Janisch v. Mullins, 10--39954--I

• Decision Date: 01 December 1969
• Docket Number: No. 10--39954--I,10--39954--I
• Citation: 461 P.2d 895,1 Wn.App. 393
• Parties: Elwell JANISCH, Plaintiff-Appellant, v. John R. MULLINS and Jane Doe Mullins, his wife, Defendants-Respondents.
• Court: Washington Court of Appeals

Page 393

1 Wn.App. 393

461 P.2d 895

Elwell JANISCH, Plaintiff-Appellant, v. John R. MULLINS and Jane Doe Mullins, his wife Defendants-Respondents.

No. 10--39954--I.

Court of Appeals of Washington, Division 1, Panel Two.

Dec. 1, 1969.

Rehearing Denied Jan. 5, 1970.

Review Granted Jan. 29, 1970.

Levinski & Levinski, Albert L. Levinski, and Schroeter & Jackson, Leonard W. Schroeter, Seattle, for appellant.

Williams, Lanza, Kastner & Gibbs, J. Kenneth McMullin, Seattle, for respondents.

HOROWITZ, Acting Chief Judge.

Plaintiff filed a complaint on June 13, 1967, against defendant physician alleging that defendant was negligent in diagnosing plaintiff's condition by an erroneous reading of an x-ray of the plaintiff and that as a result, plaintiff lost his sight. The complaint, after alleging that the negligent x-ray reading occurred on or about February 25, 1958, further alleged that the defendant

Fraudulently * * * concealed from the plaintiff his radiological findings and his * * * negligent * * * diagnosis * * * and plaintiff's right to demand rparation * * * and thereby induced plaintiff to refrain from further inquiry * * * that plaintiff did not discover the nature * * * of the * * * fraud until March of 1967, when he first learned that his blindness was due to conditions known to the defendant * * * in 1958; * * *

The trial court on September 7, 1967, dismissed the complaint with prejudice on the ground that the 3-year statute of limitations (RCW 4.16.080(2) and 4.16.010) had run. The court apparently relied on Lindquist v. Mullen, 45 Wash.2d 675, 277 P.2d 724 (1954) at that time not in any respect overruled.

Plaintiff contends that for the purposes of the foregoing statutes of limitation his cause of action for negligence accrued when he discovered, or in the exercise of due care should have discovered, that his blindness was caused by the defendant's alleged negligent diagnosis. He relies upon the later cases of Ruth v. Dight, 75 Wash.Dec.2d 674, 453 P.2d 631 (1969); Denison v. Goforth, 75 Wash.Dec.2d 865, 454 P.2d 218 (1969) and Fraser v. Weeks, 76 Wash.Dec.2d 470, 456 P.2d 351 (1969), the latter particularly discussed Infra. He also calls attention to the increasing trend of cases in other jurisdictions to adopt the discovery rule. ¹ Defendant, relying on Lindquist v. Mullen, Supra, contends that notwithstanding Ruth v. Dight, Supra, and cases following it, the question of when the limitation period begins to run in cases involving mere negligent diagnosis is still an open question and that to extend the discovery rule to such cases is to exercise a legislative rather than a judicial function.

Plaintiff at oral argument suggested, without urging, that the discovery rule is applicable in this case under the fraud exception (RCW 4.16.080(4)). Ruth v. Dight, Supra, 75 Wash.Dec.2d at 680, 453 P.2d 631 cites case support for this view. There are other cases to the contrary. National Credit Associates, Inc. v. Tinker, 401 S.W.2d 954 (Mo.App.1966). See also McCoy v. Stevens, 182 Wash. 55 at 58--60, 44 P.2d 797 (1935), discussed Infra. The view we take of the matter makes it unnecessary to rely upon the fraud exception.

Prior to Ruth v. Dight, Supra, for purposes of applying the statute of limitation, it was unnecessary to determine whether the gist of a medical malpractice action was an action for breach of a contract or an action for tort. The 3-year statute of limitations ran from the date of breach in the case of contract (McCoy v. Stevens, Supra) and three years from the date of the negligent act in the case of tort (Lindquist v. Mullen, Supra). Although McCoy v. Stevens, Supra, seemed to hold that a malpractice action against a physician always sounds in contract, the later case of Yeager v. Dunnavan, 26 Wash.2d 559, 174 P.2d 755 (1946) made it clear that an injured patient could sue either for breach of contract or for tort.

If, however, the injury or damage is not discovered until after the limitation period had run, an obvious hardship exists. To meet this hardship the malpractice cases have not provided a uniform answer. Annot., 80 A.L.R.2d 368 (1961). Case classifications undertaken in decisions such as Flanagan v. Mount Eden Gen. Hosp., 24 N.Y.2d 427, 301 N.Y.S.2d 23, 26, 248 N.E.2d 871, 873 (1969) and Yoshizaki v. Hilo Hosp., 50 Haw. 150, 433 P.2d 220, 221 (1967) are helpful. It is nevertheless still useful to call attention to the principal approaches to meet the problem.

1. The unavoidable hardship approach: The limitation period is literally construed and is said to run from the date of the negligent act; E.g., Lindquist v. Mullen, Supra; Pasquale v. Chandler, 350 Mass. 450, 215 N.E.2d 319 (1966); McCluskey v. Thranow, 31 Wis.2d 245, 142 N.W.2d 787 (1966). ² The hardship to an innocent plaintiff is treated as in other cases (E.g., Gold Eagle Mining Co. v. Imperator-Quilp Co., 93 Wash. 692, 161 P. 848, L.R.A.1917C, 113 (1916)) to be unavoidable.

