On June 26, 1959, the defendant physician performed a partial thyroid removal operation on the plaintiff. A postoperative condition of tetаny or faulty calcium metabolism resulted from the operation. Plaintiff alleged and testified that the defendant physician made certain false representations, both as to the nature and the cause of this postoperative condition of tetany. She asserted, among other things, that the physiсian represented that her condition of tetany was solely the result of her *696 mental or - psychological condition. After a period of cоnsultation and treatment lasting over" the intervening period of time, the plaintiff finally- consulted , a new physician oh April 6, 1960, ánd cláims -that at that date she finally discovered what her true postoperative condition was and the cause of it. " She brings this action for damages alleged to have resulted from thesе false representations. She consulted thé new physician on April 6, 1960, and this action was .brought about 2 years and 4 months later, on August 16, 1962. The question in this case is whether the 2-year" limitation period of malpractice actions,. section 25-208, R.'R. S. 1943, or the 4-year general limitation statute on fraud actions, section 25-207, R.-R. .S: 1943y/. аpplies. The district court, at the close of the plaintiff’s evidence, dismissed the case on the' grounds that it was a malpractice action and that thé 2-year limitation period applied. We affirm.'
Plaintiff’s theory is that, independent of any claim of negligence in the original operation or trеatment subsequent thereto,' that she relied upon misrepresentation as to what her true condition was and its cause. She claims this is fraud, that it was not discоvered until she consulted a new doctor on April 6, 1960, and that, therefore, she had 4 years from that date to bring this action under the general statute of limitatiоns as to fraud, section 25-207, R. R. S. 1943.-
'The plaintiff’s theory is- an attempt to separate the actions of a physician in fraudulently concealing, the causе and nature of a patient’s condition from a" cláim for dámagés for earlier negligence in'' diagnosis and’treatment! The record'-shows 'that all of the'statements and the acts of ".the defendant claiméd to be-fraudulent Occurred during--the course of:,the' physician-patient "relationship. They occurred during thе' times whén' dfíe plaintiff consulted with the defendant physician as' to the' treatment, cause, and, máture of her; condition; It would seem clear that postopérativé treatment andmecessary advice of the physician tó thé ’patient are "an 'inter
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woven and essential part of a physician-patient relationship. Mutual confidence and trust are essentials of the relationship between physician and patient. Williams v. Elias,
Within the meaning of the above pronouncement, the allegаtions and proof here are that the fraudulent misrepresentations constituted a breach of his duty of fidelity to his patient. The treatment and advicе were part of the duties that arose in law from the nature of his employment as a physician. The cause of action, therefore, acсrued when the alleged breach of duty was discovered, namely, on April 6, 1960. Spath v. Morrow, *698 supra: Consequently, on August 16, 1962, the 2-year limitation had expired and the defense of the statute of limitations was good.
The special statute as to malpractice, section 25-208, R. R. S. 1943, being applicable, it controls over the general limitation statute on fraud, section 25-207, R. R. S. 1943. This is true because the special statute is the one • that expresses the legislative will providing the aсts complained of come within the meaning therein expressed. Neisius v. Henry,
• Plaintiff cites and argues several cases from other jurisdictions as supporting the theory of an independent fraud action. We have examined these cases, and they are not applicable. They deal with situations where the physician enters into a contract to cure a patient, performs a particular type of operation, оr makes a special warranty. These cases point out that in the absence of a special warranty or contract, and if the decеit is with respect to the manner of performance of the physician’s duties or of any incident thereto, that the action is a malpracticе suit and the limitation statute relating thereto governs. Kozan v. Comstock,
Plaintiff contends that the defendant has waived the defense of the statute of limitations because of failure to propеrly plead and present the issue to the trial court. The record shows that the defendant, in paragraph 4 of his answer, asserted the defense of the statute of limitations. It shows that in paragraph 13 of his motion for directed verdict, he raised the defense and insisted that there was a failure of proof on this issue and that the 2-year statute of limitations for malpractice actions had elapsed. This was the crucial issue in the trial court. The trial cоurt disposed of the case on that issue and wrote a memorandum opinion holding that the plaintiff’s case was barred by the 2-year statute of limitations. There was no contention in the district court that the defendant had waived this defense. It is asserted for the first time in this court. Where an issue is relied upon by the parties at the trial, insisted upon as a defense, and relied upon by the trial court as an issue in the case, it may not be successfully asserted for the first time on appeal that it has been waived. Bohmont v. Moore,
The judgment of the district court is correct and is affirmed.
Affirmed.