Anderson v. Shook
Decision Date | 25 April 1983 |
Docket Number | No. 10327,10327 |
Parties | Louise ANDERSON, Plaintiff and Appellant, v. Lester D. SHOOK, and Radiologists, Ltd., Defendants and Appellees. Civ. |
Court | North Dakota Supreme Court |
Robins, Zelle, Larson & Kaplan, St. Paul, Minn., and Wegner, Fraase, Nordeng & Johnson, Fargo, for plaintiff and appellant; argued by Terry L. Wade, St. Paul.
Vogel, Brantner, Kelly, Knutson, Weir & Bye, Fargo, for defendants and appellees; argued by Jane C. Heinley, Fargo.
This is an appeal from the order granting Dr. Lester D. Shook and Radiologists, Ltd. summary judgment under Rule 56, NDRCivP, dismissing Louise Anderson's complaint against them based upon the running of the statute of limitations. We reverse and remand.
In 1975 Anderson, who had been diagnosed as having cancer of the uterus, was referred to the Dakota Hospital in Fargo by physicians in Colorado. Dr. Blaine Amidon treated Anderson internally with radium and then referred her to Dr. Shook, an employee of Radiologists, Ltd., for external radiation therapy. Dr. Shook treated Anderson during September and October of 1975. In September 1981 Anderson brought actions against Dr. Shook and Radiologists, Ltd., alleging that the radiation therapy was negligently administered resulting in permanent injury. The only issue before the trial court was whether or not the statute of limitations barred the action.
The North Dakota statute of limitations for malpractice provides in relevant part:
Section 28-01-18, NDCC.
This statute establishes a two-year limitation period for malpractice claims beginning at the time the cause of action accrues. After six years from the act or omission of alleged malpractice, all claims are barred except those undiscovered because of fraudulent conduct by the physician or hospital and those involving infants, the insane, and prisoners. See Secs. 28-01-18 and 28-01-25, NDCC.
The trial court granted Dr. Shook's motion for dismissal based upon this statute. It adopted the rationale of United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), and held the two-year statute of limitations accrues or begins to run when a plaintiff knows or should suspect that she has been injured and knows the cause of that injury. The parties agree that Anderson knew of the existence of her injury and knew that it resulted from the radiation therapy by July 1976. Because of this fact and its interpretation of the two-year statute, the trial court determined that the cause of action which Anderson brought in 1981 was barred.
Anderson argues that the statute of limitation accrues at the time the plaintiff discovers, or by reasonable diligence could discover, that she has been injured, that the injury was caused by the treatment received, and that it was reasonably probable that the treatment was negligent. Anderson alleges that not until 1980 did she discover that Dr. Shook's treatment may have been negligent. Therefore, she contends she began the action within two years after it accrued and before the expiration of six years from the act of alleged malpractice.
The legal issue before this court concerns the knowledge required by a plaintiff in a medical malpractice case which will cause an action to "accrue." Section 28-01-18(3) NDCC, does not specify the occurrence that marks the accrual of a malpractice action. See Hubbard v. Libi, 229 N.W.2d 82, 83 (N.D.1975). In Iverson v. Lancaster, 158 N.W.2d 507, 510 (N.D.1968), we determined the "discovery rule" was applicable to malpractice actions and stated that "the limitation period commences to run against a malpractice action from the time the act of malpractice with resulting injury is, or by reasonable diligence could be, discovered." The facts before us today mandate that we go one step further.
The North Dakota malpractice statute states that "the limitation of an action will not be extended beyond six years of the act or omission of alleged malpractice by a nondiscovery thereof...." The word "thereof" refers back to the words "the act or omission of alleged malpractice." See 2A Sands, Statutes and Statutory Construction Secs. 47.08 and 47.33. Only when the plaintiff has not discovered "the act or omission of alleged malpractice" does the two-year statute extend to a maximum of six years. The issue in this case involves the meaning of this phrase. Dr. Shook argues that because the statute refers to discovery of "the act," the statute begins to run when the plaintiff discovers the possibly negligent act. We disagree.
Dr. Shook's construction of Sec. 28-01-18, NDCC, encourages any person who has an injury to file a lawsuit against a physician or hospital to prevent the statute of limitation from running. This is contrary to the policy that unfounded claims should be strongly discouraged. See Foil v. Ballinger, 601 P.2d 144, 148 (Utah 1979). The better interpretation of Sec. 28-01-18 is that discovery of "the act or omission of alleged malpractice" refers to discovery of medical malpractice consisting of breach of a duty, injury, and causation. In most medical malpractice cases discovery of the injury and its cause is all that is required to trigger the statute of limitation because breach of a legal duty is apparent to laymen and experts alike. Relatively few jurisdictions have litigated actions of medical technical complexity in which a reasonably diligent plaintiff knows of his injury and its cause, but has no reason to suspect malpractice. See 4 W. New Eng.L.Rev. 155, 161, 164, 166 (1981). See also Dawson v. Eli Lilly Co., 543 F.Supp. 1330, 1338 (D.C.1982).
Dr. Shook and the trial court relied upon United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), in their resolution of this issue. In Kubrick the plaintiff was treated in 1968 at a Veterans Administration Hospital for an infection of the right femur. The plaintiff knew that the treatment caused his hearing loss, but he did not suspect that he had received negligently performed treatment until 1971. Kubrick brought a medical malpractice action against the government under the Federal Tort Claims Act (FTCA). The Supreme Court held that the statute of limitation for actions brought under the FTCA barred recovery because Kubrick's claim had accrued when he was aware of his injury and its probable cause. Id. at 124, 100 S.Ct. at 360, 62 L.Ed.2d at 269. See generally 18 Cal.W.L.Rev. 123 (1982); 4 W.New Eng.L.Rev. 155 (1981).
Courts in the District of Columbia and Hawaii have specifically rejected the Kubrick position. In Jacoby v. Kaiser Foundation Hospital, 1 Hawaii App. 519, 622 P.2d 613 (1981), the Hawaii court discussed Kubrick as follows:
Kubrick, supra, 444 U.S. at 118, 100 S.Ct. at 357, 62 L.Ed.2d at 267.
* * *
"Thus, we hold that HRS Sec. 657-7.3's two-year limitation commences to run when plaintiff discovers, or through the use of reasonable diligence should have discovered, (1) the damage; (2) the violation of the duty; and (3) the causal connection between the violation of the duty and the damage." 1 Hawaii App. at 525, 622 P.2d at 617.
See also Yamaguchi v. Queen's Medical Center, Hawaii, 648 P.2d 689, 694 n. 10 (1982).
In Dawson v. Eli Lilly and Co., 543 F.Supp. 1330 (D.C.1982), the court analyzed Kubrick and cases from several states before determining the law in the District of Columbia. The court reasoned as follows:
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