Allen v. Layton

• Citation: 235 A.2d 261
• Parties: Thomas Edward ALLEN and Anna Pearl Allen, Plaintiffs, v. Robert R. LAYTON, Jr., M.D. and Kent General Hospital (Incorporated), a corporation of the State of Delaware, Defendants.
• Decision Date: 02 November 1967
• Court: Superior Court of Delaware

Page 261

235 A.2d 261

Thomas Edward ALLEN and Anna Pearl Allen, Plaintiffs, v. Robert R. LAYTON, Jr., M.D. and Kent General Hospital (Incorporated), a corporation of the State of Delaware, Defendants.

Superior Court of Delaware, Kent County.

Nov. 2, 1967.

N. Maxson Terry, Jr., Terry & Terry, Dover, for plaintiffs.

William F. Taylor, Young, Conaway, Stargatt & Taylor, Wilmington, for defendant, Robert R. Layton, Jr., M.D.

William Prickett, Prickett, Ward, Burt & Sanders, Wilmington, for defendant, Kent General Hospital, (Inc.).

QUILLEN, Judge:

This is a malpractice suit against a surgeon and a hospital. The plaintiff has moved to strike the affirmative defense of the Statute of Limitations. Each defendant has moved for summary judgment. Because all motions deal with the same legal issue, they will be decided jointly.

For purposes of the defendants' motions the following facts must be accepted. In 1958, the defendant surgeon operated on plaintiff in Kent General Hospital, codefendant in this action. While the plaintiff was unconscious, the surgeon negligently left a hemostat in her body. The employees of the hospital negligently failed to account for the missing hemostat. Thereupon, the incision was closed and plaintiff recovered uneventfully. However, nine years later in 1965, she began to feel severe abdominal pains, which led to an emergency operation. The hemostat was discovered during this operation. It was also discovered that the hemostat caused bodily injury, which three subsequent operations were required to repair.

It is undisputed that plaintiff's first onset of pain was in 1965 and that reasonable care and diligence on the part of the plaintiff would not have led to the discovery of the hemostat prior to that time.

In 1966, plaintiff brought suit joining the surgeon and Kent General Hospital as codefendants. ¹ Her complaint alleges that her injuries proximately resulted from the negligence of (1) the surgeon in leaving the hemostat in her body and (2) the hospital in that its employees failed to account properly for the hemostat used during the operation. Both defendants denied negligence and set up the Statute of Limitations as an affirmative defense. Plaintiff has moved to strike the affirmative defense under Superior Court Rule 12(b), Del.C.Ann. Each defendant has countered with a motion for summary judgment. As has been said, this opinion deals with all motions. The plaintiff's motion to strike is granted and the defendants' motions for summary judgment are denied.

The question is whether the Statute of Limitations runs from the date that the negligence occurred, or from the date that the negligence could reasonably have been discovered. In terms of the recited facts, the issue is whether the statutory period began as of 1958 (when the hemostat was left in the body) or in 1965 (the first onset of pain). If the Statute ran as of 1958, the action is barred, since the limitations period is two years. Conversely, if the Statute begins to run as of 1965, the action was timely, and the affirmative defense inadequate as a matter of law on the undisputed facts.

The relevant statute is 10 Del.C. § 8118, which provides as follows:

'No action for the recovery of damages upon a claim for alleged personal injuries shall be brought after the expiration of 2 years from the date upon which it is claimed that such alleged injuries were sustained.'

The defendants contend that this statutory language unambiguously fixes the beginning of the statutory period at 1958. As authority, they rely upon the following Delaware cases: Lewis v. Pawnee Bill's Wild West Co., 6 Penn. 316, 66 A. 471 (Sup.Ct. 1907); Patterson v. Vincent, 5 Terry 442, 44 Del. 442, 61 A.2d 416 (Super.Ct. 1948); DiNorscia v. Tibbett, 11 Terry 118, 50 Del. 118, 124 A.2d 715 (Super.Ct.1956). Any hardship caused by the Statute, the defendants argue, must be corrected, if at all, by the Legislature.

Rather than being unambiguous, however, Section 8118 on its face appears susceptible of the two interpretations set forth in the briefs. Had Section 8118 dealt specifically with malpractice suits or been more specific otherwise ², there would perhaps be less ambiguity. But the present Section 8118 does not specifically address itself to the issue at bar.

