*1 28, 1966 Argued 1, reversed December November BRANNER BERRY 2d 996 P. argued La the cause Sevier, Grande, Robert G. appellant. filed the brief argued the cause Morrison, Portland, H. William respondent. *2 him on the brief were David C. With for Bailey, Portland. and and Morrison Landis, Justice, Chief Before and Perry, McAllister, Denecke and O’Connell, Goodwin, Holman, Sloan, Justices. J.
HOLMAN, against an action defendant Plaintiff instituted alleged malprac- claiming damages medical because of per- of 1956 defendant claimed that in June tice. She negligently hysterectomy upon her and left formed a surgical her abdomen and: within a needle * “* * approximately two months after That, experienced great pain operation, plaintiff said upper leg. symptoms and Said back in her lower lying problem within the field indicate
did not specialty gynecology within the of de- and thus required plaintiff to and did was so that fendant physician. plain- That another treatment from seek continuously sought diligently determine tiff pain; the existence of the her the cause surgical was not discovered in her abdomen needle August and determined to until * * pain; plaintiff’s cause of ground that the a demurrer filed Defendant the time commenced within limited been had not action sustained. Plaintiff The demurrer statute. appealed court’s order of dismissal the trial plead further. refusal to her followed presented question here whether a sole malpractice accrues at the medical of action cause negligent at the time act or omission, or time of the might have discovered. The been it was or provide: statutes relevant only be com- at law shall 12.010. “Actions OES chap- prescribed period in this within the
menced accrued, of action shall after the cause ter, prescribed except limitation is where a different * * *” added.) (Emphasis by statute.- battery, 12.110(1). “(1) An action for assault, OES imprisonment, or conversation, for criminal false rights injury any another, for not merated especially arising, enu- contract, on and not chapter, within shall be commenced years; provided, at law that in an action based two limitation shall be deemed fraud or deceit, only discovery of the fraud from the to commence or deceit.” added.) (Emphasis controversy meaning present around the revolves *3 it denote the time when “accrued.” Does of the word plain- which resulted in took the action the defendant plaintiff injuries, the time when or does mean tiff’s it have discovered de- should discovered or wrong? fendant’s question a manner determined in was
This exact position contrary plaintiff’s a four to three de- to Vaughn Langmack, of the case of this court in cision (1964). Both sides of the P2d 236 Or exhaustively by the ma- question examined there were analysis opinions. dissenting jority After an of and opinion statutory history of the ma- was the it the legislature the of action jority intended cause the that happening upon which caused of the event the accrue to discovery by patient. upon It the injury not and the prevailing opinion present in the the court’s is emphasis much was opinion too case in the upon legislative put intent deduced the statu- as from tory history enough placed upon legisla- and not ordinary legal tive intent as determined the meaning the word “accrued.” of history principal phenomenon statutory
The of majority Vauglm the in the which convinced case that legislature to the was the intent have cause malprac action accrue the occurrence discovery, its was the fact tice rather than discovery expressly adopted had malpractice. to and not as rule as fraud deceit but to reasoning dependent upon validity this legislature, adopting supposition that the dis covery principle had in mind undiscovered as fraud, against and well nevertheless decided as adoption principle to it. do as We necessarily Any now follows. believe brought things could occurred which number of have legisla inequities situation to the of the fraud having considered without it ever ture’s attention might analogous exist in other fields. situations legislature also in mind did the have For instance, underground tunnels where landowner the situation adjoining land without the coal from the and removes neighbor? ‹ knowledge knowledge means of his many undoubtedly other more or less similar are There uations. › them all in Did the sit reject all? them mind clarify saw fit to fact that regard undiscovered fraud does with
time of accrual *4 ‹ Appellant, Co., Lewey, Pa Fricke Coke See A 261 › Aplnt. Telephone Pa., Smith, Pa Co. of See v. Bell Beryllium Company Meckley, A2d Brush 1960). (CA6 284 F2d 797 N Div Ohio legisla- not mean that it was necessarily original discovery principle apply tive intent original ambigu- fraud cases. Where the statute was reasonable to assume that just is it not as ous, out the construction had in- legislature they pointed tended from the outset?
