Billings v. Sisters of Mercy of Idaho, 9382

• Decision Date: 24 January 1964
• Docket Number: No. 9382,9382
• Parties: Leslie W. BILLINGS and Verda Billings, husband and wife, Plaintiffs-Appellants, v. SISTERS OF MERCY OF IDAHO, a corporation, d/b/a St. Anthony Hospital, and Lloyd Call and Dean Call, as Executors of the Estate of O. F. Call, Deceased, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 224

389 P.2d 224

86 Idaho 485

Leslie W. BILLINGS and Verda Billings, husband and wife, Plaintiffs-Appellants, v. SISTERS OF MERCY OF IDAHO, a corporation, d/b/a St. Anthony Hospital, and Lloyd Call and Dean Call, as Executors of the Estate of O. F. Call, Deceased, Defendants-Respondents.

No. 9382.

Supreme Court of Idaho.

Jan. 24, 1964.

Louis F. Racine, Jr., Robert C. Huntley, Jr., and William D. Olson, Pocatello, Ferguson & Glenn, Oakland, Cal., for appellants.

Merrill & Merrill and Hugh C. Maguire, Jr., Pocatello, for respondents.

McQUADE, Justice.

Appellants' amended complaint states that on July 10, 1946, Mrs. Billings was operated upon by Dr. O. F. Call in the Sisters of Mercy Hospital in Pocatello. Shortly after the operation Mrs. Billings began to suffer considerable pain. Subsequently she went to Dr. Harmes in American Falls. She continued under his care through 1947, but apparently he was unable to determine the cause of her difficulties.

From 1948 up into 1958 she consulted various physicians in different parts of the United States in which her husband was employed as a construction superintendent. From the early part of 1958 until May, 1961, she consulted a succession of doctors: Dr. Huron of Iron Mountain, Michigan, Dr. Walton of Concord, California, Dr. Statler of Antioch, California, Dr. Sandlin of Antioch, California, and Dr. Bruno of Pittsburg, California. None of the above physicians successfully diagnosed the nature of Mrs. Billings' affliction.

Finally, in May, 1961, Mrs. Billings was examined by Dr. Brinton of Oakland, California, who concluded that an exploratory operation was necessary. This operation disclosed a gauze sponge in the area where surgery had been performed by Dr. Call on July 10, 1946. She and her husband brought this suit in May, 1962.

Appellants' amended complaint states that Mrs. Billings has suffered constant pain, infection, and sexual depression as a result of the negligent leaving of the sponge in her body. It is also alleged that the negligence of the respondents precipitated a surgical menopause causing Mrs. Billings to suffer 'hot flashes' requiring extensive hormonal treatment.

Respondents moved to dismiss the amended complaint on two grounds: 1. The complaint failed to state a claim upon which relief could be granted, and 2. The appellants' claim is barred by the statute of limitations. The trial court did not rule on the first ground, but rendered a judgment of dismissal on the second ground alone. Appellants appeal from the judgment of dismissal. The only question presented on appeal is whether appellants' claim is barred by the statute of limitations.

The applicable statutes are I.C. § 5-201 and § 5-219, which read as follows:

§ 5-201 'Civil actions can only be commenced within the periods prescribed in this chapter after the cause of action shall have accrued, * * *.'

§ 5-219 'Within two years: * * *

'4. An action to recover damages for an injury to the person, or for the death of one caused by the wrongful act or neglect of another.'

Based on these two statutes a civil action to recover damages for injury to the person, caused by the wrongful act or neglect of another, can only be commenced within two years after the cause of action shall have accrued. Respondents insist that the cause of action accrued on the day that the sponge was left in Mrs. Billings' body. Appellants contend that the cause of action did not accrue until the sponge was discovered during the exploratory operation. The focal point of this case is to determine when the cause of action accrued.

In this case counsel have cited many cases precisely on the legal point in question. The underlying theme in all of the cases represents a conflict between two basic policies of the law: 1. The policy of discouraging the fostering of stale claims, and 2. The policy of allowing meritorious claimants an opportunity to present their claims.

Mrs. Billings alleges she has been in almost continuous pain since the time of the 1946 operation by Dr. Call and has attempted to find out what caused her so much agony. There is a great deal of difference between her case and the typical plaintiff in this area of cases as she does not appear to have been 'sitting on her rights;' and yet, fifteen years passed between the operation and the filing of her complaint. The doctor accused of negligence is dead. (Neither has urged the application of I.C. § 5-327 or § 5-231). His executors, Lloyd and Dean Call, are defendants in this cause.

