*2 NEBEKER, Before NEWMAN and FERREN, Judges. Associate NEWMAN, Judge: Associate appeal, To decide this we must determine when a cause of action “accrues” within meaning of the statute of an action “discovery ap- where the rule” plies.1 Georgetown
Bussineau sued
for dental
warranty.
and breach of
Georgetown sought summary judgment
contending the action was time barred.
Specifically, it asserted that under the “dis-
covery
rule” first announced
us in
(D.C.1979),
Burns v.
fall of 1978 October law, District of Columbia Under During period, Georgetown dentists at brought an action for must be performed work on most of her teeth. The of action years within three after a cause canals, work included two root insertion of (1981). 12-301(8) accrues. D.C. Code § teeth, crowns on a number and related to ac Generally, cause of action is said treatment, During the work. course of her Shehyn v. crue at the time occurs. expressed Bussineau often dissatisfaction 1008, Columbia, 1013 392 A.2d District of results; complained with the she both ver- Williams, (D.C.1978); Weisberg v. Connol bally writing. regularly and was She 992, (D.C. 390 A.2d 994 ly Califano, & the diagnosis reassured that and 1978). However, the rela in cases where proper. experience She continued tionship the fact of between pain difficulty, including mobility and alleged conduct when tortious is obscure tooth number Further treatment was occurs, “discovery apply problem. undertaken to correct the Final- rule” to when the determine ly, as a result letters she wrote to v. Stager Schneid limitations commences. Georgetown President of and Dean of (D.C.1985); 1307, Kelton er, 1316 494 A.2d School, arranged the Dental Dean Columbia, 919, 921 413 A.2d v. District of by the her to be examined and evaluated 409 (D.C.1980); swpra, v. Burns departments three within the Den- heads of Memori Rogers v. at 617. also Jones See 51, tal This was done. The Dean ad- 442 F.2d U.S.App.D.C. School. Hospital, 143 al diagnosis Compa (1971); her that all the treat- vised v. A.H. Robins 773 Baker (D.D.C.1985); proper; Inc., F.Supp. ment had been she was told that ny, 613 994 Co., F.Supp. 543 Lilly could not determine whether her con- & they Dawson v. Eli Sterling (D.D.C.1982); tinuing complaints Grigsby resultant from the were 1330 (D.D.C.1975), F.Supp. slight Inc., Drug, trauma in 1977 or the occu- external F.2d U.S.App.D.C. 'd, The lar on tooth number 8. Dean trauma aff denied, 431 U.S. (D.C.Cir.1976), cert. private her to consult a dentist advised (1977). 53 L.Ed.2d 97 S.Ct. adjustment. an occular The discovery rule in medical “gross” noticed what she described as scar- initially foreign object evolved where a Bell ring. reassured the scars would left in patient surgery. patient after Thereafter, shrink time. experi- experience pain would and discomfort in enced numbness pricking sensations in operative area thereafter. Further surgery area. Bell assured her these eventually medical attention would result too would subside with time. did. Neither in the foreign and removal of the August performed Bell further case, object. In such plastic surgery on including Burns an at- object gives only knowledge tempt to the scarring previ- make of the cause-in-fact of but also surgery ous pain less noticeable. The malpractice.” out screams “medical See scarring continued thereafter. Both Bell 282,154 Ayers Morgan, 397 Pa. A.2d 788 and his pro- staff told her that she was legal is the law same mal- gressing normally and, just that if she’d practice example, cases. For A has an *4 patient, everything right would be all after search; do attorney a title attorney the In awhile. a Burns referred friend to gives a certificate of which does title surgery. seeing Bell for facelift After the include an easement B has on the land. facelift, of results her friend’s Burns con- later, years A Several contracts to sell the wrong”; cluded that Bell “done her had land to The title C. search discloses the filed in she suit trial court against easement. A’s cause of action the granted summary judgment in favor of the is attorney held to accrue when the ease- doctor, concluding the statute of limitations ment is discovered. See Hendrickson v. had run before the action was instituted. Sears, 365 Mass. 310 N.E.2d appeal, we required On to Again, were deter- injury the