*1 Renner, husband and Zella Earl RENNER wife, Plaintiffs-Appellants, EDWARDS, Defendant-
Clifford J. Respondent.
No. 10331.
Supreme Idaho.
Aug. 1969. Rehearing S,
On Oct. Moscow, Alsager, appel- Melvin for J.
lants. d’Alene, Miller, Eugene L. Coeur for spondent. Smylie,
Langroise, Clark, & Sullivan Boise, amicus curiae.
SHEPARD, Justice. single presents decision question, in an action for to-wit: misdiag- malpractice involving an nosis, adopt “dis- this Court should adopted covery previously involv- actions Court medical leaving ing of a surgery? The patient’s body during in a that the cause rule” sets forth action in does not accrue such case learns, reason- or in the exercise learned, diligence able care and appeal from is an The instant case complaint plaintiffs’ dismissal of by the barred reason action was al- complaint statute of limitations. defendant-respondent held leges that competent public himself out plaintiffs- surgeon, and Up- in 1961. appellants engaged his services diag- Renner, he on examination Zella condition/pa- “gastrointestional nosed form thology” necessitating surgery in performed colostomy, surgery he of a alleged that It is on March suffered, years thereafter for three pain among problems, continual *2 bodily year func- istence. A after the inability surgery her normal second control by surgical malpractice brought a different suit for the tions. Treatment and surgery on trial specialist court dismissed the action resulted in corrective on the basis 15, filed July Plaintiffs-appellants it was barred our statutes of limita- and, seeking tion. This the Court as afore- instant action on reversed June said, adopted “discovery $114,623.60 special the rule.” The a total recover of general alleging Billings par- and that the de- damages, decision was restricted the misdiagnosed ticular fendant-respondent involving had the facts leav- of case the condition, ing body. patient’s foreign object patient’s of in a field of sur- in a acted gery unqualified, and for which he was contends, therefore, Respondent in performed unnecessary surgery. “discovery Idaho at least rule” the so-called applicable statutes limitations of cases, applies only foreign object relying in 5-201, which, pertinent part, pro- I.C. in § only upon but Billings, Owens vides : White, rehearing 342 F.2d 380 F.2d only “Civil actions can be commenced Cir., (9th 1967). This case inter- latter periods prescribed within the in this preted language the in Bill- restrictive chapter after the cause action shall of ings opinion predicted that this Court * * accrued, “discovery would restrict the rule” to medi- 5-219, which, part, I.C. in pertinent cal involving foreign ob- provides: jects. White, While Owens years: have been a based
“Within two correct inference decisions,
then existing opinion our today damages “4. An action to renders that an recover decision incorrect prediction an of injury person, the death the future actions of or for of wrongful neg- one caused Court. or lect another.” McQuade’s in opinion In Mr. Justice Appellants contend that time in Billings amply reviews the conflicts cause action accrues is the time when the theory existing diversity which led to the knowledge, had in the or exercise jurisdictions adoption the various as to the diligence reasonable care and non-adoption “discovery rule” have had knowledge, negligence medical He actions. deals with malpractice. stituting Respondent, on the exceptions the various have been hand, ac- contends jurisdictions, devised in such some
tion accrues mal- time of the “continuing exception, negligence” wherein practice, misdiagnosis to-wit: be non-accru- cause of action said to initial surgery. ing under while the remains Billings care, This theory couching Sisters mal- doctor’s Idaho, contract, (1964), practice complaints in terms “discovery first enunciated the rule” thereby plaintiff the giving benefit setting therein forth time when file period longer time within which action, a cause in a mal- exception accrues and the third practice point theory time when a action as that fraudulent concealment wherein be, actually learns or in the exercise reason- is claimed to either diligence constructively, able learned his concealing care and should have fraudulent in patient. of the' In the negligent conduct from the involved, rejected opportunity to-wit: Court in gauze patient’s sponge pattern had left in the into forcing been that factual one body during surgery and undis- exceptions, remained previously mentioned years forthrightly until a sec- ad- clearly covered thereafter announced its exploratory operation its ex- ond revealed rule.” herence discussing Wood,
