WISDOM, Circuit Judge.
This is an appeal from an order of the United States District Court of the Eastern District of Louisiana dismissing, on a plea of prescription, the plaintiff's action for personal injuries based on allegations of malpractice. The decision turns on whether the one year prescription for torts or the ten year prescription for contracts applies. We hold that a malpractice suit sounds in tort, and we affirm the judgment of the district court.
The defendant, Dr. Glenn E. Comstock, is a licensed physician and surgeon, now practicing in New Orleans, Louisiana. Before World War II Dr. Comstock practiced in Gary, Indiana. The plaintiff, Stephen J. Kozan, a resident of Indiana, was one of the defendant's patients. Nineteen years ago Dr. Comstock treated a skin abrasion on Kozan's right leg. A cancer developed. April 21, 1940, Kozan's
Kozan filed suit against Dr. Comstock in the Lake Circuit Court of Lake County, Indiana on July 14, 1941. The defendant was never served. At the time, Dr. Comstock was on active duty as a medical officer in the United States Army and he served in this capacity during World War II. On March 17, 1954, the Lake Circuit Court ordered the case dropped from the docket, taxing the plaintiff with costs. There was no docket entry between the time when the suit was filed and the time when it was dropped. Kozan filed the present suit October 3, 1958 in the United States District Court for the Eastern District of Louisiana. On December 1, 1958, the Indiana court expunged the 1954 order and reinstated the suit on the pending calendar.
The suit is in federal court on the basis of diversity of citizenship. In diversity cases federal courts are bound by the conflict of law rules of the state in which they are sitting. Wells v. Simond Abrasive Co., 1953, 345 U.S. 514, 73 S.Ct. 856, 97 L.Ed. 1211, 1214; 28 Tul.L.Rev. 856; Metropolitan Life Ins. Co. v. Haack, D.C.E.D.La.1943, 50 F.Supp. 55.
The problem then is the determination of the proper Louisiana conflict of laws rule. Article 13 of the Louisiana Code of Practice provides: "The forms, the effects, and the prescription of actions, are governed by the law of the place where they are brought * * *" This article expresses the general rule, supported by ample Louisiana authority,
The principle that the prescriptive law of the forum governs is not without exceptions. If a foreign statute of limitations not only bars the remedy but extinguishes the substantive right as well, then the forum will apply the limitation period of the foreign jurisdiction.
The serious question before us is determining which prescriptive period is applicable. If the action sounds in contract the prescriptive period is ten years.
Louisiana courts have not passed directly on the question. The plaintiff cites various cases to support his contention that it is a contract suit.
The plaintiff argues that the O'Ferrall case established that the physician-patient relationship is one of contract and if a physician may sue for his fee in contract then the patient should have a corresponding right to sue in contract.
We find that the Louisiana cases are inconclusive, although the author of a thoughtful note in 23 Tulane Law Review 536 (1948) states that Article 2315 and 2316
Decisions in other states may be divided into three categories.
The causes of action in tort and in breach of contract for malpractice are
It is the nature of the duty breached that should determine whether the action is in tort or in contract. To determine the duty one must examine the patient-physician relationship. It is true that usually a consensual relationship exists and the physician agrees impliedly to treat the patient in a proper manner. Thus, a malpractice suit is inextricably bound up with the idea of breach of implied contract. However, the patient-physician relationship, and the corresponding duty that is owed, is not one that is completely dependent upon a contract
We do not mean to say that there can never be a contractual action against a physician. Generally, a physician undertakes only to utilize his best skill and judgment. When he negligently fails to do so he may have committed a tort. However, a physician may, by express contract, agree to effect a cure or warrant that a particular result will be obtained. In such instances an action in contract may lie against a physician.
Since we hold that this suit sounds in tort, the plaintiff's cause of action was barred one year after the discovery of the injury, unless prescription was somehow interrupted. It is plaintiff's contention that filing suit in Indiana on July 14, 1941 interrupted prescription. If suit were timely filed in Indiana this would have interrupted the running of prescription in Louisiana.
Two other points raised by the plaintiff may be dispensed with briefly.
The plaintiff asserts that the Indiana statute of limitations did not run, because the defendant was absent from the state while this cause of action was pending in the Indiana court.
The final argument of the plaintiff is that the "Full Faith and Credit" clause of the United States Constitution, art. 4, § 1, requires that we entertain this suit. The clause has never been interpreted to require that a federal district court hear a cause of action that is clearly barred by the prescriptive rules of the state in which the court is sitting. The plaintiff has shown us no reason why this case falls outside the general rule that matters of prescription are subject to the lex fori.
JOHN R. BROWN, Circuit Judge.
I concur in the result.