It is contended that the failure of the legislature to bills in both the pass 1965 sessions Vaughn would have ameliorated the harshness rule shows that is cognizant prob lem and desires no The in this change. fallacy argu ment that no why is one knows did not measures. pass proposed measures provided the statute should to run commence discov ery but that there regardless should be an overall limit the time within which an action could be Did the fail to brought. pass because it was satisfied with the measures of the statute or interpretations because it was not in favor of an overall or because limitation, it dis liked the of the overall limitation? length prac ticalities of the legislative furnish rea process many lack sons for the of success of a measure other than dislike legislative principle involved in the legislation. Legislative inaction is weak reed upon which to lean in intent. determining legislative inaction toas
Legislative should not intent ignored determining legislative but such inaction not necessarily is determinative in the face ordinary of “accrued” it meaning as is used in relation to a cause of action. The word “accrue” the Latin derived from “ad” and “creso” to to. grow When applied independent original demands means to arise, to come into force happen, or ex- *5 to a cause ac used with
istence. When reference of may be maintained it means when an action tion may person an one sue thereon. It accrues whenever Dictionary, and cases cited Black’s Law 4th ed other. necessarily accrue The cause of action must therein. entity. say person legal a To cause to some may maintain a when she action accrues to of that it accrues time, thereon at the same and, an action expected can be to have she has or before patently any wrong knowledge inflicted her is of cannot maintain an and unrealistic. She inconsistent say to one knows has one. To action before she she remedy, wronged, a but before “You had who has been you, stripped wrong law ascertainable to the mockery remedy,” you your a the law. makes of of Senger, 149 P2d 112 Colo 363, Rosane v. expressed statutory (1944). an direc absence of In the any to the to that to ascribe effect, tion by of the word “accrue” seems intention their use such us unreasonable. statutory objective a limitation on the The may brought in mal an action is, within which time practitioners protection practice of medical cases, do not believe of stale claims. We from the assertion asserting patients mal limit intended to very practice nature of the treat who claims, ascertaining way immediately their had no ment period injury, al of time that is overall same normally bringing actions that are other tort lowed for immediately upon commission of the ascertainable profession wrong. protection of the medical The require rule. The such harsh claims does stale delay remedy was was intended to mischief statute legal right one who had slum of a in the assertion process statutory during period bered for Lewey, Appellant v. Fricke reach. Coke was within his A Co., Pa 536, 548, kind that a decision of this contention is made
The
legislation.
legislature,
judicial
how-
amounts to
provide
time
accrual was
did not
ever,
negligent
physician performed
act. This
when the
the matter undeter-
left
court did.
A
the time of accrual is
mined.
determination
judicial legislation
no more
the time of
*6
that it
the time of the com-
than
determination
is
Morgan
Hospital,
v.
mission of the act.
Grace
149 W
(1965).
144
160
156,
Va
SE2d
783,
object in an
There is no
exhaustive discussion
jurisdictions which were
of the eases from other
men
Vaughn.
opinions
tioned
in'
case ade
in
quately covered them. An examination of the cases
subsequent
Vaughn
decided
discussed in
those
in
decision. fi
away
the trend
from that
dicates
Vaughn
Those decisions discussed in
indicated that
Michigan, –
the states of California, fl Colorado, (cid:176)
Neb
Jersey, ‡
Pennsylvania, ·
raska, †
New
as well as
fi
137,
Rohrbaugh,
825,
241 Md
215 A2d
Waldman v.
830
(1966); Pasquale
Chandler,
475,
v.
Sh
215
1966 Mass Adv
NE2d
Morgan
319,
(1966);
Hospital,
783,
322
v. Grace
149
Vir
144
W
156,
(1965).
(1) 65,
(1967);
SE2d
162
See 16
Mar L Rev
Clev
71
(2)
(1966).
202,
1
L
Portia
J
203
fl
Eissler,
212,
Rptr
(1964).
224
Weinstock v.
CA2d
36 Cal
537
(cid:176) Rosane
Senger,
(1944).
363,
112
149 P2d
v.
Colo
372
– Johnson
† Spath
Caldwell,
368,
(1963).
v.
371 Mich
123
785
NW2d
Morrow,
38,
(1962).
v.
