JOSEPH J. SACCHI, APPELLANT, V. JOHN L. BLODIG ET AL., APPELLEES.
No. 82-301.
Supreme Court of Nebraska
Filed December 9, 1983.
341 N.W.2d 326 | 215 Neb. 817
Lyman L. Larsen and William M. Lamson, Jr., of Kennedy, Holland, DeLacy & Svoboda, for appellee Blodig.
Bren L. Buckley of Cline, Williams, Wright, Johnson & Oldfather, for appellee Hospital.
KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.
SHANAHAN, J.
Joseph J. Sacchi appeals from a summary judgment granted to the defendant physician, John L. Blodig, and the defendant hospital, Creighton Memorial St. Joseph‘s Hospital, Inc. (Hospital). Summary judgment was granted upon the allegations
Upon a motion for summary judgment a court еxamines the evidence to discover if any real issue of fact exists, takes that view of the evidence most favorable to the party against whom the motion is directed, and gives to that party the benefit of all favorable inferences which may reasonably be drawn from the evidence. Bank of Valley v. Shunk, 208 Neb. 200, 302 N.W.2d 711 (1981).
On September 6, 1967, Sacchi engaged the professional services of Blodig, a doctor of psychiatric medicine, for treatment of severe depression. Sacchi wаs admitted to the Hospital on October 31, and on November 4 Blodig diagnosed Sacchi‘s condition as “acute psychotic paranoid reaction.” Blodig‘s treatment of Sacchi included 11 episodes of “electroshock therapy” from November 4 to November 24. On January 9, 1968, Sacchi was dismissed from the Hospital but remained under the care of Blodig until September 13, 1968, when Blodig readmitted Sacchi to the Hospital. Blodig‘s diagnosis on this readmission was “schizophrenic reaсtion, paranoid type.” Blodig kept Sacchi in the Hospital until November 10, when Sacchi was discharged from Blodig‘s care and was dismissed from the Hospital. There was no service rendered by Blodig or the Hospital after November 10, 1968. Sacchi‘s “mental illness resulting in mental incompetency” was removed September 30, 1979. Sacchi filed his petition on September 17, 1980, which alleged that Blodig and the Hospital collaborated in a negligent diagnosis that Sacchi‘s condition was a рsychosis, whereas Sacchi‘s true condition was mental incompetence attributable to a physical problem and not a mental disorder as diagnosed. Blodig and the Hospital filed separate motions for summary judgment, and each claimed that Sacchi‘s cause of action was barred by the statute of limitations under
The issues involve interpretations of two statutes, namely, (1) whether the legal disability of insanity (
Nebraska adopted the “discovery rule” by Spath v. Morrow, 174 Neb. 38, 43, 115 N.W.2d 581, 585 (1962): “[T]he cause of action . . . did not accrue until the plaintiff discovered, or in the exercise of reasonable diligence should have discovered [the malpractice] . . .” and no time limit was specified for such discovery. Seven years later the “discovery rule” was reiterated in Acker v. Sorensen, 183 Neb. 866, 872, 165 N.W.2d 74, 77 (1969): “This court is already committed to the discovery rule” (citing Spath v. Morrow, supra), but there still was no specified time during which discovery must be made.
With that background,
A decade after enactment of
An examination of the statute discloses that
Throughout this judicial and legislative development of the discovery rule,
Before examining the effect of a legal disability upon the time limits found in
Discovery, as used in our “discovery rule,” means that an individual acquirеs knowledge of a fact which existed but which was previously unknown to the discoverer. See, Myers v. Stratmann, 245 Iowa 1060, 65 N.W.2d 356 (1954); In re Mangan‘s Will, 83 N.Y.S.2d 393 (Broome Co. Sur. Ct. 1948).
According to the allegations in the pleadings, Blodig diagnosed Sacchi‘s condition as an acute psychotic paranoid reaction and schizophrenic reaction, paranoid type, and treated Sacchi from October 1967 to November 1968. Some of the treatment included 11 “electroshock” episodes and 130 days of confinement in the Hospital. Sacchi‘s сondition persisted until November 1979. From such alleged circumstances it is a reasonable inference that Sacchi‘s condition may have come within the insanity provisions of
Assuming that the contention of Blodig and the Hospital were correct and that the time limit in
REVERSED AND REMANDED.
