In this Idaho malpractice case brought in federal court because of diversity of citizenship, judgment of dismissal was entered on a directed verdict for defendants. The verdict was so directed on the ground that the action was barred by the statute of limitations. Elsie Summers, the plaintiff, appeals.
The facts are simple and not in dispute. In March 1951 Dr. Hubert E. Bonebrake, one of the appellees, utilizing the facilities of appellee hospital, performed upon appellant a surgical operation known as a total hysterectomy. In so doing a curved surgical needle was negligently left within appellant’s abdomen. Between that date and November 1954 appellant returned to Dr. Bone-brake on numerous occasions complaining of severe pain, soreness, and agony in the area of the operation. She submitted herself to the doctor at the hospital for examination, but he failed to discover the presence of the needle.
Appellant did not call upon Dr. Bone-brake again until February 1956. In the meantime she consulted Dr. R. W. Cord-well on August 5,1955, at which time the existence of the foreign substance in the body of appellant was discovered. On February 11, 1956, she consulted a Dr. MacPherson, who advised that the needle be removed, and directed her to Dr. Bonebrake to have this done. Dr. Bone-brake performed an operation and removed the needle on February 23, 1956.
Appellant does not assert that there was any negligence with regard to the latter operation. She does allege that appellees were negligent in leaving the needle in her body at the time of the
This being a diversity action, the statute of limitations to be applied is that of the State of Idaho, as construed by the courts of that state.
The trial court held that appellant’s cause of action, in so far as it was based upon failure to remove the needle at the time of the original operation, accrued at the time that operation was performed. It further held that in so far as the cause of action was based upon negligence in thereafter failing to discover and remove the needle, it accrued at the time Mrs. Summers had her last consultation with Dr. Bonebrake prior to going to another doctor. Since the complaint was not filed until more than two years after either of these events a verdict for appellees was directed.
Appellant contends that as a matter of law post-operative treatment must be regarded as continuing until the needle was removed, tolling the running of the statute of limitations for that period regardless of when treatment actually ceased. Under this theory the Idaho statute of limitations would not bar the action, since the complaint was filed within two years after the needle was removed.
This theory was not advanced or dealt with in Trimming v. Howard, supra. Nor do we find any other Idaho decision which is helpful in determining how the courts of that state would view this contention. It is therefore necessary to look elsewhere. As stated in West v. American Telephone & Telegraph Co.,
Appellant has cited nine cases decided in other jurisdictions in support of her contention that treatment continues until the foreign substance has been removed.
The cases collected in the exhaustive annotations on this general subject, to be found in American Law Reports, indicate without exception that the continuing treatment which may postpone the running of the statute must be actual treatment.
As an alternative theory, appellant advances the contention that the Idaho statute of limitations does not begin to run until the patient knows, or in the exercise of reasonable diligence should know, of the injury and the cause of the disability. Since appellant is not chargeable with knowing of the presence of the needle in her body until August 5, 1955, the action commenced on July 27, 1957, would be timely under this theory.
The courts of Idaho have not passed upon the question thus presented. Looking elsewhere, appellant calls attention to a line of California cases. It has long been the rule in that state that the statute of limitations does not commence to run in a malpractice case until the plaintiff discovers his injury or through the use of reasonable diligence should have discovered it. See Winkler v. Southern California Permanente Medical Group,
The great weight of authority in this country is to the contrary.
To be distinguished, of course, are cases where the patient’s lack of knowledge is due to concealment of material facts by the doctor. This element is not present in our case. Also to be distinguished are cases where failure of the doctor to ascertain the presence of a foreign substance is held to be constructive fraud. Where such a theory is recognized, the bar of the statute is avoided by analogy to the statute of limitations applying to actions for fraud. See Morrison v. Acton,
Among the jurisdictions which follow the majority rule are Idaho’s neighboring states of Oregon and Washington.
“We are satisfied that had the legislature intended the principle of discovery to apply to tort cases based on negligence, it would have specifically said so, as it did with regard to discovery in fraud cases.”9
The quoted observation is equally applicable with regard to Idaho. In both Washington and Idaho the statute of limitations provides that a cause of action on the ground of fraud is not deemed to have accrued until the discovery of the facts constituting the fraud. Compare RCW 4.16.080(4) and Idaho Code, § 5-218, paragraph 4.
Considered from the broader viewpoint of policy, the rule postponing the running of the statute until the malpractice has been discovered has much to recommend it.
Taking into consideration all of the available data, as discussed above, we are of the view that the courts of Idaho would probably hold that the running of the statute of limitations applicable to malpractice actions is not postponed until the injury has been or should have been discovered, but begins to run at the very latest when actual treatment by the defendant doctor has terminated. It is therefore our opinion that notwithstanding the fact that appellant did not discover the foreign substance in her body until August 5, 1955, her cause of action accrued not later than November 1954 when she ceased receiving treatments from Dr. Bonebrake. Since the action was not commenced by November 1956
Affirmed.
Notes
. Rules of Decision Act, 28 U.S.C.A. § 1652. Guaranty Trust Co. of N. Y. v. York,
. See Arthur L. Corbin, “The Laws of the Several States,” 50 Yale Law Journal 762, 771 (1940-41); Charles E. Clark, “State Law in the Federal Courts; The Brooding Omnipresence of Erie v. Tompkins,” 55 Yale Law Journal, 267, 291 (1945-46).
. Hahn v. Claybrook,
. This view is perhaps best expressed in Schmit v. Esser, supra, 236 N.AV. at page 625:
“AVhen does the treatment cease? So long as the relation of physician and patient continues as to the particular injury or malady which he is employed to cure, and the physician continues to attend and examine the patient in relation thereto, and there is something more to be done by the physician in order to effect a cure, it cannot be said that the treatment has ceased. That does not mean that there must be a formal discharge of the physician or any formal termination of his employment. If there is nothing more to be done by the physician as to the particular injury or malady which he was employed to treat, or if he ceases to attend the patient therefor, the treatment ordinarily ceases without any formality.”
.
. See the eases collected in the annotations referred to in footnote 5.
. Recent decisions postponing the running of the statute until discovery of the malpractice: Ayers v. Morgan, 1959,
Recent decisions which decline to postpone the running of the statute until discovery of the malpractice: Shearin v. Lloyd, 1957,
. Wilder v. Haworth,
. In Peppas v. Marshall & Ilsley Bank,
“We believe this to be a proper case in which to invoke the rule of statutory construction of ‘ewpressio unius est ewcltisio alterius’ (the expression of one thing excludes another). Therefore, having expressly made the accrual of the cause of action dependent upon the discovery of facts by the aggrieved party only in an action for fraud, it will be assumed that the legislature did not intend this stated exception to apply to the other causes of action embraced within sec. 330.19.”
. See, especially, the opinion of Justice Musmanno in Ayers v. Morgan, supra, and the dissenting opinion of Judge Finley in Lindquist v. Mullen, supra.
. See sections 516.100, 516.140 KSMo 1949, Y.A.M.S. indicating that in Missouri it is provided by statute that such a cause of action does not accrue until the damage is sustained and is capable of ascertainment.
. Appellant thus had one year and three months after the needle was discovered in her body, and nine months after it was actually removed, within which to bring her action.