"If after the commencement of an action, the plaintiff fails therein from any cause except negligence in the prosecution, or the action abate or be defeated by the death of a party, or judgment be arrested or reversed on appeal, a new action may be brought within five (5) years after such determination, and shall be deemed a continuation of the first, for the purposes herein contemplated."
Several states allow the patient to sue in either tort or contract and thus give him the benefit of a longer period of limitations. Alabama and Georgia look upon the relationship as contractual in nature and allow the plaintiff to sue for breach of contract where the cause of action would otherwise be barred by the shorter limitation on actions to recover for personal injuries. Knowles v. Dark & Boswell, 1924, 211 Ala. 59, 99 So. 312; Sellers v. Noah, 1923, 209 Ala. 103, 95 So. 167; Stokes v. Wright, 1917, 20 Ga.App. 325, 93 S.E. 27. In Minnesota if the plaintiff pleads a contract then the six year statute, rather than the two year statute, applies. Finch v. Bursheim, 1913, 122 Minn. 152, 142 N.W. 143. These states recognize that a cause of action sounding in either tort or contract may arise out of the same transaction and the form of the petition is determinative. 74 A.L.R. 1260; 151 A.L.R. 1031.
Many jurisdictions have recognized the fact that an action for malpractice is neither a purely tortious or contractual action, but is a hybrid and expressly provide a particular limitation for such actions. See, e. g., Ark.Stat. § 37-205; N.Y.Civil Practice Act § 50, subd. 1. Missouri has such a statute and has held that this statute barred a malpractice action after two years even though the plaintiff framed his petition in contract terms. Barnhoff v. Aldridge, 1931, 327 Mo. 767, 38 S.W.2d 1029, 74 A.L.R. 1252. Where there is an express statute pertaining to malpractice suits there would seem to be no difficulty. However, if the statute begins to run when the negligent act occurs then problems arise because the patient may not discover his injury until after the running of the limitation period. To alleviate the harshness of this results even some of the states having an express statute governing malpractice suits have allowed plaintiffs to sue in implied contract in order to secure the benefit of a longer period of limitation. Robins v. Finestone, 1955, 308 N.Y. 543, 127 N.W.2d 330; Note, 2 N.Y.L. Forum 121 (1956); Note, Syracuse L.Rev. 165 (1955). See also The Statute of Limitations Applicable to Malpractice Actions in New York, 11 N.Y.U.Intra.L.Rev. 190 (1955).
Indiana is now one of the states which has a specific limitation on actions against physicians. "No action of any kind for damages, whether brought in contract or tort, based upon professional services rendered or which should have been rendered, shall be brought, commenced or maintained, in any of the courts of this state against physicians, surgeons, hospitals, sanitariums, or others, unless said action is filed within two (2) years from the date of the act, omission or neglect complained of." Ind.Stat.Ann. § 2-627 (Burns, 1946). This statute became effective 90 days after its date of enactment on March 6, 1941. Thus, though the statute was not in effect when the plaintiff's cause of action arose, it was in force before plaintiff filed suit in Indiana. The question of whether a limitation statute is retroactive is a difficult one. See 74 A.L.R. 1265 and 151 A.L.R. 1034. As we have already decided that the Louisiana law of prescription applies, we need not determine whether the Indiana statute barring suits after two years was retroactive in its applicability. In addition, the plaintiff filed suit in Indiana within two years from the time his leg was amputated. Prior to the enactment of this statute, the Indiana position on which statute of limitations applied to malpractice suits was not clear. The limitation period for personal injuries is two years. Ind.Stat. Ann. § 2-202 (Burns, 1946). The period for contracts not in writing is six years. Section 2-601. An old case holds that the action is one in contract. Staley v. Jameson, 1874, 46 Ind. 159, 15 Am.Rep. 285. This position was restricted by a later case which held that an action for malpractice was an action for personal injuries that did not survive the death of the patient. Boor v. Lowrey, 1885, 103 Ind. 468, 3 N.E. 151, 53 Am.Rep. 519. Then, the court in Lane v. Boicourt, 1891, 128 Ind. 420, 27 N.E. 1111, said that despite the Boor case malpractice suits could be brought in either tort or contract. However, the federal court for the 6th Circuit has indicated that the two year limitation would have been applied had the question again been raised in Indiana. Baltimore & Ohio Railroad Co. v. Reed, 1915, 6 Cir., 223 F. 689. It is clear that malpractice suits are now governed by the specific Indiana statute and must be brought within two years. Guy v. Schuldt, 1956, 236 Ind. 101, 138 N.E.2d 891.
Thus, if the Indiana law of interruption applied, the correct application would be to interrupt the running of the limitation period while the defendant was absent from the state. The absence referred to in the statute applies to absence while in military service. Gregg v. Matlock, 1869, 31 Ind. 373.