruciating pain, and that this pain became so intolerable that he was forced to resort to the use of codeine in heavy quantities; that he lost the use of his shoulder and arm; and that in an effort to obtain relief, he consulted an orthopedic specialist, who made X-ray pictures which showed that the operation performed by defendant was not the operation authorized by plaintiff, but was an operation in violation of his agreement with defendant, — the operation actually performed being an operation upon the spine. The declaration further alleges that the operation performed by defendant, consisted of the removal of a portion of the sixth, seventh, and eighth cervical vertebra, a part of the first thoracic vertebra, and a portion of the disc on the
The first count of the declaration alleges further that although the defendant had full knowledge of the manner and extent of the said operation, he wrongfully, purposefully, and fraudulently concealed from plaintiff that he had performed an operation contrary to the contract.
Count two of the declaration alleges, in substance that the operation performed by defendant upon plaintiff was an unlawful assault and battery resulting in the injuries alleged in the first count; and that this operation was performed September 8, 1952, contrary to the agreement between plaintiff and defendant.
The defendant filed a plea of not guilty, and also, a special plea that plaintiff’s action was not brought within one year after the cause of action accrued. Defendant later filed an additional plea stating that the rhizotomy was performed Sept. 8, 1952, with the consent and approval of the deceased, William Gr. Hall.
Plaintiff filed a replication which alleged that the defendant fraudulently concealed from the plaintiff the nature of the operation, and defendant’s breach of his contract with plaintiff, and that the suit was brought within less than one year after the plaintiff’s discovery of the breach of contract by defendant, consisting of the performance of an illegal and unauthorized operation.
A rejoinder was filed by the defendant.
The cause was tried before the court and a jury. At the conclusion of plaintiff’s proof, the trial judge sustained defendant’s motion for a directed verdict, on the ground that the cause of action was barred by the one year statute of limitations. A motion for a new trial was seasonably filed and exceptions taken to the action of the trial court in overruling same. An appeal in the nature of a writ of error was prayed, granted, and duly perfected, and assignments of error were filed in this court which raise the questions to be decided here. In addition to the question of whether or not the cause should have been submitted to the jury, the assignments of error filed in this conrt raise one additional question, viz., whether or not the trial judge erred in excluding certain testimony of Mrs. Janice C. Hall, which testimony was heard by the judge in the absence of the jury and is preserved in the hill of exceptions.
In determining the question of whether or not the cause should have been submitted to the jury, this court must, of course, take the view of the evidence most favorable to plaintiff’s contentions, drawing all legitimate inferences from the facts tending to support plaintiff’s cause of action. Prudential Ins. Co. of America v. Davis,
The testimony offered in support of plaintiff’s declaration consisted of the deposition of William G. Hall, deceased, taken a few days before his death, the deposition of Dr. J. J. Weems, and the oral examination of Mrs. Janice C. Hall, and of Mr. William M. Hall, father of William G. Hall, deceased. We deem it unnecessary to quote the testimony in detail, except as to that portion of same involved in connection with the assignment of error questioning the exclusion of certain testimony of Mrs. Janice C. Hall. From the testimony offered by plaintiff, the following facts appear.
Plaintiff, William Gr. Hall, during His lifetime first consulted defendant in defendant’s
Following the operation, William Gh Hall lost the use of his shoulder and arm to such an extent that when he was on his back he could not get up without assistance. He claims that the first knowledge he had that defendant had violated his agreement and had operated on his spinal column, was November 9, 1953,- when he consulted Dr. J. J. Weems, who took an X-ray picture which showed that the spine had been invaded. At the time of the first examination of the X-ray picture taken by Dr. Weems, in the presence of Mr. and Mrs. Hall, he made the remark, “He sure took a chunk out of your spine.” This testimony was excluded by the trial judge, but is preserved, in the record and is the basis of one of the assignments of error.