KRIVOSHA, C.J., concurring.
I concur in the result reached by the majority in this opinion. I write separately, however, because I believe that, for the reasons noted by the majority, any effort by the Legislature to bar a cause of action before it has been discovered, or in the exercise of rеasonable diligence could be discovered, would be to deny a class of persons both equal protection of the law and due process in violation of both their state and federal constitutional rights. In Brinkerhoff-Faris Co. v. Hill, 281 U.S. 673, 682, 50 S. Ct. 451, 74 L. Ed. 1107 (1930), the U.S. Supreme Court said: “Whether acting through its judiciary or through its legislature, a State may not deprive a person of all existing remedies for the enforcement of a right, which the State has no power to destroy, unless there is, or was, afforded to him some real opportunity to protect it.” (Emphasis supplied.) See, also, Moore v. Jackson Park Hosp., 95 Ill. 2d 223, 447 N.E.2d 408 (1983). What greater action can be taken by a Legislature to deny an individual a real opportunity to protect a right than to bar the institution of such an action even before the injured party knows or, with the exercise of reasonable diligence, could know that such a right exists.
Whenever the Legislature has adopted a new statute of limitations, courts have required that the injured person be afforded a reasonable period of time in which to seek redress. See, Educational Service Unit No. 3 v. Mammel, O., S., H. & S., Inc., 192 Neb. 431, 222 N.W.2d 125 (1974); Horbach v. Miller, 4 Neb. 31 (1875); Central Missouri Tel. Co. v. Conwell, 170 F.2d 641 (8th Cir. 1948). Logic therefore would seem
BOSLAUGH, J., dissenting.
The majority opinion concludes that
Section 25-222 provides: “Any action to recover damages based on alleged professional negligence or upon alleged breach of warranty in rendering or failure to render professional services shall be commenced within two years next after the alleged act or omission in rendering or failure to render professional services providing the basis for such action; Provided, if the cause of action is not discovered and could not be reasonably discovered within such two-year period, then the action may be commenced within one year from the date of such discovery or from the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; and prоvided further, that in no event may any action be commenced to recover damages for professional negligence or breach of warranty in rendering or failure to render professional services more than ten years after the date of rendering or failure to render such professional service which provides the basis for the cause of action.” (Emphasis supplied.)
The committee statement, Committee on Judiciary, L.B. 1132, 82d Leg., 2d Sess. (Jan. 31, 1972), states: “This bill would place an overall limitation of 6 years [later amended to 10 years] in which an action is to be brought or it would be barred. . . . [N]o action could be brought in any case after 6 years had passed.” (Emphasis supplied.) In the floor debate on February 25, 1972, Senator Carstens, who introduced the bill, explained the purpose of L.B. 1132 as follows at 4573-74: “At the present time, there is no upper amendment [sic] or outside limit of time in which action may be brought. It can be brought ten years or fifteen years after the alledged [sic] act of negligence has occurred. And this bill would limit . . . It places an overall limitation . . . on the statute of limitation.” (Emphasis supplied.)
Throughout the legislative history, the legislative concern with prevention of stale claims, particularly those involving medical malpractice, is apparent. In the introducer‘s statement of purpose the following appears: “Physicians and surgeons need some type protection to prevent actions being brought long after the incident of alleged malpractice took place, when the incident is so remote that it is difficult for the physician or surgeon to protect himself, and defend himself, from the charges because the evidence has bеen lost, the witnesses who would know are gone, no defense is available because the defenses which existed have been erased by the passage of time.”