Moreover, the holdings in the cases cited by defendants do not support their proposition in the instant case. Pawnee Bill decided whether or not certain statutory exceptions should be incorporated into the predecessor of Section 8118. It did not decide that the statutory period began from the date of the negligent, undiscoverable act. The issue in Patterson was whether the Statute of Limitations for torts generally or the Statute of Limitations for personal injuries applied to its facts. Patterson did not deal with the issue at bar, because the plaintiff had stipulated that the statute ran from the date that an alleged poisonous compound was prescribed and not the date the injury was discovered. DiNorscia decided only that a counterclaim arising from the same transaction as the original claim was also subject to the Statute of Limitations. Hence none of these holdings are determinative of the pending issue. Admittedly, however, the spirit of the Pawnee Bill case makes the plaintiff's contentions here more difficult, but it does not bar the consideration of the instant factual context as one of first impression.

Defendants next argue that Delaware law compels a statutory construction which effectively would bar this action. However, when applied to the present facts, defendants' authorities--Mastellone v. Argo Oil Corp., 6 Terry 517, 6 Del. 517, 76 A.2d 118 (Super.Ct. 1950), aff'd, 7 Terry 102, 46 Del. 102, 82 A.2d 379 (Sup.Ct. 1951) and Leibowitz v. Hicks, 207 A.2d 371 (Del.Ch. 1965)--are inconclusive.

The Mastellone case was a suit against a corporation for conversion. There the plaintiff alleged that the corporation had wrongfully transferred shares to the record owner, which actually belonged to the plaintiff as equitable owner. The plaintiff did not discover the transfer for twelve years thereafter. The Superior Court at 76 A.2d 121 upheld the defense of the Statute of Limitations, commenting that:

'(I)gnorance of the facts * * * will not postpone the operation of the statute of limitations; and that the cause of action accrues when the wrongful transfer of stock is made.'

But see the 'well defined exceptions' listed by the Supreme Court at 82 A. 383 which include 'concealment of the facts which would disclose the tort'.

In the Leibowitz case the plaintiff sued the Register in Chancery for improper docketing of a claim in a receivership proceeding, which caused the plaintiff's claim to be forfeited as untimely. The mistake was not discovered for several years. The Court of Chancery, citing Mastellone, applied the Statute of Limitations.

Although Mastellone and Leibowitz cases appear to establish precedent that ignorance of a wrongdoing does not justify tolling the Statute, it is still unclear whether these precedents should control these facts.

Preliminarily, different statutes are involved, the Leibowitz and Mastellone cases dealt with 10 Del.C. § 8104 and § 8106, respectively, and those statutes operate 'from the accruing of the cause of such action'. This case deals with Section 8118, which operates from the time 'it is claimed that the injury was sustained.' There are indications that these verbal formulae differ for reasons other than coincidence. Both statutes have been continuously reenacted in substantially identical form, section 8106 since at least 1852, and section 8118 since 1897. See 1852 Code § 2742, 1915 Code § 4671, 1935 Code § 5129, 10 Del.C. § 8106; and 20 Del.Laws Ch. 594, § 1, 1915 Code § 4675, 1935 Code § 5133, and 10 Del.C. § 8118. It is arguable that continued insistence upon different verbal formulae reflects a legislative intent that the Statute of Limitations for personal injury operate differently from the statute governing general torts and wrongs committed by the Register in Chancery. But I place no reliance on this distinction which is emphasized in the plaintiff's brief other than to note we are dealing with a different statute than those dealt with in the Mastellone and Leibowitz cases.

Moreover, it is arguable that the wrongs committed in Mastellone and in Leibowitz were discoverable by diligent inquiry. The Court said this in Leibowitz at Del.Ch., 207 A.2d 374:

'Certainly, in the present case, inquiry by plaintiff would have disclosed the progress of the receivership proceeding and would have revealed that its claim failed of proof because of the Register's neglect of duty.'

Likewise, in Mastellone it was possible for the plaintiff to have discovered the wrongful transfer. But no diligent plaintiff could have discovered a hemostat negligently left in her body. The result in Mastellone would be ludicrous here. As Justice Musmanno remarked in a similar case, '(c)ertainly he could not open his abdomen like a door and look in.' See Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788, 792 (Pa.1959).

Therefore, different statutory and factual considerations apparently distinguish this case from those cited above. But the Court cannot rest its decision on those grounds. It must find independent justification for decision favoring the plaintiff here. The Court finds the facts of the current case closely akin to an independently recognized legal doctrine, the principles of which should govern here.

The doctrine is the doctrine of fraudulent concealment. Fraudulent concealment is the intentional nondisclosure of material facts by one owing a duty to disclose. See 23 Am.Jur.Fraud and Deceit, § 578, p. 854. Ordinarily, the defrauding party must have knowledge of the facts concealed. If the surgeon here had known of the hemostat being left in plaintiff's body, he would have committed fraudulent concealment.

Where defendant is guilty of fraudulent concealment, ...