*1 Appellant SILVER GREY, W. Plaintiff GLENN v. Respon- politic, Defendant COUNTY, BOW dent. No. 11150. February 1967. March 1967.
Submitted
Decided
Rehearing
April 24, 1967.
Denied
Plaintiff’s filed 1964. on October After pre-trial procedures employed had been both plaintiff complaint sides, filed an amended on June alleged plaintiff’s infection which was introduced into proper techniques employed by becanse sterile were not hospital; defendant’s that infection was introduced August 23, 1961, surgery; the infection until was not discovered 1961.
In granting the summary judgment motion for made de- fendant, district court found that not know did of the infection until October 1961. The district court was opinion of the further the action could been filed at years plaintiff’s time within discharge three from the hospital. However, the action was not so filed but was filed years within three of the date discovered the infection. *3 The district by court held it was barred that the statute of plaintiff contends the statute of limitations should begin to run in this case from the date discovered the infection, namely, 18, 1961, while, hand, other defendant contends the statute of limitations should begin to run alleged from the date negligence, namely, August -23, 1961.
In substance, plaintiff apply this court asks the so called “discovery doctrine” to facts “discovery the of this case. The doctrine” has thoroughly been explained, praised, and criticized opinions in jurisdictions. courts of other In Billings v. Sisters of Mercy Idaho, 485, Idaho 389 P.2d Supreme Court of Idaho made a thorough discussion of the “discovery doctrine” and states the doctrine in this manner: object foreign “Where a negligently patient’s is left in body a surgeon patient ignorance a and is the fact, and right consequently of his malpractice, of action for the cause of of, in the patient learns or until action does not accrue learned of diligence should have care and exercise of reasonable Billings body.” foreign object in his presence of such .the St. approval Johnson v. Patrick’s case, supra, was cited with surgical in which a P.2d a case 125, 417 Hospital, 148 Mont. nearly for hip was not discovered sponge left in Mr. Johnson’s years. seven recognize there is a
We assertion can be made that sponge pa- leaving distinct factual difference between into a body surgeon introducing an infection tient’s employ proper sterile patient’s hospital’s to a failure to due distinction techniques during operation. an But we believe this recognize similarity the two acts. fails to real between of his patient not know similarity That is that the does the fact leaving the introducing infection or it own condition—-be of, he learns or later when sponge some time —-until learned diligence he should exercise of reasonable care usually “discovery is doctrine” argues it. Defendant that the theory of res relies on applied only cases where instant case will argues then Defendant ipsa loquitur. may possibly This contention ipsa loquitur case. not be a res validity necessary to determine the It is not us be correct. However, stage the district of the ease. at this of that contention and re- interrogatories and answers made full court file object question did not Defendant by both sides. quested unavail- the information delay made ground that the had able. ex- application this case doctrine” days (from August 23,
tends statute of about 57 limitations if 1964) beyond expire it to October the time would accept were defendant’s contention that *4 alleged negligence. run begins limitations to from the date of the At reason for limitations is to least one having against defend claims that are protect defendant from to “discovery Likewise, expressed of an criticism stale. often tbe compels undertake a defense defendant to doctrine” is that it disappeared to the information due when witnesses and have in However, doubt that the defendant this passage time. of prejudiced defense was seriously contend the case could be the usual statute of of would a 57 what extension “discovery Billings doctrine” as set forth in the case, supra, analyzed by Ap the Court United States of peals, Circuit, Ninth White, Owens v. F.2d placed reasonable limitations were doctrine.” The Federal following court made “Con observations: prominence sistent with given policy underlying to the statutes of limitations Billings, supra, we believe the Idaho temper application discovery court would doctrine hedging equitable it with illustrate, To courts considerations. applied discovery other states doctrine to non- foreign object emphasized cases have factors such the ‘con as tinuing relationship’ patient between doctor and as a reason applying [Citing suggests the rule. in our This cases.] estimation, discovery subject is itself doctrine some malpractice restraint the time from the as occurrence grows circumstances, greater. In such the considerations of underlying be fairness to the defendant statutes of limitation insistent, plaintiff’s appeals equity come more while the im so. We plicit doctrine become less believe the apply concept equitable akin to the Idaho courts would doctrine of laches to limit discovery rule, a rule which itself genesis has its equity. Thus, the suit who reasonably diligent may be barred if defendant shows undue prejudice lapse an time because of extreme between the com wrongful mission of the act and commencement of suit. To so conclude strikes us as a reasonable accommodation between competing Billings giving full considerations noted scope statute of limitations the one hand accord ’’ ing justice measure a reasonable to the on the other.
218 placed upon the
Keeping in mind the limitations case, supra, Owens Federal hy doctrine” Court presented appeal in this the facts application to believe its However, this hardship defendant. hold- not work a will plain- encouragement future ing should not be as an construed filed they if be within delay of their actions can filing tiffs “discovery doctrine” has The the usual statute of limitations. only successfully be very and can application a of narrow field suggested flexibility fairly applied if it retains case, supra. Owens “question whether
Finally,
raises the
defendant
19,
years
18, 1961,
1964,
October
is within three
October
complaint
previously noted,
plaintiff’s
event.”
was
As
day
years
19, 1964,
not filed until
three
and one
after
infection, but October
of the
was
objection
Sunday. However, defendant makes no strenuous
timely
complaint
filed in a
plaintiff’s position that
[plain
“(W)e
his
states,
manner.
brief
concede
Defendant’s
position may
Kelly
Independent
be correct under
vs.
tiff’s]
Publishing Co.,
L.R.A.,N.S.,
45
tions judgment appealed from is reversed. ADAIR, HARRISON and MR. JOHN CONWAY JUSTICES CASTLES, concur. concurring). DOYLE, (specially
MR. JUSTICE Hospital, v. Patrick’s Having dissented Johnson St. stating my for such 417 P.2d reasons Mont. by reason of doctrine dissent, I now concur in this cause decisis. stare