Johnson v. Stoddard
526 P.2d 835
Idaho
1974
Check Treatment

*1 230 such, amended, they pre- statute is legislative

determine intent. As “When it to though legislature sumed intended properties contend that their even exempted any specific meaning under sec- different from ac- cannot be tion, exempted corded to it the amendment.” they by looking be before disagree with as a whole. statutes We rule, light the 1972 amendments Idaho, appellants’ reading of North support application our of I.C. 63-105B §§ primarily dealing case the Court and 63-105L. with “exclu- the construction of the term therefore the decision of the We affirm sive,” speci- exemptions and held that holding that the order of the mutually fied were not exclusive. 25,' Appeals Idaho Board of Tax July dated exemption Court effect allowed 1972, reversed, should be and that the or- property under an individual qualifying der of the County Kootenai Board of though its use was exclu- even Equalization 1971, 14, dated December respective sive to that statute. fully should be reinstated. Judgment Ida- differs from North Costs respond- The case at bar affirmed. be ex- ents. sought ho in properties empted guidelines within the do not fall SHEPARD, J., McQUADE,

any listed statutes. While one of the BAKES, JJ., McFADDEN and concur. in- agrees general legislative that a reading of I.C. tent from a derived 63-105A, 63-105B, 63-105C, 63-

§§

105L, light must be each read section clear ordinary meaning its language.7 has never held that This Court 835 526 P.2d JOHNSON, Plaintiff-Appellant, and re- various sections can be dissected Kenneth W. language constructed to obtain different v. legislature. enacted D. C. STODDARD and A. William Defendants, unambiguous

statutes at are hand and must be read accordance

expressed legislature. intent of the Brunt, Jr., A. William Defendant- Respondent. legis further notes that

The Court No. derived from later stat lative intent can be Supreme Court of Idaho. utory and 63- change. I.C. 63-105B §§ 28, March they 105L in 19728 so that were amended grant exemptions to fac specifically now patterns As

tual similar to those at hand. Corporation Tax

stated in Futura v. State 288, 291,

Commission, 442 P.2d 92 Idaho

174,177 (1968):9 466, Buildings, Inc., religious worship, Idaho Swensen v. 93 combination of purposes educational City (1970) ; Willows v. activities, 463 P.2d 932 and recreational not de- (1969) Lewiston, 337, ; signed profit.” P.2d 120 93 Idaho 461 Bodine, 92 Nicolaus Idaho 448 v. § I.C. 63-105L was amended removal of v. Nagel (1968) ; Hammond, “by applied Idaho 90 the owner” as to educational use. Florek v. Sparks (1965) ; 96, 408 P.2d Higginson, also De 9.See Rousse v. 95 Idaho Flying Inc., Service, 83 Idaho (1973) ; Swayne 505 P.2d 321 v. De (1961). partment Employment, 456 P. McKenney (1969) ; amended addition McNearney, I.C. 63-105B 2d 268 exemption following: (1967) shall ex- ; “and Totorica v. by any religious property Equipment cor- Co., owned tend to Western poration society used for which is *2 Pocatello, Merrill, defend-

Merrill & ant Stoddard. Kidwell, Holden, Hahn & Cra-

Holden, Falls, defendant-respondent. po, Idaho SHEPARD, Chief Justice. summary judg- appeal is an from a

This in a ment in favor of a defendant doctor malpractice action. The action medical alleged of defend- sulted from failure and ant-respondent Dr. Brunt to discover had remove drains which Dr. Stoddard inserted in back. earlier Johnson’s appeal sole issue on this is whether began statute of limitations run at time Brunt treated at the time Johnson discovered, actually or should Johnson discovered, negli- alleged Dr. Brunt’s gence the drains. August, plaintiff-appellant John- uncooperative son bucked off an horse large and suffered a hematoma on days right side of his lower back. Some defendant, later Dr. D. consulted Johnson Stoddard, who inserted two drains in the The drains were hematoma. rubber tubes one-half inch diameter A long. two and one-half to three inches week later wife removed Johnson’s dressing failed covering the hematoma but and her to find the Penrose drains. She person, husband searched cloth- Johnson’s discovering bedding and the day missing drains. The failed to examined Johnson missing find the drains. injury refused Thereafter eventually lumps heal de- properly and original he- veloped, site of the one back and right matoma on lower away, closer to second some six inches February, spine. con- complaining sulted Dr. Brunt about lumps. apparently gave Dr. Brunt if the him that some medication and told lumps they would have not subside be removed. Thereafter back continued Clair, Clair, St. Benjamine, Hiller St. & pain lumps severely persisted. him Falls, for plaintiff-appellant. August returned to Dr. Brunt on our in Renner During that consultation We conclude that decision allegedly told Dr. Brunt that drains

