Chase v. Sabin

516 N.W.2d 60, 445 Mich. 190

• Court: Michigan Supreme Court
• Decided: May 17, 1994
• Docket: 95889, (Calendar No. 9)
• Status: Published

Opinions

Cavanagh, C.J.

In this appeal, we are asked to determine when a cause of action for the negligent acts of a hospital and its agent¹ accrues for statute of limitations purposes.² We hold that the discovery rule governs when the cause of action accrues. Accordingly, we reverse the decision of the Court of Appeals.

I

The plaintiff, Durward Chase, Jr., underwent consecutive eye surgeries on April 12 and April 17, 1963, to remove cataracts, apparently caused by job-related welding flashes. Defendant, Dr. Fred C. Sabin, performed both surgeries while the plaintiff was a patient at the defendant hospital.

In 1963, the removal of cataracts required two procedures. During the first procedure, the surgeon broke up the lens of the eye, allowing the lens to dissolve so it could be washed out of the eye during the second procedure. While the first procedure was generally performed in a hospital, only a local anesthetic was used. Dr. Sabin administered the local anesthetic and completed the first procedure without incident._

The second procedure required the cutting of the cornea to facilitate the irrigation of the previously broken up lens. The preferred anesthetic for the second procedure was general anesthesia because under general anesthesia, you have an immobile eyelid and patient. Unlike the first procedure, Dr. Sabin did not administer the anesthetic during the second procedure. Instead, Nurse Neff, a nurse anesthetist and employee of the defendant hospital, administered the general anesthesia.³

Despite Dr. Sabin’s instructions that the anesthetist keep the plaintiff asleep, the plaintiff awoke soon after the operation began.⁴ At this point, the plaintiff involuntarily squeezed the eye hard enough that some of the vitreous humor⁵ came out of the eye and the cortex extruded. After this incident, Dr. Sabin completed the operation as best as he could.

After the operation, the doctor did not inform the nineteen-year-old plaintiff or his father about the loss of vitreous humor because such a loss was not necessarily incompatible with a successful result. The doctor never informed the plaintiff, who was treated by the doctor until 1988, of the loss despite the fact that the plaintiff’s eye rapidly deteriorated, resulting in the removal of the eye one year after the procedures. Instead, Dr. Sabin informed the plaintiff that a detached retina, which he opined resulted from the plaintiff’s fall off a horse a few weeks following surgery, caused the decline of the eye.

In 1988, during the pürsuit of a worker’s compensation claim, the plaintiff’s attorney obtained a hospital record of the surgery that indicated that during the second procedure the plaintiff lifted his hand and squeezed his eye. In April 1989, the plaintiff commenced suit against Dr. Sabin and the defendant hospital.⁶ The plaintiff alleged that the loss of anesthetic control led the partially conscious plaintiff to damage his eye and eventually lose his vision.

The trial court granted the defendant hospital’s motion for summary disposition on the ground that the statute of limitations barred the plaintiff’s negligence claim.⁷ The Court of Appeals affirmed in a two to one unpublished per curiam opinion.⁸ This Court granted plaintiff’s application for leave to appeal.⁹

II

The statute governing the plaintiff’s claim affords a plaintiff three years from the date the claim accrues to commence a negligence suit.¹⁰ The corresponding accrual statute provided that "the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.” MCL 600.5827; MSA 27A.5827. Under limited circumstances, this Court has determined that the discovery rule governs the date certain claims accrue, despite identical statutory language. See Moll v Abbott Laboratories, 444 Mich 1, 12-13; 506 NW2d 816 (1993); Larson v Johns-Manville Sales Corp, 427 Mich 301, 308, 312; 399 NW2d 1 (1986); Johnson v Caldwell, 371 Mich 368, 379; 123 NW2d 785 (1963).¹¹

The policy prompting the Court to utilize the discovery rule generally centers on our attempt to avoid the premature bar of a cause of action and to provide, instead, a reasonable time to bring suit.

A

A statute of limitation should provide plaintiffs with a reasonable opportunity to commence suit. For over one hundred years, this Court has sought to fulfill this purpose, construing statutes accordingly. As Justice Cooley explained:

The general power of the legislature to pass statutes of limitation is not doubted. The time that these statutes shall allow for bringing suits is to be fixed by the legislative judgment, and where the legislature has fairly exercised its discretion, no court is at liberty to review its action, and to annul the law, because in their opinion the legislative power has been unwisely exercised. But the legislative authority is not so entirely unlimited that, under the name of a statute limiting the time within which a party shall resort to his legal remedy, all remedy whatsoever may be taken away. ... It is of the essence of a law of limitation that it shall afford a reasonable time within which suit may be brought .... [Price v Hopkin, 13 Mich 318, 324-325 (1865).]

