Bricker v. Putnam
| Decision Date | 05 June 1986 |
| Docket Number | No. 84-453,84-453 |
| Citation | 512 A.2d 1094,128 N.H. 162 |
| Parties | Glenn W. BRICKER, M.D., and Joy M. Bricker, v. Hamilton S. PUTNAM, Individually, and as Executive Secretary/Director of New Hampshire Medical Society. Glenn W. BRICKER, M.D., and Joy M. Bricker, v. Thomas F. FOLEY, M.D. |
| Court | New Hampshire Supreme Court |
Law Offices of James J. Barry, Jr., Manchester, Law Offices of David L. Broderick, Manchester, and Perkins & Upshall P.A., Concord (James J. Barry, Jr., et al, on brief and orally), for plaintiffs.
Sulloway Hollis & Soden, Concord (Warren C. Nighswander on brief and orally), for defendants.
The plaintiff Glenn W. Bricker, M.D., is a physician who has been licensed to practice in New Hampshire since 1963. In that year, he was appointed to the staff at Sceva Speare Memorial Hospital in Plymouth. On May 22, 1969, the House of Delegates of the New Hampshire Medical Society held its annual meeting, at which various members of the society discussed Dr. Bricker and his medico-legal activities. Bricker was subsequently denied reappointment to the Sceva Speare staff on October 19, 1970. Shortly thereafter, he instituted legal action to contest the hospital's decision, embarking upon a course of related litigation that has continued for more than fifteen years.
Dr. Bricker's discovery of a twelve-page portion of the minutes of the May 1969 meeting of the society is the core allegation in the present actions brought in 1983 and 1984 against Hamilton Putnam, Executive Secretary/Director of the New Hampshire Medical Society, and Thomas Foley, M.D., Secretary/Treasurer of the society. Dr. Bricker and his wife, Joy Bricker, challenge the decision of the Trial Court (Temple, J.) that the actions were barred by the statute of limitations. We affirm.
The complaint against defendant Putnam, filed June 1, 1983, alleged in substance:
Count I--Negligent failure to include the twelve-page transcript in the Medical Society minute book, so that the plaintiff was unaware and unable to prove that the actions taken by the society caused him to be denied reappointment at Sceva Speare and appointment elsewhere in the State, thereby rendering him unable to earn a living.
Count II--Negligent interference with the plaintiff's advantageous financial relationship.
Count III--Negligent failure to produce or disclose the existence of the minutes in response to a 1975 United States District Court subpoena.
Count IV--Conspiracy with various officers and employees of the society to conceal the minutes, with the same consequences as alleged in Count I.
Count V--Negligence in causing a transcript of the minutes to be prepared, which caused the plaintiff to be denigrated, subjected to an unlawful scheme and to lose his appointment at the hospital.
Count VI--On the part of Joy Bricker, severe mental anguish, loss of consortium and services and loss of ability to provide financial support for her children, arising from the defendants' negligent interference with Dr. Bricker's advantageous financial relationship.
The plaintiffs filed similar claims against defendant Foley in 1984. Putnam and Foley moved to dismiss, alleging, inter alia, that all claims were barred by RSA 508:4, which required all personal actions, including actions for defamatory words, to be brought "within six years after the cause of action accrued," RSA 508:4 (Supp.1977), and that the action was barred by collateral estoppel because the issue of the basis for the denial of reappointment had already been litigated and decided adversely to the plaintiff.
Dr. Bricker contends that the running of the statute of limitations did not begin until May 16, 1978, the day he discovered the twelve-page transcript. In support, he cites the so-called "discovery rule" and fraudulent concealment rule. See generally, Shillady v. Elliott Community Hosp., 114 N.H. 321, 320 A.2d 637 (1974). If the plaintiff is correct about the application of these rules, the action against defendant Putnam must be deemed timely, the writ having been filed within six years of the date of discovery of the minutes. The trial court found that the writ against defendant Foley was not filed until June 5, 1984, more than six years after the alleged discovery date. Therefore, the granting of the motion to dismiss as to defendant Foley was unquestionably correct.
As a preliminary matter, we note that Joy Bricker's claims arise from the defendant's alleged negligent interference with Dr. Bricker's advantageous financial relationship. Thus, for purposes of determining whether the statute of limitations bars the plaintiffs' claims, the operative events, as well as our analysis, are identical for both Joy and Glenn Bricker.
The discovery rule and fraudulent concealment rule serve the common purpose of preventing the unfairness that would result if an injured person were foreclosed from bringing an action before becoming aware of its existence. Shillady, 114 N.H. at 324-25, 320 A.2d at 639. "Under the discovery rule a cause of action does not accrue until the plaintiff discovers or, in the exercise of reasonable diligence, should have discovered both the fact of his injury and the cause thereof." Carson v. Maurer, 120 N.H. 925, 936, 424 A.2d 825, 833 (1980). Similarly, the fraudulent concealment rule states that when facts essential to the cause of action are fraudulently concealed, the statute of limitations is tolled until the plaintiff has discovered such facts or could have done so in the exercise of reasonable diligence. Lakeman v. LaFrance, 102 N.H. 300, 303, 156 A.2d 123, 126 (1959); Bowman v. Sanborn, 18 N.H. 205, 209 (1846). The rationale is that a defendant should not benefit where his fraudulent conduct has prevented the plaintiff from suing before the statute of limitations has run. See Lakeman supra.
The facts surrounding the plaintiff's discovery of the minutes are as follows. Bricker alleged that on June 4,...
To continue reading
Request your trial
-
University System of New Hampshire v. US Gypsum
...supra, 130 N.H. 18, 533 A.2d 375; Wolf Investments, Inc. v. Town of Brookfield, 129 N.H. 303, 529 A.2d 861 (1987); Bricker v. Putnam, 128 N.H. 162, 512 A.2d 1094 (1986); Opinion of the Justices, 126 N.H. 554, 493 A.2d 1182 (1985); French v. R.S. Audley, Inc., 123 N.H. 476, 480, 464 A.2d 279......
-
Sinclair v. Brill
...if an injured person were foreclosed from bringing an action before becoming aware of its existence." See Bricker v. Bricker, 128 N.H. 162, 165, 512 A.2d 1094, 1096 (1986); Raymond, 117 N.H. at 169, 371 A.2d at 174. From 1983 on, the New Hampshire Supreme Court broadly applied the discovery......
-
Beane v. Dana S. Beane & Co., P.C.
...until the plaintiff has discovered such facts or could have done so in the exercise of reasonable diligence." Bricker v. Putnam, 128 N.H. 162, 165, 512 A.2d 1094 (1986). Here, the rule is inapplicable because, as the trial court found, the plaintiff knew, or "in the exercise of reasonable d......
-
Sykes v. RBS Citizens, N.A.
...of reasonable diligence.’ ” Beane v. Dana S. Beane & Co., P.C., 160 N.H. 708, 714, 7 A.3d 1284 (2010) (quoting Bricker v. Putnam, 128 N.H. 162, 165, 512 A.2d 1094 (1986)). Fraudulent concealment “requires something affirmative in nature designed or intended to prevent, and which does preven......