in and cause fact mine, among things, precisely “malpractice.” combine other when a to scream out Put way, of injury another the fact of cause action accrues under the “dis- and cause in fact covery Although language and evidence of breach of rule.” of duty Thus, simultaneously. punches occur holding only if A our in Bums refers to the face, inB the A knows all he needs to plaintiff know time when a has or should have (1) (2) simultaneously: injury; causes in “knowledge injury,” of the facts of the fact; (3) legal duty. and breach of Most of analysis engaged by case and the in the courts which have addressed required court make it clear that we a rule issues been have confronted this finding knowledge of more than mere of case; type injury knowledge and of and to injury begin cause-in-fact the statute cause-in-fact indicates obvious evidence of running of on negligence a wrongdoing. cases, The more difficult pur In applying holding, claim. we deter- one, as such this are where the and prospective plaintiff’s negli- mine that a provide cause-in-fact do not themselves evi- gence cause action did of not accrue until negligence. particularly dence of This is so the individual “knew or should known professional when the the lay reassures injured by alleged that she had been patient client or well that all is and that negligence” [i.e., wrongdoing] of defend- things proceeding they are should. requir- ant. Id. at 617. Our rationale for ing knowledge some of actionable harm adopted
This court
a “discovery
first
wrongdoing
premised upon
was
negligence
rule” for
cases in Burns v.
lay person plaintiffs
court’s concern for
supra,
physician for of a sinus condi- Bums, has acknowl Since *5 September operated in tion 1971. He on requires edged discovery the rule that bump her and removed a from her small in several knowledge wrongdoing some January in After the opera- nose Columbia, cases. In Kelton v. District of tion, bump her nose swelled and the re- supra, interpreted a notice statute we repeatedly mained. Marlowe assured parties intending to sue the required which improve her her that condition would but for to noti negligence District of Columbia not. In the it did March doctor such six fy the District of intent within performed operation a second to correct sustained. months after the Id. appellant After operation, the first. attempted at 920-21 n. 2. Keltons & in dip bump. had a her instead of a nose injuries as the to sue the District result again she Once was assured that her alleged an non-consensual sustained from improve would in time. condition performed Mrs. Kelton ligation tubal on plastic to see a late she went during delivery. We a Caesarean section surgeon who her that she advised would applied rule of Burns v. the surgery. February need corrective at to determine when supra, 409 A.2d physi- another consulted still accrued; concluded the action we cause of advised that her had cian who nose because, for a was barred the suit thereafter, up.” Shortly “messed been statutory period, she longer time than the against orig- appellant filed action the might have “inquiry on notice that she at the trial prevailed inal doctor who Kelton, injury.” actionable suffered an summary judg- a level motion at 921. The court held supra, 413 A.2d he that the in which claimed statute ment began at the time that the to run statute had run. of limitations surgery had resulted told that plaintiff was Texas, Appeals fallopian indicating The Court Civil tubes in scars the on rule, applying reversed. ligation deliberate tubal that either a at might occurred bar, surgical have appellant had no ex- trauma In the case at Thus, Kelton, point past. in the concerning treatment of her pertise the dis interpretation of appellee's our injury. on we reiterated type of She relied of limi- rule, noting covery promising future treatment statements begins tation negligence to run at such that this spoken eluded court had not with prospective plaintiff time a gains inquiry preciseness on clarity question wrongdoing Thus, notice that may be involved.2 presented. analyzed our decisions, previous particularly Burns v. required “knowledge We have also Bell, compared them with decisions in wrongdoing” to commence the statute of having “discovery states rule” and the beyond limitation in cases rationale