Lead Opinion
The trial judge has rendered a summary judgment in this medical malpractice case, holding that the plaintiff’s cause of action for damages due to misdiagnosis is barred by the two-year statute of limitations. The court of civil appeals has reversed and remanded, holding that the “discovery rule” applies and that a question of fact exists concerning when the plaintiff knew or should have known of his injury.
The plaintiff injured his back on July 26, 1971. On August 6, 1971, the defendant performed radiographic and other tests upon the plaintiff, and concluded that plaintiff had a herniated disc between his fourth and fifth lumbar vertebrae. Four days later, the defendant surgically repaired the disc diagnosed as herniated. The plaintiff remained in the defendant’s care until late December of 1971, during which time he continued to have back pains. On January 26, 1972, the plaintiff saw another physician,’who’pfescribed'iTback brace, and later on ApriR25,1972,"performed.. radiographic tests which_resulted. .in. a diagnosis of a herniated disc. The following day, April 26, 1972, aTherniated disc between the third and fourth lumbar, vertebrae was excised. The ("gravamen of plaintiff’s claim is, therefore, ⅞(1^ defendant erroneously diagnosed plaintiff’s condition and operated on the wrong intervertebral disc.
This action was filed by plaintiff on April 4, 1974,"more than Two yéarslííteí’plaintiff had chañgécTphysicians, but less than two years after the alleged" actual discovery of an injury'dlfferent from that diagnosed and treated by...defendant in August of 1971. The applicable statute of limitations is Article 5526 of the revised civil statutes, providing:
There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not after-wards, all actions or suits in court of the following description:
6. Action for injury done to the person of another.
The defendant asserts that plaintiff’s action is barred by limitations. The plaintiff claims he did not actually discover, nor in the exercise of ordinary care should he have discovered, that there was a misdiagnosis until the results of the second operation were known to him, and that his cause of action did not, therefore, accrue until such time.
For the purposes of application of statutes of limitations, a cause of action generally can be said to accrue at the time when facts come into existence which authorize a claimant to seek a judicial remedy, Williams v. Pure Oil Company,
In Gaddis v. Smith,
The result in “discovery rule” cases like Gaddis, Hays v. ifaZTand Grady v. Faykus stems from ‘ the recdgmti0iFof~ the purposes of statutes of limitations; and,“at the same time, recognition of what is not the statutes’ • purpose, but an unfortunate, occasional by-product. The primary pur-poseof aTstatute of .limitations is to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend while witnesses are available and the evidence is fresh in their minds. Price v. Estate of Anderson,
This Court has specifically limited its pri- or holdings regarding this discovery rule in malpractice cases. In Gaddis v. Smith,
[T]he question when a cause of action accrues is a judicial one, and to determine it. in any particular case is to establish a general rule of law for ¿¡ri'class of cases, which rule must be fourided~on reason and justice. .
In the absence of legislative definition and~ speeification, the . . . courts have often been called upon .to .delineate tlie statute; they have conscientiously sought to apply it with due regard to the underlying statutory policy of repose, without, however, permitting unnecessary jnjustices. . . . [I]n still other instances they have declined to find the bar inequitable though the plaintiff admittedly knew nothing about the cause of action until shortly before the institution of his action; in reaching this result they were not unaware of the individual injustice to the plaintiff but presumably determined that, on balance, it ■ was outweighed by the need for repose and the*21 danger that a different approach might undermine the statutory goal.
Immediately following the above quoted language, the New Jersey Court in Fernan-di v. Strully.distinguished the “foreign object” case from other types of medical malpractice cases, noting that it “does not raise questions as to [plaintiff’s] credibility nor does it rest on matters of professional diagnosis, judgment_or„dis_cretipn.’’ In such'a' case, “the lapse of time does not entail the danggr_of a false or frivolous claim nor the danger_of a speculative or uncertain claim.”
The case before us however does “rest on matters of professional diagnosis, judgment or discretion.” This distinction between an “alleged misdiagnosis” case and a “foreign object” case was also clearly drawn in Owens v. White,
Extension of the discovery rule to encompass a case of the type involved here would subject physicians to the possibility of liability, or at least to the embarrassment and expense of litigation, upon claims of mistaken diagnosis of any illness, however great may have been the lapse of time between the date of cessation of the doctor-patient relationship and the formal prosecution of the claim. The danger of (“fra u d uleni> and stalejLclhims, which the Idaho court recognized to be diminished in foreign object cases, is obviously..enhanced..when.the_ claim o_fjnedical mjdpractice_Js_predicated upon alleged _ misdiagnosis. In such a case, unlike the_ foreign object situations, not even the fact of injury can alwavs..be..clear. — Even in its present stage of advanced development, medicine is not an exact science. Symptoms and diseases thought at one time, even recently, to fall into one category are later discovered, through the evolution of the science, to fall into another. If the trier of fact should be convinced, upon the basis of new knowledge, that a mistaken diagnosis was made, the defendant’s task of establishing that his conduct did not fall below the standard of care which prevailed in his profession at the time and place of the alleged error could prove insurmountable in the event of sufficient lapse of time.
The cause of action alleged in the present case is founded upon an alleged misdiagnosis in August of 1971. Plaintiff, to prove his cause of action, faces the burden of proving both a mistake in professional judgment and that such mistake was negligent. Expert testimony would be required. Physical evidence generally i$ not available when the primary issue relgyant to .liability ..concerns _ correctness of past judgment. Unlike Gaddis v. Sniith-there exists in the present case no ^physical evidence which in-and-of-itself establishes The negligence of some person. What physical evidence was to the cause of action alleged f, in Gaddis v. Smith, expert testimony is to] the cause of action in the present case. Even the fact of injury is a matter of expert testimony.
