
    Netzel v. Todd.
    
      Malpractice—Physician not liable for false representation that patient’s kidney removed, when—Limitation of action— Action not barred until one year after contract relation terminated—Section 11225, General Code—Action not barred where evidence shows continuance of relation.
    
    1. False representations by physician that he has removed one of patient’s kidneys does not constitute cause of action, where physician is not guilty of malpractice in failing to remove kidney during operation or in treatment of patient in connection therewith.
    2. Relation of surgeon and patient is one arising out of contract, express or implied, and action for malpractice committed during continuance of contract relation will not be barred under Section 11225, General Code, until expiration of one year after termination of contract relationship.
    
      8. In action for malpractice in failing to remove plaintiff’s kidney during continuance of contract relation between surgeon and patient, where there was some evidence tending to show that relation of surgeon and , patient existed throughout period in which patient was taking pills under prescription of surgeon and during which malpractice was committed, within year of bringing action, it was error to hold as matter of law that cause of action was barred by Section 11225, General Code, prescribing one-year period of limitations.
    (Decided December 27, 1926.)
    Error: Court of Appeals for Lucas county.
    
      Mr. P. R. Taylor, and Mr. George 8. Myers, for plaintiff in error.
    
      Messrs. Doyle <& Lewis, and Mr. H. M. Roberts, for defendant in error.
   Williams, J.

An action was brought in the court of common pleas of Lucas county by the plaintiff, Adolph L. Netzel, against the defendant, Dr. George M. Todd. The petition contained two causes of action. The first cause of action was for alleged malpractice in failing to remove a diseased kidney, and wrongfully permitting it to remain in plaintiff’s body until the termination of the relation of physician and patient in August, 1923. The second cause of action incorporated the allegations of the first cause of action and then pleaded fraud on the part of the defendant in falsely representing to the plaintiff that the diseased kidney had been removed. Upon trial of the case the court below, at the conclusion of the evidence adduced on behalf of the plaintiff, directed a verdict in favor of the defendant. The plaintiff now seeks a reversal of the judgment entered thereon, upon the grounds that the court below erred in directing the verdict and in the rejection of evidence.

We are of the opinion that the evidence did not disclose that there was any fraud committed which would give rise to a right of action independent of malpractice. 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 operation or in his treatment of the patient in connection therewith.

Was plaintiff’s action for malpractice barred by lapse of time? Under Section 11225, General Code, a right of action for malpractice would be barred by the statute of limitations in one year after the accrual thereof. It is well settled in Ohio that the relation of surgeon and patient is one arising out of contract, express or implied, and 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 relation has terminated. Bowers v. Santee, 99 Ohio St., 361, 124 N. E., 238; Gillette v. Tucker, 67 Ohio St., 106, 65 N. E., 865, 93 Am. St. Rep., 639.

The court below directed the verdict upon the ground that the relation had terminated more than a year prior to the commencement of the action. The plaintiff adduced evidence tending to show the following state of facts: In December, 1916, the plaintiff had pains and swelling in the right loin above the right kidney, and went to St. Vincent’s Hospital in Toledo, where he was operated on by the defendant. The defendant made an incision over the right kidney, encountered large quantities of pus, and, either because plaintiff became too weak, or for some other reason, he was taken off the operating table without the kidney being taken out. After the operation the defendant told the plaintiff that he had removed the kidney. After plaintiff was there about three weeks he went home, upon the advice of the defendant, with instructions that he and his wife should visit Dr. Nate Hatfield, and his wife be instructed by that physician as to the manner of dressing the wound so that she could thereafter attend to the dressing in accordance with special instructions furnished by the defendant. The matter went along with plaintiff suffering from fainting spells, headaches, and dizziness until April, 1919, when he called again upon the defendant, who examined him, injected a hypodermic needle into the incision, and said he would be all right, but that in case the wound should trouble him he should call again, or, if too weak to call, should send some one to see him. Shortly after that the plaintiff sent his stepson to see the defendant and received from him a box of pills. Shortly after that the wound burst open, and plaintiff went to St.' Vincent’s Hospital, where the defendant made an examination of him and advised him to go home. In July of the same year he went to see the defendant again on account of pain, and was sent to Toledo Hospital, where, after examination, the defendant advised him to go home again, which he did. In August of the same year the plaintiff received a report from an insurance company with which he carried a policy, sent his stepson to the defendant again, and received from defendant some more pills with directions to take them whenever he had sharp pains. The plaintiff followed the directions, and about January, 1923, having moved to Cleveland in the meantime, ha wrote to the defendant, stating the situation regarding his side, whereupon defendant sent him some more pills, together with a letter, in which he directed the plaintiff to use the pill's whenever he had severe pains, and also directed him that if the pain should get too severe to go to Dr. Burch, who might open the wound for drainage purposes. Afterwards he did go to Dr. Burch, who did as directed. He also continued to use the pills, as directed, until August 8, 1923, when he took the last one, and the' next day went to the Cleveland clinic for an operation. Shortly thereafter Dr. Lower operated on him and removed the right kidney. The action below was brought by plaintiff July 21, 1924.

There is evidence in the record tending to rebut the evidence tending to establish the foregoing facts, but we have given the version of the evidence most favorable to the plaintiff. The gist of the action pleaded by the plaintiff in the first cause of action is that the defendant was guilty of malpractice in failing to remove plaintiff’s kidney during the period from December, 1916, to August 14, 1923. It is certain, if the plaintiff’s testimony is to be believed, that the relation of surgeon and patient existed from the time the defendant sent the pills in January, 1923, until the last one was taken under the defendant’s instructions on August 8th of that year, and if the duty to remove the kidney existed in December, 1916, the inference could be drawn that that duty existed during the period referred to in 1923. The jury might well have found that the defendant was guilty of malpractice in failing to remove the kidney during that period, and if so the right to recover would not be barred. This view is especially well-founded in view of the expert evidence offered by plaintiff tending to show that during the said period in 1923 proper treatment of the plaintiff required something more than the administering of pills, namely, the taking of what is known as a functional test, consisting of catheterization of the kidneys to ascertain their condition, the opening up of the abscess to allow the pus to escape, and the consideration of doing more than opening up the abscess by removing the kidney. There is evidence tending to show that there was no mutual understanding that the relation of surgeon and patient should cease and that 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, he was acting under the directions of the defendant. Under the circumstances there was some evidence tending to show that the relation of surgeon and patient existed as late as August 8, 1923, and that an act of malpractice was committed during such period in 1923. The court therefore erred in holding that as a matter of law the cause of action was barred by the statute of limitations. Of course, the plaintiff could not recover for any act of malpractice that was barred. However, we do not feel called upon at this time to determine whether any such alleged act committed prior to January, 1923, was barred or not, nor to determine at this time whether or not the relation of surgeon and patient was continuous from the first employment in December, 1916, down to August 8, 1923. These questions are not raised by the record and to declare the law upon them now would be to utter obiter dicta.

We find no error upon the face of the record except that of the court in directing a verdict for the defendant.

For the reasons indicated, the judgment will be reversed and the cause remanded for a new trial.

Judgment reversed.

Ctjlbert and Richards, JJ., concur.  