son (1969) had controls the instant In Ren originally installed Dr. Stoddard case. ner ac disappeared. held that in medical On we involving misdiagnosis tions surgically removed begin to run until limitations does not *3 and installed two new drains Johnson’s plaintiff reasonably knew Brunt did should have During surgery Dr. back. negligence. known of the defendant’s installed Dr. the drains not discover effectively Renner extended so-called Subsequently, Dr. Brunt did Stoddard. “discovery rule” in Bill (Dr. first announced Brunt) he drains that move two Idaho, Mercy of of Ida v. Sisters installed on (1964). Billings ho 389 P.2d 224 to back continued Thereafter Johnson’s confined its “hidden fact to instrument” December, 1968 con- annoy him in he discovery pattern. Renner extended the Dillon, in sulted Dr. Andrew Wehler J. negligent involving rule to circumstances X-rayed Montana. Dr. Wehler misdiagnosis. X-ray prompted him back and the results in a area surgically excise sinus to plaintiff defend- Renner consulted original hema- near the son’s back located “gas- diagnosed ant who her ailment as a operation December During this toma. pathology” necessi- trointestinal condition the two discovered Wehler colostomy. tating surgery After drainage originally tubes installed plaintiff continued to distress suffer by Dr. Stoddard. bodily to her unable control normal surgery years Three after the functions. on December filed action plaintiff per- consulted another who doctor Doctors Stoddard against of surgery. formed additional As a result Dr. Stoddard on basis Brunt. He sued surgery allegedly it was discovered for alleged negligence insert- of Stoddard’s di- the first time that Dr. Edwards’ initial failing to remove the Penrose ing and agnosis and that the colosto- was erroneous the ba- sued Dr. drains. Johnson unnecessary. we held In Renner alleged negligence of Brunt’s both sis by I. plaintiff’s action was not barred existence of the failing diagnose to her action 5-219(4) because she filed § drains and years of her discov- summary within two of the date granted court them. district ery misdiagnosis. allegedly negligent of Brunt. of Dr. judgment in favor approval quoted Renner we party as a defendant Stoddard remains from following language Wilkinson party appeal. not a the action but is Harrington, R.I. A.2d totality pleadings, of the Considering (1968): interrogatories appar- it is depositions and genuine “Hence, ent that there remain issues of the dis- it is our firm belief that concerning material Dr. Brunt’s al- covery fact cases rule medical leged negligence. 56(c) Under I.R.C.P. preferable adoption is the strict to the of 56(e) and I.R.C.P. we conclude that construction of the statute of limitations. in entering 9-1-14, erred of limitations When the statute § judgment for Dr. Brunt unless due personal injury, is viewed with year given was barred intended allegiance being to its I.C., 5-219(4) of limitations found as of purposes, adoption virtually existed time this action was filed. at the ineluctable. To construe Clearly action is barred if the as narrowly preclude the statute so run began person remedy simply statute of limitations from obtaining from August, the time Dr. 1968treat- which he was wrong because least ment. victim did itself manifest missing drams. negligent would disclosed time have years instant conduct, with the Therefore we conclude inconsistent of Renner v. the ambit To re- case comes within concept justice. fundamental statute of hold that and we quire remedy a man seek before run until unjust. begin palpably limitations did rights, knows his discovered, circumstances, missing drains were such in order for a Under care, protect legal reasonable patient to secure and exercise malpractice, been discovered. rights against doctors required to submit would questions of fact for disputed There are complete by a himself examinations disputed at trial. Some resolution independent physicians series began the statute facts indicate when every operation he received or treatment dis- is not established to run. *4 physician his first choice. from the of that pute was aware that Johnson The unreasonableness of such result his back when still in Stoddard drains were (Emphasis supplied) self-evident.” is it estab- Nor he consulted Dr. Brunt. whether lished contradiction case, instant Returning to the we missing Brunt of son advised Dr. gravamen note that of com negligent Dr. Brunt was drains or whether plaint is that he informed Dr. Brunt of missing drains. in to discover missing Penrose that Dr. drains and at questions All these are for resolution operating on examining and trial, in of summary judgment favor him, that the drains did not determine Brunt was therefore erroneous. responsible were for discomfort. Respondent argues that the 1971 that at trial the evidence We conclude indicate a proper diagnosis 5-219(4)1 amendments to could that I.C. establish by Legislature of the exercise of reasonable should Be It Enacted care put inquiry regarding have been the con- State of Idaho: complained 5-219, of; dition or matter all Idaho SECTION Code, be, That Section actions, arising profes- hereby other whether from same is amended and the malpractice otherwise, sional of or cause to read as follows: against officers, penal- action shall be deemed have accrued 5-219. Actions for occurrence, ties, bonds, professional malprac- or as of the time of the act and for of, complained personal injuries. limitation omission and the tice or for —Within period by (2) years: of shall not be extended reason any consequences damages continuing re- or profes- any continuing sulting pro- damages or therefrom 4. An action to recover relationship injury malpractice, between sional or commercial fessional for an or injured alleged wrongdoer, party person, and the or for death of one caused and, provided further, wrongful neglect another, an action within that in- act or of object foregoing foreign arising or fraudulent cluding any from breach such action exceptions implied covenant; implied warranty must be commenced concealment of an or (1) year however, of provided, the date within one when the action is (2) years fol- damages placement or two arising accrual as aforesaid of the out lowing occurrence, com- inadvertent, or omission act