Our adherence to this principle resulted in our holding that the term "wrong,” as stated in the accrual statute, designated the date on which the plaintiff was harmed by the defendant’s negligent act, as opposed to the date the defendant acted negligently. Connelly v Paul Ruddy's Equipment Repair & Service Co, 388 Mich 146; 200 NW2d 70 (1972). Necessity dictated such a conclusion because an opposite interpretation could potentially bar a plaintiff’s legitimate cause of action before the plaintiff’s injury.

Similarly, because statutes of limitation do not evidence a legislative intent to extinguish a cause of action before the plaintiff is aware of the possible cause of action, we have adopted the discovery rule in the appropriate instances. Last term, in Moll, supra at 13, we held that the discovery rule controls the date a pharmaceutical products liability action accrues. "If the three-year period of limitation began to run at the time of the defendant’s breach, most, if not all, claims would be barred before the plaintiff had reason to know of the injury and the cause of the injury. Such an interpretation seeks 'to declare the bread stale before it is baked.’ ” (Citation omitted.) The same reasoning compelled our application of the discovery rule to products liability actions premised on asbestos related injuries, Larson, supra. In Southgate School Dist v West Side Construction Co, 399 Mich 72, 82; 247 NW2d 884 (1976), we held that the discovery rule governs the date a breach of warranty claim accrues, providing plaintiffs with an adequate opportunity to bring suit. See also Williams v Polgar, 391 Mich 6; 215 NW2d 149 (1974) (the discovery rule governs the accrual of negligent misrepresentation cases), and Dyke v Richard, 390 Mich 739; 213 NW2d 185 (1973) (the discovery rule governs the accrual of medical malpractice cases).

B

While the plaintiff’s claim lies in negligence, the essence of the hospital’s alleged wrong is substantially similar to medical malpractice. In fact, under the current statutory scheme,¹² an action for the identical alleged wrong would be correctly characterized as a medical malpractice action. In light of the similarity, it is beneficial to review our resolution of analogous medical malpractice cases.

In Johnson, supra, the plaintiff, experiencing post partum complications, relied on her doctor’s advice that nothing could be done for her condition. Despite a three-year lapse from the date of the doctor’s alleged wrong to the date the plaintiff filed suit, the Court held that the two-year medical malpractice period of limitation did not bar the plaintiff’s suit.¹³ The Court refused to impose on the plaintiff a duty of discovering the wrong, despite the obvious physical complication, before another physician’s advice regarding the earlier breach. The Court refused to "punish the patient who relies upon his doctor’s advice and place[] a premium on skepticism and distrust.” Id. at 379. As a result we held:

The limitation statute or statutes in malpractice cases do not start to run until the date of discovery, or the date when, by the exercise of reasonable care, plaintiff should have discovered the wrongful act. [Id.]

In Dyke, supra, we examined whether the discovery rule, as applied to malpractice cases, continued to have effect in light of the Legislature’s codification of the last treatment rule.¹⁴ Because a statute of limitation is not a statute designed to abrogate a common-law cause of action, we applied the discovery rule, refusing to infer a legislative intent to abolish the plaintiff’s cause of action. "Since '[i]t is of the essence of a law of limitation that it shall afford a reasonable time within which suit may be brought . . .,’ a statute which extinguishes the right to bring suit cannot be enforced as a law of limitation.” Id. at 746 (citation omitted).

c

We would be remiss if we examined the issue presented without considering the additional policies prompting the adoption of statutes of limitation. While one policy is to afford plaintiffs a reasonable opportunity to bring suit, statutes of limitation are also intended to " 'compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend’; 'to relieve a court system from dealing with "stale” claims, where the facts in dispute occurred so long ago that evidence was either forgotten or manufactured’; and to protect 'potential defendants from protracted fear of litigation.’ ” Bigelow v Walraven, 392 Mich 566, 576; 221 NW2d 328 (1974).

Admittedly, the plaintiff’s twenty-six-year-old negligence claim is stale; however, we deem it inappropriate to prohibit a plaintiff’s suit for circumstances beyond his control. The evidence that a plaintiff will generally rely on to pursue a negligence claim against a hospital is the hospital and physician’s records. Thus, any concerns that this class of plaintiffs will manufacture the evidence are tenuous. While it may be true that the defendant hospitals, because of the lapse in time, may encounter difficulty in defending the negligence action, the plaintiffs, who carry the burden of proof, are equally handicapped in their attempt to establish the hospital’s negligence.

