Selby v. KuhnsSelby v. Kuhns
- Reporters:
- , ,
- Before:
- Whittemore
Thеse are the defendant’s exceptions in an action of tort, begun July 10,1960, for the malpractice of a physician for unskilful treatment of the plaintiff’s legs (broken in an automobile accident on June 29,1958) so that they became deformed and bowed. The plaintiff (her full name according to her testimony is Ann Sophie Selby) had a verdict for $40,000.
The defendant excepted to the exclusion of the Superior Court records of an action, begun July 31,1958, against the operator and the owner of an automobile the negligent operation of which, on June 29,1958, had injured Anne [sic] S. Selby, who brought the aсtion by her father and next friend. The records showed an agreement for judgment for that plaintiff for $4,750 and judgment satisfied under date of September 10, 1959. The defendant contends also that the excluded records require that judgment be entered for him.
On July 23,1959, the plaintiff in the prior action, in sworn answers to interrogatories, stated in substance that she had received two fractured legs which did not heal properly and as a result she would be obliged to return to the hospital for a second operation; she had steel plates in her legs and was still limping badly; she had undergone an operation on Junе 29,1958, by Dr. DePrizio; she had been in the hospital for eight weeks following the injury; she was in the hospital again for six weeks from October 12, 1958; she was visited at the hospital by Dr. Kuhnes [sic], a specialist; her financial loss was “Salary from June 29, 1958 approximately $864.00 Hospital approximately $2465.00, Dr. DePrizio $600.00, Dr. G-irourd $700.00, Dr. Kuhnes, $70.00.”
Dr. Carl J. DePriziо testified in the pending action that the plaintiff was in his care until August 17,1958, when she was discharged from the hospital; he went to Europe in September; he saw her in the hospital after his return in October at which time he recognized that she was in Dr. Kuhns’s hands and he assumed no responsibility and did nothing more in the case. Thе plaintiff testified that she met Dr. Kuhns for the first time in the hospital on October 8,1958 (having returned to the hospital on October 5). She *602 “never said anything to the defendant by way of employing bim as a doctor.” Dr. Kuhns’s testimony was, in substance, that he directed the plaintiff to walk before it was proper for her to do so, as it later turned out, in view of nonunion of the fractures. He advised the plaintiff in November, 1958, that “a second operation would be required to reset her legs.’’ The plaintiff, subject to the defendant’s exception, also testified that she visited Dr. DePrizio in August, 1959, at his office and that after examination hе said that her legs were bowed “as a result of walking too soon on them.”
1. The records of the earlier action were admissible.
Those records show that both actions arose out of the same automobile accident to the same plaintiff. The dates, the names of persons concerned, and the nature of the injuries established the nеcessary identity and, in the absence of an objection addressed specifically to that issue, a formal inquiry of the plaintiff or some other witness in respect thereof was not necessary. See
Luce
v.
Dexter,
The records show an action against the earlier tortfeasors who were liable for the same malpractice injury, evidence of that injury in the first action, and a satisfied judgment which discharged all the liability of those tortfeasors.
Sacchetti
v.
Springer,
Although, as we hold below, that judgment did not discharge the cause of action for malpractice, the proceedings were admissible to show pro tanto reparation for the malpractice injury. See point 3.
The plaintiff contends that the first tortfeasors were not liable for the malpractice injuries. We disagree. “Lack of skill on the part of a physician . . . [wisely selected] rationally may be attributed to the original tоrt of the defendant.”
Gray
v.
Boston Elev. Ry.
The case of
Purchase
v.
Seelye,
2. There is general support in our precedents, in decisions in “joint tort” cases elsewhere (166 A. L. R. 1099 et seq.), and in Bestatement: Torts, §§ 879, 886, for the defendant’s contention that the prior judgment is a bar, regardless of the adequacy of the reparation for the malpractice injury.
Several carefully reasoned decisions in malpractice cases in other jurisdictions, however, some quite recent, support a contrary rule, that is, settlement with the original tortfeasor, in the absence of full satisfaction in fact or intеnt, discharges the negligent physician only pro tanto.
Ash
v.
Mortensen,
The decisions in the District of Columbia, Minnesota, New York, and New Jersey overrule prior cases. Although, except as noted, these malpractice cases deal with the effect of а prior release we see no basis for a more stringent rule in this case. See point 3, post.