From this history it can be concluded that the Legislature intended that
In O‘Connor v. Abraham Altus, 67 N.J. 106, 335 A.2d 545 (1975), the court reached the same conclusion in determining the application of the tolling statute for infancy аnd insanity to a statute which required that certain actions against architects be brought within 10 years. “From this it follows that in our view the legislature did not intend the ten-year period after construction to be ‘expanded’ by reason of one‘s infancy. This is not to say that the tolling statute is to be disregarded entirely. Rather, it seems reasonable — and serves the salutary purpose of harmonizing the statutes under examination — to conclude that the tolling statute will safeguard a remedy for a cause of action of the type affected by N.J.S.A. 2A:14-1.1 accruing during infancy, but only to the extent that the period within which suit must be brought against one included in the favored class does not extend beyond ten years after completion of construction.” Id. at 123, 335 A.2d at 554. See, also, DeLay v. Marathon LeTourneau Sales, 48 Or. App. 811, 618 P.2d 11 (1980), aff‘d, 291 Or. 310, 630 P.2d 836 (1981); Hill v. Forrest & Cotton, Inc., 555 S.W.2d 145 (Tex. Civ. App. 1977).
Application of the rules of statutory construction and interpretation warrant a conclusion that the enactment of
It is a well-settled rule of construction that special provisions in a law relating to a particular subject matter will prevail over general provisions, so far as there is a conflict. State v. Cornell, 53 Neb. 556, 74 N.W. 59 (1898). An act complete and independent in itself may incidentally amend, modify, or have impact upon the provisions of existing statutes without controverting the constitutional requirement that an amendatory act contain the section amended. State ex rel. Douglas v. Gradwohl, 194 Neb. 745, 235 N.W.2d 854 (1975).
Other courts have interpreted statutes similar to
In Mathis v. Eli Lilly and Co., 719 F.2d 134 (6th Cir. 1983), the court reviewed various decisions dealing with statutes which imposed an absolute time limit for bringing certain types of actions. That case involved a Tennessee statute of limitations that barred products liability actions against manufacturers and sellers more than 10 years after the product was purchased, which was held valid against claims that the statute violated due process. The court held the statute valid even though it effectively extinguished some claims before they could arise.
The court of appeals in the Mathis case cited with approval several cases in whiсh it was held that language similar to that used in
The court in Mathis, supra at 140-41, went on to say: “In a comparable kind of situation, statutes of limitation barring suits against professionals such as architects and engineers after lapse of a specific period following the design, plan, supervision or construction have been upheld in federal courts despite the fact that the injury arising from a claimed defect may have occurred after the limitation period. The effect of holding such a state limitation bar valid is to preclude an injured party from suing a party claimed to be responsible, although his knowl-
The court of appeals in Mathis, supra at 142-43, also cited with approval Harrison v. Schrader, 569 S.W.2d 822 (Tenn. 1978).
“In Harrison v. Schrader, supra, the Tennessee Supreme Court had upheld the constitutionаlity of the Medical Malpractice Act and the three-year limitation, set out in
“The Supreme Court concluded that the three-year ‘outer limit or ceiling’ was not demonstrably unreasonable and irrational even though it applied only to those suffering injuries from ‘health care providers.’ 569 S.W.2d at 825. There was a recognized ‘medical malpractice insurance crisis,’ and ‘premiums had risen astronomically.’ 569 S.W.2d at 826. The court observed, quoting from Barnes v. Kyle, 202 Tenn. 529, 535 (1957), that ‘[t]he constitutional guaranty providing for open courts and insuring a remedy for injuries does not guaranty a remedy for every species of injury, but applies only to such injuries as constitute violations of established law of which the courts can properly take cognizance.’
“In addition, the Tennessee Supreme Court in Harrison v. Schrader, 569 S.W.2d at 827, quoted with approval United States Distriсt Judge Frank Wilson‘s decision in Hargraves v. Brackett Stripping Machine, 317 F. Supp. at 682, that ‘[t]he legislative body, in enacting such legislation, may weigh the conflicting interests between one person‘s right to enforce an otherwise valid claim and another person‘s right to be confronted with any claim against him [within a reasonable time].‘”
Section 25-222 was enacted as a statute of ultimate repose. In so doing, the Legislature sought to balance the rights of the injured party with the right of a defendant to protect himself from stale claims and to enable him to present an effective defense. While it may be considered unfortunate that in some cases the 10-year period will have run before suit can be brought, the legislative history reveals that the Legislature was aware that such events may occur. However, the Legislature intended to impose an absolute time bar in professional negligence cases rather than leave the time period somewhat open-ended. The majority opinion fails to give effect to the clear intentions of the Legislature with regard to
HASTINGS, J., joins in this dissent.