Davis v. Bonebrake

Mr. Justice Day

dissenting.

I agree that the verdict of the jury and judgment of the trial court entered thereon must be reversed. I dissent, however, from the majority opinion in ordering a new trial, being firmly convinced that the action should *524 be dismissed. The majority, in my opinion, has fallen into two serious errors. First, the opinion in effect repeals the statute of limitations. Second, it emasculates the provisions of Rule 8, relating to the pleading and answering of affirmative claims or defenses.

I am opposed to judicial repeals of legislative enactments, and the majority opinion in effect repeals the two-year statute of limitations (C.R.S. ’53, 87-1-6) which reads as follows:

“Action barred in two years. — No person shall be permitted to maintain an action, whether such action sound in tort or implied contract, to recover damages from any person licensed to practice medicine, chiropractic, osteopathy, chiropody, midwifery or dentistry on account of the alleged negligence of such person in the practice of the profession for which he is licensed or on account of his failure to possess or exercise that degree of skill which he actually or impliedly represented, promised or agreed that he did possess and would exercise, unless such action be instituted within two years after such cause of action accrued.”

The majority opinion holding that this statute is not controlling under the circumstances disclosed by the record here, impales the defendants on the horns of a dilemma encompassed in a vicious circle. This I will demonstrate later in discussing the evidence.

I also dissent from the novel interpretation placed upon the Rules of Civil Procedure. The majority opinion has attempted to give effect to Rule 8 (d) without consideration of 8 (c). It would limit 8 (c) to averments in an answer only, whereas the rule in fact establishes mandatory procedure “in pleading to a preceding pleading Rule 8 (c) reads:

“In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of con *525 sideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver and any other matter constituting an avoidance or affirmative defense. Any mitigating circumstances to reduce the amount of damages shall be affirmatively pleaded. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the pleading as if there had been a proper designation.” (Emphasis supplied.)

A careful reading of this rule makes it quite plain that it is not limited to matters pleaded in an answer to a complaint but applies to any preceding pleading. The rule was intended to follow the old code practice making it necessary to file a reply when a preceding pleading (the answer in this case) presenting affirmative matter requires “confession and avoidance.”

Rule 9 (b) provides for averments of fraud to be stated with particularity, and this is true whether the fraud is averred in the complaint; set up as an affirmative defense in an answer, or pleaded in a reply. It is obvious from reading Rule 8 (c) that the first sentence of 8 (d) and not the second (as quoted in the majority opinion) is prevailing here. Rule 8 (d) reads as follows:

“Effect of Failure to Deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.” (Emphasis supplied.)

As applied to this case, the proper pleadings should have been as follows:

(a) The complaint alleges negligent malpractice;

(b) The answer affirmatively sets up the statute of limitations (and this requires a responsive pleading);

(c) A reply should have been filed pleading avoidance on the ground of fraudulent concealment, the cir *526 cumstances of which should have been averred with particularity.

To permit amendment of the complaint was error since such arguments anticipated the defense. It compounds the error, in my opinion, for the majority to hold that the necessary affirmative matter in avoidance is automatically in the case by operation of the rule.

I proceed next to a consideration of the evidence, or lack of it. For the plaintiff to excuse herself in failing to bring the action within the time required by the statute, it was incumbent upon her to prove by a preponderance of the evidence that she was ignorant of the fact that she had a cause of action against the defendants. Further, she must establish that such ignorance was due to the fraudulent concealment of the defendants. The fault in the majority opinion arises from the premise that fraud was injected into the case by operation of the rule rather than by particular averment. How can defendants be expected to meet the issue of fraud at the trial without having been charged therewith by affirmative pleading? And if fraud is pleaded as a mere legal conclusion (as by the amendment to the complaint in this case), how does a defendant meet it without knowledge of the particular acts charged as constituting concealment? The harm is apparent when consideration is given to the record.

An examination of plaintiff’s evidence reveals a concerted effort on her part to convince the jury of her complete and superior knowledge of the facts constituting negligence on the part of the defendants for the purpose of establishing their liability, but total ignorance of such facts as they relate to the alleged cause of action for the purpose of meeting the bar of the statute of limitations. Plaintiff was examined at great length in her case in chief on her own experience and knowledge as a nurse. She not only testified to complete familiarity with this particular operating room and all of its supplies but related that as she entered the operating room *527 she made a complete survey of all the various packs within reach of the nurses and surgeons for the operation to be performed upon her. With this background and minute description of the packs present in the operating room before the operation, the plaintiff testified on direct examination that some four or five days after the operation she noticed a lump on her abdomen and that nothing would go past it. The following questions and answers were elicited from the plaintiff:

“Q. About what size was it, Mrs. Bonebrake? A. Well, I remembered that as it came up here, it would be something like this (witness indicating). Q. About the size of a partially opened fist? A. Yes. Q. What general confirmation did it have, or present on the skin area? A. Well, it seemed like — well, as I remember it — I told you I was very sick, and my abdomen of course was distended. And as I remembered I just remembered it as a sort of a kind of a squarish or sort of rectangular — I can’t describe it just exactly. I just remembered that this was my first complaint that there was a lump there. There is something there. (Emphasis supplied.) * * * Q. Could you feel it? A. Yes, that is the way that it was (witness indicating).

