Gum v. Allen

California Court of Appeal Dec 17, 1931 No. Docket No. 6970.Published

Before: Craig

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Holding. An action for damages resulting from a surgeon's negligent act is an action in tort that accrues at the time of the original injury, and subsequent aggravation of the injury does not create a new cause of action or toll the statute of limitations.

Issues

Whether an action for damages resulting from a surgeon's negligence is governed by the statute of limitations for torts or contract breaches.
Whether the statute of limitations for a medical negligence claim is tolled by subsequent treatment or failure to discover the injury.
Whether the doctrine of estoppel applies to prevent a defendant from pleading the statute of limitations based on an allegedly erroneous diagnosis.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Since the action was not commenced within one year from the date of the operation it became barred by section 340, subdivision 3, of the Code of Civil Procedure”

[294]

CRAIG, J.

Objections by the defendants to the introduction of evidence by the plaintiffs in an action for damages were sustained upon the ground that the same was barred by section 340 of the Code of Civil Procedure. Thereupon motions for a nonsuit were granted, and the plaintiffs appealed from the judgment entered in accordance with said rulings.

More than one year previously to the filing of the action appellant Rheta Lorraine Gum entered the hospital of the respondent corporation and was operated upon by the respondent Allen, a licensed and practicing physician and surgeon. She thereafter contracted an infection from which she continued to suffer great pain, as the result of a gauze pack which had been inadvertently left within the cavity when closed on the day of the original operation. It was alleged that Dr. Allen continued to visit and treat the respondent at various dates up to and -including a date within about four months next preceding the filing of the action, and that the plaintiffs were not informed nor aware of the existence of such foreign substance until about one month preceding the commencement of the action.

The appellants rely entirely upon the authority of decisions from the state of Ohio and eases therein cited. However, decisions of our own appellate courts have determined in clear-cut language both that an action such as that before us is one

ex delicto

and that in an instance wholly similar to the one here under consideration, the original injury is the sole cause of action. The law thus established in this jurisdiction on these two propositions is, we think, decisive of this appeal. Notwithstanding the failure to furnish adequate surgical treatment for an injured limb constituted a breach of a contract, the gravamen of the action brought to recover damages for negligent and unskilful treatment by the surgeon of plaintiff’s leg was of such character that the action itself sounded in tort.

(Harding

Liberty Hospital Corp.,

177 Cal. 520 [171 Pac. 98]. See, also,

Gum v. Allen

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CRAIG, J.

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