therefor. Thé court concluded medical malpractice context. In Ehrenhaft the “some of wrongdoing” evidence Price, Inc., v. Malcolm rule was law of the District of Colum- (D.C.1984), applied we rule to genuine It bia. concluded that a issue of an action on based tort and contract claims fact existed as to when Dawson had or arising allegedly design out of the deficient knowledge have should of some evi- construction an addition a house. of wrongdoing. dence at Id. 1338-39. Focusing upon plaintiff’s reliance on special skills or of the defend- agree we Judge Joyce While Hens ants who did work to inform him of the language Green Dawson our damage, injury or this court observed that and subsequent Bums cases not have lay person a is likely “most without parsed clarity precision, issue with requisite knowledge to determine whether agree we also with her conclusion that our the room his properly has been [in house] holding Burns, given and results in designed , or constructed.” Id. supra, explained facts as recited cannot The court reasoned that “surely it incon- than other under the “some evidence of sistent justice with our notions of to inter- wrongdoing rule.” also See Ehrenhaft pret ‘accrual’ of cause of to occur action Price, Inc., supra. Malcolm prior point person time at which contending In addition to we have al reasonably would any adopted rule, ready the cause fact added). wrongdoing.” (emphasis argues Georgetown in the alternative that Although different type of reliance is question open if the is still an one in the case, product involved in liability the ra- Columbia, District of follow *6 tionale underlying discovery the rule is no Kubrick, 111, v. 444 United States U.S. apt less necessarily and involves more than 352, 62 259 100 S.Ct. L.Ed.2d We of the and its cause. The declining, to By decline do so. so we find analysis Co., ourselves, in Lilly Dawson Eli & company every in the of state 1334, 1339, supra, F.Supp. 543 at is in- discovery which considered the rule as structive. applied to facts such as those here or in required Those have all Kubrick. states product liability In a case where the Dis- knowledge of some evidence either of trict of statute of con- Columbia or, some, knowledge in wrongdoing of even trolled, daughter a of a who took woman more; e.g., knowledge all the of elements diethylstilbestrol (DES) during preg- action, of a of the cause before limitation nancy, alleging sued the manufacturer that (A), period begins part II to run. In the injury. DES had caused her The de- ,iita- (B), II part we turn turn to Kubrick. to of li fendants’ the statute asserted opinions the both before state and tions as a The contend- bar. manufacturer the reject after Kubrick which “cause in ed that the under law of the District of fact” rule. Columbia, in applied the cause fact rule
barred the claims. Dawson contended that (A) II the law of the District of was the Columbia of wrongdoing some evidence In re- Kubrick involved a medical rule. ’ issue, solving this the con- asserted Federal District Court claim under the Tort Schneider, Stager inju- wrongful 2. See also rule when conduct 494 1307 (D.C. 1985) (cause knowable). ry of action under the accrues known
429 it, 2401(b). responsibility for the statute (FTCA), Act defendant’s U.S.C. Claims § does not commence until of limitation proscribes that tort The Act claim “[a] due or in the exercise of knows States shall be forever against United known that the medi- diligence should have writing in presented unless it is barred Id. improper. cal treatment was appropriate agency federal within two Id. after claim years such accrues....” reversed, holding The Court Kubrick, plaintiff, The filed suit District under the when that a claim accrues FTCA contending that he a loss of Court suffered of the existence and knows both claimant hearing having of an regardless as the result infected in fact antibiotic) neomycin (an leg possible malprac- treated at aware he is whether 122-23, 100 at in 1968. Ku- 444 U.S. at S.Ct. the Veteran’s Administration tice claim. did his lawsuit until 1971 359-60.5 brick not initiate claiming he prior that to that time had no Kubrick narrowly interpret- Court hearing to to connect the loss
reason
rule
require only
ed the
knowl-
hospital.3
at
treatment he received
the VA
edge
probable
cause.
