Dillon

Plaintiff W. A. Black, a doctor of medicine, performed professional services for defendant Mary Rose Dillon and her family, consisting of her husband and children, over a period from February 19, 1958, to August 21, 1958. His bill therefor was in the sum of $746 after crediting payments thereon. When the bill was unpaid, he sued. Defendant by her answer set up as a defense a malpractice suit which she had brought against Black involving surgery performed upon her and claimed as a bar to the action section 439 of the Code of Civil Procedure. The trial court decided the entire action was barred, although stating in a memorandum opinion that certain of the doctor’s charges were unrelated to the surgery for which the action was brought, The court believed that it was the legislative intent in section 439 of the Code of Civil Procedure that all claims existing between a plaintiff and defendant must be disposed of in the original lawsuit.

In this the court erred. Said section provides as follows:

A counterclaim is barred from later suit only when (1) it arises from the same transaction set forth in the complaint, (2) it tends to diminish or defeat the plaintiff’s recovery, (3) it…