Cook v. Soltman
Decision Date | 18 July 1974 |
Docket Number | No. 11323,11323 |
Citation | 96 Idaho 187,525 P.2d 969 |
Parties | Leroy COOK, Plaintiff-Appellant, v. Don SOLTMAN, Defendant-Respondent. |
Court | Idaho Supreme Court |
Alvin Denman, Idaho Falls, Dale D. Billips, Los Angeles, Cal., for plaintiff-appellant.
Jerry V. Smith, Lewiston, for defendant-respondent.
This appeal involves a claim of malpractice by the plaintiff-appellant, Leroy Cook, against the defendant-respondent, Dr. Don Soltman. On June 22, 1962, Cook was involved in an accident in which a portion of a tree limb penetrated his back. Cook obtained the medical services of Dr. Soltman for treatment and removal of the limb. After the operation, Cook alleges he continued to have back pains and was unable to work. Cook also claims that although he sought professional diagnosis of the pain and suffering from time to time, it was not until April 19, 1972, that he learned that the cause of the pain was that portions of the tree limb and shirt had not been removed from his back.
On September 28, 1972, Cook filed an action in district court against Dr. Soltman alleging that he negligently failed to remove all of the tree limb and shirt from his back. The respondent moved to dismiss the complaint. Memoranda of authorities were submitted to the court by both parties. The district court ordered that the action be dismissed on February 27, 1973, stating,
'(I)t appearing that the claim against defendant physician (respondent) is not based upon a foreign object having been placed and left in plaintiff (appellant) by defendant physician, nor one of misdiagnosis by defendant physician, nor fraudulent concealment by the defendant physician, the same is therefore barred by the provisions of Idaho Code 5-214 (219) the applicable statute of limitations.'
Cook has appealed to this Court.
The initial assignment of error by Cook is that the district court erred in holding that his complaint was barred by the statute of limitations because the defense was not properly presented. Cook contends that I.R.C.P. 8(c) requires the statute of limitations defense to be specifically pleaded, and argues that since Dr. Soltman moved to dismiss the complaint for failure to state a claim upon which relief could be granted and then submitted memoranda on the statute of limitations, the defense was waived.
3
Although the district court did not state that it was treating the respondent's motion as a motion for summary judgment, it is clear that is what occurred from the procedure followed by the district court. The statute of limitations defense was properly presented to the district court for disposition and is properly before this Court on appeal.
The statute of limitations as it applies to malpractice actions 4 was amended on July 1, 1971, and the question arises as to the applicable statute in this action in which the alleged malpractice occurred on June 22, 1962, and the action was filed on September 28, 1972. Both statutory provisions state that the two year limitation commences to run from the date of the wrongful act making the statute that was in force before the amendment applicable unless the new statute is retroactive. It has been repeatedly held that no law in this state is to be applied retroactively absent a clear legislative intent to the contrary. 5 Since there is no expressed intent by the legislature to make the 1971 amendment retroactive, the statute as stated prior to the amendment applies to this. case.
This action comes to this Court on a judgment of dismissal based on Dr. Soltman's motion for summary judgment. The motion for summary judgment was based on the following statute of limitations,
'Within two years * * *.
6
Since this action was not commenced until more than ten years after the alleged wrongful act, this limitation appears to clearly apply to this action.
The procedure to overcome a motion for summary judgment based on the statute of limitations was set forth in the case of Johnson v. Gorton. 7 In that case it was held that the plaintiff had failed to submit sufficient materials in opposition to the motion for summary judgment to avoid dismissal. This Court stated the test for measuring the sufficiency of the materials to overcome the motion for summary judgment as,
8
To overcome Dr. Soltman's motion for summary judgment, Cook argues that his action falls within the discovery exception to the statute of limitations announced in Billings v. Sisters of Mercy of Idaho. 9 In that case a physician left a sponge in a patient's body that was not discovered until fourteen years after the operation. It was held that,
'(W)here a foreign object is negligently left in a patient's body by a surgeon and the patient is in ignorance of the fact, and consequently of his right of action for malpractice, the cause of action does not accrue until the patient learns of, or in the exercise of reasonable care and diligence should have learned of the presence of such foreign object in his body.' 10
To overcome the statute of limitations bar raised by Dr. Soltman's motion for summary judgment, Cook was required to present sufficient materials to bring him within the discovery exception.
The record establishes that this action is not sufficiently similar to the Billings case to make the discovery exception applicable. The Billings case is limited on its facts to a situation in which a doctor places a foreign object in a patient's body without the patient's knowledge and fails to remove it. In the case at bar, Cook came to Dr. Soltman for treatment with the limb and shirt already embedded in his back, and Cook knew that the limb and shirt had penetrated into his back. The gravamen of Cook's complaint is that Dr. Soltman failed to properly cleanse his wound which resulted in a portion of the limb and shirt remaining in his body. It was pointed out in the Billings case that the purposes of the statute of limitations of prevention of fraudulent and stale claims arising after great lapses of time was not served by barring foreign object actions.
11
Cook had notice that the tree limb and shirt were in his back. Moreover Cook alleges in his complaint that the wound never healed properly and continuously caused him pain. This allegation reveals that he had notice that the wound had not fully responded to the treatment. The complaint does not disclose whether Cook returned to Dr. Soltman for further treatment or whether he sought out other physicians. Irrespective of these options, Cook alleges that he was aware that his wound was not responding satisfactorily to Dr....
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Brizendine v. Nampa Meridian Irrigation Dist., 11742
...court treated the portion of the motion as to Baldwin's claim as a motion for summary judgment. I.R.C.P. 12(b), 56; Cook v. Soltman, 96 Idaho 187, 525 P.2d 969 (1974). ...
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Smith v. Great Basin Grain Co.
...on the basis of the pleadings and the record, it was properly treated as a motion for summary judgment. I.R.C.P. 12(c); Cook v. Soltman, 96 Idaho 187, 525 P.2d 969 (1974). Disposition of the issue raised by the denial of this motion is thus subsumed under our treatment of the defendants' mo......
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...of a foreign object left in the body. See, Billings v. Sister of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224 (1964); Cook v. Soltman, 96 Idaho 187, 525 P.2d 969 (1974); and further restricted by Johnson v. Gorton, 94 Idaho 595, 495 P.2d 1 (1972); Stoner v. Carr, 97 Idaho 641, 550 P.2d 259 (o......
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Allen v. A.H. Robins Co., Inc.
...Object Exception The foreign object exception has been strictly interpreted by the Idaho Supreme Court. For example, in Cook v. Soltman, 96 Idaho 187, 525 P.2d 969 (1974), the court held that the foreign object exception did not apply in an action where the plaintiff alleged that a doctor n......