174 Neb
certain commenced to run from dis tions in eases covery, time could have or the might be-added the been made. To those states also Maryland, n Florida, n Louisiana, n following: and Oklah oma, n cases. n In addition as well as other federal Virginia, n Idaho, n Montana, n and West states Vaughn previously supported whose decisions prior holdings. This leaves the now overruled their Georgia, n Illinois, n Kansas, n Indiana, n Ken- states of (cid:181) 1282, 163, 168-171, Thompson, 69 93 L ed Urie 337 US v. Reid, (1949); 1018, v. 251 F2d 11 252 United States S Ct ALR2d (CA5 Quinton (CA5 1958); States, F2d 234 v. United 304 691 1962).
n City (Fla 1954). Brooks, of Miami v. 70 So2d 306 n Springer Casualty Surety 171, Co., 173 169 So2d Aetna & v. 1934). (La App App Rodriguez, (La 1984); 153 555 Perrin v. So
n
137,
825,
Rohrbaugh,
A2d
830
241 Md
Waldman v.
n Seitz v.
(Okl 1961).
Jones,
315
Massachusetts, n Mississippi, n
Maine, n
tucky, n
New
Tennessee, n Virginia, n
York, n Ohio, n
Mexico, n
New
Wisconsin, n
Washington, n
Vermont, n
as
appar
the majority
what
been termed
has
ently
following
still
however,
these cases,
one looks at
rule. When
have in
“exceptions”
so-called
readily apparent
the hard
to alleviate
been developed
instances
many
rule. As
consequence
majority
ship imposed
many
are espoused by
rather
tenuous
theories
some
jurisdictions. n
of this court
It is the opinion
n
Szendey,
(Ky 1963);
Philpot
Stacy,
Tantish
11
v.
v.
371 SW3d
228,
(1962).
158
316 plaintiff
cause of action accrued at the time obtained reasonably knowledge, or should have obtained knowl person edge upon by of the tort committed her defend Vaughn Langmack ant. The case of v. is overruled. compassion judges rely Some is due trial who must prior on court. this decisions When court changes goal posts necessarily trial courts must through judicial reversed no lack of acumen on their part. judgment sustaining trial in court de- fendant’s demurrer is reversed and the ease is re- proceedings. manded for further dissenting. J.,C. McALLISTER, by Vaughn For the stated reasons J., Lusk, Langmack, (1964), P2d 142 I 236 Or dissent. dissenting.
PERRY, J., injustices I am convinced that While occurred past present in the due to our statute of limitations justice period and that would be better served if the delayed patient of limitation was until such time aas discovered or could have discovered that person, a tort been committed I had his am equally logically convinced that the will not statute reasonably permit interpretation placed upon majority. permit
The reasons in law which will not the ma- jority’s interpretation are well stated this court in Haworth, Wilder v. P2d Or again Langmack, 236 Or P2d Malpractice against person is a tort committed plaintiff and it is the universal rule that causes action for torts inflicted of an injury is inflicted, time the run from individual damage is ascertained. time extent *9 the the from § 4th 179. on Limitations, ed, Wood conscientiously how we can to discern I am unable distinguish cause of action accrual of this the person an automobile accident a in that received years uninjured apparently later but discovers who is regard- slight produced cancer. the trauma But, that equi- unsettling applicable reach law to an less of the duty of to deter- table it is the result, relating public policy to a matters mine as matter of limitation. the statutes of regard
In to the observation on did consider the effect the statute interesting injuries, to the 1963session it is note following bill was introduced of the passed was in the the House and defeated Senate: damages action recover
“Section 1. An to for person by malpractice injury to caused of a physician, podiatrist operator a or of hos- dentist, pital or shall within two sanitarium be commenced years injury when the dis- from the date is first should covered or in the exercise of reasonable care provided action discovered; have been such years within from date shall be commenced four upon which the action is of the act or omission based.” again legislature
And in the 1965 session of the following passed the House and bill was introduced, again in the Senate: defeated damages 1. An action to recover for “Section by malpractice
injury physician, caused podiatrist, operator a hos- dentist, pital or within two dis- sanitarium, shall be commenced years injury from the date when the is first
covered or in the exercise of reasonable care should provided have discovered; that such action shall be years commenced within four from the date of act or omission which the action is based.” representatives people Since-the have demon- they cognizant problem up strated that are change to this time have not seen fit to the statute interpreted by itas has been twice first in court, again say presumpti- 1950and it is least, ons this court to do so.
For the above I reasons, dissent.