Dyke v. Richard

• Decision Date: 21 December 1973
• Docket Number: M,No. 2,2
• Parties: Nelson Roger DYKE and Ruth Dyke, Plaintiffs-Appellants, v. Esther RICHARD et al., Defendants-Appellees. ay Term. 390 Mich. 739, 213 N.W.2d 185
• Court: Michigan Supreme Court

Page 185

213 N.W.2d 185

Nelson Roger DYKE and Ruth Dyke, Plaintiffs-Appellants, v. Esther RICHARD et al., Defendants-Appellees.

No. 2, May Term.

390 Mich. 739, 213 N.W.2d 185

Supreme Court of Michigan.

Dec. 21, 1973.

Newman & Mackay, by William L. Mackay, Lansing, for plaintiff-appellants.

Roscoe O. Bonisteel, Roscoe O. Bonisteel, Jr., Ann Arbor, for defendant-appellee, Dr. Irving Feller.

Keyes, Creal & Hurbis, Ann Arbor, for defendant-hospital appellee.

Before the Entire Bench.

T. G. KAVANAGH, Justice.

As stated by the trial court, the facts giving rise to this case are as follows:

'Plaintiffs were involved in an automobile accident near Ann Arbor on August 26, 1965, and received injuries, which were treated at defendant St. Joseph Hospital. The treating physician was defendant Dr. Feller, who treated Ruth Dyke. This action was instituted against defendant Richard for negligence in the operation of his vehicle, and against defendant Dr. Feller for malpractice in failing to properly diagnose the injuries to Ruth Dyke, and against the defendant Hospital on the theory that defendant Feller was its agent and that he, and the x-ray technician employed by the Hospital were negligent in failing to x-ray her pelvic area. She claims this negligence resulted in their failing to find she had suffered a fractured acetabulum as a result of the accident, and that such failure caused her additional damages.'

Defendant Feller moved for accelerated judgment on the ground that suit was started over two years after the last treatment by him and was therefore barred by the statute of limitations M.C.L.A. § 600.5805(3); M.S.A. § 27A.5805(3) and M.C.L.A. § 600.5838; M.S.A. § 27A.5838. The trial court granted his motion. The trial court also granted defendant St. Joseph Hospital's motion for summary judgment on the basis that the only duty owed by the hospital was to take x-rays in accordance with the instructions of the attending physician, and that no claim was made that they did not do so or that they did so in a negligent manner.

We are first called upon to determine whether the effect of M.C.L.A. § 600.5805 and M.C.L.A. § 600.5838 is to abrogate the rule adopted in Johnson v. Caldwell, 371 Mich. 368, 123 N.W.2d 785 (1963), that the limitation statute in malpractice cases does not start to run until the date of discovery, or the date when, by the exercise of reasonable care, plaintiff could have discovered the wrongful act. It is not disputed that both sections must be read together:

'Sec. 5805. No person may bring or maintain any action to recover damages for injuries to persons . . . unless, after the claim first accrued . . . he commences the action within the periods of time prescribed by this section.

(3) The period of limitations is 2 years for actions charging malpractice.

Sec. 5838. A claim based on the malpractice of a person who is, or holds himself out to be, a member of a state licensed profession accrues at the time that person discontinues treating or otherwise serving the plaintiff in a professional or pseudo-professional capacity as to the matters out of which the claim for malpractice arose.'

Defendants Feller and the hospital maintain that this represents a clear legislative determination that the period prescribed in the statute is two years from the date of last treatment and is binding whether the party asserting the claim for malpractice knows about the malpractice or not.

The plaintiffs assert that the legislation was neither intended to nor should it properly be construed to have that effect. The time of accrual of a cause of action, the plaintiffs maintain, can never in due process, precede the awareness of the right, and consequently must be read to include a discovery provision.