The law is settled in Tennessee to the effect that the statute of limitations of one year applies to actions for personal injuries, regardless of whether the action sounds in tort or in contract. Bodne v. Austin,
There is an exception to this latter rule, however, where the cause of action has been fraudulently concealed by the party responsible for same. Haynie v. Hall’s Ex’r,
Plaintiff, in turn, while conceding the soundness of the above stated proposition as a general rule, contends that there is an exception to same where there is a confidential or fiduciary relationship between the plaintiff and the defendant whom it is alleged has fraudulently concealed the cause of action, in which case failure to speak where there is a duty to speak is the equivalent of some positive act or artifice planned to prevent inquiry or escape investigation. For this proposition, plaintiff’s brief cites
The rule of law applicable to the relationship between physician and patient is stated in American Jurisprudence, as follows:
“The physician naturally is in a position of trust and confidence as regards the patient, and his opportunities to influence the patient are unusual. Hence all transactions between physician and patient are closely scrutinized by the courts, which must be assured of the fairness of those dealings.” 41 Am. Jur. — Physicians and Surgeons, Sec. 74, p. 196.
In the instant case, aside from the relationship of physician and patient which existed between Dr. DeSaus-snre and William Gr. Hall, deceased, there is in the record of this case, testimony of Mrs. Janice 0. Hall which tends to show affirmatively that Dr. DeSaussure deliberately and intentionally concealed from his patient the facts which are material to this lawsuit. This testimony is as follows:
“Q. For what length of time did your husband stay in the hospital? A. After the operation, two weeks as I recall.
“The Court: How long? A. Two weeks.
“Q. Did he (referring to Dr. DeSaussure) say anything to your husband about the operation to the effect that he had clipped the nerve? A. No, sir, he did not. He said- — Wait a minute — Yes, he said he clipped the nerves.
‘£ Q. Did he tell your husband how he had clipped them? A. No, sir, he did not.
‘ ‘ Q. Were you present at all times when he visited your husband after that time? A. Yes, sir, I was.”
This bit of testimony is, of course, relatively slight, and should not be treated as conclusive of the issues involved. Bearing in mind, however, that in ruling on a motion for directed verdict, all proper inferences should be indulged in as favoring the plaintiff rather than the defendant, we think it was sufficient to have warranted submission of this cause to the jury. Certainly, when Dr. DeSaussure made the specific statement to his patient, William Gr. Hall, that he had clipped the nerves, Hall had a right to assume that the nerves in question had. been clipped in tbe manner agreed on before tbe operation was performed; and failure on tbe part of Dr. DeSaussure to then and there advise bis patient that tbe program agreed on and authorized bad been departed from, was sufficient to have warranted tbe jury in finding as a fact that Dr. DeSaussure fraudulently concealed bis misfeasance. Also, we think that tbe fact that spinal fluid leaked from tbe incision a few days after tbe operation did not charge Mr. or Mrs. Hall with knowledge that bis spine bad been entered in violation of tbe agreement made at tbe time tbe operation was authorized.
Tbe question of fraudulent concealment as a bar to tbe running of tbe statute of limitations, has been discussed in a number of Tennessee cases. In Patten v. Standard Oil Co. of Louisiana,
“In 12 Ruling Case Law, page 306, it is said:
‘As a general rule to constitute fraud by concealment or suppression of tbe truth there must be something more than mere silence, or a mere failure to disclose known facts. There must be aconcealment, and tbe silence must amount to fraud. Concealment in this sense may consist in withholding information asked for, or in making use of some device to mislead, thus involving act and intention. Tbe term generally infers, also, that tbe person is in some way called upon to make a disclosure. It may be said, therefore, that, in addition to failure to disclose known facts, there must he some trick or contrivance intended to exclude suspicion and prevent inquiry, or else that there must he a legal or equitable duty resting on the party knowing such facts to disclose them.’ ” Patten v. Standard Oil Co. of Louisiana, 165 Tenn. 438 , 443,55 S. W. (2d) 759 .
The Patten case was before the Supreme Court on an appeal from a judgment of the Circuit Court sustaining a demurrer to plaintiff’s declaration, and the judgment of the lower court was affirmed mainly on the ground that the defendant owed no duty to plaintiff or her husband with reference to concealment of the facts about the defective gasoline. In Bodne v. Austin,
“In Whaley v. Catlett,103 Tenn. 347 , 356,53 S. W. 131 , 134, it was said that 'Fraudulent concealment of the cause of action will prevent the running of the statute."
“However, the declaration in the present case fails either to aver that concealment of the cause of the illness of plaintiff’s wife was fraudulent on the part of the defendant, or that the existence of this cause was known to the defendant. The averment that the failure to disclose the breach of duty was careless and negligent implies a lack of knowledge on the part of the defendant rather than otherwise. Certainly we would not be justified in assuming fraud in order to prevent the running of the statute of limitations.”
