Anita T. OWENS, Appellant, v. Raymond L. WHITE et al., Appellees.
No. 20585.
United States Court of Appeals Ninth Circuit.
June 30, 1967.
Rehearing Denied Aug. 23, 1967.
380 F.2d 310
On the issue whether the admitted statement is voluntary in fact, it is undoubtedly competent to show, as in the admissibility hearing, not only that while the accused was under in-custody interrogation he was, for example, denied food, drink and sleep, or promised leniency, but also that he was not forewarned and advised of his rights as explicated in Miranda. In short, compliance with Miranda may very well be relevant to the factual issue of voluntariness; but, it is not prerequisite. Miranda is concerned with voluntariness in terms of admissibility—it does not undertake to prescribe the prerequisites to a jury finding of factual voluntariness.
A jury is, of course, entitled to the guiding hand of the judge in the application of the law to the facts as they find them. And, in a proper case the jury should surely be told that if they find the defendant did not fully understand the meaning of the warning and advice given to him as stated in a confession, they may take that fact into consideration along with all the other facts and circumstances in determining the factual voluntariness of the statement, i. e., see United States v. Inman, 4 Cir., 352 F.2d 954. But this is not a proper case for such an instruction. Here the F.B.I. agent testified in the admissibility hearing that no threats or promises were made and that Coyote was advised of all his Constitutional rights including the right to counsel before making any statement. In the admissibility hearing Coyote testified in substance that he did not understand the full import of the agent‘s advice concerning his right to counsel before making his incriminating statement. The judge resolved that issue against the accused and we have affirmed his ruling. In the evidence before the jury the agent repeated his admissibility testimony without objection. Coyote did not take the stand to deny his testimony, nor did he dispute it in any other way. The agent‘s testimony concerning the warnings given and Coyote‘s understanding of them as embodied in the statement thus stand undisputed and unimpeached before the jury. In this posture of the case it may be doubted whether even under the Massachusetts rule there was any issue of voluntariness to submit to the jury. In any event, Coyote was certainly not entitled to the requested Miranda instruction.
Affirmed.
Melvin M. Belli, Frederick A. Cone, San Francisco, Cal., Vernon K. Smith, Boise, Idaho, Belli, Ashe, Gerry & Ellison, San Francisco, Cal., for appellant.
Eugene Thomas, Moffatt, Thomas, Barrett & Blanton, Boise, Idaho, for appellee, St. Luke‘s Hospital.
J. F. Martin, Boise, Idaho, for other appellees.
Before HAMLIN, KOELSCH, and ELY, Circuit Judges.
ELY, Circuit Judge:
Appellant, plaintiff below, sought damages for alleged medical malpractice against three physicians, Popma, McCarter, and White, and against St.
Appellant consulted Popma in August, 1951, complaining of a lump in her left breast. Popma advised her that a biopsy should be performed and furnished her with a list of three surgeons, including defendant White. After making inquiry about the recommended physicians, she selected White. The biopsy, which consisted of the removal of the suspect tissue by White and a microscopic examination thereof by McCarter, pathologist for the hospital, led to the conclusion that the lump in appellant‘s breast was a malignant cancerous growth. Dr. White thereupon advised appellant that a radical mastectomy, removal of the breast and surrounding tissue, should be done. Surgery was performed by White on September 1, 1951. Shortly afterward, on the advice of Popma and White, appellant underwent a series of treatments in which her chest and ovaries were radiated to prevent reactivation of the assumed malignancy. This brought on the menopause at age 30. Plaintiff‘s last contact with any of the defendant doctors occurred in 1959, when she moved from Idaho to California. At that time, by mail, White furnished her with renewals of certain drug prescriptions and suggested how she might locate a physician. Almost three years later, while employed as a nurse at a California hospital, appellant attended a series of lectures on cancer by one Shaw, a member of that hospital‘s staff. Her attendance at these lectures caused appellant to consult Dr. Shaw personally. He obtained her records from the defendant-appellee hospital and, after examining slides of tissue which had been removed from her breast for the biopsy, advised her that, in his opinion, she had never been afflicted with cancer. Thereafter, on October 14, 1963, almost four years after her last contact with any of the defendants, appellant filed her complaint in the Southern District of Idaho. She alleged that the defendants had negligently misdiagnosed her condition.
