Summary
In Barnard v. Thompson, 138 Tex. 277, 158 S.W.2d 486 (1942), the supreme court reversed the trial court's dismissal of the action on the basis of defendant's special exception alleging limitations, holding that the plaintiff's allegations were sufficient to raise the issue of fraudulent concealment.
Summary of this case from Whatley v. Nat Bank of CommerceOpinion
No. 7793.
Decided January 7, 1942. Rehearing overruled February 11, 1942.
Physicians and Surgeons — Fraudulent Concealment.
In an action against a physician for damages caused by his failure to remove, from the body of the patient, gauze sponges which he had used during an operation, an allegation in plaintiff's petition to the effect that said physician, knowing of the presence of said sponges in his patient's body, fraudulently concealed that fact from plaintiffs and also fraudulently concealed from them the necessity for the removal of same, was sufficient as a pleading to constitute the issue of fraudulent concealment.
Error to the Court of Civil Appeals for the Tenth District, in an appeal from Nueces County.
Suit by J.B. Thompson against Dr. W.C. Barnard, Dr. F.U. Painter and Dr. H.A. White to recover damages for alleged neglect on the part of said doctors in performing a surgical operation on plaintiff's wife some five years and eleven months before this suit was instituted. Dr. Painter died some time after the institution of the suit and his son Guy Painter, as administrator of his father's estate, was substituted in his stead. Plaintiff alleged that in performing said operation the doctors used a number of gauze sponges in the patient's abdominal cavity. After the operation the doctors failed to remove said sponges and permitted the patient to leave the hospital within fifteen days thereafter without informing the patient or the plaintiff of their presence, which was not discovered until five and a half years later when a second operation became necessary and in being performed by another doctor their presence was revealed. The defendants plead limitation of two years. The trial court sustained the plea and dismissed the suit. This judgment was reversed by the Court of Civil Appeals, which remanded the cause for another trial, 142 S.W.2d 238. Defendants bring error to the Supreme Court.
The case was referred to the Commission of Appeals, Section A, for their opinion thereon and the Supreme Court adopted same and ordered judgment entered in accordance therewith.
The judgment of the Court of Civil Appeals, reversing and remanding the cause, is affirmed.
R.D. Tarlton, Chas. L. Hale, Jr., Tarlton Vaughn, and I.M. Singer, all of Corpus Christi, for plaintiffs in error.
On the running of the statute of limitation, Houston Water Works Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36; Bremond v. McLean, 45 Tex. 10; Owen v. King, 130 Tex. 614, 111 S.W.2d 695.
Bryan Blalock and W.R. Smith, Jr., both of Austin, for defendant in error.
Failure on the part of the physicians to inform plaintiff and his wife of the presence of the gauze in the body of the patient tolled the statute of limitation. Wabash County v. Person, 120 Ind. 426, 22 N.E. 134; Byers v. Bacon, 250 Pa. 564, 95 A. 711; Texas Pac. Coal Oil Co. v. Smith, 130 S.W.2d 425.
This is a suit by J.B. Thompson against Dr. W.C. Barnard and two other physicians, constituting a partnership. The suit was commenced December 6, 1935, and its object is the recovery of damages resulting from the negligence of the defendants which occurred in connection with a surgical operation performed by them on Lelia Thompson, the wife of the plaintiff. The operation was performed on January 6, 1930. In proper performance of the operation, the surgeon made an incision in Mrs. Thompson's abdomen and inserted a number of gauze sponges in the abdomen. The surgeon negligently failed to remove two of the gauze sponges from the abdomen and they remained there after the operation was concluded and the incision closed. The fact that the gauze had been left inside her body was not discovered by Mrs. Thompson until June 27, 1935, six months before this suit was commenced. The discovery occurred when a second operation was performed by a different surgeon. All these facts appear in the plaintiff's petition. The defendants, by special exception, invoked the statute of two years limitation, (Article 5526). The trial court sustained the special exception and dismissed the suit. The Court of Civil Appeals reversed the judgment of the trial court and remanded the cause. 142 S.W.2d 238.
The action of the Court of Civil Appeals is correct, for the reason that the plaintiff's petition contains a paragraph which reads as follows:
"Plaintiff alleges that during said operation and at any and all times after said operation the defendants herein, well knowing of the presence of said gauze in the body of plaintiff's said wife, fraudulently concealed from plaintiff and plaintiff's said wife the presence of said gauze sponges which they had placed in the body of the said Lelia Thompson, and fraudulently concealed from them the necessity of removing the same."
The defendant made no complaint in the trial court, by special exception or otherwise, of any defect of form in respect to this paragraph. It is sufficient as a pleading to tender the issue of fraudulent concealment by the defendants of the plaintiff's cause of action from the time it arose until the gauze sponge was discovered in Mrs. Thompson's body on July 27, 1935. Owen v. King, 130 Tex. 614, 111 S.W.2d 695.
The judgment of the Court of Civil Appeals reversing the trial court's judgment and remanding the cause is affirmed.
Opinion adopted by the Supreme Court January 7, 1942.