Renner v. Edwards

475 P.2d 530, 93 Idaho 836, 1970 Ida. LEXIS 282

• Court: Idaho Supreme Court
• Decided: October 8, 1970
• Docket: 10331
• Status: Published

Opinions

SHEPARD, Justice.

This case presents for decision a single question, to-wit: in an action for medical malpractice involving an alleged misdiagnosis, should this Court adopt the “discovery rule” previously adopted by this Court in medical malpractice actions involving the negligent leaving of a foreign object in a patient’s body during surgery? The “discovery rule” sets forth that the cause of action in such case does not accrue until the patient learns, or in the exercise of reasonable care and diligence should have learned, of the negligence.

The instant case is an appeal from the dismissal of plaintiffs’ complaint for the reason that the action was barred by the statute of limitations. The complaint alleges that the defendant-respondent held himself out to the public as a competent physician and surgeon, and the plaintiffs-appellants engaged his services in 1961. Upon examination of Zella Renner, he diagnosed a “gastrointestional condition/pathology” necessitating surgery in the form of a colostomy, which surgery he performed on March 21, 1961. It is alleged that the patient for three years thereafter suffered, among other problems, continual pain and inability to control her normal bodily functions. Treatment by a different surgical specialist resulted in corrective surgery on July 15, 1964. Plaintiffs-appellants filed the instant action on June 6, 1966 seeking to recover a total of $114,623.60 as special and general damages, alleging that the defendant-respondent had misdiagnosed the patient’s condition, acted in a field of surgery for which he was unqualified, and performed unnecessary surgery.

The applicable statutes of limitations are I.C. § 5-201, which, in pertinent part, provides :

“Civil actions can only be commenced within the periods prescribed in this chapter after the cause of action shall have accrued, * *

and I.C. § 5-219, which, in pertinent part, provides:

“Within two years:

“4. An action to recover damages for an injury to the person, or for the death of one caused by the wrongful act or neglect of another.”

Appellants contend that the time the cause of action accrues is the time when the plaintiff had knowledge, or in the exercise of reasonable care and diligence should have had knowledge, of the negligence constituting malpractice. Respondent, on the other hand, contends that the cause of action accrues at the time of the alleged malpractice, to-wit: the misdiagnosis and the initial surgery.

This Court in Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224 (1964), first enunciated the “discovery rule” in Idaho, therein setting forth the time when a cause of action accrues in a medical malpractice action as that point in time when a patient learns or in the exercise of reasonable care and diligence should have learned of the' negligence. In the Billings case a foreign object was involved, to-wit: a gauze sponge had been left in the patient’s body during surgery and remained undiscovered for 15 years thereafter until a second exploratory operation revealed its existence. A year after the second surgery a suit for malpractice was brought and the trial court dismissed the action on the basis that it was barred by our statutes of limitation. This Court reversed and, as aforesaid, adopted the “discovery rule.” The Billings decision was restricted to the particular facts of that case involving the leaving of a foreign object in a patient’s body.

Respondent contends, therefore, that in Idaho at least the so-called “discovery rule” applies only in foreign object cases, relying not only on Billings, but also upon Owens v. White, 342 F.2d 817, rehearing 380 F.2d 310 (9th Cir., 1967). This latter case interpreted the restrictive language in the Billings opinion and predicted that this Court would restrict the “discovery rule” to medical malpractice cases involving foreign objects. While Owens v. White, supra, may have been a correct inference based on the then existing Idaho decisions, our opinion today renders that decision an incorrect prediction of the future actions of this Court.

In Mr. Justice McQuade’s opinion in Billings he amply reviews the conflicts in theory which led to the existing diversity in the various jurisdictions as to the adoption or non-adoption of the “discovery rule” in medical malpractice actions. He deals with the various exceptions which have been devised in some jurisdictions, such as the “continuing negligence” exception, wherein the cause of action is said to be non-accruing while the patient remains under the doctor’s care, the theory of couching malpractice complaints in terms of contract, thereby giving the plaintiff the benefit of a longer period of time within which to file an action, and the third exception of the fraudulent concealment theory wherein the physician is claimed to be, either actually or constructively, fraudulent in concealing his negligent conduct from the patient. This Court in Billings rejected the opportunity of forcing that factual pattern into one of the previously mentioned exceptions, and clearly and forthrightly announced its adherence to the “discovery rule.”

No purpose would be served in discussing the number of jurisdictions which reject or adhere to the “discovery rule” in misdiagnosis fact patterns. Suffice it to say that what was once termed the “majority” has been so eroded by recent opinions of various jurisdictions that adherence to or rejection of the “discovery rule” can in either case be considered the keeping of respectable company.