Jurisdiction of the District Court rested upon diversity of citizenship and the requisite amount in controversy,
The applicable statute of limitations rule in this diversity action is that of the State of Idaho. Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949). Billings, the first Idaho decision to adopt the discovery rule, involved a claim arising from the fact that a foreign object which had been placed in plaintiff‘s body during surgery had not been removed. The Idaho Supreme Court has not yet determined whether or not it will apply the rule to a case involving the type of malpractice which is alleged to have been committed here. The duty of a federal court exercising diversity jurisdiction, when the state tribunals have not supplied an answer to the direct problem involved, is to apply the rule which it believes would be applied by the highest court of the state if the specific question should be presented to it. Fidelity Union Trust Co. v. Field, 311 U.S. 169, 61 S.Ct. 176, 85 L.Ed. 109 (1940). The appellant
The object of statutes of limitation, said the Idaho Supreme Court in Billings, “is to prevent fraudulent and stale actions from springing up after a great lapse of time. * * * These considerations are not present in a foreign object case.” 389 P.2d at 231. In support of its decision to apply the discovery rule in the situation then before it, the Idaho court quoted language from a New Jersey “foreign object” case, Fernandi v. Strully, 35 N.J. 434, 173 A.2d 277 (1961),
“It must be borne in mind that [plaintiff‘s] claim does not raise questions as to her credibility nor does it rest on matters of professional diagnosis, judgment or discretion. * * * Justice cries out that she fairly be afforded a day in court and it appears evident to us that this may be done, at least in this highly confined type of case, without any undue impairment of the two-year limitation or the considerations of repose which underlie it.” 389 P.2d at 231-232. (Emphasis supplied.)
The Idaho court then announced a specific rule,
“[W]here a foreign object is negligently left in a patient‘s body by a surgeon and the patient is in ignorance of the fact, and consequently of his right of action for malpractice, the cause of action does not accrue until the patient learns of, or in the exercise of reasonable care and diligence should have learned of the presence of such foreign object in his body.” 389 P.2d at 232.
Appellant points to language from several decisions in which there is indication that certain jurisdictions might broadly apply the discovery rule to a case of the type before us. Most helpful to appellant is language found in Calvin v. Thayer, 150 Cal.App.2d 610, 310 P.2d 59 (1957), wherein the California intermediate appellate court held that the statute of limitations should not commence to run until the plaintiff acquires knowledge of the facts constituting his cause of action, “namely, that [the defendant doctor] * * * * * had not made a correct diagnosis * * *.” 310 P.2d at 62. The policy behind such a liberalized rule is well stated in the concurring opinion in Lundberg v. Bay View Hospital, 175 Ohio St. 133, 191 N.E.2d 821 (1963),
“In this and similar situations, the patient does not know and in most cases the physician does not know that the patient has any basis for a cause of action until * * * * * the error in diagnosis * * * * * is discovered by another doctor. * * * * * To say that the patient had a cause of action all the while, although no one knew about it or suspected it, may meet the tests of some legal theory, but the result hardly meets the standards of justice or logic.
“The practical effect of a holding that the statute of limitations * * * * begins to run in case of malpractice at any time before the patient discovers or, in the exercise of reasonable diligence, should have discovered the injury requires the legally prudent patient to consult another physician promptly after any medical treatment or surgery for a check on the procedures followed and judgments made by the physician upon whom he relied initially. Even if it were always possible to secure the services of a physi-
cian to check the work of another, such a practice would undermine the professional relationship between the physician and his patient, which in many cases is as important to the health of the patient as the medical or surgical treatment administered.” 191 N.E.2d at 824-825.
