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AYERS v. MORGAN. (10/21/59)

October 21, 1959


Appeal, No. 106, Jan. T., 1959, from judgment of Court of Common Pleas of Luzerne County, July T., 1958, No. 897, in case of Chester A. Ayers v. Dr. Philip J. Morgan. Judgment reversed. Trespass for personal injuries. Defendant's motion for judgment on the pleadings granted and judgment entered for defendant, opinion by LEWIS, J. Plaintiff appealed.


Sol Lubin, with him Joseph J. Savitz, for appellant.

James P. Harris, Jr., for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Musmanno

[ 397 Pa. Page 283]


On April 20, 1948, the plaintiff in this case, Chester A. Ayers, underwent, in the Wilkes-Barre General Hospital, an operation for a marginal jejunal ulcer. He was discharged from the hospital on May 4, 1948, but the operation did not afford him the relief he had anticipated. On the contrary, he experienced pains in his abdomen which continued for several years. On January 3, 1957, he returned to the hospital for a series of tests, hoping that science might discover the cause for his unceasing discomfort. It did. At the spot which seemed to him to be the fountainhead of his suffering and misery, there was discovered a foreign substance, that is, a sponge. It had been left there by the surgeon, Dr. Philip J. Morgan, who had performed the operation nine years before.

Ayers sued Dr. Morgan in trespass, charging him with negligence in that, having opened him up to remove an ulcer, he then sealed the aperture without first removing a metallic gauze sponge which had been used in the surgery.*fn1 The defendant filed an answer denying the charge of negligence and then asked for judgment, raising the affirmative defense of the bar of the

[ 397 Pa. Page 284]

    statute of limitations (Act of June 24, 1895, P.L. 236, § 2; 12 P.S. § 34). The Court of Common Pleas of Luzerne County granted the motion and entered judgment for the defendant. The plaintiff appealed.

Assuming, as we must in this review of the proceedings, that all allegations of fact in the complaint are true,*fn2 it would be difficult to arrive at any conclusion other than that Dr. Morgan was negligent in failing to account for all the sponges he had introduced into the body of his patient before he sent him home from the hospital. The only question we have before us is: Did Ayers wait too long to bring his action of malpractice against Dr. Morgan?

The plaintiff contends that the statute of limitations could not take effect until it became a matter of knowledge to him that the surgeon had buried a sponge in his entrails. This he did not learn until January 3, 1957. Was the running of the statute, in view of the circumstances related, tolled until that date? The pertinent feature of the statute reads: "Every suit hereafter brought to recover damages for injury wrongfully done to the person, in case where the injury does not result in death, must be brought within two years from the time when the injury was done and not afterwards. ..."

This statute, as all statutes, of course, must be read in the light of reason and common sense. In its application to a given set of circumstances, it must not be made to produce something which the Legislature, as a reasonably-minded body, could never have intended. The Statutory Construction Act of May 28, 1937, P.L. 1019, Article IV, § 52, 46 P.S. § 552, states that in ascertaining the intention of the Legislature the courts may be guided by the presumption that "The legislature

[ 397 Pa. Page 285]

    does not intend a result that is absurd, impossible of execution, or unreasonable."

With so wholesomely logical and intelligent a standard of interpretation, it would be illogical and unintelligent to say that a person who does not know, and cannot know, for example, that a surgeon has negligently left a rubber tube in his body, would be denied damages because his claim for damages was filed, due to delay in learning of the presence of the tube, more than two years after the operation. That precise situation arose in the case of Byers v. Bacon, 250 Pa. 564, 566, where the lower court gave binding instructions in favor of the defendant. We reversed, Justice POTTER saying for the Court: "The negligence charged was not in the insertion of the tube, but it was in the failure to remove it at the proper time, or in the failure to give notice of its presence, that it might be removed by another, when it had served its proper purpose. It could hardly have been intended to remain permanently in the body of plaintiff, and he should have been allowed to show when and by whom the tube, which was inserted by defendant, should have been removed."

Thus, in the instant case, the negligence charged was not the use of a sponge but the failure to remove it at the proper time. Surgeons employ all manner of implements in performing their magic of restoring health and well-being to ailing humanity. Able, solicitous and ever-caring as Nature is in rebuilding broken bones, restoring wrecked tissue, and rehabilitating flaccid muscles, the expert hand of the surgeon guides the restorative procedure and, in doing so, he often must use such things as nails, screws, sponges, metallic clips and rubber tubes. If he overlooks removing the nails, unscrewing the screws, taking out the clips, withdrawing the sponges and extracting the tubes, his negligence dates from the time the extraneous

[ 397 Pa. Page 286]

    item was to have been removed and continues throughout the period he fails to perform his obvious duty. An operation is not completed until the surgeon takes away the tools with which he operates.

On this very phase of a resulting tort action, Justice POTTER said in the Byers case: "It may be that good surgical practice required it [the tube] to be kept in the wound after plaintiff was discharged from the hospital and placed under the care of his family physician. If defendant was at fault in permitting the tube to remain in the wound when it should have been removed, or in failing to give notice of its presence, the time when such dereliction of duty occurred should have been shown, as that would constitute the real injury, and would start the running of the statute of limitations. It may have been coincident with the date of plaintiff's discharge from the hospital, but not necessarily so. Then too, it should have been a question for careful consideration, as to whether the statute should properly have been regarded as running against plaintiff, until such time as he could reasonably be charged with knowledge of the fact that the tube had been overlooked and left in the wound."

The question as to when, in a tort action, the statute of limitations begins to run, was considered by this Court in the case of Foley v. Pittsburgh Des Moines Company, 363 Pa. 1, 38. Foley was killed on October 20, 1944 as the result of a gas tank explosion which had been erected by the defendant company in September, 1943. Foley's widow filed an action against the defendant company within one year following the date of her husband's death. The defendant contended that the lawsuit was tardily begun because the statute of limitations became ...

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