Johnson v. St. Patrick's Hospital

Citation417 P.2d 469,148 Mont. 125
Decision Date08 August 1966
Docket NumberNo. 11117,11117
PartiesBror V. JOHNSON, Plaintiff and Appellant, v. ST. PATRICK'S HOSPITAL and Stephen L. Odgers, Defendants and Respondents.
CourtUnited States State Supreme Court of Montana

Gene I. Brown, Bozeman, for appellant.

Garlington, Lohn & Robinson, Missoula, William Evan Jones (argued), Missoula, for respondents.

Poore, Poore, McKenzie & Roth, Butte, Allen McKenzie (argued), Butte, amicus curiae.


This is an appeal from a summary judgment entered against the plaintiff on the grounds that the statute of limitations had run against the plaintiff's claim. The plaintiff filed his action in the district court of the Fourth Judicial District in and for the County of Missoula, against defendants, St. Patrick's Hospital and Stephen L. Odgers.

The facts leading to the cause of action arise from an operation performed on plaintiff on March 28, 1955, by Dr. Stephen L. Odgers, at the defendant hospital located in Missoula, Montana. The operation was performed on plaintiff's right hip to replace his hip joint with a steel joint. Plaintiff alleges that during the course of the operation, and while he was under anesthetic, Dr. Odgers and employees of the defendant hospital carelessly and negligently caused a surgical sponge to be left in his right hip that after nearly seven years had passed he became aware of a drainage of matter and pus from the hip and that thereafter several pieces of gauze came out of the draining sinus; that he then consulted a medical Doctor in Bozeman, Montana, in December 1962, who removed a portion of the surgical gauze. The sinus continued to drain for a period and then closed. However, in July 1965, the sinus resumed its drainage, with more surgical gauze coming out and at that time surgery was performed when it is alleged a surgical sponge was located in the hip.

Plaintiff filed this action against the doctor and defendant hospital. The hospital set up the statute of limitations as a defense and moved for a summary judgment which was granted.

The only issue presented is whether under section 93-2605, R.C.M.1947, the statute of limitations commences to toll from the date of the alleged negligent incident of medical malpractice or from the date the plaintiff discovered the alleged damages from the alleged negligent incident. Such section provides:

'Within three years: * * *

'3. An action upon an obligation or liability, not founded upon an instrument in writing, other than a contract, account, or promise.'

Counsel for both sides, and counsel amicus curiae, submitted full and exhaustive briefs on the question and ably argued the matter to the court. We are grateful to them for care and completeness of their work in assisting the court in its consideration of this field of the law in Montana.

Both counsel set forth the district court's approach to the granting of a declaratory judgment as reliance upon the early Montana case of Coady v. Reins, 1 Mont. 424, as controlling.

The District Court, in the instant case, in a memorandum accompanying its order said:

'The Court, having considered the argument of counsel, and having studied the briefs submitted, must agree with the plaintiff that the modern trend of authority would sustain his position. However, the only Montana case cited to the Court, Coady v. Reins, 1 Mont. 424, which has not been overruled, indicates that the law in Montana is that regardless of the equities in a case of this kind, the statute of limitations runs from the date of the negligent act, not from the date the party discovered it or in the exercise of reasonable diligence, should have discovered it.'

It is to this ruling of the district court that the specification of error is directed.

We are urged by the defendant in this matter to sustain the District Court in its reliance upon Coady v. Reins, supra, stating that this has been the law of the state for some ninety-four years. Counsel argues that the case is the legal basis in a myriad of cases throughout the country and that to argue that the case is not stare decisis is inconceivable.

Without being argumentative about the meaning of 'myriad' our research reveals no more than ten cases throughout America since 1872 have even cited the case, although it does appear in A.L.R., but even more interesting our research failed to find any Montana citation since 1872.

Whether the failure to ever cite the case again in 94 years gives it the aroma of untouchable authority or the fact that as the appellant points out the statement from the case was dicta is of no import for the present case can be clearly distinguished on the facts. Therefore in our consideration of this type of an action we will look carefully at the facts of each case presented, for the problem presented in each is how and when the patient discovered the negligence.

