
    No. 129
    NETZEL v. TODD
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1744.
    Decided Dec. 27, 1926
    920. PHYSICIAN AND PATIENT — Action for malpractice not barred until one year after contract relationship between surgeon and patient has terminated.
    211. CAUSE OF ACTION — It does not constitute cause of action for physician to make false representatior-s that he has removed one of the patients’ kidneys, where physician is not guilty of any act of malpractice in failing to remove the kidney during an operation or in treatment of the patient.
    First Publication of this Opinion
    Attorneys — P. R. Taylor and George S. Myers for Netzel; Doyle & Lewis and H. M. Roberts for Todd; all of Toledo.
   WILLIAMS, J.

Adolph Netzel brought an action against Dr. George M. Todd, in the Lucas Common Pleas. The petition contained two causes of action; the first was for alleged malpractice in failing to remove a diseased kidney; and the second cause of action pleaded fraud on part of the defendant in falsely representing to the plaintiff that the diseased kidney had been removed.

At the conclusion of plaintiff’s evidence in the trial below, the court directed a verdict in favor of the defendant, from which judgment error proceedings were prosecuted. The Court of Appeals held:

1. The evidence did not disclose that there was any fraud committed which would give rise to a right of action independent of malpractice.

2. It does not constitute a cause of action for a physician to make false representations that he has removed one of the patient’s kidneys where the physician is not guilty of any act of malpractice in failing to remove the kidney during an opération or in his treatment of the patient in connection therewith.

3. In regards .as to whether the plaintiff’s action for malpractice was barred by the statute of limitations, it is well settled .in Ohio that an action for an act of malpractice committed during the continuance of the contract relation, will not be barred until the expiration of one year after the contract relatios has terminated. 99 OS. 361.

4. It seems that the relationship of patient and physician first started between the parties in 1916; that Todd operated upon the plaintiff and that from that time was treated intermittently by him; that plaintiff was told that when the pains became too severe, to send someone to see the physician and that someone was sent at various times and were given pills which th eplaintiff took until Aug. 8, 1923. On Aug. 9, 1923, plaintiff went to Cleveland, where he was operated on and the right kidney was removed. The action was brought by Netzel July 21, 1924.

5. It is certain, if plaintiff’s testimony is to be believed, that the relation of surgeon and patient • existed from the time defendant sent the pills in January 1923 until the last one was taken on,Aug. 8, 1923.

6. There was no mutual understanding that the relation of surgeon and patient should cease and no notice was ever given by the surgeon to the patient that the relation was at an end. In fact while taking the pills under the last prescription, Netzel was acting under directions .of the defendant.

7. There was some evidence tending to show that the relation of surgeon and patient existed as late as Aug 9, 1923, and the court erred in holding, as a matter of law, that the cause of action was barred by the statute of limitations.

Judgment therefore reversed.

(Culbert & Richards, JJ., concur.)  