Bolton v. Caine

• Decision Date: 25 May 1988
• Parties: Judith C. BOLTON et al. v. Brian J. CAINE et al.
• Court: Maine Supreme Court

Page 924

541 A.2d 924

Judith C. BOLTON et al. v. Brian J. CAINE et al.

Supreme Judicial Court of Maine.

Argued Sept. 11, 1987.

Decided May 25, 1988.

Sandra Hylander Collier (orally), Jill A. Culver, William Silsby, Silsby & Silsby, Ellsworth, for plaintiffs.

Paul F. Macri (orally), Jack H. Simmons, Berman, Simmons & Goldberg, Lewiston, for Cruickshank.

Steven J. Mogul (orally), Jules L. Mogul, Gross, Minsky, Mogul & Singal, Bangor, for Caine.

Before NICHOLS, WATHEN, GLASSMAN, SCOLNIK and CLIFFORD, JJ.

CLIFFORD, Justice.

The plaintiffs, Judith Bolton, the personal representative for the estate of Margery M. McDonald, the decedent, and Robert A. McDonald, the husband of the decedent, appeal from a judgment of the Superior Court, Hancock County, dismissing their complaint as barred by the applicable statute of limitations. ¹ The plaintiffs allege that, during the course of treating the decedent for a fractured hip and wrist, the defendant physicians negligently failed to inform her of a possible cancerous lesion evident on her x-rays. Because we determine that the "discovery rule" for "foreign object" malpractice adopted in Myrick v. James, 444 A.2d 987 (Me.1982), should be extended to this case involving a physician's diagnostic malpractice, we vacate the judgment.

The facts as alleged in the plaintiffs' complaint are as follows. Margery McDonald, a California resident, fell and broke her right hip and wrist on October 7, 1983, while visiting in Bar Harbor. On the same day, Dr. Brian J. Caine, a local physician from whom Mrs. McDonald sought treatment, referred her to Dr. Frank J. Cruickshank, a radiologist, who took x-rays of Mrs. McDonald's chest, right hip and right wrist. In interpreting the chest x-ray, Dr. Cruickshank observed an ill-defined density in the upper lobe of the left lung and noted in writing that further x-rays should be taken, when Mrs. McDonald could better tolerate them, in order to exclude the possibility of a "coin lesion" in the upper left lobe. This information was transmitted to Dr. Caine, but neither physician communicated this information to the patient or to any other physicians.

Mrs. McDonald returned to California. On or about July 19, 1984, she discovered that she suffered from a cancerous lesion in the upper lobe of the left lung. This condition caused her death on June 17, 1985. The plaintiffs claim that Mrs. McDonald first learned of Dr. Cruickshank's critical x-ray findings when her California physician informed her of them on November 20, 1984. By November 28, 1984, Mrs. McDonald had been apprised of facts sufficient to alert her that professional malpractice might have occurred.

The plaintiffs filed and served upon the defendants, Dr. Brian J. Caine and Dr. Frank J. Cruickshank, the mandatory notices of claim pursuant to the Maine Health Security Act, 24 M.R.S.A. § 2903 (Supp.1987). This civil action was commenced by the filing of a complaint on July 21, 1986, almost three years after the x-rays were taken but less than two years from the date that the decedent learned of Dr. Cruickshank's x-ray findings.

The Superior Court granted the defendants' motions to dismiss the complaint on the ground that it was barred by the applicable two-year statute of limitations and the plaintiffs appealed.

14 M.R.S.A. § 753, the statute of limitations applicable to plaintiffs' malpractice cause of action, ² provides that actions against physicians must be commenced within two years from the accrual of the cause of action. The general rule in Maine is that the cause of action accrues at the time of the wrongful act producing the alleged injury. Chiapetta v. Clark Assocs., 521 A.2d 697, 699 (Me.1987); Myrick, 444 A.2d at 994.

In Myrick, we held that a surgical malpractice action involving a foreign object negligently left in a patient's body accrues, for purposes of determining the commencement of the statute of limitations, when the patient discovers, or reasonably should discover, the presence of the foreign object left in the body. Myrick, 444 A.2d at 996. In doing so, we overruled Tantish v. Szendey, 158 Me. 228, 182 A.2d 660 (1962).

Subsequent to Myrick, in Box v. Walker, 453 A.2d 1181, 1183 (Me.1983), the question whether the discovery rule of Myrick would be applied to malpractice involving other than foreign object cases was left open for case by case adjudication.

In Myrick we said that a statute of limitations represented a balancing of the right of an injured plaintiff to pursue a meritorious claim against a defendant's rights to repose and protection from stale claims, with the difficulties of faded memories or unavailable witnesses and lost evidence. Myrick, 444 A.2d at 994. In weighing those interests, we were mindful of the confidential relationship existing between a patient and her surgeon, resulting in great reliance being placed in the surgeon, and the catastrophic losses resulting from foreign object malpractice. We concluded that the general rule of the cause of action accruing at the time of the negligent act worked "a manifest injustice in foreign object surgical malpractice cases ... where a patient, through no personal fault or failure of diligence, is unaware that her sutures hide a foreign object until the two-year period in which to bring an action has elapsed." Myrick, 444 A.2d at 995.

Defendants point out that the negligent diagnosis cases are different, result in injury less clearly defined, involve more questions of professional judgment and discretion than foreign object cases, and, unlike foreign object cases, always require expert medical testimony. Moreover, they assert, the credibility of the plaintiff is more apt to be crucial in the negligent diagnosis cases. Defendants further argue that...