
    Searer v. Lower.
    
      Malpractice — Physician and patient — Evidence to conform substantially to allegations of petition — Insufficient evidence that gauze left in wound by surgeon — Proof necessary that gauze proximate cause of injuries alleged — Surgeon’s negligence proximately caused injury not to be inferred, when — Inference resting upon another inference, not proof of inferred fact — Negligence of surgeon not inferred from gauze on exterior of wound, when — Statute'of limitations runs from termination of professional relationship — One year statute applies where i surgeon employed for single operation — Action not brought until three years after operation.
    
    1. Proof of malpractice on the part of a surgeon should conform substantially to the allegations of the petition.
    2. In an action against a physician for malpractice evidence that he had not removed gauze from plaintiff’s abdominal cavity after performing operation, as alleged in petition, held insufficient for jury.
    3. In an action against a surgeon for malpractice, claiming that the surgeon failed to remove gauze from plaintiff’s abdomen after operation, held, that plaintiff must submit expert proof, or at least proof of legal character, showing that the gauze was proximate cause of injuries alleged.
    4. In an action against a surgeon for failure to remove gauze from plaintiff’s abdomen after operation, the fact that surgeon’s alleged negligence proximately caused plaintiff’s injuries is not to be inferred in the absence of competent proof eliminating all other causes which might produce results complained of.
    5. An inference resting upon another inference cannot be legal proof of the truth of the inferred fact.
    6. In an action against a surgeon for malpractice, with claim that the surgeon had left gauze in plaintiff’s abdomen after an operation proximately causing injuries alleged, the fact that particles of gauze were found on the exterior of the wound held insufficient to raise inference sufficient to take question of surgeon’s negligence to jury.
    
      7. The statute of limitations begins to run against a right to sue and recover from a surgeon for malpractice when the professional relation between the surgeon and patient has terminated.
    8. Where a surgeon was employed specially to perform a single operation, the one-year statute of limitations barred a malpractice action brought against him for failure to remove gauze from plaintiff’s abdomen, not brought until three years after the operation.
    (Decided March 28, 1927.)
    Error: Court of Appeals for Cuyahoga county.
    
      Messrs. Hedrick & Hedrick, and Mr. L. J. Myers, for plaintiff in error.
    
      Messrs. Cook, McGowan, Foote, Bushnell & Burgess, for defendant in error.
   Sullivan, P. J.

This cause comes into this court on error from the court of common pleas of Cuyahoga county. It is sought to reverse the judgment of the court on the ground that it committed prejudicial error in sustaining a motion to direct a verdict for the defendant, William E. Lower, at the close of plaintiff’s evidence, based upon the claims that there was no evidence submitted of any negligent act on the part of the defendant, and that the action, being one for the recovery of damages for malpractice on the part of defendant, a physician and surgeon, was barred by the statute of limitations. A motion for a new trial was filed and overruled, and judgment was entered for the defendant, and hence arise these proceedings in error.

The petition, seeking for the recovery of $50,000, was filed by the plaintiff; John Searer, August 15, 1924, and the amended petition April 16, 1925. In the latter pleading it was alleged, amongst other things, that the defendant held himself ont as a surgeon skilled in the practice of his profession; that on the 10th of August, 1921, and for some time prior thereto, the plaintiff; was suffering from some affliction, the character of which was uncertain, and the defendant, Dr. Lower, was employed by him to treat and cure him, if possible, of the malady; that after an examination by the surgeon it was discovered a surgical operation was necessary; and that on the 15th day of August, 1921, at Mt. Sinai Hospital, Cleveland, Ohio, the defendant performed a surgical operation on plaintiff and removed a kidney stone from his left side; that on the 31st day of the same month he performed another surgical operation upon the right side and removed a kidney stone therefrom; that incident to the performance of said operation the defendant inserted in plaintiff’s abdominal cavity a quantity of cheese cloth or gauze, without the knowledge or consent of plaintiff, and, in violation of professional obligations, negligently and carelessly left the cheese cloth or gauze deposited in plaintiff’s abdomen, and, by. way of malpractice, closed the opening made in the abdomen without removing the cloth or gauze.

It is further alleged in the amended petition that on September 17, 1921, the incision had entirely closed and the patient was removed to his home; that in about one week after his return the wound reopened, and for about a week there were certain discharges, but that thereafter the incision healed and remained closed until January 13, 1922, when it again broke open and discharged, and, in addition to pus and fluid, certain pieces of gauze, which it is claimed the surgeon had failed to remove, appeared on the wound. It is further alleged that on October 20, 1923, the defendant performed another operation upon plaintiff and removed said cheese cloth or gauze, and that thereupon the defendant continued to treat plaintiff until November 20, 1923, at which time the patient was discharged.

It is then alleged that as a result of the careless and negligent act of the surgeon in failing to remove the cloth and gauze from the abdomen, and in allowing the gauze to remain in the abdominal cavity for a period of more than two years, he suffered great pain and agony and required constant medical attention, by reason of which negligent act he was unable to engage • in employment. And it is further alleged that he suffered permanent injuries because of the premises.

