Foil v. Ballinger
| Decision Date | 19 September 1979 |
| Docket Number | No. 16071,16071 |
| Citation | 601 P.2d 144 |
| Parties | Aldwyth FOIL, Plaintiff and Appellant, v. Dr. Carter BALLINGER, Defendant and Respondent. |
| Court | Utah Supreme Court |
John Spencer Snow, Reading & Snow, Salt Lake City, for plaintiff and appellant.
Ramon M. Child, Richard F. Bojanowski, Ross C. Anderson of Berman & Giaque, Salt Lake City, for defendant and respondent.
Plaintiff brings this appeal from a summary judgment in favor of defendant dismissing with prejudice plaintiff's malpractice action on the ground it was barred by the statute of limitations contained in the Utah Health Care Malpractice Act, § 78-14-4 U.C.A. 1 The primary issues on appeal are: (1) whether the statute of limitations commences to run from the date of injury or from the date an injured person knows or should know that a known injury was caused by what is alleged to be a negligent act; and (2) whether the tolling provision found in § 78-12-40 extends the time for filing a suit notwithstanding a failure to file a notice of intent to sue within the limitations period.
Plaintiff sustained a back injury in May 1967. Her ailment was diagnosed and treated with good results, allowing her to remain gainfully employed until December 1971 when she again injured her back while working for the Utah State Liquor Commission. A surgeon extended a spinal fusion performed previously and excised two disc herniations and a dislodged bone graft which had partially compressed a nerve root. A rhizotomy was necessitated by the remaining immobilization and partial atrophy of the nerve root. As a result of this injury plaintiff submitted a claim to the Utah State Industrial Commission December 22, 1971.
Because of continued severe back pain, plaintiff sought relief at the University of Utah Pain Clinic where she was treated by the defendant from November 30 to December 15, 1973. Intermittent injections of caudal anesthesia brought transient relief. She was also given various medications and subcutaneous electrical stimulation. Plaintiff was re-admitted to the University Medical Center and remained there from January 18 to February 22, 1974. The treatment which plaintiff alleges as the basis of her cause of action in this case was the administration of a permanent subarachnoid phenol block (hereafter the "block") on January 18, 1974. Defendant did not treat her again after her discharge.
Following administration of the block, plaintiff suffered from rectal and bladder problems and, in an effort to remedy those problems, underwent a total colectomy and ileoproctostomy and other surgical procedures in December 1975. Still, her health problems persisted. A medical panel, convened pursuant to the Workmen's Compensation Act, issued a written report concerning plaintiff's medical condition to the State Industrial Commission June 23, 1977. The report indicated that both the rectal and the bladder problems of the plaintiff had been caused primarily by the causative agents of the block administered January 18, 1974. In her complaint plaintiff alleges that this medical panel report provided her the first opportunity to discover the cause of her continuing disabilities.
On January 10, 1978, just a few days short of the end of the running of the statute of limitations, plaintiff filed a complaint against defendants Dr. Ballinger and the University of Utah Medical Center alleging negligence against both. On February 10, 1978, the action against the Medical Center was dismissed with prejudice for failure to comply with the notice requirement of the Utah Governmental Immunity Act, § 63-30-12, and for failure to file the action within the time required by the Act. No appeal has been filed from that order. The trial court also dismissed without prejudice the action against Dr. Ballinger for failure to comply with § 78-14-8 of the Utah Health Care Malpractice Act, which requires that written notice be sent to a health care provider at least 90 days before one undertakes to "commence an action." That Section, as it read at the time the trial court ruled in this matter, provided:
No malpractice action against a health care provider may be commenced unless and until the plaintiff gives the prospective defendant or his executor or successor, at least ninety days' prior notice of intent to commence an action. Such notice shall include the nature of the claim, the persons involved, the date, time and place of the occurrence, the circumstances thereof, specific allegations of misconduct on the part of the prospective defendant, the nature of the alleged injuries and other damages sustained. Notice may be in letter or affidavit form executed by the plaintiff and his attorney. Service shall be accomplished by persons authorized and in the manner prescribed by the Utah Rules of Civil Procedure for the service of the summons and complaint in a civil action. Such notice shall be served within the time allowed for commencing a malpractice action against a health care provider. If the notice is served less than ninety days prior to the expiration of the applicable time period, the time for commencing the malpractice action against the health care provider shall be extended to ninety days from the date of service of notice.
On March 17, 1978, more than four years after the administration of the block, a notice of intent was served for the first time on defendant, and on June 26, 1978, plaintiff filed a new action against defendant. On a motion for summary judgment, the trial court ruled that the statute of limitations of the Utah Health Care Malpractice Act, § 78-14-4, barred the action. That Section provides:
(1) No malpractice action against a health care provider may be brought unless it is commenced within two years after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered the injury, whichever first occurs, but not to exceed four years after the date of the alleged act, omission, neglect or occurrence . . . .