Sections 5805 and 5838 were part of the Revised Judicature Act, 1961 P.A. 236 which was approved June 9, 1961 to become effective January 1, 1963. Section 5805(3) continued the malpractice limitation which had been established by 1905 P.A. 168. Section 5838 which specifies that a claim based on malpractice accrues at the time the claimant is last treated by the licensed professional, comports with the legislative comment accompanying it, viz: 'Section 5838 is based on the rule stated and followed in the Michigan case of DeHaan v. Winter, 258 Mich. 293, 241 N.W. 923 (1932).

If, however, that was simply the legislative intent it went beyond DeHaan. DeHaan was a suit involving asserted malpractice in the improper treatment of a fractured bone. The malpractice in that case was claimed to be the failure to take x-rays, employ traction or extension weights, etc.

The court said on pp. 269--297, 241 N.W. on p. 924:

'When did plaintiff's cause of action accrue? Until treatment of the fracture ceased the relation of patient and physician continued, and the statute of limitations did not run. Schmit v. Esser, 183 Minn. 354 (236 N.W. 622), and reported with annotations in 74 A.L.R. 1312. While decisions are not in accord upon this question, we are satisfied that in such an action as this the statute of limitations does not commence to run while treatment of the fracture continues. Failure to give needed continued care and treatment, under opportunity and obligation to do so, would constitute malpractice. During the course of treatment plaintiff was not put to inquiry relative to the treatment accorded him.'

Thus there was no rule announced in DeHaan as to when the cause of action did accrue. The rule announced was that a cause of action Did not accrue before the treatment stopped. The last sentence quoted above would seem to imply that a cause of action accrues only when the plaintiff is put to inquiry relative to the treatment accorded him.

It is helpful to keep in mind the distinction between a statute which is intended to abrogate a common law cause of action and a statute of limitation.

A statute which expressly extinguishes a common law right may be regarded as a proper exercise of legislative authority. For example, 1935 P.A. 127; M.C.L.A. § 551.301; M.S.A. § 25.191, which abolished the common law cause of action for alienation of affections, criminal conversation, seduction and breach of contract to marry was held to be constitutional in Bean v. McFarland, 280 Mich. 19, 273 N.W. 332 (1937).

But the statute here under consideration was intended to be a statute of limitations. It is a charge on the person who would assert a claim. It requires action on his part within a legislatively specified time, or obliges him to forego it altogether.

Justice Cooley described our responsibility in dealing with such statutes of limitation in Price v. Hopkin, 13 Mich. 318, 324 (1865):

'The general power of the legislature to pass statutes of limitation is not doubted. The time that these statutes shall allow for bringing suits is to be fixed by the legislative judgment, and where the legislature has fairly exercised its discretion, no court is at liberty to review its action, and to annul the law, because in their opinion the legislative power has been unwisely exercised. But the legislative authority is not so entirely unlimited that, under the name of a statute limiting the time within which a party shall resort to his legal remedy, all remedy whatsoever may be taken away. * * * It is of the essence of a law of limitation that it shall afford a reasonable time within which suit may be brought (citations omitted) and a statute that fails to do this cannot possibly by sustained as a law of limitations, but would be a palpable violation of the constitutional provision that no person shall be deprived of property without due process of law.'

Since '(i)t is of the essence of a law of limitation that it shall afford a reasonable time within which suit may be brought . . .', Price, supra, a statute which extinguishes the right to bring suit cannot be enforced as a law of limitation. As to a person who does not know, or in the exercise of reasonable diligence could not ascertain within the two year period that he has a cause of action, this statute has the effect of abolishing his right to bring suit.

Such a statute, if sustainable at all could be enforced only as one intended to abolish a common law cause of action. But this statute does not purport to do this, is not asserted to do so, and we cannot ascribe any legislative intention to accomplish that end. We read it as a statute of limitation which applies in every case except where the plaintiff does not know of his cause of action.

As indicated above, the 'last treatment' rule as articulated in DeHaan, supra, was a liberalizing of the general rule that the cause of action accrues at the time of injury. We are satisfied that the legislature merely intended to codify the DeHaan decision and no more intended to obviate the question of discovery than the DeHaan court did.

Accordingly we hold that an action based on malpractice by a state licensed person must be brought within two years of the time when such person...