Johnson v. Stoddard

• Decision Date: 28 March 1974
• Docket Number: No. 11179,11179
• Citation: 96 Idaho 230,526 P.2d 835
• Parties: Kenneth W. JOHNSON, Plaintiff-Appellant, v. D. C. STODDARD and A. William Brunt, Defendants, and A. William Brunt, Jr., Defendant-Respondent.
• Court: Idaho Supreme Court

Page 835

526 P.2d 835

96 Idaho 230

Kenneth W. JOHNSON, Plaintiff-Appellant, v. D. C. STODDARD and A. William Brunt, Defendants, and A. William Brunt, Jr., Defendant-Respondent.

No. 11179.

Supreme Court of Idaho.

March 28, 1974.

St. Clair, St. Clair, Hiller & Benjamine, Idaho Falls, for plaintiff-appellant.

Merrill & Merrill, Pocatello, for defendant Stoddard.

Holden, Holden, Kidwell, Hahn & Crapo, Idaho Falls, for defendant-respondent.

SHEPARD, Chief Justice.

This is an appeal from a summary judgment in favor of a defendant doctor in a medical malpractice action. The action resulted from the alleged failure of defendant-respondent Dr. Brunt to discover and remove drains which Dr. Stoddard had earlier inserted in Johnson's back. The sole issue on this appeal is whether the statute of limitations began to run at the time Brunt treated Johnson or at the time that Johnson actually discovered, or should have discovered, Dr. Brunt's alleged negligence in failing to remove the drains.

In August, 1967 plaintiff-appellant Johnson was bucked off an uncooperative horse and suffered a large hematoma on the right side of his lower back. Some days later Johnson consulted defendant, Dr. D. C. Stoddard, who inserted two Penrose drains in the hematoma. The drains were rubber tubes one-half inch in diameter and two and one-half to three inches long. A week later Johnson's wife removed the dressing covering the hematoma but failed to find the Penrose drains. She and her husband searched Johnson's person, clothing and the bedding without discovering the missing drains. The following day Dr. Stoddard examined Johnson and failed to find the missing drains.

Thereafter Johnson's injury refused to heal properly and eventually two lumps developed, one at the site of the original hematoma on Johnson's right lower back and the second some six inches away, closer to his spine. In February, 1968 Johnson consulted Dr. Brunt complaining about the lumps. Dr. Brunt apparently gave Johnson some medication and told him that if the lumps did not subside they would have to be removed.

Thereafter Johnson's back continued to pain him severely and the lumps persisted. Johnson returned to Dr. Brunt on August 17, 1968. During that consultation Johnson allegedly told Dr. Brunt that the drains originally installed by Dr. Stoddard had disappeared. On August 18, 1968 Dr. Brunt surgically removed the two lumps and installed two new drains in Johnson's back. During the surgery Dr. Brunt did not discover the drains installed by Dr. Stoddard. Subsequently, Dr. Brunt did remove the two drains that he (Dr. Brunt) installed on August 18, 1968.

Thereafter Johnson's back continued to annoy him and in December, 1968 he consulted Dr. Andrew J. Wehler in Dillon, Montana. Dr. Wehler X-rayed Johnson's back and the X-ray results prompted him to surgically excise a sinus area in Johnson's back located near the original hematoma. During this operation on December 18, 1968 Dr. Wehler discovered the two Penrose drainage tubes originally installed by Dr. Stoddard.

Johnson filed this action on December 14, 1970 against Doctors Stoddard and Brunt. He sued Dr. Stoddard on the basis of Stoddard's alleged negligence in inserting and failing to remove the Penrose drains. Johnson sued Dr. Brunt on the basis of Brunt's alleged negligence both in failing to diagnose the existence of the Stoddard drains and in failing to remove them. The district court granted summary judgment in favor of Dr. Brunt. Dr. Stoddard remains as a party defendant in the action but is not a party to this appeal.

Considering the totality of the pleadings, depositions and interrogatories it is apparent that there remain genuine issues of material fact concerning Dr. Brunt's alleged negligence. Under I.R.C.P. 56(c) and I.R.C.P. 56(e) we conclude that the district court erred in entering summary judgment for Dr. Brunt unless Johnson's action was barred by the two year statute of limitations found in I.C., § 5-219(4) as it existed at the time this action was filed. Clearly Johnson's action is barred if the statute of limitations began to run from the time of Dr. Brunt's August, 1968 treatment.

