Hatfield v. Bishop Clarkson Memorial Hosp.

• Decision Date: 17 June 1982
• Docket Number: 82-1010,Nos. 81-2114,s. 81-2114
• Citation: 679 F.2d 1258
• Parties: Tamara HATFIELD, by her father and next friend, Samuel Hatfield, Appellant, v. BISHOP CLARKSON MEMORIAL HOSPITAL, a Nebraska corporation, John Harold George, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1258

679 F.2d 1258

Tamara HATFIELD, by her father and next friend, Samuel Hatfield, Appellant, v. BISHOP CLARKSON MEMORIAL HOSPITAL, a Nebraska corporation John Harold George, Appellee.

Nos. 81-2114, 82-1010.

United States Court of Appeals Eighth Circuit.

Submitted April 23, 1982.

Decided June 17, 1982.

Richard J. Dinsmore, Omaha, Neb., for appellant.

Terry J. Grennan of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, Neb., for appellee Bishop Clarkson Memorial Hospital.

Lyman L. Larsen and William M. Lamson, Jr., of Kennedy, Holland, DeLacy & Svoboda, Omaha, Neb., for appellee John Harold George.

Before LAY, Chief Judge, and BRIGHT and ROSS, Circuit Judges.

LAY, Chief Judge.

The sole question in this case is whether a Nebraska statute of limitations on professional negligence actions is tolled during the infancy of an injured minor. A diversity suit was brought in federal district court in Nebraska alleging that Bishop Clarkson Memorial Hospital and Dr. John George negligently provided prenatal and postnatal care to Tamara Hatfield's mother after the mother was admitted to the hospital on August 25, 1965. The complaint alleges that Dr. George administered an excessive dose of the drug carbocaine to Mrs. Hatfield which affected the child's respiratory ability at birth; that the resultant lack of oxygen flow to the brain caused Tamara to be mentally retarded; and that Dr. George and hospital employees were negligent in taking inadequate measures to resuscitate the infant after birth.

The complaint was filed on January 31, 1979, more than 13 years after the alleged acts of negligence when Tamara was 13 years old. The defendants moved for summary judgment on the grounds that the suit was barred under a Nebraska statute establishing the period of limitation for professional negligence suits. The case was referred to a magistrate who recommended the motion be granted. The district court thereafter granted the motion. The plaintiff appealed. We reverse and remand for further proceedings.

Defendants rely upon Neb.Rev.Stat. § 25-222 (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.

(Emphasis added.)

The defendants urge the final proviso, barring any action commenced more than ten years after the act of negligence, is a "statute of repose" and thus plaintiff may not under any circumstances bring her action after ten years. Plaintiff, however, cites another provision of Nebraska law governing actions by infants and insane persons and argues it modifies the application of section 25-222 to this case, allowing her to bring the action within two years after her disability ¹ is removed. Plaintiff relies on Neb.Rev.Stat. § 25-213 (1979) which reads as follows:

Except as provided in sections 76-288 to 76-298, if a person entitled to bring any action mentioned in this chapter, Chapter 23, article 24, and sections 81-8,209 to 81-8,239, except for a penalty or forfeiture, or for the recovery of the title or possession of lands, tenements or hereditaments, or for the foreclosure of mortgages thereon, be, at the time the cause of action accrued, within the age of twenty years, insane or imprisoned, every such person shall be entitled to bring such action within the respective times limited by this chapter after such disability shall be removed, and for the recovery of the title or possession of lands, tenements or hereditaments, or for the foreclosure of mortgages thereon, every such person shall be entitled to bring such action within twenty years from the accrual thereof, but in no case longer than ten years, after the termination of such disability. Absence from the state, death or other disability shall not operate to extend the period within which actions in rem shall be commenced by and against a nonresident or his representative.

(Emphasis added.)

It is undisputed that if section 25-213 is controlling, plaintiff's suit may proceed.

The Nebraska courts have not addressed this issue ² and we have not previously reviewed it. ³ Our function is not to choose the rule which we might follow if this were a question of federal law, but rather to adopt the rule which we believe the state court would apply, based upon what we perceive to be the sources of state law and the state court's methods of reaching decisions. See Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 202-205, 76 S.Ct. 273, 275-277, 100 L.Ed. 199 (1956); Putnam v. Erie City Manufacturing Co., 338 F.2d 911, 917-23 (5th Cir. 1964). ⁴

We find section 25-213 modifies the application of section 25-222 in this case.