On cross examination the following testimony was elicited from the plaintiff:

“Q. Now, you thought it was foreign object of some kind, didn’t you Mrs. Bonebrake? A. Well, I didn’t think you could grow something just that fast, Mr. Wagner. Q. The answer would be ‘Yes, you did think it was a foreign object of some kind.’ A. I don’t remember of saying it was a foreign object. I mean, I didn’t make acquisitions [sic] to anyone. I didn’t call Dr. Davis and say ‘Yes, you left something in me. You come and take it out,’ because at the time I really had a lot of faith in Dr. Davis, or I wouldn’t have gone to him. Q. But you believe that it was not something that was part of you, is that correct? A. Well, I felt — I mean — there was *528 something there. That was my thought, Mr. Wagner.” (Emphasis supplied.)

Further portions of plaintiff’s deposition taken before the trial indicate these questions and answers:

“Q. What did you think was found in you then prior to that second time you saw Melvin Gray? A. Well, I knew there was something the matter with me. I knew they had left some scissors in me, a pack in me, cut my guts open great big, all swollen up here. * * * Q. Did you ever say anything to them about your thought that perhaps there was a foreign body in there? A. I certainly did. Q. You did? A. Yes. Q. Which one and when? A. I talked to both of them. I talked to everybody that came in the room about that thing there.” (Emphasis supplied.)

It will be noted from the portions of the record quoted — and there are other questions and answers of a similar nature — 'that the plaintiff had reason to believe that the defendant doctors had been negligent in the performance of the first operation. With that .knowledge, if she had a cause of action and if her testimony could be believed, it accrued then and there. Plaintiff’s counsel, at the time the complaint was amended, stated to the trial court that they were attempting to include allegations which would bring them within the case of Rosane v. Senger, 112 Colo. 363 , 149 P. (2d) 372 . Counsel also rely upon that case in their brief in this court. That was an action for the negligent leaving of a gauze pad within the abdomen, but there are many distinguishing features that make the case inapplicable here. There a motion to dismiss on the pleadings on behalf of the doctors was made. The cause had not progressed to trial. In making such motion defendants admitted all of the allegations of the complaint that were well pleaded. Plaintiff Rosane’s complaint alleged she had been diligent in her efforts to obtain confirmation as to the cause of her complaints and that the doctors had concealed the true cause from her; that she did not discover the facts *529 until an operation ten years later when the gauze pad was removed. The pleadings, if sustained by the evidence, would have met the bar of the statute of limitations, and it was held error to dismiss the action on the pleadings that the court should have permitted the case to go to trial.

In the case before us all of the evidence was before the court. It was obvious on the record made that the plaintiff was not ignorant of her cause of action. Further there was no evidence that the defendants had attempted to conceal anything from her. Plaintiff states that she talked to the defendants and to everybody else who came into the room about something being left in her. Plaintiff knew personally virtually every member of the staff of the hospital, including the nurses, attendants and interns. She had access to the X-rays that were taken of her between the first and second operations. Almost a year to the day of the operation she made a visit to Central City to see the male nurse Gray, who had been in attendance at the operation. At that time she did not obtain the evidence she was seeking. It is apparent that the plaintiff was not, on that occasion, seeking to determine whether she had a cause of action, but whether she could obtain corroborating evidence which she believed would bolster her own story and be more convincing than her own account of the “squarish” or “rectangular” object which she saw and observed under the skin of her abdomen. In Rosane v. Senger, supra, it is said (page 370):

“It has been held that while generally, plaintiffs ignorance of the wrong committed can not be considered in determining when the statute begins to run, an exception to this rule is made in cases of the concealment of the cause of action. There the bar of the statute does not operate until discovery, * * *.”

If this be the rule, and I believe that it is, it applies with compelling force to the facts here. Plaintiff was *530 not ignorant of the cause of her distress, but. knew and proclaimed to any one who would listen that she believed the doctors had done her an injury and knew with exactitude when it had- been done. Her difficulty was not in the knowledge of the injury, but in the proof to establish it.

