Bathke v. Rahn

DOOLING, J.,

pro tem.

— This is an appeal from a judgment for defendant entered after the sustaining of a demurrer to a second amended complaint on the ground that the action is barred by the statute of limitations, Code of Civil Procedure, section 340. There is also a purported appeal from the order sustaining the demurrer.

The complaint is against a physician for malpractice and alleges the negligent and unskillful performance of an operation of double vasectomy upon plaintiff by defendant.

The complaint alleges that plaintiff, a married man, consulted defendant to obtain medical and surgical information which would avoid any future pregnancy of the wife through the couple’s marital relations, the wife having theretofore borne four children with such difficulty that she had suffered a complete physical and nervous breakdown; and that defendant had advised the double vasectomy upon plaintiff which he warranted would prevent any future pregnancy of the wife through her relations with plaintiff. It is further alleged that plaintiff upon the advice and solicitation of defendant submitted to such operation on or about October 15, 1938; and that the operation was so negligently and unskillfully performed that “plaintiff ever since the performance of said operation has suffered pain at the location of said operation and has suffered impairment in his health and physical activity and well-being in this:

“That plaintiff ever since said operation . . . has suffered and does continue to suffer pain at the region of said operation and is informed and believes that he will permanently suffer a nervous disorder which is now suffered by plaintiff, that he rendered plaintiff unable to write in ordinary handwriting for that the said nervous disorder caused plaintiff’s hands to so shake that he cannot execute ordinary handwriting.”

To toll the statute of limitations plaintiff alleged, so far as here material, that immediately following the operation defendant made the following representations to plaintiff:

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“ (i) That defendant has permanently, by the performance of said operation, rendered the plaintiff sterile; (j) ... that neither the said operation or the effects thereof would in any manner injure or impair the ability of plaintiff to follow his occupation of traveling salesman”; and that plaintiff believed and relied upon all of such representations until October, 1939, when he discovered that his wife had again become pregnant.