The earlier cases on this subject were mostly decided in favor of defendants. See Annot., 74 A.L.R. 1317 (1931). Capucci v. Barone, 266 Mass. 578, 165 N.E. 653 (1919), is typical of the earlier cases. As in the instant case, the negligence consisted of leaving a sponge in the surgical wound; the major issue was the statute of limitations. As that court said:

'Upon this branch of the defense the single question is, When did the cause of action accrue? The defendant as a surgeon, on May 11, 1924, impliedly undertook to use care in the operation he was about to perform. Any act of misconduct or negligence on his part in the service undertaken was a breach of his contract, which gave rise to a right of action in contract or tort, and the statutory period began to run at that time, and not when the actual damage results or is ascertained, as the plaintiff contends. The damage sustained by the wrong done is not the cause of action; and the statute is a bar to the original cause of action although the damages may be nominal, and to all the consequential damages resulting from it though such damages may be substantial and not foreseen.'

It was also held to be well established that the bare fact that a plaintiff was unable to discover the cause of his suffering was immaterial. In Murray v. Allen, 103 Vt. 373, 154 A. 678 (1931), plaintiff, after having been operated upon in 1923, did not discover that a sponge was left in her body until 1929. The court therein stated:

'The plaintiff argues that the right of action did not accrue until the fact that the gauze had not been removed was discovered, and that, consequently, the statutory period of limitation did not begin to run until that time. But the right of action accrued when the negligent act upon which the action is based took place, and not when the consequential damage became known. This principle has been applied in numerous cases wherein the facts were very similar to those in the case before us.'

In those earlier cases there were only three possible exceptions to the rule that the cause of action accrues on the day the foreign object is closed in the wound. The first one, the continuing negligence exception, is usually stated as follows: when a doctor leaves a foreign object in the body of a patient and continues to treat him thereafter, the doctor is said to be not only negligent in his initial action, but also negligent in allowing the object to remain while the patient is still under his care. Sly v. Van Lengen, 120 Misc. 420, 198 N.Y.S. 608 (1923). The second exception then recognized was called the contract theory. Plaintiffs in this area have successfully avoided the tort statute of limitations by couching their complaints in terms of contract for the longer period of limitation, instead of the tort statute of limitations. In Sellers v. Noah, 209 Ala. 103, 95 So. 167 (1923), a needle was left in plaintiff's body. He alleged a breach of contract and successfully avoided the earlier commencement of the limitations period. In the third exception, the fraudulent concealment theory, the statute of limitations is held not to begin to run until the cause of action is discovered or could have been discovered by reasonable diligence on the part of the injured party. This is based upon the rationale that a wrongdoer is not permitted to profit from his fraudulent conduct. At the time of the 74 A.L.R. annotation most courts that recognized this rule placed a high burden of proof on the plaintiff. A plaintiff was required to show some affirmative act of concealment on the part of the defendant. In Tulloch v. Haselo, 218 App.Div. 313, 218 N.Y.S. 139 (1926), plaintiff alleged that the defendant negligently extracted a tooth and let it fall into her throat from whence it entered the lung. She further alleged he had fraudulently concealed from her the fact that he had let the tooth fall down her throat. The court held that she had not successfully alleged fraud. '* * * There is nothing alleged from which we may infer any intentional fraudulent misrepresentation of fact as to the presence of a tooth in the lung * * *.' In Bodne v. Austin, 156 Tenn. 366, 2 S.W.2d 104 (1928), plaintiff alleged that the defendant negligently left a broken tooth in her gum and that he carelessly and negligently failed to disclose the fact. The court held that the averment was insufficient to make out fraud. It further stated that it could not assume fraud in order to toll the statute of limitations. In Brown v. Grinsted, 212 Mo.App. 533, 252 S.W. 973 (1923), under facts similar to those at hand, the court held that the surgeon must know of the presence of the sponge in plaintiff's body before he could be held to be guilty of fraud.

Annot., 144 A.L.R. 209 (1943), presents the second A.L.R. effort on this topic. In 1943 it was still stated as a general rule that the cause of action accrues on the day that the foreign object is left in the surgical wound. Two jurisdictions by that time took exception to the rule. In Huysman v Kirsch, 6 Cal.2d 302, 57 P.2d 908 (1936), the defendant surgeon failed to remove a rubber tube from the wound of an operation. The defense was the statute of limitations. Inter alia the court held, reasoning from a workman's compensation case, that the plaintiff's cause of action did not accrue until she could have, through reasonable care, ascertained the cause of her physical distress. In Louisiana, a similar result...