Other authorities on the subject in harmony with our views in Róseme v. Senger, supra, are:

54 C.J.S. 143, sec. 174:

“Cause of action accrues on the date of the wrongful act or omission constituting the malpractice, and limitations run from that time and not from the date of the damage caused unless the physician has been guilty of fraudulent concealment. This rule has been applied notwithstanding the full extent of the injury is not then developed.”

Goodall Co. v. Martin, 141 F. (2d) 435:

“True it is, the statute of limitations runs against a cause of action from the time of the original injury and not from the date of ensuant damage.”

Plaintiff also relies on a California malpractice case, Huysman v. Kirsch, 6 Cal. (2d) 302, 57 P. (2d) 908 , but we believe that case to be against plaintiff for on page 912 of the Pacific Reporter the California court holds:

“ * * * The negligence occurred thereafter, by reason of the surgeon neglecting to remove the tube left in the patient’s wound after it had served its purpose. This negligence continued during the entire time the tube was left in the body of the patient, and only ended upon the removal of said tube. * * * cannot this court now hold that the surgeon’s negligence continued up to the removal of said tube, and that the appellants’ cause of action then accrued and would not be barred until one year thereafter? Such is the holding of this court * *

Applying the above reasoning to the case at bar, it is established that an obstruction about which plaintiff complained was removed on September 4. Under Huys *531 man v. Kirsch, supra, the cause of action accrued on that date and would be barred in two years.

Now let us examine whether or not the statute was tolled by actions of the defendant amounting to concealment from the plaintiff as to the true nature of her injuries.- There is not one scintilla of evidence in the record of any attempt on the part of these defendants, or any one else, to keep anything from this plaintiff. The majority opinion in effect holds that the refusal of the doctors to admit the charges being preferred against them by this plaintiff during the days that she was in the hospital and subsequently is evidence of concealment. This record shows that when this plaintiff left the hospital she immediately consulted another doctor and underwent another operation within a couple of weeks after her discharge from the hospital by these defendants. At that time she was dissatisfied with them and refused to pay them. She refused to believe that the second operation was occasioned by a paralysis of the ileum, commonly known as “ileus.” Dr. McLaughlin, who performed the third operation and who testified at the trial, confirmed what had been done in the second operation because he could see the recent surgery that had been performed.

The majority ; opinion states that the doctors at all times . had refused to tell Mrs. Bonebrake the reason for the second operation. This assertion is not borne out in the record. On direct examination Mrs. Bonebrake was asked the following questions and gave the following answers:

“Q. I will withdraw that and ask if you discussed any reasons concerning the second operation or any reasons why you had to have it with Dr. Gutherie in the presence of either Dr. Davis or Dr. Niehouse, or both, do you ■remember? A. Not right now, I can’t think. Q. Would you relate any conversations with Dr. Gutherie. Did you ever ask Dr. Gutherie what reason compelled the doctor to operate on you the second time? A. Yes, I did. *532 Q. You did ask them? A. Yes. Q. Without stating what he said, did he give you a reply? A. Yes, he did.” .

In another portion of the record, on cross examination, Mrs. Bonebrake was asked the following questions and gave the following answers:

“Q. Just a moment. You haven’t answered the question. Please don’t volunteer. Let me go back to this: if you like, I could take it one by one on these doctors. During the period in question did Dr. Gutherie ever refuse to discuss your case with you? A. Now, which period were you talking about? Q. The same period between August 17, 1951, and September 4, 1951. A. Well, Dr. Gutherie, you see, didn’t see me until just a few days before the September operation. Q. Yes, but in that time did he ever refuse to discuss your condition with you? A. No.”

At still another portion of the record we have these questions and answers by the plaintiff:

“Q. What did Dr. Niehouse say to you if anything? A. Dr. Niehouse told me on the day I left the hospital — he discharged me from Rocky Mountain — he told me that I should go and see a kidney specialist or come to see him about twice a year for an examination of a right ureter because they had severed the ureter in surgery — that I might have some scar tissue which would ruin or destroy the right kidney. I should go and have that examination for that purpose.”

It will be noted from those portions of the record from the testimony of plaintiff herself and from the testimony of the doctors which need not be quoted here, that the doctors did not refuse to discuss the matter with Mrs. Bonebrake. They did, however, refuse to assent to her accusations that they had left a foreign object in her person. If that amounts to evidence of fraudulent concealment, then the horns of the dilemma are apparent. This is a classic example of a person being “damned if he does or damned if he doesn’t.” If the doctor admitted the accusation he has averted the charge of conceal *533 ment but he has “hung himself” on his own admissions. If he steadfastly denies the accusations, this according to the majority opinion, is concealment. All of the so-called evidence of concealment was perfectly consistent with the position of the defense; that the doctors had done no wrong to plaintiff and had operated on her a second time for a common post-operative complication caused by shock after the first operation. It is a settled principle of law in negligence cases that whenever the evidence is consistent with either the existence or nonexistence of negligence the matter should not be left to the jury. Bishop v. Brown, 14 Colo. App. 535 , 61 Pac. 50 . The reasoning would apply with equal force to evidence consistent with the position taken by the defendants.