It cannot be denied that application of the discovery rule so as to enable a diligent plaintiff to prosecute a meritorious cause of action may serve the ends of justice. It is also true, however, that essential justice requires prevention of the imposition of liability upon physicians who, because of the passage of time, have become disempowered to present meritorious defenses. At some point in time, claims must be held to have become barred. This fundamental proposition was first recognized by courts of equity in their conception and application of the doctrine of laches, and it is applied by courts of law under the requirements of relevant statutes of limitations. The Idaho legislature has prescribed that a cause of action for personal injury must be prosecuted within two years, and it has provided for no exception applicable to claims arising from malpractice of the medical arts. In Billings the Idaho Supreme Court has, in effect, extended the limitation period when the malpractice is the leaving of a “foreign object” in the patient‘s body. When we remanded this case after the first appeal, we, in effect, delegated to the district judge the duty of ascertaining whether or not the Idaho court would apply the same extension doctrine to a case of malpractice such as is before us now. The district judge, discharging his duty, has determined that the doctrine would not be so applied in the State of Idaho.
Analysis by a district judge of the law of the state in which he sits, his determination of the result which the highest court of that state would probably reach under the same facts, is entitled to great weight. Edwards v. American Home Assurance Company, 361 F.2d 622 (9th Cir. 1966). That determination “will be accepted on review unless shown to be clearly wrong.” Minnesota Mutual Life Insurance Company v. Lawson, 377 F.2d 525 (9th Cir. 1967); Bellon v. Heinzig, 347 F.2d 4 (9th Cir. 1965). (Emphasis supplied.) See Propper v. Clark, 337 U.S. 472, 486, 69 S.Ct. 1333, 93 L.Ed. 1480 (1949).
We are not persuaded that, in its consideration of Billings and its determination that the discovery rule is not applicable to the present case, the District Court was “clearly wrong.” On the contrary, we agree with the District Court.
Had the Idaho Supreme Court not harbored the intent to limit sharply the application of the discovery rule in malpractice cases, it would have been unnecessary for it to emphasize that the purpose of statutes of limitations “is to prevent fraudulent and stale actions from springing up after a great lapse of time * * *.” It employed language which must be significant and clearly implies a limitation, namely, “These considerations are not present in a foreign object case.” 389 P.2d at 231. (Emphasis supplied.) Moreover, as we have seen, the Idaho court chose, in supporting its decision in Billings, to quote language from a New Jersey opinion, wherein the court, concerned with a situation involving surgical malpractice of the “foreign object” variety, carefully distinguished such a case from one which would “raise questions as to * * * * * credibility [or] rest on matters of professional diagnosis, judgment or discretion. * * * *” 173 A.2d at 286. (Emphasis supplied.) The New Jersey court limited its holding expressly, as the Idaho court is believed by us to have done impliedly, to “this [foreign object] highly confined type of case.” Ibid.
It is not our function, in a case such as this, to weigh opposing considerations of policy and then to select and further that policy which most persuasively appeals to us. But in deciding whether or not the court below was “clearly wrong” in its forecast of Idaho law, it is not inappropriate for us to remark upon certain considerations which may have
We conclude that the District Court correctly gleaned the present intention of the Idaho Supreme Court not to apply the so-called discovery rule to medical malpractice suits resting upon the claim of mistaken diagnosis and treatment resulting therefrom.
Affirmed.4
I respectfully dissent.
I will attempt to briefly summarize my reasons therefor. This court stated in the first appeal (Owens v. White, 9 Cir., 342 F.2d 817 at 819) as follows:
“Whether plaintiff‘s claim has accrued is a question of law [Chemung Mining Co. v. Hanley, 9 Idaho 786, 77 P. 226 (1904)], and like all issues of law must be resolved by the court even though this will require evidence.”
My examination of the Chemung case convinces me that this case is not authority for the above statement. Chemung was concerned with two things: (1) Whether the court abused its discretion in refusing to permit the filing of an amended complaint, and (2) whether it was proper to grant a judgment on the pleadings in favor of the defendant where the defendant‘s answer had set up a defense of the bar of the statute of limitations. The court held that it was not an abuse of discretion to refuse to permit the amendment to the complaint but that it was error to grant judgment on the pleadings, because “the facts constituting that bar (of the statute of limitations) must be proven the same as any other facts of the case.” (p. 228). That the special defense of the statute of limitations can be tried by a jury is indicated in the discussion in Calvin v. Thayer, 150 Cal.App.2d 610, 310 P.2d 59.