We conclude that our decision in Renner v. Edwards, 93 Idaho 836, 475 P.2d 530 (1969) controls the instant case. In Renner we held that in medical malpractice actions involving misdiagnosis the statute of limitations does not begin to run until the plaintiff knew or reasonably should have known of the defendant's negligence. Renner effectively extended the so-called 'discovery rule' first announced in Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224 (1964). Billings was confined to its 'hidden instrument' fact pattern. Renner extended the discovery rule to circumstances involving negligent misdiagnosis.

In Renner the plaintiff consulted defendant who diagnosed her ailment as a 'gastrointestinal condition pathology' necessitating a colostomy. After surgery the plaintiff continued to suffer distress and was unable to control her normal bodily functions. Three years after the surgery plaintiff consulted another doctor who performed additional surgery. As a result of that surgery it was allegedly discovered for the first time that Dr. Edwards' initial diagnosis was erroneous and that the colostomy was unnecessary. In Renner we held that plaintiff's action was not barred by I.C. § 5-219(4) because she filed her action within two years of the date of her discovery of the allegedly negligent misdiagnosis. In Renner we quoted with approval the following language from Wilkinson v. Harrington, 104 R.I. 224, 243 A.2d 745, 753 (1968):

'Hence, it is our firm belief that the discovery rule in medical malpractice cases is preferable to the adoption of the strict construction of the statute of limitations. When § 9-1-14, the statute of limitations for personal injury, is viewed with due allegiance being given to its intended purposes, the adoption of the discovery rule is virtually ineluctable. To construe the statute narrowly so as to preclude a person from obtaining a remedy simply because the wrong of which he was the victim did not manifest itself for at least two years from the time of the negligent conduct, is clearly inconsistent with the concept of fundamental justice. To require a man to seek a remedy before he knows of his rights, is palpably unjust. Under such circumstances, in order for a patient to secure and protect his legal rights against doctors for malpractice, the patient would be required to submit himself to complete examinations by a series of independent physicians after every operation or treatment he received from the physician of his first choice. The unreasonableness of such a result is self-evident.' (Emphasis supplied)

Returning to the instant case, we note that the gravamen of Johnson's complaint is that he informed Dr. Brunt of the missing Penrose drains and that Dr. Brunt, after examining Johnson and operating on him, did not determine that the drains were responsible for Johnson's discomfort. We conclude that at trial the evidence could establish that a proper diagnosis would have disclosed the missing drains. Therefore we conclude that the instant case comes within the ambit of Renner v. Edwards, and we hold that the statute of limitations did not begin to run until the missing drains were discovered, or in the exercise of reasonable care, should have been discovered.

There are disputed questions of fact for resolution at trial. Some of the disputed facts may indicate when the statute began to run. It is not established without dispute that Johnson was aware that the Stoddard drains were still in his back when he consulted Dr. Brunt. Nor is it established without contradiction whether Johnson advised Dr. Brunt of the missing drains or whether Dr. Brunt was negligent in failing to discover the missing drains. All these are questions for resolution at trial, and summary judgment in favor of Dr. Brunt was therefore erroneous.

Respondent argues that the 1971 amendments to I.C. § 5-219(4) ¹ indicate a legislative intent to have the statute of limitations run from '* * * the occurrence, act or omission complained of.' We do not reach that issue because ch. 180 was not effective until March 24, 1971, long after this cause of action arose. We find no legislative intent that ch. 180 should be applied retroactively. No law in Idaho will be applied retroactively in the absence of a clear legislative intent to that effect. Edwards v. Walker, 95 Idaho 289, 507 P.2d 486 (1973).

Respondent Brunt contends that Johnson v. Gorton, 94 Idaho 595, 495 P.2d 1 (1972) requires a result contrary to that reached herein. He argues that Johnson should control because the case at bar also involves the negligent failure to remove a foreign object. We note, however, that Johnson is not a genuine foreign object case. In Johnson the plaintiff consulted with the defendant doctor for treatment of a gunshot wound. Both plaintiff and the defendant doctor were aware that plaintiff's injury was caused by a bullet. The plaintiff in Johnson alleged quite inconsistently both that the doctor had failed to disclose the presence of the bullet and that the doctor had led the plaintiff to believe that the bullet had been removed. Johnson turned on fraudulent concealment. The precise holding therein was that summary judgment was property entered against the plaintiff because of her failure to allege sufficient facts to establish a triable issue regarding fraudulent concealment. It is clearly stated in Johnson that its facts did not bring the case within either the Billings foreign object rule or the Renner misdiagnosis rule. Hence Johnson is inapplicable to the case at bar.

It is apparent that the 1971 amendment to the statute of limitations severely narrows the Renner rule. Since the instant case arose prior to the amendment our ruling is unique in that it will only establish precedent regarding...