Hawley v. Green, 17591

• Decision Date: 19 March 1990
• Docket Number: No. 17591,17591
• Citation: 788 P.2d 1321,117 Idaho 498
• Parties: Julie HAWLEY, Plaintiff-Appellant, and Lanny Hawley, Plaintiff, v. Lawrence E. GREEN, M.D.; David Matheson, M.D.; David W. Bennett, M.D.; George R. Allen, M.D.; HCA of Idaho, Inc., dba West Valley Medical Center; and John Does I through IV, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 1321

788 P.2d 1321

117 Idaho 498

Julie HAWLEY, Plaintiff-Appellant and Lanny Hawley, Plaintiff, v. Lawrence E. GREEN, M.D.; David Matheson, M.D.; David W. Bennett, M.D.; George R. Allen, M.D.; HCA of Idaho, Inc., dba West Valley Medical Center; and John Does I through IV, Defendants-Respondents.

No. 17591.

Supreme Court of Idaho.

March 19, 1990.

Moffatt, Thomas, Barrett, Rock & Fields, Boise, for defendants-respondents Matheson, Bennett and Allen. Gerald T. Husch, argued.

Gigray, Miller & Downen, Caldwell, for defendant-respondent HCA of Idaho, Inc. Ronald J. Wilper, argued.

Evans, Keane, Koontz, Boyd, Simko & Ripley, Boise, for plaintiff-appellant. Betty H. Richardson, argued.

Howard & Owens, Coeur d'Alene, for amicus curiae Idaho Trial Lawyers Ass'n. R. Bruce Owens, argued.

Quane, Smith, Howard & Hull, Boise, for defendant-respondent Green. Kathryn A. Sticklen, argued.

BAKES, Chief Justice.

This is a medical malpractice action. Appellant (Hawley) brought suit against respondents (Doctors Green, Matheson, Bennett, Allen and H.C.A. of Idaho) for their alleged failure to diagnose a tumor. The district court granted summary judgment in favor of the defendants on the ground that Hawley's claims were barred by the statute of limitations in I.C. § 5-219(4); the district court also held that, as applied to this case, I.C. § 5-219(4) did not violate the open courts guarantee contained in art. 1, § 18, of the Idaho Constitution, or the equal protection provisions of the Idaho and United States Constitutions. Hawley appeals this order. We affirm the district court ruling with respect to the constitutional claims and reverse in part the grant of summary judgment on the basis that, as to some of the defendants, there is a triable issue of fact as to whether the statute of limitations had run.

On September 1, 1979, the appellant Julie Hawley had a chest X-ray taken at the Caldwell Memorial Hospital, preliminary to surgery for a medical condition unrelated to this action. Defendant, Dr. Bennett, a radiologist, was the doctor who reviewed the chest X-ray and made his report.

On May 21, 1981, Hawley had another chest X-ray taken at Caldwell Memorial Hospital. Defendant, Dr. Matheson, was the radiologist who reviewed this chest X-ray. Neither of the doctors discovered any existing tumors.

In November, 1983, Hawley had an eye examination performed by an ophthalmologist, Dr. Chen, who recommended that Hawley be seen by a neurologist because she was exhibiting symptoms of Horner's Syndrome, a condition often caused by tumors. Defendant Dr. Green, a neurologist, performed an initial examination on November 8, 1983. At this time, Hawley was experiencing no pain or discomfort. Hawley and Dr. Green discussed a possible droopy eyelid and small pupil which the ophthalmologist had noticed, and a possible puffiness on the left side of Hawley's face.

Defendant Green scheduled a neck X-ray for November 8, 1983, and a CT scan for November 11, 1983. The X-ray was reviewed by Dr. Matheson; the CT scan, by Dr. Allen. Dr. Green reviewed the reports of the X-ray and CT scan prepared by Drs. Matheson and Allen. Subsequently, defendant Green informed Hawley that all tests were negative, that she did not have a droopy eyelid, and that she was otherwise normal and healthy except for the puffiness in her cheek which could have been caused by a sinus condition or allergy. Appellant Hawley knew she had had an allergy prior to this time. Hawley experienced no pain, discomfort or any other problems after the exam by Dr. Green.

In late 1983 Hawley moved to Oregon where she lived in apparent good health until approximately September, 1986, at which time she began experiencing neck and shoulder stiffness and discomfort. On September 8, 1986, she was examined, had a chest X-ray and CT scan performed, which revealed a large tumor in her lower left neck and chest area. The tumor was surgically removed on September 22, 1986. In October, 1986, Hawley was informed that the tumor was malignant. She was further informed by the Oregon doctors that the tumor was visible in her X-rays and CT scan taken by defendants in 1979 through 1983.

On September 4, 1987, Hawley filed a claim against the defendant respondents herein with the State of Idaho Board of Medicine. After hearing, a preliminary litigation screening panel issued a report and recommendation in December of 1987. Thereafter, on December 28, 1987, Hawley filed a complaint in the District Court for the Third Judicial District. The complaint alleged that the tumor was visible on the 1979-83 X-rays, and that the defendants were negligent for not diagnosing it.