leav- accidental or unintentional plained of, any body term any foreign object is later. The ing person by whichever of “professional malpractice” professional re- as used herein mal- reason wrongful practice any hospital, physician or omissions fers to acts or other performance professional person practicing any services or institution corpora- firm, association, entity person, damage or healing fact of arts or when the perform responsi- has, purpose escaping services under licensed to such tion for the sub- bility fraudulently Idaho. This therefor, of the state of know- the law been application injured party ingly shall not affect an section section concealed from the 243, Code, except as to standing alleged wrongdoer Idaho the time 5— malpractice. professional arising act, neglect wrongful in a actions or breach the professional relationship be deemed Neither this subsection shall or commercial 5-241, amend, repeal section injured party, construed to same shall be deemed injured party knows or Idaho Code. to accrue when the precedent aris- regarding cases of lim- legislative intent to the statute “ ** * Nevertheless, 24, before March occur- run from itations alive and rence, the rule established Renner complained of.” We act or omission pertains arising to cases well insofar as ch. 180was reach issue because do not prior long to March effective until March find after this cause of arose. We judgment of the legislative intent that ch. 180 should no proceed- and remanded further versed retroactively. No Idaho applied law opinion. Costs consistent with retroactively in the absence applied will he appellant. intent to that effect. legislative of a clear Walker, Edwards v. BAKES, DONALDSON, concurs; J., J. concurs the result. Respondent Brunt contends Gorton, (1972) McFADDEN, (specially concur- Justice reached requires contrary result ring). argues He herein. case, opinion majority relies on the in- bar also the case at control because Renner v. to remove negligent failure volves rationale for (1969), as the basis and note, however, that foreign object. We reversing summary judgment in this *5 object genuine foreign a Johnson is not I still adhere to views Although case. plaintiff consulted the case. In Johnson expressed my in Renner Ed- dissent v. treatment of with the defendant doctor for wards, supra, the law I realize that is plaintiff the gunshot wound. Both at this time and I am forced to concur plain- aware that defendant doctor were majority opinion. the The injury tiff’s caused a bullet. was plaintiff alleged quite inconsist- in Johnson McQUADE, (dissenting). Justice ently to dis- had failed both that doctor to this This action comes Court presence that of the bullet and close appeal judgment an of dis- form of plaintiff to believe led the doctor had respondent’s motion missal based that the bullet had been removed. Johnson judgment that summary alleged for The concealment. turned on fraudulent plaintiff-appellant Kenneth W. John- summary precise was that holding therein by the son’s action was barred statute of properly against entered judgment was dem- limitations.1 A review of the record allege plaintiff of her failure because present failed to onstrates that Johnson issue a triable facts to establish sufficient opposition sufficient materials is regarding fraudulent concealment. summary for establish judgment motion that its facts stated in Johnson therefore the a triable fact and issue either the Bill- bring the case within judgment dismissal district court’s mis- foreign object or the Renner rule be affirmed. should inappli- is diagnosis rule. Hence Johnson granted only Summary can judgment be cable the case bar. genuine issue material when there is no to a party is entitled moving fact and the amendment apparent that the 1971 It is addition, as severely judgment nar- a matter law.2 limitations statute of repeatedly held the instant has Renner rule. Since rows the liberally in favor construed rul- facts be prior amendment our to the case arose summary judg party against whom only establish it will unique is in that Mendenhall, 426, 510 1971). 95 Idaho (amended v. Turner 5-219 I.C. § Company Bryan (1973); Kieckbusch, 56(c); v. Elswood Trail- Schaefer I.R.C.P. (1973); Sales, er 7 appli- in Renner v. Edwards re announced sought and all are to be ment is doubts the district the action to de cable and remands against moving party.3 The solved suffi- fails to set forth The record fendant-respondent court. Dr. A. William place within information to summary judgment based cient motion for was discovery an Renner rule. provides that on I.C. 5-2194 which injuries body for to the recover case, discovery rule in the Renner years. brought within two must cir- extended to malpractice John actions was alleges that Brunt committed the son involving misdiagnosis result- cumstances com patient surgery. The ing in erroneous plaint not filed until December was of a doctor engaged that case the services year in excess which is diagnosed her condition negligently who procedure by which limitation. unnecessary performed an and thereafter plaintiff can sum overcome motion patient colostomy. surgery After the mary lim judgment based on the statute of inability to pain and suffered continuous itations set forth in was the case bodily her functions. John control held son v. In that case it was Gorton.5 doctors and sought relief from several plaintiff had failed to submit suf years three not until some proof opposition ficient to the motion surgery surgery was it discovered summary judgment to avoid dismissal. unnecessary. It was held that measuring This Court stated the test for begin to run statute of limitations did sufficiency of the record to overcome unnecessary surgery discov- until as, the motion for judgment ered, or should been discovered. to overcome In order for “Summary judgment proper if the evi- summary judgment he must motion dence before the court the motion produce “specific” evidence sufficient would warrant a directed verdict if the showing applica- case go were to trial. When mov- *6 to ble to his action. For ing party presents materials which would apply must be elements entitle him directed verdict if shown: presented trial, responding party at evidence; not back his hold he must (1) Negligence malpractice by