In Albert v. Sherman,
“The declaration here does allege that the defendant knew or by the exercise of reasonable care should have known, that the root of plaintiff’s tooth was left in his gum. Such averment under Bodne v. Austin (the husband’s case), does not make out a fraudulent concealment of a cause of action. It was said in that case: ‘ The averment that the failure to disclose the breach of duty was careless and negligent impliés a lack of knowledge on the part of defendant rather than otherwise. Certainly we would not be justified in assuming fraud in order to prevent the running of the statute of limitations.’ ”
Hudson v. Shoulders,
“It is insisted, first, that fraudulent concealment of a cause or ground of action will suspend the running of the statute, and this general proposition is well settled. In the late case of Bodne v. Austin, 156 Tenn. [353] 365,2 S. W. (2d) 100 , 62 A. L. R. 1410, this court recognized this rule, but held that it had no application in the absence of an allegation that the canse of action -was known to the defendant and fraudulently concealed by him. It was therein said that mere ignorance and failure of the plaintiff to discover the existence of the cause of action within the statutorylimitation would not prevent the running of the statute. Nothing in the opinion in that case, or in our other cases, extends the rule to a case where the plaintiff either knew, or neglectfully failed to discover, his cause of action, that is, the infliction on him of actionable injury, within the statutory period.
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“This issue is close on this record. He admits that he discovered that his skin was ‘burned and blistered.’ This would seem to have put him on notice. But his claim is that upon discovering this condition, the injurious effect or consequences of which he as a lay patient did not know and could not be charged with knowledge of, he promptly inquired of his physicians touching it, and was assured by them, despite their knowledge as professional men to the contrary, that this condition was in effect a mere incident of the treatment without serious or permanent injurious effects, and that he was thus lulled into ignorant security, and so kept until after the running of the statute.
“* # * That case is to be distinguished from this on the facts, in that therein the burn or wound appears to have been more evidently injurious than appears from the allegations in the instant case; so that the plaintiff there was more clearly put on notice at the time of the actionable wrong that had been committed on him.
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“Giving application to the rule that demurrers are not favored, we are not of opinion that the plaintiff, on the facts here alleged, should be charged with negligence in failing to discover at the time, despite the positive assurances and representations of his trusted physicians, who are definitely charged with knowing misrepresentation of the facts, that he had suffered actionable injury.” Hudson v. Shoulders,164 Tenn. 70 -72, 72-73, 73, 74,45 S. W. (2d) 1072 .
In the instant case which is before us on appeal from a ruling from the trial judge sustaining defendant’s motion for a directed verdict, rather than on demurrer, as was the case of Hudson v. Shoulders, in our opinion, the same rule of construction is applicable, viz., that all fair inferences should be indulged in favor of the plaintiff rather than in favor of the defendant; and taking into consideration the testimony of Mrs. Janice 0. Hall, quoted above, we are of opinion that the learned trial judge was in error when he sustained defendant’s motion for a directed verdict. Certainly, the defendant-had, and plaintiff’s declaration charges him with having had, actual knowledge of the character of the operation which he had performed and which it is claimed he fraudulently concealed. The assignments of error questioning this action of the trial judge must therefore be sustained.
The result which we have reached in this opinion is, we believe, in harmony with well reasoned decisions of other jurisdictions.
In Bates v. Preble,
“On the other hand, if the fraud be secret in its nature, and such that its existence cannot be readily ascertained, or if there be fiduciary relations between the parties, there need be no evidence of a fraudulent concealment other than that implied from the transaction itself. ’ ’
In Hudson v. Moore,
“Where confidential relations exist, as between physician and patient, the duty to disclose may render silencefraudulent, but knowledge of the facts is a necessary element of fraudulent concealment.”
