Berry v. Branner

• Decision Date: 28 December 1966
• Citation: 245 Or. 307,421 P.2d 996
• Parties: Ruth BERRY, Appellant, v. Cleveland E. BRANNER, M.D., Respondent.
• Court: Oregon Supreme Court

Page 996

421 P.2d 996

245 Or. 307

Ruth BERRY, Appellant, v. Cleveland E. BRANNER, M.D., Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted at Pendleton Nov. 1, 1966.

Decided Dec. 28, 1966.

Robert G. Sevier, La Grande, argued the cause and filed the brief for appellant.

William H. Morrison, Portland, argued the cause for respondent. With him on the brief were David C. Landis, and Morrison & Bailey, Portland.

Before McALLISTER, C.J., and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.

HOLMAN, Justice.

Plaintiff instituted an action against defendant claiming damages because of alleged medical malpractice. She claimed that in June of 1956 defendant performed a hysterectomy upon her and negligently left a surgical needle within her abdomen and:

'* * * That, approximately two months after said operation, plaintiff experienced great pain in her lower back and upper leg. Said symptoms did not indicate a problem lying within the field of gynecology and thus within the specialty of defendant so that plaintiff was required to and did seek treatment from another physician. That plaintiff diligently and continuously sought to determine the cause of her pain; that the existence of the surgical needle in her abdomen was not discovered until August 12, 1965 and determined to be the cause of plaintiff's pain; * * *.'

Defendant filed a demurrer upon the ground that the action had not been commenced within the time limited by statute. The demurrer was sustained. Plaintiff appealed from the trial court's order of dismissal which followed her refusal to plead further.

The sole question presented here is whether a cause of action for medical malpractice accrues at the time of the negligent act or omission, or at the time it was or might reasonably have been discovered. The relevant statutes provide:

ORS 12.010. 'Actions at law shall only be commenced within the period prescribed in this chapter, after the cause of action shall have Accrued, except where a different limitation is prescribed by statute. * * *' (Emphasis added.)

ORS 12.110(1). '(1) An action for assault, battery, false imprisonment, for criminal conversation, or For any injury to the person, or rights of another, Not arising on contract, and not especially enumerated in this chapter, shall be commenced within two years; provided, that in an action at law based upon fraud or deceit, the limitation shall be deemed to commence only from the discovery of the fraud or deceit.' (Emphasis added.)

The present controversy revolves around the meaning of the word 'accrued.' Does it denote the time when the defendant took the action which resulted in plaintiff's injuries, or does it mean the time when plaintiff discovered or reasonably should have discovered defendant's wrong?

This exact question was determined in a manner contrary to plaintiff's position by a four to three decision of this court in the case of Vaughn v. Langmack, 236 Or. 542, 390 P.2d 142 (1964). Both sides of the question were there exhaustively examined by the majority and dissenting opinions. After an analysis of the statutory history it was the opinion of the majority that the legislature intended the cause of action to accrue upon the happening of the event which caused the injury and not upon discovery by the patient. It is the court's present opinion that in the prevailing opinion in the Vaughn case too much emphasis was put upon legislative intent as deduced from the statutory history and not enough was placed upon legislative intent as determined from the ordinary legal meaning of the word 'accrued.'

The principal phenomenon of statutory history which convinced the majority in the Vaughn case that it was the intent of the legislature to have the cause of action accrue upon the occurrence of the malpractice rather than upon its discovery, was the fact that the legislature had expressly adopted the discovery rule as to fraud and deceit but not as to malpractice. The validity of this reasoning is dependent upon the supposition that the legislature, in adopting the discovery principle as to fraud, had in mind undiscovered malpractice as well and nevertheless decided against the adoption of the discovery principle as to it. We do not now believe that this necessarily follows. Any number of things could have occurred which brought the inequities of the fraud situation to the legislature's attention without it ever having considered analogous situations which might exist in other fields. For instance, did the legislature also have in mind the situation where a landowner tunnels underground and removes coal from the adjoining land without the knowledge or means of knowledge by his neighbor? ¹ There are undoubtedly many other more or less similar situations. ² Did the legislature have them all in mind and reject them all?

