Colton v. Dewey

• Decision Date: 09 July 1982
• Docket Number: No. 44446,44446
• Citation: 212 Neb. 126,321 N.W.2d 913
• Parties: Sharon COLTON, M.D., Appellant, v. John L. DEWEY, M.D., Appellee.
• Court: Nebraska Supreme Court

Page 913

321 N.W.2d 913

212 Neb. 126

Sharon COLTON, M.D., Appellant, v. John L. DEWEY, M.D., Appellee.

No. 44446.

Supreme Court of Nebraska.

July 9, 1982.

Syllabus by the Court

1. Legislature. The Legislature may make a reasonable classification of persons for purposes of legislation concerning them, but the classification must rest upon real differences of situation and circumstances surrounding the members of the class, relative to the subject of legislation, which render the enactment appropriate.

2. Limitations of Actions: Medical Malpractice. The 10-year period of repose contained in the professional negligence statute of limitations, Neb.Rev.Stat. § 25-222 (Reissue 1979), rests upon a valid distinction between professional and other activities.

3. Limitations of Actions. A statute of limitations is a statute of repose designed to prevent recovery on stale demands.

4. Limitations of Actions: Due Process. Due process does not demand an awareness of a right of action before a period of limitations may run against it.

5. Limitations of Actions: Constitutional Law. The requirement of Neb.Const. art. I, § 13, that all courts be open and every person have a remedy by due process of law for any injury to his person, does not mean that limits may not be imposed upon the time within which one must ask courts to act.

6. Legislature. The legislature is free to create and abolish rights so long as no vested right is disturbed.

Michael G. Goodman and Martin A. Cannon of Matthews, Cannon & Riedmann, P. C., Omaha, for appellant.

John R. Douglas of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellee.

William E. Gast and Thomas J. Jenkins of Gast & Kielty, and Paul F. Peters of Taylor, Hornstein & Peters, Omaha, for amici curiae.

Heard before KRIVOSHA, C. J., and BOSLAUGH, McCOWN, CLINTON, WHITE, HASTINGS, and CAPORALE, JJ.

CAPORALE, Justice.

This appeal involves a medical malpractice case brought by Dr. Sharon Colton, appellant, against Dr. John L. Dewey, appellee. The District Court of Nebraska, Fourth Judicial District, in and for Douglas County, sustained the appellee's demurrer and dismissed appellant's petition. We affirm.

The petition alleges that from 1961 through 1965 the appellee treated Dr. Colton's chronic asthma by X-rays of, and injections of X-ray radiation particles into, her chest. The petition further alleges the treatments subjected appellant to "known hazards or [sic] resultant malignancy, were experimental in nature, and were not recognized among competent medical practitioners as having any usefulness in the treating of ailments such as plaintiff presented." Appellant further alleges that appellee affirmatively misrepresented the effect of the therapy upon her.

On October 29, 1979, during a routine physical examination, appellant was discovered to have breast cancer. She was required to undergo a bilateral simple mastectomy and node excision in the right axilla. The suit from which this appeal arises was filed December 12, 1980.

Appellee contends this action is barred by Neb.Rev.Stat. § 25-222 (Reissue 1979), which provides: "Any action to recover damages based on alleged professional negligence or upon alleged breach of warranty in rendering or failure to render professional services shall be commenced within two years next after the alleged act or omission in rendering or failure to render professional services providing the basis for such action; Provided, if the cause of action is not discovered and could not be reasonably discovered within such two-year period, then the action may be commenced within one year from the date of such discovery or from the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; and provided further, that in no event may any action be commenced to recover damages for professional negligence or breach of warranty in rendering or failure to render professional services more than ten years after the date of rendering or failure to render such professional service which provides the basis for the cause of action."

Appellant contends the 10-year period of repose does not apply; and, further, if it were to apply it is unconstitutional in that, firstly, it constitutes special legislation in violation of the Nebraska Constitution; second, it violates the equal protection clause of the U. S. Constitution and due process clause of the Nebraska Constitution; and third, it denies her the right of access to the courts guaranteed by the Nebraska Constitution.

We first address appellant's constitutional arguments. We have held that under the provisions of Neb.Const. art. I, § 16, and art. III, § 18, the Legislature may make a reasonable classification of persons for purposes of legislation concerning them, but that the classification must rest upon real differences of situation and circumstances surrounding the members of the class, relative to the subject of legislation, which render the enactment appropriate. We have also held that the 2-year period of limitation contained in the statute under consideration rests upon valid distinctions between professional and other activities. Taylor v. Karrer, 196 Neb. 581, 244 N.W.2d 201 (1976). The classification of professionals being valid for the purpose of limiting the time within which suit may be brought, appellant's argument that the period of repose constitutes special legislation falls. It has long been the rule of this state that a statute of limitations is a statute of repose designed to prevent recovery on stale demands. Spath v. Morrow, 174 Neb. 38, 115 N.W.2d 581 (1962); In re Estate of Anderson, 148 Neb. 436, 27 N.W.2d 632 (1947).

To the extent appellant relies on the special legislation argument to support her claim that the period of repose violates the due process clause (art. I, § 3) of the Nebraska Constitution and equal protection clause (amend. XIV, § 1) of the U. S. Constitution, that claim too must fall for the reasons discussed above. Nor does due process demand an awareness of a right of action before a period of limitations may run against it. Landgraff v. Wagner, 26 Ariz.App. 49, 546 P.2d 26 (1976). We find no merit in appellant's due process and equal protection claims.

Likewise, we find no merit in her third constitutional argument. The requirement of Neb.Const. art. I, § 13, that all courts be open and every person have a remedy by due process of law for any injury to his person, does not mean that limits may not be imposed upon the time within which one must ask courts to act. See Drainage District v. Chicago, B. & Q. R. Co., 96 Neb. 1, 146 N.W. 1055 (1914), holding a statute allowing a drainage district 2 years following ascertainment of just compensation by appraisers within which to enter upon and appropriate land to be valid.

A review of the history leading to enactment...