Likewise in Hays v. Hall the defendant doctor’s error was established by the physical fact that plaintiff’s wife became pregnant and was also subject to proof by performance of fertility tests upon the plaintiff. Sterility vel non involved a wholly different line of inquiry from the erroneous judgment vel non involved in the present case. SterilityJ&jsstahlishable by I physical proof; negligently erroneous judg-j mentJby_fixpert. .testimony.
Grady v. Faykus goes somewhat further than did this Court in Hays v. Hall and Gaddis v. Smith, in that the court of civil appeals applied the “discovery rule” to a cause of action founded upon negligent treatment. Mrs. Grady, following a radical mastectomy for breast cancer, was referred by her surgeon to' the defendant physicians for administration of X-ray therapy. Such therapy was concluded by the defendants in November of 1969. Ten months later, in September of 1970, Mrs. Grady was informed by a plastic surgeon that skin ulcers in areas exposed to radiation were the result of excessive doses of radiation. Suit was filed against the therapist-doctors in June of 1972, more than two years after the
Assuming for the moment that strict application of limitations would have an unintended effect in the present case, in that plaintiff’s claim would be held barred less than two years after he knew of his injury, it is nevertheless clear that the purpose of limitations would be furthered by such application. Proof of plaintiff’s cause of action would demand expert testimony concerning the interpretation of tests made in 1971. While present physical evidence might exist which proves that plaintiff’s disc was excised in 1971, the main issue of negligent exercise of judgment is subject to proof only by expert hindsight. The line between negligent diagnbsis'and the negli^ geñt treatment in Grady v. Faykus may indeed be a fine one, but the. distinction is_ necessary in order to assure that the primary purpose of statute, of limitations is met. We decline to apply the discovery rule to encompass a case of the type involved here.
The judgment of the court of civil appeals is reversed, and the judgment of the trial court is affirmed.
Dissenting Opinion
dissenting.
I respectfully dissent. The case presents a single question: Does the “discovery rule” apply to an action based upon a medical doctor’s misdiagnosis? The majority answers no. By so holding, the majority treats misdiagnosis differently than we have treated other types of medical malpractice. I disagree with the majority holding. I believe that we should be consistent with our prior holdings and apply the “discovery rule” to a doctor’s misdiagnosis.
In Gaddis v. Smith,
In so far as Mrs. Nichols bases her claim on the alleged severence [sic] of . the vagus nerve, it could be argued that the case is governed by the discovery rule .. Our action in affirming . is not to be understood, therefore, as holding that the discovery rule has no application here. Id. at 521.
In Sanchez v. Wade,
It is important to note that Mr. Weaver remained under Dr. Robinson’s treatment from August, 1971, through December, 1971. During this period, he continually complained of persistent pain and infection around the incision area. Dr. Robinson responded to these complaints by telling Mr. Weaver that he was “worrying too much.” The majority opinion in effect says that a patient trusts his physician’s advice at his own risk. In a similar situation, the Michigan Supreme Court explained that:
[I]t would be “illogical and unintelligent” to require a patient to determine on the date he last consults a physician that malpractice has taken place, when he in fact relies upon the advice that constitutes the malpractice. So to hold would punish the patient who relies upon his doctor’s advice and places a premium on skepticism and distrust. Johnson v. Caldwell,371 Mich. 368 ,123 N.W.2d 785 (1963).
The California Supreme Court has long recognized that due to a doctor and patient’s fiduciary relationship, “facts which would ordinarily require investigation may not excite suspicion, and that the same degree of diligence is not required of the injured person.” Stafford v. Shultz,
The steps in the discovery of Mr. Weaver’s cause of action are closely akin to the steps taken in Gaddis. Like Gaddis, Weaver had knowledge of internal pain but had no knowledge of cause. Only after the second myelogram, on April 25, 1972, which revealed the ruptured disc, did Weaver reasonably know of the existence of his cause of action. As in Gaddis and Hays, the statute of limitations in this case should run from the date of discovery.
It is true that in a misdiagnosis case, a physical object is not involved, but this does not mean that a fraudulent claim may be more easily asserted. As the Hawaii Supreme Court stated in Yoshizaki v. Hilo Hospital:
[Treatment generally follows diagnosis. The treatment is an objective fact which may be proved or disproved by people other than plaintiff. The fact that the treatment is the kind normally administered for the ailment the doctor allegedly improperly diagnosed is strong evidence of the diagnosis.50 Haw. 150 ,433 P.2d 220 (1967).
We have already applied the discovery rule in cases which did not involve physical objects. See, Hays v. Hall, supra; Grady v. Faykus, supra. In our facts, the care and treatment that Dr. Robinson prescribed for Mr. Weaver are safe indicia of the misdiagnosis. In addition to the treatment, the office and hospital records supply further reliable evidence of misdiagnosis.
The New York courts have not limited the discovery rule to foreign object cases. In Murphy v. St. Charles Hospital,
I would affirm the judgment of the court of civil appeals and make the Texas law consistent with our other malpractice decisions instead of applying the “discovery rule” sometimes and sometimes denying its applicability. The rule announced by the majority encourages a spirit of distrust of one’s doctor, it unfairly denies a cause of action before one learns that he has a cause, and it is contrary to the leading cases throughout the country. The rule denies protection to the uninformed victim of the malpraetitioner.
I would affirm the judgment of the court of civil appeals.
McGEE, JOHNSON and YARBROUGH, JJ., join in this dissent.
Notes
. The “discovery rule” applies in actions based on fraud, Ellison v. McGlaun,
. Courts now more generally applying the discovery rule to medical malpractice cases are: Mayer v. Good Samaritan Hospital,