Petrucci v. Heidenreich

McCOMB, J.

From a judgment, in favor of defendant after trial before the court without a jury, predicated upon the sustaining of an objection by defendant to the introduction of any evidence on the ground that the complaint showed on its face that plaintiffs’ cause of action was barred by the statute of limitations (subd. 3, sec. 340, Code Civ. Proe.), in an action to recover damages for malpractice, plaintiffs appeal.

It is alleged in the complaint filed October 20, 1939, that on or about July 25, 1937, defendant, a physician and surgeon, performed a cervical cauterization of plaintiff Flora Petrucci’s uterus and that from said date until on or about

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April 1, 1939, defendant continued to treat said plaintiff in connection with the cauterization. It is also alleged that the cauterization was carelessly and negligently performed in that defendant over-cauterized the cervical tissues of the uterus and cauterized the entire uterine canal of said plaintiff, as a result of which an obstruction developed in her uterine canal.

In addition to the usual statement of damages, the complaint alleged:

“That from the date of said cauterization and up to the early part of April, 1939, plaintiff, Flora Petrucci, was under the exclusive care of defendant, and plaintiffs relied solely upon defendant for information regarding plaintiff Flora Petrucci’s physical condition and her failure to regain her health, and plaintiffs had no knowledge of the cause of plaintiff Flora Petrucci’s failure to regain her health from the date of the said cauterization and during the time said plaintiff was under the care and counsel of defendant.”

Plaintiffs rely for reversal of the judgment on this proposition:

In an action to recover damages for malpractice due to the negligent performance of an operation by a physician and surgeon, where the physician and surgeon continues to treat the patient subsequent to the operation, the statute of limitations commences to run from the date the patient discovers or from the use of reasonable diligence should have discovered that the operation had been negligently performed, and the statute of limitations does not commence to run from the date of the operation.