allowing plaintiff to recover contract damages for physician's malpractice when statute of limitations barred recovery in negligence
How later courts described this case
- allowing plaintiff to recover contract damages for physician's malpractice when statute of limitations barred recovery in negligence
Written by the judges who cited it.
The opinion
O’Malley, J. (dissenting).
I dissent in so far as the first cause of action is concerned. Its allegations are to the effect that the defendant with knowledge that the forceps remained within the body of the plaintiff, carelessly, negligently and in violation of his duty to inform the plaintiff of such fact, failed and refused so to do, concealed it from the plaintiff and permitted the instrument to remain within her body; and as it is further alleged that this was all without the knowledge of the plaintiff, there was an act of continuing malpractice, against which the Statute of Limitations would not commence to run until either the defendant performed his duty or the plaintiff learned or should have learned of said condition.
I, therefore, vote to affirm the order appealed from in so far as the same denies the motion to dismiss with respect to the first cause of action, and to reverse so much of said order as grants the motion' to dismiss the second cause of action, with leave in each instance to the defendant to raise such defense by way of answer pursuant to rule 108 of the Rules of Civil Practice.
Upon plaintiff’s appeal: Judgment and order so far as appealed from reversed, with costs, and the motion denied, with leave to defendant to answer within twenty days from service of order upon payment of. said costs.
Upon defendant’s appeal: Order so far as appealed from reversed, with ten dollars costs and disbursements, and motion granted.