The defendant filed an answer to the amended petition denying any malpractice, and asserting, as a further defense, that the cause of action was barred by the statute of limitations, which takes effect one year from the accruing of the cause of action, and it is alleged in the answer that the cause of action accrued more than one year prior to the filing of the petition, the amended petition, and the issue and service of summons thereon.

These references to the amended petition are made for the purpose of noting that it alleges the deposit of the cheese cloth or gauze in the abdominal cavity, and charges that it remained there for a period of more than two years, and that on October 20, 1923, the defendant surgeon, finding it so deposited, removed it, and, in substance, that the removal healed the patient.

It is to be further noted from the allegations of the amended petition that the injuries complained of resulted from these specific acts of negligence charged in the petition, and it is significant that there is no allegation that the negligent act was the proximate cause of the injuries for which recovery is sought, but a fair interpretation of the allegations is that the deposit of the foreign substance and its failure of removal for a period of more than two years caused the injuries.

Now, it follows that the proof of malpractice on the part of the surgeon should conform substantially to the allegations of the petition, the substance of which is herein set forth.

From an examination of the record the surgeon opened and closed the abdominal cavity in August, 1921, and from this date until. October 20, 1923, the abdominal cavity remained closed, but on this date it is unchallenged that upon the reopening of the cavity there was no cheese cloth or gauze whatsoever therein. This fixed fact is significant in the face of the allegation of the petition that on October 20, 1923, the surgeon removed the cheese cloth and gauze. Thus there is no evidence to sustain the allegation of removal, and consequently no evidence of the deposit and the failure to remove. In other words, it is indisputable that the cheese cloth and gauze used in the operation of August, 1921, was then and there removed.

The claim that particles of-gauze were found on the surface of the healing wound would, at most, be but an inference that the gauze was left in the cavity, but this inference, being shown to be based on no fact, ceases to be an inference. The exposure of the cavity in October, 1923, destroys the supposition that the gauze in the cavity was a fact. The theory of the petition, is that the gauze was there and was never removed until October, 1923. So from an analysis of the theory of the petition, and the evidence offered to support it, there is no evidence that denominates the claim of plaintiff as a cause of action. The gauze on the surface of the healing wound, in the face of the established fact, forces the conclusion that in the process of treatment after the operation particles adhered to the unhealed incision, for the discovery of October, 1923, shows that the presence of the gauze was from an external rather than an internal cause, and hence it is our judgment that there is no evidence of legal substance that the cheese cloth and gauze were not removed from the abdominal cavity in August, 1921, the date of the first operation.

It must also be observed from an examination of the amended petition that there should be proof tendered to support the allegations that the deposit of the gauze and its failure of removal were the proximate causes of the injuries complained of. We know of no exception to the rule, in cases of damages for breach of duty, requiring proof of proximate cause. The plaintiff claims that to the lay mind the mere presence of the gauze is sufficient upon which to base a verdict for the recovery of damages, on the ground that the negligent act complained of resulted in the injuries. There ¡may-have been numerous causes, some of which were detailed by the defendant, as to why it was liecessary to perform the operation of October, 1923. Without any medical proof as to proximate cause,, the jury would be left to wander at will and make its own selection as to the specific cause of the injuries complained of. From the record, other causes than that of the gauze might naturally intervene. The only evidence that could sustain the verdict would be evidence that the negligent act complained of produced the injury. The absence of such testimony would leave the most vital legal point in the case to the unguided action of the jury. The petition alleged that the gauze produced the injury. There is no proof in the record to sustain this allegation, either expert or lay, and in that status of the case how can it be said that there would be any foundation upon which the jury might base its verdict as to the real question in the case?

We think the determination of that question is purely scientific, and would necessitate the character of the gauze, its condition, and the reason for its affecting injuriously the patient when embedded in a vital organ. We think it was the duty of the plaintiff to submit expert proof, or at least some proof of legal character, showing the nexus between the gauze and the injuries alleged to be directly attributable to its presence in the abdominal cavity. It would be a dangerous doctrine to open the door on such a vital question as proximate cause to the conjecture, inference, and discretion of the jury, when its conclusion, represented by its verdict, must be based upon legal evidence. There is no inference derivable from the testimony in the record that the gauze was the sole cause of the injury. At best, it can only be said that it might be one of the causes which a lay mind might select.

To assert that the jury may infer the proximate cause is unwarrantable, in the absence of competent proof eliminating any other cause or causes which might exist and prejudice the results complained of. Therefore, to give the jury its selection and burden it with the duty of elimination appears upon its face to be contrary to sound principles of law, as they apply to trial procedure.

Under the proof, the presence of gauzie in the cavity is based upon the inference arising from the fact of alleged remnants adhering to the external wound. That inference is based upon the inference that the gauze on the outside came from the inside, and nowhere else. That is an inference resting upon another inference, a doctrine finding no favor in Ohio or elsewhere, because it lacks the evidentiary character and quality of legal proof. The inference itself, however, has no foundation, for the third operation leaves no proof to support the allegation that the gauze was left there originally and removed in October, 1923.