The Utah Health Care Malpractice Act was passed by the 1976 Legislature and became effective April 1, 1976. Subsection 2 of § 78-14-4 specifically makes the statute of limitations provision retroactive. 2 It does not, however, refer to the provision found in § 78-14-8 which requires that a notice of intent to sue be filed prior to commencement of an action.
The first issue to be addressed is whether the action filed January 10, 1978, was filed within the time limit prescribed by § 78-14-4. The dates critical to this determination are:
January 18, 1974 Administration of the permanent
subarachnoid block.
April 1, 1976 Effective date of the Utah Health
January 10, 1978 Action filed without notice of
intent to sue.
June 26, 1978 Second action filed after serving
notice of intent to sue.
Defendant argues that the action filed January 10, 1978, was not timely because plaintiff knew of her injury at or shortly after the administration of the subarachnoid block. If that date controls, plaintiff's action clearly was filed more than two years later and was properly dismissed. Plaintiff contends that the critical date in this case for the purpose of determining when the limitations period commenced to run was the date she first became aware of the causal relationship between her physical disabilities and the alleged negligent act i.e., the date of the issuance of the medical panel report. If that position is correct, plaintiff filed her action within two years of the discovery of her legal injury and within the maximum four-year period allowed by the statute. For the purpose of this appeal we are obliged to accept as true plaintiff's allegation as to the time of her first knowledge of the relationship between the block and her disabilities.
In determining the proper construction to be placed upon § 78-14-4, it is important to keep in focus the proposition that that section deals only with malpractice actions against health care providers; it is not a general statute of limitation on personal injury actions as such.
Because of the nature of malpractice actions, and based on prior Utah law, we hold that the statute begins to run when an injured person knows or should know that he has suffered a legal injury. We base this holding on several grounds. In the health care field it is typically the case that there often is a great disparity in the knowledge of those who provide health care services and those who receive the services with respect to expected and unexpected side effects of a given procedure, as well as the nature, degree, and extent of expected after effects. While the recipient may be aware of a disability or dysfunction, there may be, to the untutored understanding of the average layman, no apparent connection between the treatment provided by a physician and the injury suffered. Even if there is, it may be passed off as an unavoidable side effect or a side effect that will pass with time. Indeed, common experience teaches that one often suffers pain and other physical difficulties without knowing or suspecting the true cause, and may, as often happens, ascribe a totally erroneous cause to the manifestations. Even those who are trained in medical science often require the additional expertise of one possessing specialty training to diagnose properly the cause of certain ailments. A number of medical difficulties can readily be attributed by a layman to causes that are known or should be known. But when injuries are suffered that have been caused by an unknown act of negligence by an expert, the law ought not to be construed to destroy a right of action before a person even becomes aware of the existence of that right.
Furthermore, to adopt a construction of § 78-14-4 that encourages a person who experiences an injury, dysfunction or ailment, and has no knowledge of its cause, to...
To continue reading
Request your trial
-
Lee v. Gaufin
...December 1988, and that the complaint was filed within two years of her discovery of her children's negligence claims. See Foil v. Ballinger, 601 P.2d 144 (Utah 1979). Pursuant to a motion to dismiss, the district court ruled that the Meehans' personal injury claims were terminated by the f......
-
Garfield Cnty. v. United States
...to determine the outcome of a particular case by passage of a law intended to accomplish such a purpose.’ " (Quoting Foil v. Ballinger , 601 P.2d 144, 151 (Utah 1979) ).¶ 69 The timing and text of the bills reveal that the amendments were aimed at pending R.S. 2477 litigation. This conclusi......
-
J. P., In re
...622 (1964). Exceptions to this general rule have been found where an amendment's effect was "procedural" or "remedial." Foil v. Ballinger, Utah, 601 P.2d 144 (1979) (clarified statutory notice provision and changed "commenced" to "initiated"); Petty v. Clark, 113 Utah 205, 192 P.2d 589 (194......
-
Neal v. Oakwood Hosp. Corp.
...require dismissal and that a stay would serve the statutory purpose of encouraging settlement. Id. 11 However, in Foil v. Ballinger, 601 P.2d 144 (Utah, 1979), the Utah Supreme Court considered a statute providing that in medical malpractice cases "written notice be sent to a health care pr......
-
Decisions from the Utah Court of Appeals, 2008
...The court of appeals relied upon the Utah Supreme Court decisions in State v. ison, 2006 UT 26, 135 P.3d 864, and Foil v. Ballinger, 601 P.2d 144 (Utah 1979). In ison, the supreme court refused to interpret the failure to use an agreed-upon alternative dispute resolution method as a forfeit......
-
Cases in Controversy
...1117 (Utah Cl. App. 1990). [15] Id. at 1122 (quoting James v. United Slates, 483 F. Supp. 581, 585 (N.D. Cal. 1980)). [16] Id. [17] 601 P.2d 144 (Utah 1979). [18] Id. at 148 (emphasis added). [19] 784 P.2d 1181 (Utah 1989). [20]Id. at 1184 (emphasis added). [21] See, e.g., Seale, 932 P.2d a......