The statute of limitations furthers the sound public policy of establishing a time frame beyond which defendants will not be forced to defend. However, in our quest to fulfill this purpose, we will not allow questionable acts, of which patients are unaware and which are followed by silence, to combine with the passage of time to bar suit. Similar to the situation in a medical malpractice case, the hospital and its agent are in a superior position to recognize the occurrence of a negligent act. Furthermore, these defendants generally control the evidence, as well as the plaintiff’s knowledge of the evidence.

This conclusion is readily supported by a review of the facts in this case. While plaintiff Chase was aware that he lost his eye, he, like the plaintiff in Johnson, was ignorant, because of representations by Dr. Sabin and the silence of the defendant hospital and Nurse Neff, that improper anesthetization may have caused the deterioration of the eye. The plaintiff was unconscious at the time and has never had any recollection of the committed negligence. The information was in the hands of the doctor, nurse, and hospital, noted in the records, yet the plaintiff was unaware of the possible wrongdoing. The plaintiff had no reason to be skeptical or distrustful of Dr. Sabin’s explanation for his eye’s deterioration.

Our sense of fair play in providing plaintiff with a reasonable opportunity to bring suit, along with our conclusion regarding the additional policies underlying the statute of limitations, compels the holding that the discovery rule governs the accrual date for negligence claims, pursued against hospitals and their agents, which are similar to malpractice claims.¹⁵

III

For the foregoing reasons, we hold that the discovery rule governs the accrual date of the plaintiff’s cause of action. Accordingly, the judgment of the Court of Appeals is reversed.¹⁶ We remand this case to the Court of Appeals for a determination regarding the plaintiff’s unaddressed claim of error.¹⁷

Levin, Boyle, and Mallett, JJ., concurred with Cavanagh, C.J.

1 This opinion does not address whether the discovery rule governs the date of accrual for other negligence actions.

2 The pertinent statute of limitations is the one in effect when the plaintiff’s cause of action arose. Winfrey v Farhat, 382 Mich 380, 389-390; 170 NW2d 34 (1969). We agree with the conclusion of the Court of Appeals that "[a] cause of action arises, for purposes of determining the applicable statute of limitations, when the alleged negligent act occurs, not when the plaintiff discovers or should have discovered that negligence or malpractice.” Wallisch v Fosnaugh, 126 Mich App 418, 422-423; 336 NW2d 923 (1983). As a result, the statute of limitations effective in 1963 governs the disposition of this suit.

The liability of the hospital is premised upon the negligence of a certified registered nurse anesthetist. In 1963, any negligence by a nurse or a hospital was considered ordinary negligence, and not medical malpractice. Kambas v St Joseph Hosp, 389 Mich 249; 205 NW2d 431 (1973). While not controlling in this case, the Legislature has since characterized the negligence by a nurse or hospital as medical malpractice. 1975 PA 142, MCL 600.5838; MSA 27A.5838. See also Adkins v Annapolis Hosp, 420 Mich 87; 360 NW2d 150 (1984).

3 While the hospital records fail to identify who administered the anesthesia during the plaintiff’s second procedure, Dr. Sabin distinctly recalled Nurse Neff as the person who administered the anesthesia. Despite the numerous procedures that Dr. Sabin performed over his career, he recalled Nurse Neff’s identity because of the unexpected incident that occurred during the second procedure.

4 The plaintiff had not really awakened — he had simply advanced from a deep stage of anesthetization to a somewhat lighter stage. Consequently, he had no memory of the incident.

5 Vitreous humor is a jelly-like material that maintains the shape of the eye.

6 Nurse Neff died before the plaintiff filed suit.

7 While the trial court refused to extend the discovery rule to the negligence action, it nevertheless made a determination concerning the discovery rule’s effect in the present action:

For review purposes only, I reject defendant hospital’s claim that plaintiff should have discovered his claim in December of 1963 when he lost his eye; if a discovery rule were available, I would have no hesitancy in holding that plaintiff did not discover or have good cause to discover negligence on the part of the hospital until October of 1988, when his worker’s compensation attorney obtained the medical records from the 1963 procedure.

8 Judge McDonald dissenting.

9 The trial court also granted Dr. Sabin’s motion for summary disposition on the ground that there was no genuine issue of material fact in dispute. The plaintiff failed to pursue this issue on appeal. As a result, the opinion does not address this issue.