The District
found in favor
Ku-
Court
spe-
analysis engaged
by the Court was
brick,
argument
rejecting
government’s
cifically geared
bring
the rule
within
year
that
the claim
barred
the two
was
limited context of the FTCA. The Court’s
of limitation
it had oc-
statute
because
holding
generally
two
based
on
was
January
Kubrick
curred
when
congressional
factors:
intent
and stale
(Dr.
private physician
learned from his
Sa-
litigation.
its
claims
The Court stated that
taloff)
injury probably
that his
resulted
analysis
narrow
rule made
Id. at
neomycin
from the
treatment.
light
the fact
the FTCA constitut-
that
Appeals
ise that intended the prompt pre- that his resulted from someone’s sentation of such claims implementing a wrongdoing.
two-year
period
in return for
The North
Dakota
Court
sovereign
waiver of
immunity. Id. at
adopted
rule in Iverson v.
117,
433 person destroy right of action before a running of the stat- cient to commence the of the existence of physi- even becomes aware limitation” because often ute of right.” may “allay any suspicions the cian
might have.” Id.
Oregon,
appellate
In
court likewise
“plaintiff
concluded that a
should discover
Mary
Memorial
Brown v.
Hitchcock
he
that he has a cause of action when
117
If perceived juris there ais need in this language by inferring Bums that more diction to set a determined outer time limit than mere is neces rule, to the discovery proper way to do Bums, sary before a claim can accrue. *13 so by repose is of as been implicitly this court did not set out to make adopted See, in many e.g., states. the Ha contingent upon plaintiff’s accrual the statute, (the waii time H.R.S. 657-7.3 § Rather, knowledge of harm. actionable within which action may the be instituted is rule,” injury modified the “time of Bums years six after the event or after years two Columbia, Shehyn see v. District of discovery, whichever is sooner. See also (D.C.1978),by holding that repose; (1981), D.C.Code 12-310 a statute § point injury the at'which an should reason Fund, v. term an Fireman’s Wes ably largely have been discovered is a func (D.C.1985). We, course, A.2d 116 take particular tion of the circumstances of the position question. no on this Specifically, held that in case. we a medi Reversed and remanded cal case the tort-feasor’s state further for proceedings. actions, thereof, ments and lack bemay or determining point of considered when the
NEBEKER, Judge, dissenting: Associate gained plaintiff time which the knowl The majority concludes that in order for Burns, edge injury. supra, of the a claim “discovery to accrue under the Thus, A.2d at 617. if a were to rule,” the claimant must know or exer repeated, receive uncontradicted assur diligence cise of reasonable should know of particular physician ances from his that a injury, the in its cause fact and have some is physical manifestation characteristic dur knowledge wrongful in conduct healing period ing post-surgery the test, volved. Applying foregoing improve, pa that condition this would that majority appellant’s is holds that claim not may reasonably expected tient not be time-barred the statute know, assurances, while those receiving and, therefore, grant trial court’s order was, fact, in injury. that the condition an ing summary judgment appellee Similarly, person undergo if a were con opinion erroneous. I as majority view following surgery tinued an unfounded extension of this court’s deci as developed that a result of the condition (D.C. Bell, sion in Burns v. A.2d 614 surgery, that individual not reason 1979). I therefore dissent. ably expected to have known that the be Bums, post-surgical actually inju decision condition which follow-up majority support broadening after the treatment had ry relies to its until rule, strictly the discovery spoke this court run its course. constructive, Washington, supra, of all the essential elements of a see Ohler Tacoma General words, cause of supra, action. In other we declined to Hospital, like. See also cases adopt adopted by the rule the courts such supra. at note cited Rohrbaugh, Maryland,
states as see Waldman v. injury in this discovered both his and its cause I believe that Bums reflected understanding question fact. court’s plaintiff of his whether injury the fact of With may depend upon the defendant’s injury cause, malpractice is on its the claimant of manifestations of the conduct even after person footing any the same other claim- words, a present. In other were ing perceive I an undue negligence. do not act defendant’s conduct after the tortious putting plaintiff on notice burden may prevent gain- occurs point required from that is and, thus, pre- ing knowledge been, determining in ad- whether there has accruing. claim from Bums did clude the dition, plaintiff dis- legal wrong. Once a state, explicitly implicitly, nor that a covers, discovered should have that the conduct
plaintiff must
aware
diligence,
his
and who caused
due
causing
wrongful
the harm was
or action-
he must “determine within
able
order for the claim to accrue.
