Summary
In Tanner, supra, the aggravation of the original injury was known and existed at the time of the release, and in Whitt, supra, the release was executed subsequent to the injury and the treatment thereof, which was the subject of that malpractice action.
Summary of this case from Swenson v. EwyOpinion
No. 24233
Decided March 28, 1934.
Negligence — Original tort-feasor liable for injuries aggravated by physician or surgeon — Release to original tort-feasor bars action for malpractice, when.
1. If one who has suffered personal injuries by reason of another's negligence exercises reasonable care in obtaining the services of a competent physician or surgeon, and such injuries are thereafter aggravated by the negligence, mistake or lack of skill of such physician or surgeon, such aggravation is a proximate result of the negligence of the original tort feasor, and he is liable therefor.
2. If one has suffered personal injuries which thereafter were aggravated by the malpractice of an attending physician or surgeon, and then executes a valid, general and unconditional release to the original tort feasor, in full settlement for all present and future claims and causes of action, such release operates as a bar to an action against such physician or surgeon for such malpractice.
ERROR to the Court of Appeals of Greene county.
On February 11, 1930, the plaintiff in error, Dorothy Tanner, was seriously injured while riding as a passenger in an automobile owned and operated by S.M. Billiter. Subsequently she filed two actions. The first was against Billiter to recover compensatory damages for the injuries she sustained by reason of the negligent operation of the automobile. The second was against the defendant in error, Dr. Paul Espey, for the recovery of damages resulting from his alleged malpractice as a physician and surgeon while treating her injuries.
During the pendency of these actions the claim against Billiter was compromised, and that suit was dismissed upon the execution of the following release:
"FULL SETTLEMENT FOR PERSONAL INJURY."I, Dorothy Tanner, hereby acknowledge payment to me in hand this day by Simon M. Billiter of the sum of Seven Thousand Dollars ($7,000.00) and in consideration of the said payment I do hereby release and forever discharge the said Simon M. Billiter and Lucille Garrison from all my claims and causes of action I now have or hereafter may have against them on account of injuries sustained by me oil or about February 11th, 1930.
"I understand and agree that the said payment is the sole consideration for this release and is in full settlement of all my claims and causes of action against Simon M. Billiter and Lucille Garrison and there are no agreements or promises not expressed herein.
"Witness my hand and seal this 11th day of June, 1931, at Cincinnati, Ohio.
"(Signed) DOROTHY R. TANNER (Seal).
"The foregoing was read by Dorothy Tanner, who stated to the undersigned that she understood it, and knew she was signing away her right to all claims for damages therein referred to: that she was satisfied with the settlement and that she signed it of her own free will.
"(Signed) ALMA SCHEU.
"(Signed) OVERTON D. JACKSON.
"(Signed) W. DONALD HALL."
Thereafter Dr. Espey filed his answer in the suit in which he was the defendant, and for his second defense he pleaded the above release. To this defense the plaintiff interposed a demurrer on the ground that this release constituted no defense to this action.
The Court of Common Pleas overruled the demurrer and rendered judgment for the defendant.
Error was prosecuted to the Court of Appeals, and the judgment of the trial court was affirmed.
The case is in this court by reason of the allowance of a motion to certify.
Mr. M. Froome Barbour and Mr. W. Donald Hall, for plaintiff in error.
Messrs. McMahon, Corwin, Landis Markham, for defendant in error.
The first contention of the plaintiff in error is that Billiter was not liable for the aggravation resulting from the alleged malpractice of Dr. Espey. She bases this view upon the theory that her claims against Billiter and Dr. Espey are separate and distinct causes of action because the first is based upon tort and the second upon breach of contract. However, the great weight of authority is to the contrary. The general rule is that where one who has suffered personal injuries by reason of the negligence of another exercises reasonable care in securing the services of a competent physician or surgeon, and his injuries are thereafter aggravated or increased by the negligence, mistake, or lack of skill of such physician or surgeon, the law regards the negligence of the wrongdoer in causing the original injury as the proximate cause of the damages flowing from the subsequent negligent or unskillful treatment thereof, and holds him liable therefor. 8 A. L. R., 507.
In Ohio the same rule was definitely enunciated in the case of Loeser v. Humphrey, 41 Ohio St. 378, 52 Am. Rep., 86, and stands unreversed and unmodified. The syllabus reads:
"L. Co. carelessly and negligently left their horse, which was harnessed and hitched to their wagon, standing in a public street without being properly tied or guarded. The horse ran away, and the wagon violently collided with the wagon of H., in which he was sitting, whereby he received severe bodily injury. At the time of his injury H. was free from contributory negligence. Immediately after his injury he employed a physician of 'good standing and reputation,' placed himself under his treatment, and followed his directions. Held, —
"1. That although the physician may have omitted to apply the remedy most approved in similar cases, and by reason thereof, the damage of H. may not have been diminished as much as it otherwise would have been, he may still recover of L. Co. for his actual damage.
"2. That the collision was the proximate cause of the damage."
The second contention of the plaintiff in error is that the general and unconditional release given to Billiter in full settlement for all present and future claims and causes of action arising out of the collision does not operate as a bar to the action against Dr. Espey.
It is a fundamental rule of law that but one satisfaction can be exacted for the same demand. Billiter was liable for all of the plaintiff's injuries including the aggravation thereof. She saw fit to give Billiter a release in full for all claims and causes of action, presumably because she considered her total damages to be $7,000, and knew he was fully liable therefor.
In 50 A. L. R., 1108, appears the following statement of the general rule:
"In the majority of the few cases involving this subject, wherein it has appeared that one injured through the fault of another has released the person responsible for the injury by an agreement relinquishing all rights to recover from such person on account of the injury, it has been held that the release operates as a bar to an action by the injured person against a physician who has treated the injury, to recover for malpractice in connection with the treatment. The basis for the decisions seems to be, with one exception, that, since a recovery may be had against the person causing the injury for malpractice by the physician, the injured person, in settling with him, is receiving full compensation for all injuries arising out of the accident, and consequently cannot recover again from the physician."
In conformity with the foregoing generally accepted views the judgment of the Court of Appeals must be affirmed.
Judgment affirmed.
ALLEN, STEPHENSON, JONES, MATTHIAS, BEVIS and ZIMMERMAN, JJ., concur.