The unsoundness of the doctrine of unity of discharge regardless of intent and satisfaction in fact, has been ably and forcefully stated by the commentators for a long time. Harper & James, Torts, § 10.1, pp. 711-714. Prosser, Torts (2d ed.) § 46, pp. 243-246. 41 B. U. L. Rev. 577. Havighurst, Settlements and Co-obligors, 45 Corn. L. Q. 1. Wig-more, Release to One Joint-Tortfeasor, 17 III. L. Rev. 563. Notes, 22 Minn. L. Rev. 692. 33 Notre Dame Lawyer, 291. 37 Notre Dame Lawyer, 448. Prosser, Torts (2d ed.) p. 244, concludes as to releases: “Even as applied to cases of concerted action, the rulе seems at best an antiquated survival of an arbitrary common law procedural concept, and it has no reasonable application to cases of mere concurrent negligence. The fear of double recovery is meaningless, since the amount paid under the release must be credited to the second tortfeasor in any case.”
Dissatisfaction elsewhere with the rule of unity of discharge has led to statutory modifications, to recognition of oral agreements accompanying settlements, and to liberal construction of releases as covenants not to sue. See Uniform Contribution Among Tortfeasors Act (1939, revised 1955) 9 U. L. A.; Prosser, Torts (2d ed.) § 46, pp. 244-245. It may reasonably be thought to have led to the enactment
*605 of St. 1962, c. 730, which by § 1 inserted a new Gr. L. c. 231B (“Contribution Among Joint Tortfeasors”), effective as to torts occurring on and after January 1,1963.
The rule of unity оf discharge of tortfeasors developed in cases where there had been a release of one wrongdoer. It was originally based in the mistaken view that, as in early cases of joint trespass, there was but a single cause of action.
Brown
v.
Cambridge,
The inapplicability of the old rule to independent torts united only in their effect led to mention in later eases that there was only one injury and to the statement that “the damages sustained are . . . inseparable.”
Muse
v.
DeVito,
That a prior release of the original tortfeasor would be a bar to a mаlpractice action was said in
Purchase
v.
Seelye,
The
Purchase
and
Vatalaro
cases were deemed by the United States Court of Appeals for the First Circuit in
*606
Clark
v.
Zimmer Mfg. Co.
In
Sacchetti
v.
Springer,
An examination of the citations in the Saechetti opinion shows that the statement that the “judgment ... included in . . . law . . . compensation for all the injuries” is founded in the concept that the single injury makes operative the rules applicable where there is only one cause of action and only one defendant. The care taken to show that there was satisfaction in fact tends, however, to suggest recognition that the stated rule of law might not be just in its application in all cases.
Other cases which hold the prior judgment a bar do not show successive torts.
Luce
v.
Dexter,
3. The absence of strong prеcedent, and our view that the rule of unity of discharge is, in reason, inapplicable to this case of successive tortfeasors, justify our holding accordingly.
Section 4
1
of c. 231B establishes for cases of prior release the rule long advocated by the commentators and heretofore in substantial part applied by this court in cases of covenants not to sue. See
O’Neil
v.
National Oil Co.
The rule that satisfaction of a prior judgment is a bar “is equitable in its nature . . . and its purpose is to prevent unjust enrichment.” Prosser, Torts (2d ed.) p. 242. Where there is a single wrong by concerted tortfeasors or a single effect by concurrent tortfeasors there is a basis not here presented for limiting the plaintiff to one determination of full satisfaction. General Laws c. 231B (applying at least in its first three sections to * ‘ Contributions Among Joint Tortfeasors”) states a rule for such cases or some оf them. 2 There is nothing therein which our holding would *608 contravene. In the case at bar there were not only successive torts which were not identical in their effects but there was also no adjudication of the amount of damage and little, if anything, to suggest that a claim for malpractice was in mind when the consent judgment was enterеd and satisfied. There appears no reason to support a rule of constructive satisfaction in such a case. It may be that the rule should De the same for all cases of successive torts; in confining the present holding to the facts of the case we intend no suggestion.
Our holding therefore is that the satisfaction of the judgment against the first tortfeasors did not bar this action. It must be determined on another trial whether the amount paid on that judgment was full satisfaction in fact of the malpractice claim and if not what is the uncompensated amount of that claim. See
O’Neil
v.
National Oil Co.
We think thе sound rule is that the burden is on the plaintiff to establish what part of the payment received was not on account of the malpractice claim.
Couillard
v.
Charles T. Miller Hosp. Inc.
4. We do not consider other exceptions which relate to points not likely to arise on anothеr trial.
Exceptions sustained.
Notes
“When a release or covenant not to sue or not to enforce judgment is given in good faith to one of two or more persons liable in tort for the same injury: (a) It shall not discharge any of the other tortfeasors from liability for the injury unless its terms so provide; but it shall reduce the claim against the others to the extent of any amount stipulated by the release or the covenant, or in the amount of the consideration paid for it, whichever is the greater; and (b) It shall discharge the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.”