This situation makes inapplicable Zilke v. Johnson, 22 N. D., 75, 132 N. W., 640, Ann. Cas. 1913E, 1005; Wynne v. Harvey, 96 Wash., 379, 165 P., 67; Manley v. Coleman, 22 Ohio Law Rep., 242, and Palmer v. Humiston, 87 Ohio St., 401, 101 N. E., 283.

In the Manley case, supra, it is well to note the language of the court, which is that the plaintiff could recover if the plaintiff suffered any damage as the proximate result of the alleged negligence. The case at bar, scarcely reaches the question of proximate result, because from the operation of October, 1923, there was no gauze in the cavity. That a surgeon would be liable for any damages resulting from failure to remove gauze there can be no question, but there must be proof that the damage suffered is the proximate result, and there must be legal proof to support the allegation that the foreign substance was not removed at the time of the operation.

Therefore, with these views, it is our judgment that the court committed no prejudicial error in sustaining the motion to direct a verdict for the defendant on the ground of failure of proof.

The second ground upon which the court below directed a verdict for the. defendant is that the suit is barred by the statute of limitations, which requires in malpractice cases that they must be brought within one year from the time the cause of action accrued. The contract of employment between the surgeon and patient is the determining factor.

In Gillette v. Tucker, 67 Ohio St., 106, 65 N. E., 865, 93 Am. St. Rep., 639, we quote from the third paragraph of the syllabus, as follows:

“The statute of limitations does not commence to run against a right to sue and recover on account of such want of skill, care, and attention, until the case has been so abandoned, or the professional relation otherwise terminated.”

Under the record in the instant case, the surgeon employment commenced about the time of the operations in August of 1921. The plaintiff, as disclosed by the evidence, had a regular physician attending him in his home town, and the defendant in this case was employed specially to perform the operations of August, 1921. These operations were performed under the contract and the employment then and thereupon ceased, and thus the contract then and there ended, as the patient returned to the care of his own physician in his own home, whose recommendation had secured the employment of the defendant for the specific purpose of performing the operation. A year from that date would be August, 1922, in which period of time the action was not commenced, although it had accrued either at the end of the employment in August, 1921, or within a short time thereafter when knowledge of the things complained of came to the plaintiff’s mind. If the cause of action accrued only from the time of knowledge on the part of the plaintiff of the negligence complained of, then the action, under the statute, ought to have been commenced within the period of a year from the acquirement of this knowledge, but, as before stated, the action was not commenced until August 15, 1924, and the amended petition not filed till April 16, 1925.

Able counsel for plaintiff in citing the Gillette ease, supra, quotes as follows :

“Each day’s failure to remove the sponge was a fresh breach of the contract implied by the law. The removal of the sponge was a part of the operation, and in this respect the surgeon left the operation uncompleted. ’ ’

This situation cannot apply to the instant case, for the reason that the record shows a special employment ending with the performance of the operation, and because of the failure of substantive proof to show the presence of the sponge.

The case of Palmer v. Humiston, 87 Ohio St., 401, 101 N. E., 283, does not apply for the same reason, because in that case the court said that the removal of the sponge is a part of the operation. There is no such status in the case at bar, because the third operation showed that no gauze was removed because no gauze was there.

It is well settled in Ohio that the statute of limitations does not begin to run until the termination of the relationship, and only from the time when the employment ceases. This doctrine is laid down in Bowers v. Santee, 99 Ohio St., 361, 124 N. E., 238. We quote from the syllabus as follows:

“In an action for a breach of the contract in such case, the statute of limitations does not begin to run until the contract relation is terminated.” We quote as follows from the language of the court:
“The patient relies almost wholly upon the judgment of the surgeon, and under the usual circumstances of each case is bound so to do, and if the injury is not reduced, and normal condition restored, as fully or as speedily as expected, the patient is still at liberty to rely upon the professional skill, care, and treatment to complete such recovery so long as the surgeon continues his employment with reference to the injury.”

We quote further from page 368 (124 N. E., 240), as follows:

“The patient had a right to rely upon the surgeon doing such things to restore the leg as reasonable care and skill would require, and he has a right to continue so to rely until the contract of employment is at an end.”

The record shows by the plaintiff’s testimony that he was discharged by Dr. Lower in September, 1921, after the second operation, and that he thereupon returned to his home in Akron, and again went under the care of his family physician, Dr. Rankin. This testimony upon the question of the end of the employment is similar to that of the defendant, who testifies that his employment ceased in August, 1921. Thus, from the facts in the case, it seems perfectly clear that the statute of limitations is a bar to the action.

Holding these views it is our judgment that there is no prejudicial error in the record, and therefore the judgment of the lower court is hereby affirmed.

Judgment affirmed.

Levine, J., concurs.

Vickery, J., not participating.  