From the annotation to Hotelling v. Walther, Or. 1942,
“It is well settled that actual knowledge on the part of the physician or dentist of the fact of the wrong done to the patient is an essential element of a fraudulent concealment of a cause of action for malpractice. So holding are the following eases subsequent to those treated in the earlier annotation. Pickett v. Aglinsky, 4 Cir., 1940, 110 F. (2d) 628 (applying West Virginia law); Hudson v. Moore, 1940,239 Ala. 130 ,194 So. 147 ; Silvertooth v. Shallenberger, 1934,49 Ga. App. 133 ,174 S. E. 365 ; Carter v. Harlan Hospital Asso., 1936,165 Ky. 452 ,97 S. W. (2d) 9 ; Maloney v. Brackett, 1931,275 Mass. 479 ,176 N. E. 604 ; Albert v. Sherman, 1934,167 Tenn. 133 ,67 S. W. (2d) 140 ; Carroll v. Denton, 1942,138 Tex. 145 ,157 S. W. (2d) 878 .”
We take np next the assignment of error that “The court erred in excluding, over the objection of plaintiff, testimony that Dr. Weems, when he examined X-ray pictures made by him of plaintiff’s spine about nine months after the operation, exclaimed to plaintiff, ‘He certainly did take a big chunk out of your spine.’ (Tr. 74-76). This was error because the spontaneous exclamation of Dr. Weems, on looking at the X-Ray pictures, was a part of the res gestae of his examination, and therefore admissible in evidence.”
We think the learned trial judge erred in excluding this testimony and that same should have been admitted as part of the
res gestae
and, consequently, that the assignment of error quoted above should be sustained. In National Life & Accident Insurance Co. v. Follett,
“It is next urged on behalf of defendant insurance company that the Court of Appeals erred in approving the ruling of the chancellor admitting the testimony of Mrs. Follett as to the statements made to her by her husband as to his falling and striking his stomach against the car. This evidence was admitted as part of the res gestae, and under later decisions of this court we think was competent.
“It will be recalled that the garage was only fifteen or twenty feet from the Follett house, and that, according to his wife’s testimony, Follett was out at the garage only about ten minutes before he returned in the condition she described. She said that he was in agony, his face pallid, large beads of perspiration exuding, that he was faltering in his step and holding the pit of his stomach. Under such circumstances, Follett stated that he had fallen against the car, struck himself in the pit of the stomach, and that he was knocked out. It also appears that he was nauseated, and a protracted vomiting spell immediately began.
“While at the garage, Follett had gotten the car out, removed a flat tire, taken the spare tire off the carrier and had put the flat tire on the carrier. These operations must have consumed several minutes and, if he was out only about ten minutes, his return to the kitchen and his statement to his wife must have been made almost immediately after his fall. Naturally, too, after sustaining so painful a fall, Follett would have at once gone back into the house; so that his fall and his statement must have been substantially contemporaneous.
“In Garrison v. State,163 Tenn. 108 ,40 S. W. (2d) 1009 , 1011, statements of a defendant in a homicide case, after he had walked some forty feet away from the scene of the shooting, were held admissible as part of the res gestae. The court reviewed our previous decisionsand noted the difficulty that frequently arises in the application of res gestae rules to the facts of particular cases. The court reaffirmed the proposition that to be admissible as part of the res gestae the act or declaration * * * must spon-taneouslyspring out of it, and must tend to illustrate, elucidate, or characterize it. But the court quoted and adopted the following from 16 Corpns Jnris, 573:
“ ‘However, the word “contemporaneous” as employed in the rule, is not to he taken in its strict meaning, nor is timé the only criterion for determining whether a thing said or done is part of a given transaction, although closeness in point of time is an element for consideration; the ultimate test is spontaneity and logical relation to the main event, and where an act or declaration springs out of the transaction while the parties are still laboring under the excitement and strain of the circumstance and at a time so near it as to preclude the idea of deliberation and fabrication, it is to be regarded as contemporaneous within the rule. ’ Garrison v. State, supra.
“While some other matters were discussed, the principal reason as disclosed in Garrison v. State for admitting the evidence in question was the apparent spontaneity of the statement of defendant. All the cases stress the importance of this element. Such statements to be competent must not suggest fabrication, calculation, or design.” National Life & Acc. Ins. Co. v. Follett,168 Tenn. 647 , 663-665,80 S. W. (2d) 92 .
For the reasons herein above stated, we think this cause must be reversed and remanded to the Circuit Court of Shelby. County for a new trial to be held in conformity with this opinion. The costs of the appeal will be paid by the defendant, Dr. Bichard L. DeSaussure. The costs of the Circuit Court will await the outcome of the litigation.