The fact that the legislature saw fit to clarify the time of accrual with regard to undiscovered fraud does not necessarily mean that it was the original legislative intent that the discovery principle not apply in fraud cases. Where the original statute was ambiguous, is it not just as reasonable to assume that the legislature pointed out the construction they had intended from the outset?

It is contended that the failure of the legislature to pass bills in both the 1963 and 1965 sessions which would have ameliorated the harshness of the Vaughn rule shows that the legislature is cognizant of the problem and desires no change. The fallacy in this argument is that no one knows why the legislature did not pass the proposed measures. The measures provided that the statute should commence to run upon discovery but that regardless of discovery there should be an overall limit upon the time within which an action could be brought. Did the legislature fail to pass the measures because it was satisfied with the Vaughn interpretations of the statute or because it was not in favor of an overall limitation, or because it disliked the length of the overall limitation? The practicalities of the legislative process furnish many reasons for the lack of success of a measure other than legislative dislike for the principle involved in the legislation. Legislative inaction is a weak reed upon which to lean in determining legislative intent.

Legislative inaction as to malpractice should not be ignored in determining legislative intent but such inaction is not necessarily determinative in the face of the ordinary meaning of 'accrued' as it is used in relation to a cause of action. The word 'accrue' is derived from the Latin 'ad' and 'creso' to grow to. When applied to independent or original demands it means to arise, to happen, to come into force or existence. When used with reference to a cause of action it means when an action may be maintained thereon. It accrues whenever one person may sue another. Black's Law Dictionary, 4th ed. and cases cited therein. The cause of action must necessarily accrue to some person or legal entity. To say that a cause of action accrues to a person when she may maintain an action thereon and, at the same time, that it accrues before she has or can reasonably be expected to have knowledge of any wrong inflicted upon her is patently inconsistent and unrealistic. She cannot maintain an action before she knows she has one. To say to one who has been wronged, 'You had a remedy, but before the wrong was ascertainable to you, the law stripped you of your remedy,' makes a mockery of the law. Rosane v. Senger, 112 Colo. 363, 149 P.2d 372, 375 (1944). In the absence of an expressed statutory direction to that effect, to ascribe to the legislature any such intention by their use of the word 'accrue' seems to us unreasonable.

The objective of a statutory limitation on the time within which an action may be brought is, in malpractice cases, the protection of medical practitioners from the assertion of stale claims. We do not believe the legislature intended to limit patients asserting malpractice claims, who by the very nature of the treatment had no way of immediately ascertaining their injury, to the same overall period of time that is allowed for bringing other tort actions that are normally immediately ascertainable upon commission of the wrong. The protection of the medical profession from stale claims does not require such a harsh rule. The mischief the statute was intended to remedy was delay in the assertion of a legal right by one who had slumbered for the statutory period during which process was within his reach. Lewey, Appellant v. H. C. Fricke Coke Co., 166 Pa. 536, 548, 31 A. 261 (1895).

The contention is made that a decision of this kind amounts to judicial legislation. The legislature, however, did not provide that the time of accrual was when the physician performed the negligent act. This court did. The legislature left the matter undetermined. A determination that the time of accrual is the time of discovery is no more judicial legislation than a determination that it is the time of the commission of the act. Morgan v. Grace Hospital, 149 W.Va. 783, 144 S.E.2d 156, 160 (1965).

There is no object in an exhaustive discussion of the cases from other jurisdictions which were mentioned in Vaughn. The opinions in that case adequately covered them. An examination of the cases decided subsequent to those discussed in Vaughn indicates that the trend is away from that decision. ³ Those decisions discussed in Vaughn indicated that the states of California, ⁴ Colorado, ⁵ Michigan, ⁶ Nebraska, ⁷ New Jersey, ⁸ and Pennsylvania, ⁹ as well as certain federal cases ¹⁰ held that the statute of limitations in malpractice cases commenced to run from discovery, or the time discovery could reasonably have been made. To those states might also be added the following: Florida, ¹¹ Louisiana, ¹² Maryland, ¹³ and Oklahoma, ¹⁴ as well as other federal cases. ¹⁵ In addition the states of Idaho, ¹⁶ Montana, ¹⁷ and West Virginia, ¹⁸ whose...