We are, as herein stated, faced with the problem of the application of the “discovery rule” to medical malpractice cases falling into categories other than foreign object cases. We believe the theories and reasons enunciated in Billings for the adoption of the “discovery rule” are equally applicable to the case at bar. See also Iverson v. Lancaster, N.D., 158 N.W.2d 507 (1968); Yoshizaki v. Hilo Hospital, 433 P.2d 220 (Hawaii, 1967) ; Wilkinson v. Harrington, R.I., 243 A.2d 745 (1968) ; Johnson v. Caldwell, 371 Mich. 368, 123 N.W.2d 785 (1963); Sacks, Statutes of Limitation and Undiscovered Malpractice, 16 Clev.-Mar. L. Rev. 65 (1967) ; Foreign Object Discovery and Misdiagnosis — Is There a Difference?, 29 U.Pitt.L.Rev. 341 (1967); Discovery Rule: Accrual of Cause of Action for Malpractice, 25 Wash. & Lee L.Rev. 78 (1968).

We conclude that the statute does not begin to run until the plaintiff knew or should have known of the defendant’s negligence.

Respondent directs us to those cases which hold that statutes of limitations are statutes of repose designed to promote stability in the affairs of men and to make difficult, if •not impossible, the litigating of stale or fraudulent claims. As was well said by the Supreme Court of Rhode Island in Wilkinson v. Harrington, supra:

“[Statutes of limitations] are founded in the soundest principles of public policy. Their existence stimulates the bringing of actions within the designated time limits when events and circumstances are still fresh in' the minds of the parties and witnesses. Wood v. Carpenter, [101 U.S. 135, 25 L.Ed. 807 (1879)]; 1 Wood, Limitation of Actions, [§§ 2, 3, pp. 4-7 (4th ed., 1916)].

“The nature of the statute of limitations, however, and the underlying purpose which it serves are not that which is advanced here by respondents. The defense asserts that the paramount function of the statute of limitations is that it preserves social tranquility and that it should be narrowly construed to better achieve its purpose. We think their argument fails to take proper cognizance of the fundamental concept for which the statutes were designed. It is eminently clear that statutes of limitations were intended to prevent the unexpected enforcement of stale claims concerning which persons interested have been thrown off their guard for want of seasonable prosecution. They are, to be sure, a bane to those who are neglectful or dilatory in the prosecution of their legal rights. 1 Wood, Limitation of Actions, § 4, p. 8. As a statute of repose, they afford parties needed protection against the necessity of defending claims which, because of their antiquity, would place the defendant at a grave disadvantage. In such cases how resolutely unfair it would be to award one who has willfully or carelessly slept on his legal rights an opportunity to enforce an unfresh claim against a party who is left to shield himself from liability with nothing more than tattered or faded memories, misplaced or discarded records, and missing or deceased witnesses. Indeed, in such circumstances, the quest for truth might elude even the wisest court. The statutes are predicated on the reasonable and fair presumption that valid claims which are of value are not usually left to gather dust or remain dormant for long periods of time. Riddlesbarger v. Hartford Ins. Co., 74 U.S. (7 Wall.) 386, 19 L.Ed. 257; 1 Wood, Limitation of Actions, supra, § 4; Spath v. Morrow, supra [174 Neb. 38, 115 N.W.2d 581]. To those who are unduly tardy in enforcing their known rights, the statute of limitations operates to extinguish the remedies; in effect, their right ceases to create a legal obligation and in lieu thereof a moral obligation may arise in the aid of which courts •will not lend their assistance. Cf. 34 Am. Jur., ‘Limitation of Actions/ § 11, p. 20.

“Our statute of limitations is bottomed on the same theory and policy mentioned above. We cannot subscribe to the contentions of the defense that the statute is at odds with the discovery rule in malpractice cases. On the contrary, we believe the rule is compatible with the statute of repose. It would, in our opinion, be manifestly unjust to bar the enforcement of injury claims brought by a plaintiff who was not, nor could not have known that he was, the victim of tortious conduct because the consequent harm was unknowable within two years of the negligent act. In this age of enlightened medicine and highly sophisticated curative treatment it is very likely that the maturation of injury resulting from negligent treatment would not evidence itself for well after the two years provided for in the statute of limitations. See Estep and Van Dyke Radiation Injuries: Statute of Limitations Inadequacies In Tort Cases, 62 Mich.L.Rev. 753 (1964). This thought becomes particularly disturbing when one realizes that the latent injuries arising from medical malpractice would very likely go undetected by the vic^ tim, as only trained and skillful practitioners of medicine could ascertain whether a patient has been mistreated. Even the physical symptoms which might herald future inquiry may well be beyond the comprehension or perception of the average layman.