present doctor; sufficient materials to establish a triable issue. Those materials must set (2) Ignorance by particularity; forth the facts with for if patient. general averments were sufficient purpose going to Dr. Brunt summary judgment procedure would lose lumps towas have him examine two utility. requirement its The specifici- Although had formed on it is his back. ty is underscored in cases where the clear, appears it from the record that moving established, prima defendant has lumps not located at were facie, grounded a defense place where the drains left in were of limitations.”6 by son’s back. The were removed proof of estab- bore burden of Dr. Brunt and the drains were in the lishing that his action was not barred lumps. I.C. 5—219. majority alleg- states “Johnson majority concludes that the discov- edly drains in- told Dr. Brunt exception ery to the statute of disappeared” limitations stalled Dr. had Sales, supra, Gorton, supra, 3. Schaefer v. Elswood Trailer 6. Johnson v. note at note 1. 495 P.2d at 4. (1970). Amended 1971. 7. 5. 94 Idaho physicians has The standard care to the evidence appear to add which would as, by this been malpractice not to find fixed was in his answer stated drains. Brunt “[Tjhe and skill exercise of care or- that, interrogatories by competent physi- dinarily exercised surgeons in Pen- cians and the same or like him as to no

“I had discussion with present locality, light day in the The name drainage rose tubes. of, knowledge learning I and scientific At a time when never mentioned. was professional in the sub- from the advancement removing sutures was treatment, he ject.”11 at the conclusion prior trouble that he had some mentioned there is no supporting record Without 8it.” drains, did not elaborate negli- concluding basis for acted Brunt he To Furthermore, deposition gently in his treatment of Johnson. summary judg- the motion for stated, overcome ment, required come for- Doctor Q you advise I believe why un- ward with evidence as ear- you so stated least alleged negli- able to discover Dr. lier, you Doctor Brunt did advise gence years. within two had where the drains the occurrence something fallen or been either lost or established There was insufficient record year before ? Brunt’s mo- to overcome Dr. “A Yes. judgment. tion for The district court’s dismissal of the action should be you this with Doctor “Q And discussed affirmed. Brunt? I re- Not as far as

“A extent that there was just

member. I told him something.”9 missing, lost suffi- appears that Dr. was not missing drains

ciently informed no- meaningful charge him with manner negligence tice thereof and MITCHELL, Leslie L. Con- Mitchell d/b/a find and them. Plaintiff-Appellant, Company, struction evidence form There no *7 testimony presented al., et Defendants- C. Ed FLANDRO malprac- conduct Dr. constituted Respondents. treating for the tice in No. 11396. finding the drains. Supreme of Idaho. practitioner general rule is that a “The July arts, healing remain- while one scope prac- field of ing within the

tice, is the standard of entitled by the gave patient tested

treatment he principles the school

rules belongs,

medicine to which

those some other school.”10 220, 230, Palumbo, transcript, pp. 38-39. 11. Flock Clerk’s Prosser, (1941); see also W. pi deposition, transcript, 9. Johnson’s clerk’s 1971). Torts, (4th ed. 164-165 Law Warner, Flowerdew v.