Bussineau v. President & Dir. of Georgetown

• Decision Date: 26 November 1986
• Docket Number: No. 84-1318.,84-1318.
• Citation: 518 A.2d 423
• Parties: Doris BUSSINEAU, Appellant, v. PRESIDENT AND DIRECTORS OF GEORGETOWN COLLEGE, Appellee.
• Court: D.C. Court of Appeals

518 A.2d 423

Doris BUSSINEAU, Appellant, v. PRESIDENT AND DIRECTORS OF GEORGETOWN COLLEGE, Appellee.

No. 84-1318.

District of Columbia Court of Appeals.

Argued September 19, 1985.

Decided November 26, 1986.

David S. Greene, with whom Cassandra P. Hicks, Rockville, Md., was on brief, for appellant.

Peter J. Kahn, with whom G. David Fensterheim, Washington, D.C., was on brief, for appellee.

Before NEBEKER, NEWMAN and FERREN, Associate Judges.

NEWMAN, Associate Judge:

To decide this appeal, we must determine when a cause of action "accrues" within the meaning of the statute of limitations in an action where the "discovery rule" applies.¹

Bussineau sued Georgetown for dental malpractice and breach of warranty. Georgetown sought summary judgment contending the action was time barred. Specifically, it asserted that under the "discovery rule" first announced by us in Burns v. Bell, 409 A.2d 614 (D.C. 1979), a cause of action accrues when a party has actual or constructive knowledge (1) of injury, and (2) its cause in fact (the cause in fact rule). It contended it was undisputed that Bussineau had knowledge of both the injury and its cause in fact more than three years prior to filing suit. In opposing the motion for summary judgment, Bussineau argued that the discovery rule in the District of Columbia requires active or constructive knowledge (1) of the injury, (2) its cause in fact, and (3) some evidence of wrongdoing (some evidence of wrongdoing rule). She contended that there was a genuine factual dispute on the issue of when she discovered (or by the exercise of reasonable diligence should have discovered) some evidence of wrongdoing. In its Order ruling the action time barred, the trial court agreed with Bussineau that there was a genuine issue of fact about when she knew or should have known of evidence of wrongdoing. However, the court ruled that factual issue was not a "material" one since the court agreed with Georgetown's contention that under the discovery rule, the action accrues under the cause in fact rule. It held the action time barred and granted summary judgment. Bussineau appealed.

We hold that for a cause of action to accrue where the discovery rule is applicable, one must know (or by the exercise of reasonable diligence should know (1) of the injury, (2) its cause in fact and (3) of some evidence of wrongdoing. Since the trial court applied an erroneous legal test, while conceding the existence of genuine issues of material fact under the proper test, we reverse.

I

Since the issue before us is one of law, we set forth only those facts necessary to put the issue in perspective. As a result of an externally caused traumatic injury to her face and mouth, Bussineau sought dental treatment from several dentists. She was ultimately referred to Georgetown Dental School. She was a patient at various portions of the Dental School from the fall of 1978 through October 20, 1980. During this period, dentists at Georgetown performed work on most of her teeth. The work included two root canals, insertion of crowns on a number of teeth, and related work. During the course of her treatment, Bussineau often expressed dissatisfaction with the results; she complained both verbally and in writing. She was regularly reassured that the diagnosis and treatment was proper. She continued to experience pain and difficulty, including mobility of tooth number 8. Further treatment was undertaken to correct the problem. Finally, as a result of letters she wrote to the President of Georgetown and the Dean of the Dental School, the Dean arranged for her to be examined and evaluated by the heads of three departments within the Dental School. This was done. The Dean advised her that all the diagnosis and treatment had been proper; she was told that they could not determine whether her continuing complaints were resultant from the external trauma in 1977 or the slight occular trauma on tooth number 8. The Dean advised her to consult a private dentist for an occular adjustment.

On July 20, 1980, Bussineau consulted Dr. Shoemaker, a private practitioner in California. He advised her that crowns number 7 through 10 had heavy lingual occlusions; he recommended new crowns. In October 1980, Bussineau returned to Georgetown concerning the occular problem. She was again told that this examination yielded findings consistent with those previously made and communicated to her by Georgetown; she was again advised to see a private practitioner. She consulted Dr. Passantino, a private practitioner in California on July 17, 1981. He advised her that she was suffering from periodontal disease and that there was a problem with her right tempomandibular joint (TMJ). Suit was filed on July 18, 1983, i.e., within three years of her examination by Dr. Shoemaker.

