Swankowski v. Diethelm

Conn, J. The trial court sustained the demurrer of defendant to plaintiff’s petition and, plaintiff not desiring to plead further, her petition was dismissed and judgment of dismissal and for costs was entered. The material allegations in plaintiff’s petition disclose that an earlier action had been filed in the Court *272 of Common Pleas by plaintiff against defendant and that the demurrer of defendant to her petition in that action was sustained and said action dismissed September 9, 1952. It appears further that within one year from the date of dismissal of the earlier action, plaintiff filed her petition herein and for a cause of action alleged that on March 1, 1943, defendant performed a surgical operation on plaintiff for which professional services he was paid a stipulated amount; that defendant carelessly and negligently permitted a surgical needle, which he had employed in the performance of such operation, to remain in plaintiff’s abdomen after the incision had been closed; and that subsequently, on November 30, 1950, said needle was removed by another surgeon. Plaintiff alleges further that defendant “knowingly, intentionally and fraudulently” failed to remove said needle and knowingly permitted it to remain in the abdomen of plaintiff with intent to deceive plaintiff; that plaintiff relied on defendant to employ proper and accepted means known and employed by the medical and surgical profession in performing said operation and was not advised and did not learn of the alleged negligence of defendant until November 18,1950; and that plaintiff sustained damages as the direct result of defendant’s negligence and deceit. Prom the judgment of the Common Pleas Court sustaining the demurrer of defendant and dismissing plaintiff’s petition, plaintiff appealed on questions of law and assigns as error that the judgment sustaining the demurrer was contrary to law. It is admitted that a prior action had been begun against defendant for malpractice and that a demur-rer to the petition in that case had been sustained on the ground that the action was barred by the one-year *273 statute of limitations. (Section 2305.11, Revised Code.) Where a petition is challenged by a general demurrer, as in the instant case, the issue thus raised is the legal sufficiency to state a cause of action against the defendant. It is contended by plaintiff that the petition sets forth a right of action in deceit and that plaintiff is entitled to recover on the ground of fraud. Under the statute of limitations, an action for fraud may be brought within four years after the cause of action accrued, or the fraud is discovered. (Section 2305.09, Revised Code.) A right of action in deceit, as in torts generally, is grounded on “a primary legal right in plaintiff, a corresponding primary legal duty on defendant to observe that right, and a breach of that duty by defendant,” by reason of which plaintiff sustained damage. In contrast with a right of action as above defined, a cause of action has been defined as comprising “every fact necessary to the right of relief prayed for.” (Bouvier’s Law Dictionary.) Or as defined in Tinker v. Sauer, 105 Ohio St., 135, 136 N. E., 854: “A cause of action is the matter for which an action may be brought, and embraces the facts which it is necessary to establish in order to sustain a claim for judicial relief.” The form or right of action should not be confused with cause of action. They are not interchangeable. 1 Ohio Jurisprudence, 272, Section 2; McGuire v. Corn, 92 Ohio App., 445, 449, 110 N. E. (2d), 809. Is the cause of action set up in plaintiff’s petition one in deceit or one in malpractice? A correct answer to this question is necessary to precisely determine the issue before us. When plaintiff obtained the services of defendant as *274 physician to perform a surgical operation, she had the legal right and was entitled to the exercise of reasonable care, skill and knowledge on the part of defendant as such physician, in the practice of his profession and, coextensive with that right, the defendant owed plaintiff the legal duty to use recognized standards of professional knowledge and skill and also to exercise reasonable care and requisite diligence for the safety and physical well-being of plaintiff, failing in which the defendant was answerable in damages. Assuming the foregoing is a correct statement of the rights of plaintiff and duties of defendant, would not a violation of duty on the part of defendant, with resulting damages, fall within the definition and meaning of the term “malpractice”? It is our opinion that this question should be answered in the affirmative. As further bearing on the issue presented, it is pertinent to, keep in mind that a general demurrer tests the substance of a pleading and searches its character substantially more than its form. In other words, a demurrer is not concerned with the form of action pleaded, but rather with the substance of the claim asserted and the relief prayed for. 31 Ohio Jurisprudence, 678, Section 118. In Gillette v. Tucker, 67 Ohio St., 106, 65 N. E., 865, 93 Am. St. Rep., 639, the court gave recognition to this principle of procedural law and adjudged the issue presented on this basis — the substance and not the form of the action. In the above case, notwithstanding the relationship between a doctor and his patient was contractual, it was held that where the patient brings an action for alleged breach of contract, arising by reason of negligence in its performance, such action is not one on the contract but one for malpractice. See, also, Andrianos v. Community Traction Co., *275 155 Ohio St., 47, 97 N. E. (2d), 549, whore it was held: “1. A special statutory provision which relates to the specific subject matter involved in litigation is controlling over a general statutory provision which might otherwise be applicable.” In the above action, Andrianos was a fare-paying passenger of defendant and sustained personal injuries by reason of the manner in which the bus was operated. For such breach of contract for safe passage, an action was brought to recover damages more than two years after the plaintiff received his injuries. The trial court sustained the demurrer of defendant on the ground that the two-year limitation was applicable.. This court reached the conclusion that the six-year limitation applied. The Supreme Court affirmed the judgment of the Common Pleas Court. In the opinion of a majority of the court, the petition of plaintiff, when taken by the four corners, sets up a cause of action in malpractice, and the allegations of fraudulent misrepresentation and of intentional concealment of the fact that the needle had been intentionally left in the abdomen of plaintiff do not transmute or change the cause of action from one in malpractice to one in deceit. The judgment is affirmed and the cause remanded for execution for costs. Judgment affirmed. Fess, J., concurs. Deeds, J., dissents.