Opinion
Hearing Granted by Supreme Court Aug. 26, 1935.
Appeal from Superior Court, Los Angeles County; Walton J. Wood, Judge.
Action by Christian Huysman and Clara E. Huysman, husband and wife, against Ralph L. Kirsch. From a judgment of nonsuit, the plaintiffs appeal.
Affirmed. COUNSEL
Frank C. Dunham, E. De Young Vasse, and Louis Semon, all of Pasadena, for appellants.
W. I. Gilbert, Wm. M. Rains, Gibson, Dunn & Crutcher, and Philip C. Sterry, all of Los Angeles, for respondent.
OPINION
STEPHENS, Presiding Justice.
The superior court caused to be entered a judgment of nonsuit against plaintiffs (husband and wife), which followed the granting of defendant’s objection to the taking of any testimony upon the ground that the face of the complaint reveals that the statute of limitations had run against the cause of alleged surgical malpractice. The complaint was filed January 7, 1933.
The defendant, as a surgeon, operated on plaintiff Clara E. Huysman, on the 3d day of January, 1931, and the wound was drained by a nine-inch rubber tube. It is alleged "that defendant knowingly, carelessly and negligently permitted the aforesaid rubber drainage tube to remain inclosed in the abdomen of said plaintiff, Clara E. Huysman, on or about January 9, 1931, to and including September 26, 1932, and upon each and every day during that period of time." (Italics ours.) The tube was removed from the abdomen by defendant on the 26th of September, 1932, at which time the plaintiffs first learned that it had been permitted to remain therein. It is further alleged that "each and every day from about the date of said operation to on or about November 15, 1932" there were created numerous running sores within the patient’s abdomen by reason of the improper presence of the tube therein from January 9, 1931, to September 26, 1932, and there were thereby caused specific disorders of the patient which caused her to be and to continue to be unwell and required that she be given constant care and attention, and that she was unable to perform her family and household duties up to the date of the complaint; that such condition will continue indefinitely.
The recent case of Kershaw v. Tilbury, 214 Cal. 679, 8 P.2d 109, following earlier cases to the same effect, holds definitely that such an action in California sounds in tort and not in contract. Subdivision 3, § 340, Code of Civil Procedure, requires that such an action must be started within one year from the act alleged. We must determine, therefore, what event started the running of the statute and when did such event happen. It is certain that the action was not brought within one year from the date of the operation itself nor within one year from the first date of the wrongful maintenance of the tube in the abdomen. But it is claimed by plaintiffs-appellants: (a) That the operation from the beginning thereof to the end of the post-operative treatment was one act and that the statute did not begin to run until the treatment ceased; or (b) that from the date upon which the tube should have been removed but was not, to the date of its removal, there was a continuing tort, hence the maintenance of the tube in the abdomen for any time within the year prior to suit constituted a cause of action within the limitation of the statute.
But there is no California authority to support either theory and much inconsistent therewith. Neither in Hopkins v. Heller, 59 Cal.App. 447, 210 P. 975; Barham v. Widing, 210 Cal. 206, 291 P. 173; Perkins v. Trueblood, 180 Cal. 437, 181 P. 642; Taylor v. De Vaughn, 91 Cal.App. 318, 266 P. 960, nor Wetzel v. Pius, 78 Cal.App. 104, 248 P. 288 (appellants’ citations), is there anything supporting them. These cases tend the other way, and Gum v. Allen, 119 Cal.App. 293, 6 P.2d 311, which was refused hearing by the Supreme Court, is squarely against such theories.
We read these authorities as either holding, or as consistent with the holding, that the initiatory wrongful act starts the running of the statute. In the Gum v. Allen Case, supra, the placing of the pack in the abdomen was proper, but leaving it there after the moment of closing the incision was the wrongful act. In the instant case the insertion of the drain tube was proper but leaving it in the abdomen after or not taking it out when its remedial purposes ceased was the wrongful act. (Italics ours.)
As a matter of fact, a careful consideration of the complaint shows that the two cases are similar in fact and are on all fours in principle. It will be observed that neither the patient nor her husband (plaintiffs-appellants) knew that the tube was in the abdomen until after the second operation. It must, therefore, have been entirely out of sight, or in other words, after its usefulness had passed, it was concealed in the surgical wound exactly as was the pack in the other case. Both pack and tube were properly placed in the wound; both were improperly left there when and after their usefulness there passed.
Authorities which say that treatment of a broken bone after setting, and of the socket after the extraction of a tooth, are necessary parts of the same professional operation, are not authority for appellants’ contentions. They are only consistent with the accepted theory that any wrongful act, or the start of a wrongful omission to act, constitutes a cause of action and starts the running of the statute of limitations.
We are of the opinion that the doctrine of "fraudulent concealment," as exhaustively treated in Kimball v. Pacific Gas and Electric Co., 220 Cal. 203, 30 P.2d 39, if applied to the facts alleged in the pleadings of this case, would toll the statute. But we are met with a frank concession by appellant in his supplemental brief that the allegation of his complaint to the effect that defendant knowingly permitted the tube to remain in the abdomen means simply that defendant left it there through gross negligence and did not consciously know it had been left therein. We think this concession-and we commend counsel for making it, since his proof in a trial would have revealed it-takes the case out of the doctrine of "fraudulent concealment." We quote from the Kimball Case, supra: "We, therefore, hold that the better view and the one supported by the cases in this state and by the weight of authority elsewhere is that as far as a legal action for personal injuries is concerned, the fraudulent concealment by the defendant of the facts upon the existence of which the cause of action depends tolls the statute, and such statute does not begin to run until the discovery by plaintiff or until by reasonable diligence the plaintiff should have discovered the facts."
Unquestionably this conclusion leads to harsh injustices and affords a cloak for the careless and ignorant, but it seems to us that it is the only consistent construction that the courts can give to the statute (section 340, Code Civ. Proc.) as it is, and that it conforms to the correct view of the law of torts. Other jurisdictions have adopted strained theories to avoid the injustice when it is plainly a simple and proper subject of legislation.
Judgment affirmed.
I concur: CRAIL, J.