No purpose would be served L.Ed. (1879)]; Limitation ed., jurisdictions reject Actions, pp. number of (4th 1916)]. 4-7 [§§ misdiag- adhere *3 limitations, “The nature of the statute of patterns. nosis say fact it to Suffice however, underlying purpose and the “majority” what was has once termed it serves are not that which advanced opinions been so eroded recent of various by respondents. here The defense asserts jurisdictions rejection that adherence to or paramount function statute of “discovery of the can be in either case preserves of limitations is that social keeping respectable considered the of com- narrowly tranquility and that it pany. purpose. construed to better achieve its We proper think are, argument their fails to take stated, We as herein faced with cognizance concept for problem of fundamental of designed. which the were rule” to statutes falling cases eminently clear limitations into that statutes of categories than prevent unexpected were en- intended to cases. We believe the theories reasons concerning forcement stale claims adoption of enunciated in Billings for persons thrown interested been off applicable equally rule” are prosecu- guard their for want of seasonable at bar. See Iverson v. sure, are, They tion. those Lancaster, N.D., a bane to to be (1968); 158 507 N.W.2d prose- dilatory are in neglectful who Hospital, 220 Yoshizaki v. Hilo Wood, Limita- legal rights. 1 ; cution their (Hawaii, 1967) Harrington, Wilkinson v. Actions, 4, p. As a R.I., statute ; tion of (1968) § A.2d 745 v. Cald- Johnson they parties protection pose, well, afford needed (1963); 371 Mich. 123N.W.2d defending against necessity claims Sacks, Statutes of Limitation and Undis- which, antiquity, would because of their Malpractice, covered Rev. Clev.-Mar. L. disadvantage. place grave at a defendant ; Object Discovery and (1967) Foreign resolutely In such unfair would cases how Difference?, Misdiagnosis There a —Is willfully or care- who has to award one Discovery Rule: (1967); U.Pitt.L.Rev. 341 lessly rights opportu- slept legal his Malprac- Action Accrual Cause of for nity against a to enforce an claim unfresh tice, & Lee L.Rev. 78 Wash. li- party is left himself to shield who ability that the statute does tattered or nothing conclude with than We more begin memories, rec- misplaced not run knew faded or discarded ords, neg missing witnesses. should have known defendant’s or deceased circumstances, Indeed, quest ligence. in such wisest court. might truth elude even the Respondent us to those cases which directs the reason- predicated on The statutes are hold that are statutes statutes limitations claims presumption that valid and fair able stability repose designed promote in usually left are which are of value difficult, if the affairs men and make long dormant gather dust remain impossible, litigating of stale or (cid:127)not Hartford Riddlesbarger v. periods time. by the fraudulent claims. said As well Co., Wall.) 19 L.Ed. (7 U.S. Ins. Supreme Rhode Island Wilkin- Actions, supra, 257; Wood, Limitation supra: Harrington, son v. 4; Neb. Spath supra Morrow, [174 § are founded To those who 115 N.W.2d “[Statutes limitations] 581]. enforcing their known policy. unduly tardy in principles public the soundest oper- limitations bringing rights, Their statute of existence stimulates the effect, remedies; extinguish the designated time limits actions within the ates to legal ob- right create a ceases to when are still their events and circumstances obliga- moral thereof a ligation and lieu parties in' and wit- fresh the minds of aid of which courts Carpenter, arise tion nesses. Wood U.S. [101 statutory (cid:127)will lend their assistance. 34 Am. period Cf. after These anti- runs. Jur., p. podal arguments fairly ‘Limitation seem be resolved Actions/ public. appear favor It would “Our of limitations bottomed applica- from the modern trend towards theory policy on the same mentioned discovery rule, tion that courts are above. We cannot subscribe to beginning only negli- conclude tentions of the defense that the statute is gent physician protected the strict odds with the rule in mal- interpretation of the statute of limitations practice contrary, cases. On the we be- expense the cruel compatible lieve the rule is with the statute *4 public competent physi- and of the repose. would, It opinion, be our Cf. cian. Note The Statute Limitations manifestly unjust bar to the enforcement of Malpractice, Actions For Undiscovered injury by plaintiff claims brought a who 30, 12 Wyo.L.J. illuminating for an dis- not, could nor not have known point. supreme cussion on this As the was, the victim tortious conduct because Jersey recently noted, ‘If, New as is to consequent harm was unknowable with- hoped, resulting be jeopardy defen- to years in two negligent act. In this produces greater dants a measure care age enlightened highly medicine and surgical operations, connection with so sophisticated very treatment it is curative Strully, much the better.’ Fernandi v. likely injury that the maturation of result- 173 A.2d N.J. ing negligent from treatment would “Hence, it is our firm that the dis- belief years evidence itself for well after the two covery rule in cases is provided for the statute of limitations. preferable adoption of the strict con- Estep See Dyke and Van Radiation In- struction of limitations. juries: Inadequacies Statute of Limitations 9-1-14, When the statute of limitations Cases, In Tort Mich.L.Rev. 753 personal injury, is with due al- viewed thought particularly becomes disturb- legiance being given pur- its intended to ing when one realizes that the latent in- poses, adoption discovery rule is juries arising from medical virtually To the stat- ineluctable. construe very likely go would undetected vic^ narrowly person ute preclude so to a as tim, only practi- trained and