154 A. 678 | Vt. | 1931
The defendant is a surgeon. On July 14, 1923, at the Brightlook Hospital in St. Johnsbury, he performed an abdominal operation upon the plaintiff. During this operation gauze sponges were placed in the abdominal cavity for the purpose of absorbing the blood and fluid, but proper practice required their removal after its completion. After the operation the plaintiff remained in the hospital for two weeks, and returned three or four times thereafter for treatment, the last time being September 25, 1923, when she saw the defendant, who told her that "she was getting along fine." She suffered thereafter pains in her side and abdomen to such an extent that *375 she could not sleep without opiates or do her work, and her abdomen was distended and swollen. She consulted other physicians with only temporary relief until January 28, 1929, when she passed, with her stool, a surgical gauze about a yard in length, together with pus. After that her condition improved.
On May 29, 1929, she instituted this action against the defendant, alleging negligence and lack of skill in the performance of the operation in that the gauze had not been removed from the wound. The defendant pleaded the general issue and the statute of limitations. On trial, at the close of the plaintiff's evidence, the defendant moved for a directed verdict on the ground that the action was barred by the statute. The motion was granted, and the plaintiff excepted.
By G.L. 1849 it is provided that: "The following actions shall be commenced within six years after the cause of action accrues, and not after * * * *. Actions of tort, except as otherwise provided." And by G.L. 1850 * * * *. "Actions for assault and battery, false imprisonment, slanderous words and libels, and for the recovery of damages for bodily hurt or injury to personal property suffered by a person by the act or default of another, shall be commenced within three years after the cause of action accrues, and not after."
That the alleged malpractice constitutes a tort is conceded by the plaintiff. It is clear that this is so, and that this action is ex delicto. Chalmers v. Southern Pac. Co. (C.C.A), 8 Fed. (2d) 480, 481; Harding v. Liberty Hospital Corporation,
The plaintiff argues that the right of action did not accrue until the fact that the gauze had not been removed was discovered, and that, consequently, the statutory period of limitation did not begin to run until that time. But the right of action accrued when the negligent act upon which the action is based took place, and not when the consequential damage became known. This principle has been applied in numerous cases wherein the facts were very similar to those in the case before us. InCappucci v. Barone (1929),
In Conklin v. Draper,
A contrary result was reached in Akridge v. Noble,
The negligent act in the instant case was the omission to remove the sponge when the wound was closed, and this occurred more than three years before the action was brought. Even if there were negligence in the after treatment on the part of the defendant, in failing to detect the presence of a foreign substance in the abdominal cavity, more than three years elapsed after the last examination by him before the institution of the action.
It is argued by the plaintiff that there was a fraudulent concealment of the cause of action by the defendant, and therefore, under G.L. 1863, the period prior to the discovery of it should be excluded in determining the time limited for the commencement of the action. This claim is based upon the evidence, that, at the last visit by the plaintiff to the defendant, he told her that "she was getting along fine." Without passing upon the defendant's contention that the question of fraudulent concealment has not been made an issue by the pleadings, and so is not for our consideration (see First Mass.Turnpike Corp. v. Field,
The plaintiff's brief concludes with the earnest request that we consider this case free from any technical application of the statute of limitations, to the end that she may not be deprived of a remedy for the injury which she claims to have suffered. It is unfortunate for her that her right of action is no longer available, but to make it so we cannot disregard the plain *379 wording of the statutory provisions applicable to the case.Cappucci v. Barone, supra; Conklin v. Draper, supra. Judgment affirmed.