The usual fact situation presented concerns negligently left gauze, sponges, needles, surgical tools, etc., which are discovered only as here, when a sinus erupts or the patient, because of illness, undergoes further surgery.

The jurisdictions following the English cases interpreting the statutes of limitations, the narrow doctrine of interpretation, hold that knowledge by the injured person of the existence of the tort, is immaterial. It is still true in many states that, in the absence of fraud, or concealment of the cause of action, the statutory period runs from the time the tort was committed although the injured person had no knowledge or reason to know of it. Statutes have been enacted in some states providing that the period does not begin to run until the injured person has knowledge or reason to know of the facts, if the tort feasor has reason to know of the facts, or the tort feasor has concealed the existence of the tort. Other states, having no special statutes, have by court decision reached the same result by construction of the general statute. Restatement of Torts, Ch. 46, § 899; 74 A.L.R. 1317.

It is interesting to note that many of the citations, following a strict statute of limitations interpretation, occurred before the modern day of surgery. The English case authority goes back to the period when the barber did the blood letting for healing purposes, long before modern medicine through its superbly educated practitioners, was able to perform the surgical feats of today. As we have developed medically into the twentieth century so have we developed legally when the problems of medical malpractice have become known to the public. Until the past decade there has been but three exceptions to the rule that the cause of action occurs on the day the foreign object was closed in the wound. Those exceptions are:

(1) The continuing negligence theory which is that a doctor who leaves a foreign object in a patient and continues to care for him, the doctor is held to not only be negligent in his initial surgery, but that the negligence continues in his allowing the object to remain in his patient while under his care. Sly v. Van Lengen, 120 Misc. 420, 198 N.Y.S. 608 (1923).

(2) The contract theory. This exception has been used where the contract statute is longer than the tort statute and the patient frames his pleading in contract to obtain the longer period. Sellers v. Noah, 209 Ala. 103, 95 So. 167 (1923).

(3) The third exception is the theory of fraudulent concealment based upon the premise that a wrongdoer is not permitted to profit by his fraudulent conduct. Under this exception the statute of limitations does not begin to run until the cause of action is discovered or could through diligence have been discovered. Tulloch v. Haselo, 218 App.Div. 313, 218 N.Y.S. 139, 74 A.L.R. 1317 (1926).

Recent developments as set forth in 80 A.L.R.2d 368, show a marked change in judicial thinking. The contract theory now appears abandoned; the continuing negligence theory appears to have gained a majority view in the country; and the fraudulent concealment rule, previously limited to California and Louisiana has become the law in at least 14 states.

Of the ten cases citing Coady v. Reins only two concern themselves with sponges left in a patient during surgery. They are: Murray v. Allen, 103 Vt. 373, 154 A. 678, 679 (1931); Vaughn v. Langmack, 236 Or. 542, 390 P.2d 142-148 (1963).

One case, Hahn v. Claybrook, 130 Md. 179, 100 A. 83, 85, L.R.A.1917C, 1169 (1917), deals with the drug argentum oxide negligently used by a physician treating a skin disease. The court held the action was barred by a three-year limitation due to the fact skin discoloration occurred within the statutory period. That is not a comparable fact situation to this case.

Coady v. Reins was cited in a dissent in Gillette v. Tucker, 67 Ohio 106, 65 N.E. 865 (1902), where the majority opinion, in a sponge case, held that the statute did not commence to run until the attending physician either abandoned or terminated his service to the plaintiff.

Three cases cited the Coady case that involved fractured bones and the care given by attending physicians and surgeons. Those cases are: Gangloff v. Apfelbach, 319 Ill.App. 596, 49 N.E.2d 795; Schmitt v. Esser, 178 Minn. 82, 226 N.W. 196 (1929); Wetzel v. Pius, 78 Cal.App. 104, 248 P. 288, (1926).

A Nebraska case, Williams v. Elias, 140 Neb. 656, 1 N.W.2d 121, cites Coady only for the rule that the statute begins to run from the negligent act or breach of duty but went on to hold that treatment and employment should be considered as a whole, and if malpractice occurred it should not commence until the treatment ceased.


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