Owens v. White

Decision Date12 March 1965
Docket NumberNo. 19251.,19251.
Citation342 F.2d 817
PartiesAnita T. OWENS, Plaintiff and Appellant, v. Raymond WHITE, John C. McCarter, Alfred Popma, and St. Lukes Hospital, a corporation, Defendants and Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

James Haughey, Belli, Ashe & Gerry, San Francisco, Cal., Lon F. Davis, Holden, Holden & Kidwell, Idaho Falls, Idaho, for appellant.

J. F. Martin, Eugene Thomas, Moffatt, Thomas, Barrett & Blanton, Boise, Idaho, for appellees.

Before HAMLEY, MERRILL and KOELSCH, Circuit Judges.

KOELSCH, Circuit Judge.

On October 14, 1963, plaintiff filed her complaint in the district court, seeking to recover judgment against defendants for damages resulting from their alleged malpractice. Jurisdiction was based upon diversity of citizenship of the parties. The court granted defendants' motions to dismiss plaintiff's several claims on the ground that, under the governing Idaho law, plaintiff's right to prosecute them was barred by the statute of limitations. The court did not rule on the part of the defendant doctors' motion, which attacked the complaint for failing to state "any fact or facts sufficient to grant the relief prayed for * * *." Plaintiff has appealed.

The sole question presented is whether suit was commenced within two years after plaintiff's malpractice claim "accrued," that being the time prescribed by the applicable Idaho statute of limitations for the commencement of such suits. Idaho Code 5-201, 5-219, Par. 4 (1948); Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224, 225 (1964).

It appears from plaintiff's complaint that in August, 1951, plaintiff consulted the three defendant doctors concerning a lump in her left breast. Then after a series of examinations, including a pathological test, participated in by the defendant hospital, the doctors negligently diagnosed the condition as cancerous and recommended surgery. That, "thereafter," they operated on plaintiff, removing the breast and surrounding tissue; treatments continued until December, 1959, when plaintiff was released and the professional relationship ceased. That in the "fall" of 1962 plaintiff learned for the first time that the lump was benign and had not been a carcinoma, that is, a cancerous tumor. Plaintiff further alleges that she "could not have discovered such fact (i. e., the erroneous and negligent diagnosis) at any earlier date through due and reasonable diligence."

Plaintiff contends that the statute of limitations does not begin to run on a claim for malpractice until the injured party knows, or in the exercise of due diligence should know, of the injury and its cause. Under this theory, sometimes referred to as the "discovery" doctrine, if as she alleges, she was not chargeable with knowledge of the defendants' negligent diagnosis until sometime during 1962, her right to prosecute the suit was not barred.

Defendants argue that a claim accrues and hence the statute starts to run when the malpractice is committed or, at the latest, when the treatment is terminated and that, in this case, since both events occurred more than two years before the complaint was filed, the suit is barred.

A considerable difference of opinion exists among the various jurisdictions as to when the statute begins to run on a claim for malpractice. Idaho has no statute defining the meaning of the term "accrue" appearing in its statute of limitations and, at the time this case was before the court below, the Supreme Court of that State had not had occasion to consider the question.

Shortly after this appeal was taken, however, the Idaho court, in the case of Billings v. Sisters of Mercy, supra, aligned itself with those jurisdictions which follow the so-called "discovery doctrine," and declined to adopt the contention urged upon it by the defendant that such a claim accrues at the time of the negligent act, regardless of the injured party's notice or lack of notice of that fact.1

The Idaho court criticized as ill-considered the view that a malpractice claim invariably comes into existence contemporaneously with the wrongful act. Such a rule, said the court, is valid when applied to "ordinary torts" because in those instances the injured party, being aware of the nature and quality of the act, "can use judicial process to secure enforcement of his right" and is at fault if he fails to do so. But an undiscovered malpractice claim involves "an entirely different situation." In the latter type of case it is more logical to follow the reasoning "`* * * that the "cause of action" which commences the limitations period should not refer to the "technical" breach of duty which determines whether the plaintiff has any legal right, but to the existence of a practical remedy.'" Billings v. Sisters of Mercy, supra, 389 P.2d at 231.

It is important to note that the court's inquiry was directed to the question whether the cause had accrued and the statute had commenced to run, and not to whether the statute had run or was tolled. Nevertheless, the court examined the policy underlying statutes of limitation and found it not inconsistent with adoption of the discovery rule. The court elaborated that "statutes of limitations are statutes of repose, the object of which is to prevent fraudulent and stale claims from springing up after a great lapse of time," and pointed out that absent those considerations there would be no occasion to apply such statutes. From this the court reasoned that to rigidly apply the principle of statutes of limitation in the situation at bar was inequitable because it would unjustly penalize the injured party who was not guilty of "sitting on his rights" and whose claim was not likely fraudulent.

It is true that Billings does differ in one respect from the case before us; there, the court was dealing with a malpractice claim which rested upon the presence of a sponge alleged to have been carelessly left in plaintiff's body during a surgical operation, while here, the malpractice claim is based upon a negligent diagnosis. It is perhaps also true that the claim in a suit involving a foreign object as in Billings is more apt to be bona fide than one which will undoubtedly depend upon testimony or other indirect evidence for...

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22 cases
  • Berry v. Branner
    • United States
    • Oregon Supreme Court
    • December 28, 1966
    ...of Idaho, 86 Idaho 485, 389 P.2d 224 (1964); inconsistent with Trimming v. Howard, 52 Idaho 412, 16 P.2d 661 (1932); Owens v. White, 342 F.2d 817 (C.A.9 Idaho 1965).17 Johnson v. St. Patrick's Hospital, Mont., 417 P.2d 469 (1966), which is inconsistent with Coady v. Reins, 1 Mont. 424 (1872......
  • Vispisiano v. Ashland Chemical Co.
    • United States
    • New Jersey Supreme Court
    • June 29, 1987
    ...Suit from Time of Actual or Constructive Discovery of Cause of Action, 8 Seton Hall L.Rev. 134, 145 n. 65 (1976) (citing Owens v. White, 342 F.2d 817, 820 (9th Cir.1965)). In the typical toxic tort situation those obviously interrelated factors may radically alter the balance of Toxic tort ......
  • Rozny v. Marnul
    • United States
    • Illinois Supreme Court
    • May 28, 1969
    ...cases. E.g., Frohs v. Greene, (1969) 88 Or. 131, 452 P.2d 564; Yoshizaki v. Hilo Hospital (Haw.1967), 433 P.2d 220, 223; Owens v. White (9th Cir.1965), 342 F.2d 817.) Illinois has been involved in this development. In 1964, an Illinois appellate court (Mosby v. Michael Reese Hospital, 49 Il......
  • Yoshizaki v. Hilo Hospital
    • United States
    • Hawaii Supreme Court
    • May 1, 1967
    ...the result of Dr. Dickelmann's diagnosis, even though she did not know that the diagnosis gave rise to a cause of action. In Owens v. White, 342 F.2d 817 (9th Cir.), plaintiff alleged that defendants had negligently diagnosed a lump in plaintiff's breast as cancerous and had removed the bre......
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