to sue or
period of limitations whether
not_”
Kubrick, supra, 444 U.S. at
majority’s
effort
to broaden the
Thus,
previously ex-
meaning
beyond
which was
The fact that
did not then com made to her
On
extent,
prehend the full
following
crowning
exact nature
several occasions
teeth,
description
private
medical
of her
does not
she visited
dentists who
matter,
requires
Georgetown
for the law of limitations
advised her to return to
only
“inquiry
that she have
notice of the
corrective
Specifically,
appel-
treatment.
personal
“Chronology
existence of a cause of action for
lant’s
Injury,”
which was
injury.”
Co.,
Baker v. A.H. Robins
613 attached
George-
to her March
letter to
(D.D.C.1985);
F.Supp.
University, appellant
Caldwell v.
town
wrote that on
Co.,
F.Supp.
28, 1979,
A.H. Robins
797-98 December
she visited one Dr.
(D.C.Pa.),
(3d Cir.1984), Yuhaniak,
aff'd,
bring
with the onset of each successive appellant expertise. has no medical How- development. tion or ever, appellant had the benefit the con- *15 Appellant throughout opinions pri- contends that her sidered of no less than three treatment, consistently by practitioners. opinions expressed she advised vate Georgetown by gave appellant that her “an discomfort was the these dentists accu- injury way knowing result of a 1977 and not the result of rate whether the assur- any Georgetown. given [by Georgetown] dental work done at her ances were rea- Therefore, Burns, question ap- arises whether supra, sonable.” at 617. pellant reasonably upon repre- relied appellant’s correspon- It is clear from treating physician, sentations of her and if dence that she believed she had suffered an so, whether such reliance creates an issue injury Georgetown and that she caused of material fact as to when she discovered sought independent out advice to confirm injury. who caused her opinion. opinion having her Her been con- inquiry May no
Similar
as to when an
firmed
later than
discovered,
she,
Burns,
injury was
the determination as
cannot now claim that
like
re-
injury
the cause of the
discov
lied
the assurances of the defendant.
when
may
appellant
injury
ered
also
into
or When
discovered her
take
account actions
cause,
Representa
period began
its
statements of the defendant.
would,
believe,
may prevent
tions
a defendant
run. To hold otherwise
I
made
possession
learning
putative plaintiff
of either the exist
allow a
ence of an
or its cause in fact.
all of the critical facts of
and causa-
See
running
supra,
Burns v.
rule of Bell. I would Burns v. adoption
their of cause finding required malprac
fact as a before
tice accrue. I dissent from claim require
adopting majority’s additional
ment that a have wrongful
defendant’s conduct in order for requirement
a claim to accrue. This latter holding, implicit in the Burns
is neither states, majority prudent nor is it a current test for determin
extension of our Because, my.
ing when accrual occurs.
view, knowledge of appellant had both years
injury and its cause more than three filed, I her claim was would affirm
before finding
the trial court’s expired appellee
limitations had and that summary judgment.
was entitled to
My colleagues’ expansion of Bums v. is, view, my step in
Bell an unwise
many steps state courts taken to ex-
pand liability point systemic tort to a economy. to the national I believe it step inconsistent Ryan, with M.A.P. v. (D.C.1971), requiring A.2d 310 us to
adhere to It is also Bums. a decision
exceptional importance. *16 ALSTON, Appellant,
LaAquanetta STATES, Appellee.
UNITED
No. 84-1519. Appeals.
District of Columbia Court of Sept.
Submitted
Decided Nov. D.C., Hinkes, appoint- Washington,
Enid court, appellant. ed