Upon the first appeal this court pointed out that the Idaho court in the Billings case had invoked the discovery rule. It pointed out that the Billings case dealt with a malpractice claim concerning the presence of a sponge alleged to have been carelessly left in the patient‘s body during a surgical operation, while the instant case is based upon a claimed negligent diagnosis. The court stated, “It is perhaps also true that the claim in a suit involving a foreign object as in Billings is more apt to be bona fide than one which will undoubtedly depend upon testimony or other indirect elements for proof. But this factual difference is not controlling. It merely relates to the manner of proof.”
The opinion in the first appeal, while indicating that Idaho would invoke the discovery rule after the decision in Billings then went on to suggest that in invoking that rule “the Idaho courts would apply a concept akin to the equitable doctrine of laches to limit the discovery rule * * * * *.” The opinion cites no authority for this statement and we have been unable to discover any.
I find nothing in the Billings case that supports this suggestion. While the facts in the Billings case show that it was a foreign object case I do not believe that the Idaho Supreme Court limited its findings to such a case. After discussing various rules, the court stated—
“We will, therefore, adhere to the following rule: where a foreign object is negligently left in a patient‘s body by a surgeon and the patient is in ignorance of the fact, and consequently of his right of action for malpractice, the cause of action does not accrue until the patient learns of, or in the exercise of reasonable care and diligence should have learned of the presence of such foreign object in his body.”
The above rule shows when the accrual of the action occurs. Nowhere does that case state that such rule only applies to foreign object cases, or that it does not apply to negligent diagnosis cases. At another place in the decision in the Billings case (389 P.2d p. 231) the court states, “If one is unaware that he has any rights, it cannot be said that he is ‘sitting’ on them.”
In California, where the discovery rule was adopted many years ago, many decisions have applied that rule to negligent diagnosis cases. Costa v. Regents of the University of California, 116 Cal.App.2d 445, 254 P.2d 85; Hemingway v. Waxler, 128 Cal.App.2d 68, 274 P.2d 699; Calvin v. Thayer, 150 Cal.App.2d 610, 310 P.2d 59.
After the reversal upon the former appeal, the district court decided the case upon a “balance of equities” doctrine which had not been mentioned in the opinion in the former appeal, and then decided that the “discovery rule” should not be applied in the case. In general, my reasons for dissenting in this case are as follows:
(1) I think the question of when the claim accrued should be determined as a fact in the case like other facts that are required to be established;
(2) I think there is no authority for applying the doctrine of laches in determining when the cause of action accrued;
(3) I think the proper rule is as stated in Billings as follows: “The cause of action does not accrue until the patient learns of or in the exercise of reasonable care and diligence should have learned” of the physician‘s negligence. In this connection I note that the district court in the judgment which is before us now found “that plaintiff could have by the exercise of due diligence discovered the alleged malpractice at any time after the surgery and treatment complained of.” To me, the question is not when the plaintiff could have, by the exercise of diligence, learned of the alleged malpractice, but when the plaintiff “in the exercise of reasonable care and diligence should have learned” of it.1
(4) I think the district court was wrong in “balancing the equities“;
(5) I think the trier of fact should determine whether, assuming the doctor‘s diagnosis in 1951 as to the malignant character of the tissue was in error, the making of an erroneous diagnosis was negligence in the light of the standard of the medical knowledge on this subject at that time and in that locality.
I would reverse and remand the action to the trier of fact to determine, inter alia, (1) when the cause of action accrued under the discovery rule as stated in Billings; (2) whether the action was brought within two years thereafter; (3) whether the doctor‘s diagnosis was incorrect; and (4) if so, whether such incorrect diagnosis was negligent according to the standard of the then medical knowledge in the locality where the physician practiced his profession.