II

Under District of Columbia law, an action for negligence must be brought within three years after a cause of action accrues. D.C. Code § 12-301(8) (1981). Generally, a cause of action is said to accrue at the time injury occurs. Shehyn v. District of Columbia, 392 A.2d 1008, 1013 (D.C. 1978); Weisberg v. Williams, Connolly & Califano, 390 A.2d 992, 994 (D.C. 1978). However, in cases where the relationship between the fact of injury and the alleged tortious conduct is obscure when the injury occurs, we apply a "discovery rule" to determine when the statute of limitations commences. Stager v. Schneider, 494 A.2d 1307, 1316 (D.C. 1985); Kelton v. District of Columbia, 413 A.2d 919, 921 (D.C. 1980); Burns v. Bell, supra, 409 A.2d at 617. See also Jones v. Rogers Memorial Hospital, 143 U.S.App.D.C. 51, 442 F.2d 773 (1971); Baker v. A.H. Robins Company, Inc., 613 F.Supp. 994 (D.D.C. 1985); Dawson v. Eli Lilly & Co., 543 F.Supp. 1330 (D.D.C. 1982); Grigsby v. Sterling Drug, Inc., 428 F.Supp. 242, 243 (D.D.C. 1975), aff'd, 177 U.S.App.D.C. 270, 543 F.2d 417 (D.C.Cir. 1976), cert. denied, 431 U.S. 967, 97 S.Ct. 2925, 53 L.Ed.2d 1063 (1977).

The discovery rule in medical malpractice evolved initially where a foreign object was left in a patient after surgery. The patient would experience pain and discomfort in the operative area thereafter. Further medical attention would eventually result in the discovery and removal of the foreign object. In such a case, the discovery of the object gives the patient not only knowledge of the cause-in-fact of injury, but also screams out "medical malpractice." See Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959). The law is the same in legal malpractice cases. For example, A has an attorney do a title search; the attorney gives a certificate of title which does not include an easement B has on the land. Several years later, A contracts to sell the land to C. The title search discloses the easement. A's cause of action against the attorney is held to accrue when the easement is discovered. See Hendrickson v. Sears, 365 Mass. 83, 310 N.E.2d 131, 135 (1974). Again, the injury and cause in fact combine to scream out "malpractice." Put another way, the fact of injury and cause in fact and evidence of breach of duty occur simultaneously. Thus, if A punches B in the face, A knows all he needs to know simultaneously: (1) injury; (2) causes in fact; and (3) breach of legal duty. Most of the courts which have addressed discovery rule issues have been confronted by this type case; the injury and knowledge of cause-in-fact indicates obvious evidence of wrongdoing. The more difficult cases, such as this one, are where the injury and cause-in-fact do not themselves provide evidence of negligence. This is particularly so when the professional reassures the lay client or patient that all is well and that things are proceeding as they should.

This court first adopted a "discovery rule" for negligence cases in Burns v. Bell, supra, 409 A.2d at 614. Burns involved a negligence action where the plaintiff sought damages for injuries sustained as a result of plastic surgery performed by a defendant-doctor. The facts were these. Bell performed facelift surgery upon Burns in August 1968. After the operation, she noticed what she described as "gross" scarring. Bell reassured her the scars would shrink in time. Thereafter, she experienced numbness and pricking sensations in the surgery area. Bell assured her these too would subside with time. Neither did. In August 1970, Bell performed further plastic surgery on Burns including an attempt to make the scarring from the previous surgery less noticeable. The pain and scarring continued thereafter. Both Bell and his staff told her that she was progressing normally and, that if she'd just be patient, everything would be all right after awhile. In 1974, Burns referred a friend to Bell for facelift surgery. After seeing the results of her friend's facelift, Burns concluded that Bell had "done her wrong"; she filed suit in 1977. The trial court granted summary judgment in favor of the doctor, concluding the statute of limitations had run before the action was instituted.

On appeal, we were required to determine, among other things, precisely when a cause of action accrues under the "discovery rule." Although the language of our holding in Burns refers only to the time when a plaintiff has or should have "knowledge of injury," the facts of the case and the analysis engaged in by the court make it clear that we required a finding of more than mere knowledge of injury and cause-in-fact to begin the statute of limitations running on a negligence claim. In applying our holding, we determine that a prospective plaintiff's negligence cause of action did not accrue until the individual "knew or should have known that she had been injured by the alleged negligence" [i.e., wrongdoing] of defendant. Id at 617. Our rationale for requiring some knowledge of an actionable harm or wrongdoing was premised upon the court's concern for lay person plaintiffs who, despite knowledge of the existence of what appears to be an injury and its...