skillful remedy simply obtaining from because tioners of medicine could ascertain whether wrong of did not which he the victim has been mistreated. Even the years manifest itself for least two from physical symptoms might fu- which herald conduct, clear- the time is inquiry may beyond ture well be com- ly concept of funda- inconsistent with the prehension or perception average justice. require mental to seek To man layman. remedy rights, is before he knows of his “We are also not palpably unmindful the con- unjust. circumstances Under such flicting policies which protect the issue before us a patient and order secure raises general pub- legal between doctors and rights against his mal- doctors for customarily lic. practice, required advanced these be would unjustly prejudiced complete doctors are submit himself to examinations by the discovery rule as its independent physicians a series after operation sanctions stale every law suits in which the med- he received or treatment ical practitioner pressed physician is hard defend first choice. The his because recollections, of faded perishable such is self- unreasonableness of a result imperfect course, evidence and records. should be construed Of evident. No statute result; the countervailing policy argument, bring patently more- about a inane merit, over, legislature also has is that we have often said public should protected against intended presumed could to have medical mistreatment never absurd, unjust or does enact become ascertainable laws which Haggerty, worry unreasonable. State v. 89 R.I. often By any standard, hollow. A.2d Accordingly, prefer keeping we medical record is in a far ad- follow the rule medical mal- vanced state from the time proof stale practice opinion cases because in our was a dominant reason to cut off'claims theory eminently per- behind it not, fair if it even claiming were fectly consistent with function and is under the same limitations as nature of acts.” limitation perhaps in medical cases, greater (footnotes an even one. problem (Emphasis omitted)” original) specif- misdiagnosis, contrasted with ically University dealt in 29 with of Pitts-
burg Law stating: Review finally respondent’s We come argument to extend the connection, “In the same the courts “open would be to Pandora’s Box misgivings have overcome their about this court release countless demons for fictitious claims areas their grapple requested and that such with” largely gone decisions have unabused. “discovery rule” extension of the *5 Indeed, adversary misdiagnosis, with the legislature be left than this rather system imposes itself a strenuous burden judicial legislation. We indulging proof claiming plaintiff of on that the rejection of the respond by indicating that any danger more than offsets of fraud indulging in as rule” is much situation, part and, on his in the instant adoption of judicial legislation as is the strongly militates against his of chances Branner, Berry the 245 Or. rule. misdiagnosed plaintiff success. For the Hos ; (1966) Morgan v. Grace prove 1.) must diagnosis the doctor’s pital, S.E.2d W.Va. 2.) was incorrect and that the error was time of legislature the Our did not define judgment negligence, not a failure of but per the being the time of accrual either as judged by as the standard of care the time negligent act or formance of the quired at the time the of knowledge neg the of acquisition injury, 3.) relationship and the causal by this Court. ligent done act. That was negligent plaintiff’s the the in- imply adopt To the jury. plaintiff The is further burdened require a knowledge as the existence of the with reluctance of the renowned and thus of an action ment for the accrual opinions profession to offer statutory require supply knowledge as a doctor, especially conduct of a fellow is to Conversely, reject the rule ment. misjudgment shadowed area considered imply legislature vis-a-vis element of requirement knowledge an as proof “The burden ob- such deliberately excluded accrual and ject course, is, easier sustain Legislative terminology from statute. done, type injury because of the in determin ignored not be inaction should procedural available, devices an intent, imply such legislative ing but to nature of the evidence in the case. This legislative intent as result in this case be, however, pol- basis Berry Bran inaction is unreasonable. icy distinction. To allow one unknow- statutes, as ner, moment, supra. our At the ing plaintiff to better sue because has country, are silent across this most others proof unknowing and to bar another “knowl interrelationship between his burden is more because required edge” and “accrual.” We onerous, fit the ir- could needs of some reach a without assistance decision hardly logic relevant but ends of select our brethren. We responsive justice. statute, interpretation our alternative concept our accords argument proof, stale which we believe with “As justice danger frequently sounded reason. but judgment The of dismissal September is reversed limitations commenced to run and the matter remanded to the District Court for ap- trial merits. Costs In Billings quoted this court
pellants. Strully, from Fernandi v. N.J. (1961), A.2d 277 as follows:
McQUADE and SPEAR, JJ., concur.