2. The avoidability approach: Without adopting the discovery rule discussed in approach 3 Infra, and to avoid hardship to an innocent plaintiff, the limitation period is held to begin to run from a date later than the date of the negligent act; E.g., from the date of the damage (United States v. Reid, 251 F.2d 691 (5th Cir. 1958)); or from the date that the relationship of the physician and patient has ended (Lundberg v. Bay View Hosp., 175 Ohio St. 133, 191 N.E.2d 821 (1963); Cf., Cook v. Yager, 13 Ohio App.2d 1, 233 N.E.2d 326 (1968)); or from the date that the treatment for the particular illness or condition has terminated (Samuelson v. Freeman, 75 Wash.2d 904, 454 P.2d 406 (1969)); or from the date that fraudulent concealment of the damage terminates (Lakeman v. LaFrance, 102 N.H. 300, 156 A.2d 123 (1959); note 1, supra); or that constructive fraud in the case of silence with probable knowledge tolls the statute (Burton v. Trible, 189 Ark. 58, 70 S.W.2d 503 (1934)); or that failure to discover and remove a foreign object left in the patient's body is 'continuing' negligence (Gillette v. Tucker, 67 Ohio St. 106, 65 N.E. 865 (1902)). See generally, W. Prosser, Law of Tots, 147 (3d ed. 1964); Sisler, Discovery Rule: Accrual of Cause of Action for Medical Malpractice, 25 Wash. & Lee L.Rev. 78 at 81, notes 17--19.

3. The functional approach: To avoid hardship to an innocent plaintiff, the statutory language describing the limitation period is construed so that the limitation period begins to run when the injured party knows, or in the exercise of due care should know, of the existence of the negligence. (Note 1, Supra; Flanagan v. Mount Eden Gen. Hosp., Supra).

a. The conservative functional approach: The court refuses to extend the discovery rule to cases other than those involving foreign substances which have been negligently left in the patient's body. Coffman v. Hedrick, 437 S.W.2d 60 (Tex.Civ.App.1968); Flanagan v. Mount Eden Gen. Hosp., Supra.

b. The liberal functional approach: The discovery rule in medical malpractice cases involving the commencement of the limitation period is not limited to foreign substance cases. (Frohs v. Greene, Or., 452 P.2d 564 (1969), discussed Infra; Fraser v. Weeks, Supra, discussed Infra; Wilkinson v. Harrington, R.I., 243 A.2d 745 (1968); Yoshizaki v. Hilo Hosp., 50 Haw. 150, 433 P.2d 220 (1967); Hungerford v. United States, 307 F.2d 99 (9th Cir. 1962) (Federal Tort Claims Act); Costa v. Regents of University of California, 116 Cal.App.2d 445, 254 P.2d 85 at 91 (1953)). ³

The functional approach advocating the discovery rule has strong text writer and law review support. ⁴

4. The legislative approach: The legislature adopts the discovery rule. Conn.Gen.Stat. section 52--584 (1958); Ala.Code tit. 7, section 25(1) (1958); IllRev.Stat. ch. 83, paragraph 22.1 added July 12, 1965; Or. Laws, 1967, ch. 406, p. 823 amending ORS 12.110. Flanagan v. Mount Eden Gen.Hosp., Supra, refers to efforts in New York to amend the statutes of limitation. Legislative changes, separately or in combination, may provide a special statutory period for malpractice cases sometimes limited and sometimes not limited to foreign substance injuries, or may lengthen the limitation period or place an outer time limit for the bringing of actions regardless of the date of discovery.

Ruth v. Dight, Supra, adopted the functional approach in a case in which the negligence consisted of leaving a foreign substance (surgical sponge) in the patient's body upon completion of an operation. Fraser v. Weeks, Supra, was a negligent medical diagnosis of cancer case but one which the defendant contends does not clearly resolve the issue of whether the discovery rule applies. Plaintiff, while contending that Fraser v. Weeks has already disposed of the problem, asks that if Fraser has not done so, that we extend the Ruth v. Dight discovery rule to a case of mere negligent diagnosis. We believe that any doubt about the applicable rule should be removed.

In our opinion, action upon the plaintiff's request involves the performance of a judicial function. We are asked to construe and apply the word 'accrued' with respect to negligent diagnosis as the word 'accrued' is used in RCW 4.16.010 and 4.16.080(2). ⁵ Illustrative case support for this view is found in Wilkinson v. Harrington, Supra; Yoshizaki v. Hilo Hosp., Supra; Berry v. Branner, 245 Or. 307, 421 P.2d 996 (1966); Morgan v. Grace Hosp., Inc., 149 W.Va. 783, 144 S.E.2d 156, 160 (1965); Hungerford v. United States, Supra; Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959). See also Lindquist v. Mullen, Supra, 45 Wash.2d at 677, 678--693, 277 P.2d 724.

The word 'accrued' does not necessarily mean the same in all contexts under all circumstances and for all purposes. We bear in mind the fact that it is a limitation statute that we are construing and not merely a definition of a cause of action. We seek to construe the word 'accrued' in a manner consistent with a prima facie purpose to...