Dunn v. St. Francis Hospital, Inc.

• Decision Date: 27 March 1979
• Citation: 401 A.2d 77
• Parties: Fred DUNN and Catherine Dunn, his wife, Plaintiffs Below, Appellants, v. ST. FRANCIS HOSPITAL, INC., a Delaware Corporation, Defendant Below, Appellee.
• Court: Supreme Court of Delaware

Page 77

401 A.2d 77

Fred DUNN and Catherine Dunn, his wife, Plaintiffs Below, Appellants, v. ST. FRANCIS HOSPITAL, INC., a Delaware Corporation Defendant Below, Appellee.

Supreme Court of Delaware.

Submitted Jan. 9, 1979.

Decided March 27, 1979.

Upon appeal from Superior Court. Affirmed.

Douglas B. Catts, of Schmittinger & Rodriguez, Dover, for plaintiffs-appellants.

Jane R. Roth, of Richards, Layton & Finger, Wilmington, for defendant-appellee.

Before McNEILLY, QUILLEN and HORSEY, JJ.

QUILLEN, Justice:

The motion of Defendant St. Francis Hospital, Inc. for summary judgment was granted by the Superior Court on the ground that the action was barred by the applicable statute of limitations. The plaintiff's appeal in this medical malpractice case presents the question of whether the statute of limitations commenced to run when the negligent act or omission was committed or when the harm first manifested itself to the patient. The plaintiff also contends that if the Court finds that the statute begins to run at the time of the negligent act, then the statute is unconstitutional. Both issues were effectively considered by the Court below in a concise opinion by Judge Wright. Dunn v. Felt, Del.Super., 379 A.2d 1140 (1977). We affirm.

For present purposes, these facts are accepted by stipulation. On July 13, 1970, Dr. Milan Q. Felt, also a defendant, but uninvolved in this appeal, performed a bilateral radical discoidectomy operation upon the back of the plaintiff, Fred Dunn, at St. Francis Hospital. Although plaintiff's symptoms were on the left side of his back, the doctor entered the back from the right side. In April, 1975, plaintiff began to experience pain in his right leg. In January, 1977, plaintiff discovered that the pain he was experiencing since April, 1975 may have been caused by Dr. Felt's negligence in performing the 1970 operation. On March 10, 1977, plaintiff instituted an action against Dr. Felt and St. Francis Hospital.

The applicable statute of limitations is 18 Del.C. § 6856, which provides as follows:

" § 6856. General Limitations.

"No action for the recovery of damages upon a claim against a health care provider for personal injury, including personal injury which results in death, arising out of malpractice shall be brought After the expiration of 2 years from the date upon which such injury occurred; provided, however, that:

"(1) Solely in the event of personal injury the occurrence of which, during such period of 2 years, was unknown to and could not in the exercise of reasonable diligence have been discovered by the injured person, such action may be brought prior to the expiration of 3 years from the date upon which such injury occurred, and not thereafter; . . ." (emphasis supplied)

This statute applies to all actions brought after April 26, 1976, 18 Del.C. § 6857, and is thus applicable here.

It seems to us that the first question can be answered on the face of the statute itself. The statute grants an additional year before its bar is effective when the occurrence of the injury "was unknown to and could not in the exercise of reasonable diligence have been discovered by the injured person."

This limited extension of the period, in our judgment, is intended to give consideration to the problem of an injury which is not physically ascertainable. Such extension further appears directly intended to limit the open-ended aspect of the prior law which provided in the case of an "inherently unknowable" injury that the applicable period began to run when the injured person became aware of his injury. Layton v. Allen, Del.Supr., 246 A.2d 794 (1968). It simply appears on the face of the statute that § 6856(1) is an attempt both to codify the "inherently unknowable" injury rule of the Layton case and to limit it to three years. See Pearson v. Boines, Del.Super., 367 A.2d 653 (1976), aff'd, Del.Supr., 386 A.2d 651 (1978); see also Handy v. Marvil, Del.Super., 385 A.2d 1129 (1978).

If the above conclusion about the legislative intent is not clear from the face of the statute, an examination of the legislative history confirms the conclusion.

The introductory paragraphs of the malpractice bill, Chapter 68 of Title 18, of which § 6856 was a part, indicate that the main reason for passage of the legislation was the concern over the rising cost of malpractice liability insurance. 60 Del.Laws C. 373. ^* The report to the Governor of the Delaware Medical Malpractice Commission which drafted the statute clearly indicates that the phrase "injury occurred" means the time at which the wrongful act or omission occurred. That report, referring to § 6856, reads in part:

"(t)he overall effect will be to eliminate the uncertainty created by the present open-ended period of limitations . . .

"The statute proposed is a two year statute permitting a third year in which to bring the action where the injury was unknown and could not in the exercise of reasonable diligence have been discovered." Report of the Delaware Medical Malpractice Commission, pp. 3-4, Feb. 26, 1976.

Thus, through examination of the legislative history, there is no doubt that the phrase "injury occurred" refers to the date when the wrongful act or omission occurred.

The plaintiff seeks to avoid the clear thrust of the statute by a skillful resort to the general theory of a negligence action in relation to the statutory phrase "date upon which such injury occurred." In essence, the plaintiff says to establish a cause of action for negligence three elements must be shown: negligence, proximate cause, and damage. Prosser, Law of Torts, Sec. 30, p. 144. "It follows that the statute of limitations does not begin to run against a negligent action until some damage has occurred." Id. The plaintiff argues that in this case there was no damage until April 1975 when pain was experienced and until that date the "injury" had not "occurred."

The answer, however, must be that the statute was a response to a particular issue in a particular context and that to construe it broadly without the bounds of that context, as plaintiff desires, would emasculate its very purpose. Furthermore, if the General Assembly intended there to be a line of demarcation based on the no pain-no injury rationale, it would have said so in some precise manner. We cannot frustrate the clear legislative intent which was carefully respected by the interpretation of the Court below. The statutory context and history makes it unnecessary for us to explore when damage occurred in the context the plaintiff argues, but it seems to us that it is not necessarily the same time as the first manifestation of pain in the leg given the initial and allegedly wrongful entry into the body from the right side of the back.

The plaintiff contends that if the phrase "injury occurred" refers to the date which the wrongful act or omission occurred, then 18 Del.C. § 6856 is unconstitutional. Article I, Section 9 of the Constitution of 1897 of the State of Delaware provides in pertinent part as follows:

"All courts shall be open, and every man for an injury done him in his reputation, person, movable or immovable possessions, shall have remedy by due course of law, and justice administered according to the very right of the cause and...