Section 25-213 tolls the running of the period of limitation for "any action mentioned in this chapter." Specific exceptions are set forth within the statute. Professional negligence actions are not among the exceptions. ⁵ It is fundamental that when a statute is clear on its face, courts should apply the language of the statute without attempting to find meaning elsewhere. See Ex parte Collett, 337 U.S. 55, 61, 69 S.Ct. 944, 947, 93 L.Ed. 1207 (1949) (and cases cited therein); Lake County v. Rollins, 130 U.S. 662, 670-71, 9 S.Ct. 651, 652-653, 32 L.Ed. 1060 (1889); Gaffney v. State Department of Education, 192 Neb. 358, 220 N.W.2d 550, 553 (1974); Foote v. County of Adams, 163 Neb. 406, 80 N.W.2d 179, 183 (1956). The legislature amended section 25-213 twice after the enactment of section 25-222, but did not explicitly include professional negligence actions among the exceptions to the provision. See Neb.Rev.Stat. § 25-213 (1979) (source note following text); cf. Fox v. Standard Oil Co., 294 U.S. 87, 96, 55 S.Ct. 333, 337, 79 L.Ed. 780 (1935) (rejection of amendment evidence of intent).

If the final clause of section 25-222 is read literally and thus found to be an absolute prohibition, the two statutes command opposite results. However, if possible, related statutes should be read together so that neither will be rendered nugatory. See Citizens to Save Spencer County v. United States Environmental Protection Agency, 600 F.2d 844, 870-71 (D.C.Cir.1979) (and cases cited therein); Seldin v. Northland Mortgage Co., 189 Neb. 175, 202 N.W.2d 174, 179 (1972).

The genesis of section 25-222 suggests that it does not conflict with section 25-213. Section 25-222 was enacted in 1972 and both codified and modified recent developments in the common law of medical malpractice. Prior to the enactment of section 25-222, medical malpractice actions were governed by a two-year statute of limitations. Neb.Rev.Stat. § 25-208 (1964). This period of limitation created harsh results in cases in which negligence was not discovered within two years of the medical treatment. This result was initially modified in Spath v. Morrow, 174 Neb. 38, 115 N.W.2d 581 (1962). In Spath, the Nebraska Supreme Court evaded the severe mandate of the statute by holding that, when a foreign object is negligently left in plaintiff's body, the cause of action does not accrue until the object is discovered or reasonably could be discovered. 115 N.W.2d at 585. In Acker v. Sorensen, 183 Neb. 866, 165 N.W.2d 74 (1969), the Nebraska Supreme Court extended the holding of Spath. The court stated, "in a malpractice action against a physician, the statute of limitations does not commence to run until the time the act of malpractice with resulting injury was, or by the use of reasonable diligence could have been, discovered." Id., 165 N.W.2d at 77.

Section 25-222 represents the legislature's response to this development. Enacted in 1972, it codifies the discovery rule, limiting the period during which an action can be brought after discovery to one year. But, in the final proviso of section 25-222, the legislature also limited the effect of the discovery rule.

Defendants argue that the final clause was intended to do more than prevent the discovery rule from enabling plaintiffs to bring actions more than ten years after the alleged negligence. Defendants cite the phrases, "in no event" and "any action," as evidence of the broad intent of the legislature. But the language of section 25-213 is equally inclusive, applying the exception to "a person entitled to bring any action mentioned in this chapter." (Emphasis added.) The final clause of section 25-222 is one clause of a three clause provision and must be read in that context. ⁶ The first clause contains the two year limitation. The second clause modifies the first by codifying the discovery rule. The third clause simply limits the impact of the discovery rule. ⁷

Section 25-213 is not susceptible to a similar limiting construction. It modifies the application of the applicable time periods in "any action mentioned in this chapter" except for those specifically excluded. Professional negligence actions are not excluded. Cf. note 5, supra.

Defendants group section 25-222 with two subsequently enacted provisions creating similar limitation rules for actions for breach of warranty on or other deficiencies in improvements to real property, Neb.Rev.Stat. § 25-223 (1979) (enacted in 1976), and...