“We are also not unmindful of the conflicting policies which the issue before us raises between doctors and the general public. It is customarily advanced in these cases that doctors are unjustly prejudiced by the discovery rule as its application sanctions stale law suits in which the medical practitioner is hard pressed to defend because of faded recollections, perishable evidence and imperfect records. Of course, the countervailing policy argument, which also has merit, is that the public should be protected against medical mistreatment which does not become ascertainable until after the statutory period runs. These antipodal arguments seem to be fairly resolved in favor of the public. It would appear from the modern trend towards the application of the discovery rule, that courts are beginning to conclude that only the negligent physician is protected by the strict interpretation of the statute of limitations in malpractice cases at the cruel expense of the public and of the competent physician. Cf. Note The Statute of Limitations In Actions For Undiscovered Malpractice, 12 Wyo.L.J. 30, for an illuminating discussion on this point. As the supreme court of New Jersey recently noted, ‘If, as is to be hoped, the resulting jeopardy to defendants produces a greater measure of care in connection with surgical operations, so much the better.’ Fernandi v. Strully, supra, 35 N.J. 434, 451, 173 A.2d 277, 286.

“Hence, it is our firm belief that the discovery rule in medical malpractice cases is preferable to the adoption of the strict construction of the statute of limitations. When § 9-1-14, the statute of limitations for personal injury, is viewed with due allegiance being given to its intended purposes, the adoption of the discovery rule is virtually ineluctable. To construe the statute narrowly so as to preclude a person from obtaining a remedy simply because the wrong of which he was the victim did not manifest itself for at least two years from the time of the negligent conduct, is clearly inconsistent with the concept of fundamental justice. To require a man to seek a remedy before he knows of his rights, is palpably unjust. Under such circumstances in order for a patient to secure and protect his legal rights against doctors for malpractice, the patient would be required to submit himself to complete examinations by a series of independent physicians after every operation or treatment he received from the physician of his first choice. The unreasonableness of such a result is self-evident. No statute should be construed to bring about a patently inane result; moreover, we have often said the legislature could never be presumed to have intended to enact laws which are absurd, unjust or unreasonable. State v. Haggerty, 89 R.I. 158, 151 A.2d 382. Accordingly, we prefer to follow the discovery rule in medical malpractice cases because in our opinion the theory behind it is eminently fair and perfectly consistent with the function and nature of limitation acts.”

The problem of the foreign object case, as contrasted with misdiagnosis, is specifically dealt with in 29 University of Pitts-burg Law Review 341, stating:

“In the same connection, the courts have overcome their misgivings about fictitious claims in other areas and their decisions have gone largely unabused. Indeed, with misdiagnosis, the adversary system itself imposes a strenuous burden of proof on the claiming plaintiff that more than offsets any danger of fraud on his part and, in the instant situation, militates strongly against his chances of success. For the misdiagnosed plaintiff must prove that 1.) the doctor’s diagnosis was incorrect and 2.) that the error was not a failure of judgment but negligence, as judged by the standard of care required of the physician at the time of the injury, and 3.) the causal relationship of the negligent act and the plaintiff’s injury. The plaintiff is further burdened with the renowned reluctance of the medical profession to offer opinions on the conduct of a fellow doctor, especially in the shadowed area of misjudgment vis-a-vis negligence.

“The burden of proof in foreign object cases is, of course, easier to sustain because of the type of injury done, the procedural devices available, and the nature of the evidence in the case. This should not be, however, the basis for policy distinction. To allow one unknowing plaintiff to sue because he has better proof and to bar another unknowing plaintiff because his burden is more onerous, could fit the needs of some irrelevant logic but hardly the ends of responsive justice.

“As to the argument for stale proof, the danger is frequently sounded but the worry is often hollow. By any standard, medical record keeping is in a far advanced state from the time stale proof was a dominant reason to cut off'claims and even if it were not, the claiming plaintiff is under the same limitations as the physician and perhaps in medical cases, an even greater one. (footnotes omitted)” (Emphasis original)

We come finally to respondent’s argument that to extend the “discovery rule” would be to “open a Pandora’s Box and release countless demons for this court to grapple with” and that such requested extension of the “discovery rule” should be left to the legislature rather than this Court indulging in judicial legislation. We respond by indicating that rejection of the “discovery rule” is as much indulging in judicial legislation as is the adoption of the rule. Berry v. Branner, 245 Or. 307, 421 P.2d 996 (1966) ; Morgan v. Grace Hospital, 149 W.Va. 783, 144 S.E.2d 156 (1965). Our legislature did not define the time of accrual as being either the time of the performance of the negligent act or the time of the acquisition of knowledge of the negligent act. That was done by this Court. To adopt the “discovery rule” is to imply the existence of knowledge as a requirement for the accrual of an action and thus supply knowledge as a statutory requirement. Conversely, to reject the rule is to imply that the legislature considered the requirement of knowledge as an element of accrual and deliberately excluded such terminology from the statute. Legislative inaction should not be ignored in determining legislative intent, but to imply such an intent in this case as a result of legislative inaction is unreasonable. Berry v. Branner, supra. At the moment, our statutes, as most others across this country, are silent as to the interrelationship between “knowledge” and “accrual.” We are required to reach a decision without assistance from our legislative brethren. We select the alternative interpretation of our statute, which we believe accords with our concept of justice and reason.

The judgment of dismissal is reversed and the matter remanded to the District Court for trial on the merits. Costs to appellants.

McQUADE and SPEAR, JJ., concur.