For purposes of their summary judgment motions, the defendant doctors stipulated that the tumor could be considered visible on the 1979 through 1983 X-rays and CT scans. Applying I.C. § 5-219(4) in accordance with this Court's holding in Holmes v. Iwasa, 104 Idaho 179, 657 P.2d 476 (1983), the district court held that, since Hawley's tumor was visible on the X-rays from 1979 through 1983, there was objectively ascertainable damage at that time, and the statute began to run no later than 1983; thus, Hawley's complaint, which was filed four years later, was barred by the two-year statute of limitations in I.C. § 5-219(4). The district court also ruled that I.C. § 5-219(4) did not violate either Hawley's equal protection rights or the open courts provision of art. 1, § 18, of the Idaho Constitution.

From the foregoing facts, the following issues are before us on appeal: (1) does I.C. § 5-219(4) violate art. 1, § 18, of the Idaho Constitution; (2) does I.C. § 5-219(4) violate Hawley's equal protection rights under the federal and state Constitutions; and (3) when did Hawley's damages become "objectively ascertainable" so as to commence the running of the statute of limitations?

I

Does I.C. § 5-219(4) violate art. 1, § 18, of the Idaho Constitution?

We first consider appellant's claim that I.C. § 5-219(4) violates art. 1, § 18, of the Idaho Constitution. That section provides:

Justice to be freely and speedily administered.--Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character, and right and justice shall be administered without sale, denial, delay or prejudice.

Hawley argues that art. 1, § 18, guarantees reasonable access to the courts to pursue remedies for legally cognizable injuries and that application of I.C. § 5-219(4) bars her from access to the courts even before discovering or having had a reasonable opportunity to discover the harm inflicted upon her by defendants.

Examination of art. 1, § 18, begins with the seminal case of Moon v. Bullock, 65 Idaho 594, 151 P.2d 765 (1944), overruled on other grounds, Doggett v. Boiler Engineering & Supply Co., Inc., 93 Idaho 888, 477 P.2d 511 (1970). In Moon this Court refused to interpret art. 1, § 18, as guaranteeing a remedy to every person for every injury. The Court quoted with approval the opinion of the trial court which stated:

I cannot so interpret Sec. 18 of Art. I. It grants no new rights, modifies no existing law, and prescribes no new duties. It merely admonishes the courts to administer "right and justice without sale delay or prejudice." It does not, and was not intended to enlarge or to extend the rights or the remedies of the citizens. Its purpose and effect are to secure to the citizen the rights and remedies that the law as it then existed, or as it might be changed from time to time by the legislature, afforded.

Moon v. Bullock, 65 Idaho at 603, 151 P.2d at 769. We thus approved in Moon the holding that art. 1, § 18, merely admonishes the Idaho courts to dispense justice and to secure citizens the rights and remedies afforded by the legislature or by the common law, and that art. 1, § 18, did not create any substantive rights.

In a number of cases subsequent to Moon, we have consistently adhered to the principles there laid down. See, e.g., Cummings v. J.R. Simplot Co., 95 Idaho 465, 511 P.2d 282 (1973) (strict application of statute of limitations in I.C. § 72-407 not a violation of art. 1, § 18); Twin Falls Clinic & Hospital Building Corp. v. Hamill, 103 Idaho 19, 644 P.2d 341 (1982) (art. 1, § 18, does not prohibit the legislature from abolishing a common law right of action without providing a substitute); Jones v. State Bd. of Medicine, 97 Idaho 859, 864, 555 P.2d 399, 404 (1976), cert. denied 431 U.S. 914, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977) ("Nothing in art. 1, § 18, either explicitly or implicitly prohibits legislative modification of common law actions."). Accordingly, the trial court did not err in holding that I.C. § 5-219(4) does not violate art. 1, § 18, of the Idaho Constitution.

II

The next issue raised is whether I.C. § 5-219(4) violates Hawley's equal protection rights under the state and federal Constitutions. However, we have previously resolved this issue in a similar malpractice case, Holmes v. Iwasa, 104 Idaho 179, 657 P.2d 476 (1983), involving a claim of failure to discover or diagnose glaucoma, which is similar to the claim here of failure to discover or diagnose the tumor. In Holmes we stated:

Plaintiff also alleges that I.C. § 5-219(4) is constitutionally infirm and attacks the statute as violative of both the due process and equal protection clauses of the United States Constitution. We find no such infirmities.

104 Idaho at 184, 657 P.2d at 481.

Hawley nevertheless argues that under the rational basis test, which is the applicable standard for reviewing this legislation, it still is unconstitutional, reasoning that there exists no rational basis to distinguish between plaintiffs such as herself and plaintiffs with a foreign object or fraudulent concealment claim. In assessing this challenge, we note first that the purpose of a statute of limitations in general is to prevent fraudulent and stale claims from arising after a great lapse of time while...