10 The statute in effect in 1963 stated:

No person may bring or maintain any action to recover damages for injuries to persons or property unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section.

(7) The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property. [1961 PA 236, MCL 600.5805; MSA 27A.5805.]

11 Johnson was superseded by statute as stated in Hawkins v Regional Medical Laboratories, PC, 415 Mich 420, 428, n 2; 329 NW2d 729 (1982) ("Dyke [v Richard, 390 Mich 739; 213 NW2d 185 (1973)], entitled a plaintiff to a two-year extension on the limitations period from the time of discovery of malpractice. 1975 PA 142 has since reduced the extension to six months from the time of discovery or two years from last treatment, whichever is greater”).

12 See MCL 600.5838; MSA 27A.5838.

13 At the time, the applicable statute read:

"Actions ... for malpractice of physicians . . . shall be brought within 2 years from the time the cause for action accrues and not afterwards.” [Johnson at 371, quoting 1956 CL 609.13; Stat Ann 1959 Cum Supp § 27.605.]

14 At the time we decided Dyke, MCL 600.5805(3); MSA 27A.5805(3) and MCL 600.5838; MSA 27A.5838 set forth the limitation period for malpractice cases.

Section 5805 provided:

No person may bring or maintain any action to recover damages for injuries to persons . . . unless, after the claim first accrued ... he commences the action within the periods of time prescribed by this section.

(3) The period of limitations is 2 years for actions charging malpractice.

Section 5838 provided:

A claim based on the malpractice of a person who is, or holds himself out to be, a member of a state licensed profession accrues at the time that person discontinues treating or otherwise serving the plaintiff in a professional or pseudoprofessional capacity as to the matters out of which the claim for malpractice arose. [Emphasis added.]

15 The defendant claims that in all instances in which the Court has applied the discovery rule, it has done so because the plaintiff had yet to incur damages or become aware of the injury. The defendant’s point, however, is misguided. While a plaintiff may be aware of a result — i.e., the loss of an eye, the plaintiff may nevertheless be unaware that this was "damage” in the legal sense — i.e., resulting from a wrongful act. Furthermore, in Moll, we stated that the discovery rule was a useful theory because an injured plaintiff is often unaware of damage and its cause:

A cause of action for personal injuries accrues when a plaintiff can allege, in a complaint, each element of the asserted claim. Generally, a well-pleaded claim for personal injury must allege that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the duty, (3) the defendant’s breach was the proximate cause of the plaintiff’s injuries, and (4) damage. Connelly at 150. However, in a pharmaceutical products liability action, as in other cases in which we have applied the discovery rule, the defendant’s duty and breach generally predate the plaintiff’s awareness of an injury and of its cause. Accordingly, under the discovery rule, the plaintiff’s claim accrues when the plaintiff discovers, or through the exercise of reasonable diligence, should have discovered, the two later occurring elements: (1) an injury, and (2) the causal connection between plaintiff’s injury and the defendant’s breach. See, generally, Caldwell, Polgar, and Larson, supra. [Moll at 15-16. Emphasis added.]

16 The defendant asserts that even if the discovery rule is applicable to the case at bar, the Court, in the alternative, should apply the current legislatively mandated cap on the discovery rule found in MCL 600.5838a; MSA 27A.5838(1). This statute of limitations, applicable to medical malpractice claims (which now includes claims for the negligent acts of licensed health care facilities and their agents), includes a discovery provision, but caps the time frame for discovery at six years from the date of the act or omission that is the basis for the claim. As noted earlier, however, the applicable statute of limitations is the one in effect when the plaintiff’s cause of action arose. See n 2. The plaintiff’s claim is not governed by the current statutory scheme, but the statute in effect in 1963. We did not impose a cap on the discovery rule and its role in medical malpractice cases in 1963. Similarly, we discern no requirement to impose a cap on the plaintiff’s cause of action.

17 In addition to granting summary disposition on the basis of the statute of limitations, MCR 2.116(C)(7), the trial court also granted the defendant hospital’s motion for summary disposition pursuant to MCR 2.116(0(10). The trial court determined that there was no genuine issue of material fact regarding Nurse Neff’s negligence because the plaintiff failed to submit sufficient evidence regarding the standard of care. While the plaintiff raised and briefed the propriety of the trial court’s action at the Court of Appeals, the majority of the panel did not address or resolve the issue. Accordingly, a remand to the Court of Appeals is appropriate.