Brown v. Mary Hitchcock Memorial Hospital

• Decision Date: 30 September 1977
• Docket Number: No. 7771,7771
• Citation: 378 A.2d 1138,117 N.H. 739
• Parties: Martha Peloquin BROWN and Richard Brown v. MARY HITCHCOCK MEMORIAL HOSPITAL, Hitchcock Clinic Inc., John Milne, Robert Vanderlinde, Richard Sobel.
• Court: New Hampshire Supreme Court

Page 1138

378 A.2d 1138

117 N.H. 739

Martha Peloquin BROWN and Richard Brown v. MARY HITCHCOCK MEMORIAL HOSPITAL, Hitchcock Clinic Inc., John Milne, Robert Vanderlinde, Richard Sobel.

No. 7771.

Supreme Court of New Hampshire.

Sept. 30, 1977.

Boynton, Waldron, Dill & Aeschliman, Portsmouth (Nicholas R. Aeschliman, Portsmouth, orally), for plaintiffs.

Sulloway, Hollis, Godfrey & Soden, and Martin L. Gross, Concord, for defendants.

KENISON, Chief Justice.

On October 8, 1975, the plaintiffs filed actions in Rockingham County Superior Court to recover damages for personal injuries and loss of consortium arising out of allegedly negligent treatment received by the plaintiff Martha Brown in the years 1962, 1963, and 1968. During those years the defendant doctors administered the drug propylthiouracil (PTU) to Mrs. Brown as treatment for a hyperthyroid condition. The plaintiff sustained an adverse reaction to the drug which resulted in a drastic lowering of her white blood cell count. The plaintiffs allege that this reaction produced a permanent condition known as agranulocytosis which severely reduces immunity to infections. They further allege that this granulocytic state was not discoverable until October 18, 1973, at the earliest. The defendants raised the affirmative defense that the actions were barred by statutes of limitation. A hearing was held before a Master (Mayland H. Morse, Jr., Esq.) to determine whether the plaintiffs' actions were time-barred.

The parties agreed that the actions against the three doctors are governed by the two-year statute of limitations for malpractice suits in effect in 1962 and 1968. The action against the hospital is governed by the six-year statute of limitation. RSA 508:4; Blastos v. Elliot Community Hospital, 105 N.H. 391, 200 A.2d 854 (1964). After making findings of fact and conclusions of law the master ruled that the action was time-barred. The Superior Court (Perkins, J.) approved the master's report and the plaintiffs seasonably excepted to the master's findings and conclusions. The issues raised by these exceptions were then reserved and transferred to this court. RSA 491:17.

The plaintiffs contend that the master employed an erroneous formulation of the New Hampshire discovery rule in determining the date on which the plaintiffs' cause of action accrued. Under the discovery rule a cause of action does not accrue "(u)ntil the plaintiff discovers or has a reasonable opportunity to discover that he has suffered a legal injury for which the defendant may be liable." Raymond v. Eli Lilly & Co., 117 N.H. ---, ---, 371 A.2d 170, 172 (1977).

Before we consider the accuracy of the master's formulation and application of the rule we must determine if an extension of the rule to cases such as the one before us is warranted. This court has held that the discovery rule applies in so-called "foreign objects" cases in which a surgeon leaves an object inside a patient's body, Shillady v. Elliot Community Hosp., 114 N.H. 321, 320 A.2d 637 (1974). Similarly, we have applied the rule to cases of attorney malpractice, McKee v. Riodan, 116 N.H. 729, 366 A.2d 472 (1976), and more recently to drug products liability cases. Raymond v. Eli Lilly Co., 117 N.H. ---, 371 A.2d 170 (1977). A thorough discussion of the equitable considerations underlying the application of the discovery rule was undertaken in Raymond. We will not repeat that discussion here except to state that a similar weighing of the equities warrants the application of the discovery rule in this and similar medical malpractice cases. Frohs v. Greene, 253 Or. 1, 4, 452 P.2d 564, 565 (1969). The danger that a physician or hospital will be exposed to unreasonable periods of liability or will be prejudiced by the loss of evidence due to the passage of time is substantially outweighed by the manifest unfairness of foreclosing an injured person's cause of action before he has had even a reasonable opportunity to discover its existence. 117 N.H. at ---, 371 A.2d at 174 (1977); Lipsey v. Michael Reese Hospital, 46 Ill.2d 32, 262 N.E.2d 450 (1970); Developments in the Law Statute of Limitations, 63 Harv.L.Rev. 1177, 1201 (1950).

We now turn to the master's formulation and application of the discovery rule. The standard of review in appeals from a master's determinations is prescribed by case law. A master's determinations will not be overturned unless they are unsupported by the evidence or are erroneous as a matter of law. Zuk v. Hale, 114 N.H. 813, 330 A.2d 448 (1974). The correct formulation of the discovery rule poses a question of law, but the application of the rule presents a question of fact. 5A L. Frumer, Personal Injury: Actions, Defenses, Damages § 403(3)(d)(iii) (1977).

We disagree with the master's formulation of the discovery rule in two important respects. The master stated that the plaintiffs' cause of action accrued when she "either learned or in the exercise of reasonable care could have learned . . . of the nature and extent of any negligence of the defendants." (Emphasis added). The word could incorporates an element of chance or remote possibility into the discovery rule instead of the reasonable care standard imposed by the word should. Restatement (Second) of Torts § 12 (1965). Although in some cases the result might be the same if the master's rule were used, the correct rule imposes only a duty of reasonable care upon a potential plaintiff, not the risk of nondiscovery despite the exercise of due diligence. 117 N.H. at ---, 371 A.2d at 172; 116 N.H. at 731, 366 A.2d at 473; 114 N.H. at 324, 320 A.2d at 639.

Second, under the test applied by the master a cause of action accrues under the rule when the plaintiff has an opportunity to learn of the harm and that the defendant is responsible for it even if no misconduct is then apparent. This formulation omits an essential element of a cause of action for negligence, i. e., the defendants' breach of duty. W. Prosser, The Law of Torts 143 (4th ed. 1971).

The defendants argue in support of the master's ruling that the New Hampshire discovery rule does not require that the plaintiff learn or have a reasonable opportunity to learn of the defendants' breach of duty before a cause of action will accrue. An examination of our holding in Raymond leads to an opposite conclusion. The issue in Raymond was whether the discovery rule tolls the statute of limitations in a drug products liability case until the plaintiff discovers or has a reasonable opportunity to discover that he has suffered a legal injury for which the defendant may be liable. In our affirmative answer to this question we set out a rule to be applied in future cases. The rule states that "a...