The parties appear here as in the court ¡below. The plaintiff, on the 26th day of November, 1921, filed her petition against the defendant in the district court of Oklahoma county. She alleged that the defendant was a skilled physician and that he was employed iby her husband for compensation to professionally attend the plaintiff, who was then about to he delivered of her first child. That the defendant entered upon such employment, but did not use proper care and skill in treating the plaintiff; that the defendant informed the plaintiff that it was necessary to perform an operation upon her known as the Caesarean section. Plaintiff further alleged that, acting upon the representation of the defendant as to the necessity of such operation, she gave her consent therefor, but withheld her consent .that an operation be performed upon her by the defendant at the same time by which she was to be made sterile 'by the tying or removal of her Fallopian tubes, the same being part of her congenital organs; and that thereafter, on 'the 28fch day of November. 1919, the said defendant delivered plaintiff of child by said operation known ns the Caesarean section, and also performed upon her an operation by tying and removing her Fallopiap tubes, whereby she became barren.
Plaintiff claims that the removal or tying of her Fallopian tubes by the defendant, whereby plaintiff was caused to be barren, was also unnecessary and unjustifiable by the exercise of due skill upon the part of defendant.
Defendant filed an answer in which he denied each and every allegation of the failure of defendant to use proper skill and care, and alleged that the plaintiff iwias greatly benefited iby reason of his services, and that «the sustained no damage by reá-son of his services.
The cause was tried to a jury, a verdict was rendered thereon in favor of the defendant, and the plaintiff thereafter filed a motion for new trial, which was overruled, and from the judgment rendered in the district court, the plaintiff prosecutes this appeal.
The plaintiff urges as the only assignment of error, instruction No. 8, which the court submitted to the jury, said instruction being as follows:
“8. If you shall find from the evidence facts and circumstances disclosed upon the the trial that the tying of plaintiff’s Fallopian tubes was not done by the defendant as an incident to or in connection with and for the purpose of performing the Caesarean operation!, but was entirely independent of that operation and ivas done for the purpose of preventing conception by the plaintiff, and you do not further find from such evidence, facts and circumstances that plaintiff authorized or consented to the tying off of said tubes and the resulting sterilization, the plaintiff could not recover in this action for such particular operation, for the reason that the cause of action therefor, if *264 any existed, was barred by the statute of limitations of tliis state prior to the commencement of this action.”
Plaintiff insists that paragraph 3, sec. 185, Comp. St. 1921, which in part reads as follows, is applicable to the plaintiff’s cause of action:
“Within two years; * * * An action for Injury to the rights of another, niot arising on contract, and not hereinafter enumerated. * * * ”
Defendant claims that paragraph 4 of said section is applicable to plaintiff’s cause of action, which said paragraph in part reads as follows:
“Within one year; An action on a foreign judgment; an action for libel, slander, assault, battery, malicious prosecution,” etc.
• The question, presents itself squarely to this court: Was such an act solely an assault and battery upon the person of the plaintiff, and if true, did the statute of limitation as applied to the acts for assault and battery apply only?
Our attention has been called to the case of Rolater v. Strain,
• Plaintiff contends for the theory that the operation upon said Fallopian tubes without her consent was a violation of his duty to her as her physician, and of her right to the inviolability of her person, and that therefore the time limit governed by paragraph' 3 of section 185, supra, is applicable to her cause of action, and in support thereof cites the case of Ericson v. Charles,
The first paragraph of the syllabus in the case of Ericson v. Charles, supra, is as follows :
“An action fo,r malpractice in which it is alleged in substance that the defendant, in disregard of his obligations as a surgeon, performed an operation upon the plaintiff in a negligent mannler, and n'ot in accordance with the custom and practice folldwied by good, reputable, and ordinarily prudent surgeons, with a result that she suffered great pain and injury for which she asked damages, is one arising on tort, and not on contract, and the statutory limit of two years applies to such action.”
As will be observed the plaintiff in the insllant case alleges that the removal or tying of her Fallopian tubes by the defendant was unnecessary and unjustifiable 'by the exercise of due skill on. the part of the defendant. We are of the opinion thai, where a patient is under the care, treatment, and control of a physician, and an unnecessary operation is performed without the consent of such patient, the elements of technical assault and battery include malpractice and a violated duty upon the part of the physician to his patient, and where an injury results to the patient, that such patient may waive the action for technical assault and battery and rely for his right to recover damages 'by reason of the wrongful and unskillful acts of the physician, which, constitute a violated duty upon his pant. It would be unreasonable to say that, because the act on the part of the physician in performing an unnecessary operation was without the consent of the patient, the elements of malpractice, wrongful acts, and a violated duty were not present and concurrent by reason of the acts of such physician, and while it may be true that such acts may constitute teihnical assault and *265 battery, yet the injured patient may waive his right to proceed in an action for assault and battery and bring an action for the wrongful and unskillful acts of the physician, such acts constituting a violated duty, upon the part of the physician and the consequent injury to the patient, and in such case we hold that paragraph 4, sec. 185, Comp. St. 1921, is applicable as .per-, taining to the limitation of time in which said action may be brought.
We therefore hold that the court in submitting instruction No. 8 to the jury committed prejudicial error. The judgment of the district court is reversed, and the same remanded for proceedings not inconsistent herewith.