It is true that in some circumstances silence alone can amount to concealment — for example, failure to disclose defects in a building or some other material matter in a transaction — but in a case such as that before us, fraudulent concealment would of necessity require some overt act or acts on the part of the doctors. We must keep in mind that this operation was viewed by three doctors, a scrub nurse, who testified for the plaintiff, and another nurse. The substance removed from the person of Mrs. Bonebrake, which the doctors contend was tissue, was taken by a nurse in a pan to a laboratory, and was examined by a laboratory technician. A complete description of the operation in narrative form was written up by one of the doctors. Hospital records and charts had to be kept. To constitute concealment would require evidence of a conspiracy between the three doctors whereby they pledged each other to secrecy and agreed to withhold knowledge from plaintiff.

It is strange that the evidence of the male nurse, Gray — vague and containing mere opinions and conclusions — fails to disclose any action or conduct of the doctors *534 which would substantiate the charge of concealment. There was no evidence of an occasion where something was said by or among the doctors, and to Gray and the other nurse as to the confidential nature of the so-called finding of the gauze pack. I cannot believe that without a nod or a word between any of the actors at the scene of the operation a pack could be removed, placed in a pan, taken to a laboratory and disposed of in some mysterious manner, without some outward sign or reaction on the part of those present. Nor can I believe the “talkative” witness Gray would stand silently in that operating room and not say a word about what he had “seen.” The doctors say nothing to him. Neither he nor the nurse commented to each other; no word is sent to the laboratory and no word comes back from the laboratory. How can this be? It would seem that there would also have to be evidence of forgery of the operating room report,, forgery and suppression of the laboratory report, substitution of X-ray plates which did not show any foreign object in the abdomen, and other overt acts too numerous to mention. The record is plain that as a former employee of the hospital Mrs. Bonebrake was free to talk to all members of the staff and had access to all of the records, none of which were ever denied her.

The record discloses that she was attended by Dr. Radetsky, Dr. Sadar, Dr. Mill, Dr. Henry, Dr. Garland, Dr. A1 Perry, Dr. Thompson, Dr. Martin, Dr. Tyler, Dr. Miller, Dr. Fairbanks, in addition to the defendants and a Dr. Good, who was a medical consultant. She had an opportunity to discuss her complaints and condition and obtain information concerning her condition from all of these persons. There is no evidence that their silence was procured by these defendants, or that they were in fact silent. They discussed her true ailments with plaintiff. If silence alone, or denial of wrongdoing, is concealment, then the doctors in this case are indeed enmeshed in a web of new legal doctrine, where silence is *535 affirmation of an accusation, and denial is proof of the fact denied.

Another statement in the majority opinion appalls me. The opinion states:

“At best plaintiff’s testimony as to the presence of a foreign body cannot arise above that of the conjecture of a non-observer of the event.”

The opinion goes further and says that:

“The law makes such testimony (as that of the plaintiff) valueless and incompetent.”

If such is the law, the jury was not given an instruction on the point nor were they instructed that plaintiff’s testimony was mere conjecture. We have several hundred folios of testimony by Mrs. Bonebrake which was certainly intended to imprint in the minds of the jury a firm conviction that there was a foreign object in her person, the outline of which she could see and the presence of which she could feel internally as well by outward pressure. It cannot be said that the jury did not predicate its verdicts upon her testimony, as much or more than upon Gray’s, which was vague and hazy and which in my opinion was completely discredited. Mrs. Bonebrake was positive in her assertions and every effort was made to give credence to her testimony by a lengthy examination as to her qualifications as a nurse. For this Court to say that her testimony was “valueless,” “incompetent” and “cannot arise above that of conjecture” without instructions to the trial court that on retrial her testimony be disallowed, or that she be allowed to testify only as to her pain and suffering, will compound error.

I am convinced that the evidence above related does not remove the bar of the statute of limitations, either by competent proof of the lack of knowledge on the part of the plaintiff of her cause of action or by competent proof that the defendants had done one thing designed or intended to keep her in the dark. The motion to dismiss the case at the close of plaintiff’s evidence on the *536 plea of the statute of limitations should have been sustained and should be a complete bar to any new trial.

As to the views herein expressed on the interpretation of Rule 8, Mr. Chief Justice Moore and Mr. Justice Holland join therein.