“It
must be borne
that Mrs.
mind
questions
Fernandi’s claim does not raise
McFADDEN,
(dissenting).
Chief Justice
credibility
nor
is rest on
her
does
v. Sisters of
professional
judg-
diagnosis,
matters of
(1964),
845
Hospital,
distinguishing
pra;
v. Wallace
reasons for
Summers
276
There
sound
White,
1960); Roybal
F.2d
object
(9th
831
Cir.
v.
foreign
cases
between
misdiagnosis.
N.M.
(N.M.1963);
72
pressio
ex-
est exclusio alterius
unius
May,
Freeman, supra,
(decided
uelson v.
pression
thing
the exclusion
of one
1969)
Dight, 453
cited the case of Ruth v.
clear that
another),
equally
should he
proposi-
for the
apply
(April
1969),
legislature
did
intend
“foreign
type
tion
of case
object”
that in a
limitations
rule to the statute of
not commence
statute of limitations did
injuries.
it so in-
governing personal
Had
discovery of the
run
such time as
tended,
clearly
said so as
it would have
*10
reasonably
foreign
object was made
5-218(4).
it did in
dissent
I.C.
See
§
Idaho,
In
v.
should have been
Samuelson
Mercy of
su-
made.
v. Sisters
Freeman,
treatment,
supra, Washington
operation.”
court
tal
omission or
ex-
Ch.
discovery
Oregon
p.
tended
so-called
rule in a
Laws
1586.
fashion to
malpractice
novel
medical
It is
firmmy
conviction that the so-called
diagnosis
treatment, holding,
“discovery
employed
rule” should not be
effect,
malpractice
during
that if
is claimed
to toll the
running
statute of limita-
substantially uninterrupt-
continuous
tions,
5-218(4),
legislature
I.
C.
ed course
treatment
of limita-
the statute
enacted,
being
majority
as is
done in the
does not
tions
commence to run at least
opinion
nothing
case. There is
particular
until the treatment of the
illness
gained by belaboring
to be
the reader with
or condition has
The court
terminated.
purposes for
the enactment of statutes
held, however,
also
that
statute
limi-
objects
limitation and the
ordinarily
tations
begins to
either from
run
by such legislative
solved
enactments. Suf-
negligent
occurrence of the
omis-
say
every
fice it to
that
doctor
time a
injuries
manifest,
sion if the
are
therefrom
diagnosis
patient,
makes a
for his
his con-
not apparent,
or if
pa-
from
time the
tingent exposure
to a claim of
tient could or should have discovered the
misdiagnosis
improper diagnosis is
injury.
unlimited as to time.
In the
allega-
instant case
are no
there
logically could
The same
of fact
tions
that
would
within the
bring
applied
professional
decisions-
scope
ruling
Washington
in the
case
architects, dentists,
by engineers,
at-
made
Freeman,
of Samuelson
supra.
v.
Presently,
torneys
professions.
concerned,
attorneys
at
insofar as
least
case,
Oregon
As concerns the
Frohs v.
generally
it is
held that in the absence
Greene, supra,
that court dealt with
concealment,
of limi-
fraudulent
the statute
(as in
case)
issue
the instant
of whether
begins
tations
run
the time
promulgated in
rule” as
neglect or misconduct and not from
Branner,
Berry
307, 421 P.2d
Or.
or the
wrong
time when the
is discovered
(1966),
objects
should be
Annot:
consequential damages are felt.
to a
extended
A.L.R.
diagnosis and
Frohs
treatment.
prop-
Any
liability
expansion of
Greene, supra,
applied
the dis-
court
action, not
erly
be reserved for
covery
It is
to note that
interest
rule.
dissent
accomplished
judicial fiat. See
subsequent
Berry
to the decision in
v. Sisters
Branner,
28, 1966,
supra, decided December
485, 505,
86 Idaho