Laughlin v. Forgrave

Decision Date09 September 1968
Docket NumberNo. 52919,52919
Citation432 S.W.2d 308
PartiesHazel F. LAUGHLIN, Appellant, v. Paul FORGRAVE and John Forgrave, Respondents.
CourtMissouri Supreme Court

Ben W. Swofford, Kansas City, Maurice Pope, St. Joseph, Michael F. Morrissey, Denver, Colo., for appellant; Swofford & Waisblum, Kansas City, Morrissey & Morrissey, Denver, Colo., of counsel.

Joseph M. Garvey, St. Joseph, Clem W. Fairchild, Herbert M. Kohn, Kansas City, for respondents; Linde, Thomson, VanDyke HENLEY, Judge.

Fairchild & Langworthy, Kansas City, of counsel.

Action for damages for malpractice against two medical doctors. Verdict and judgment were for plaintiff for $16,000. The court sustained defendants' after-trial motion for judgment in accordance with their motion for directed verdict, set aside the verdict and judgment, and entered judgment for defendants. Plaintiff appeals. We affirm.

The issue presented on appeal is whether this action is barred by the two year statute of limitation, § 516.140. 1 Involved in that issue is the question: when does the statute of limitation begin to run in malpractice actions? Does it begin to run on '* * * the date of the act of neglect, complained of * * *'? Or, does it begin to run on the date '* * * when the damage resulting (from the wrong done) is sustained and is capable of ascertainment * * *'; or, in simpler words, when the damage is discoverable by the injured party?

Section 516.140 provides that actions against physicians, surgeons, and others, for damages for malpractice '* * * shall be brought within two years from the date of the act of neglect complained of * * *.' (Emphasis supplied.) Section 516.100, applying to civil actions other than those for the recovery of real property, provides that such actions '* * * can only be commenced within the periods prescribed in the following sections, after the causes of action shall have accrued; provided, that for the purposes of sections 516.100 to 516.370, the cause of action shall not be deemed to accrue when the wrong is done * * *, but when the damage resulting therefrom is sustained and is capable of ascertainment * * *.' (Emphasis supplied.)

Defendants contend that this action is barred by § 516.140, because the action, filed September 24, 1963, was not brought within two years after June, 1951, the date of the act of neglect of which plaintiff complains. Plaintiff contends the action is not barred, because the running of the two year period was tolled by § 516.100, since the damage resulting from the wrong done (act of neglect) was not discoverable until September, 1962, and the action was filed within two years after that date.

The court reporter died before the evidence and trial proceedings could be transcribed. The parties, with the approval of the trial judge, stipulated as to the facts presented to and proceedings had before the jury and thus presented the record to this court in a transcript on appeal. Briefly, this record shows that defendants performed surgery on plaintiff at Missouri Methodist Hospital in St. Joseph, Missouri, on June 4, 1951, and that she continued as their patient until June 15, 1951; that the surgery consisted of a bilateral salpingectomy, appendectomy, Gillian-Grosson uterus and excision of a lipoma (fatty tumor) in her lower back; that defendants left a foreign body, a rubber dam, in the L5--S1 post sacral area of her back. Thereafter plaintiff occasionally suffered mild pain and discomfort in her lower back, and from June 15, 1951, to October 17, 1960, she was, from time to time, under the care of four other doctors who administered conservative treatment to her back. In October, 1960, she fell in a seated position in Colorado and experienced severe pain in her lower back, resulting in marked disability. From October, 1960, to September, 1962, she was treated for pain in her back by three other doctors at different times; although X rays were taken and thorough examinations made, none of these doctors discovered the presence of this foreign body in her back. In September, 1962, she was hospitalized in Denver, Colorado, by still another doctor and a myelogram performed We have read the Missouri cases cited by the parties, and other decisions of the courts of this state; none provide answers to the questions presented in this case. We have also read the cases from other jurisdictions and other authorities cited by the parties in which this question was involved. While those cases are interesting they are not particularly persuasive, because in general, they involved statutes using language different from ours. We simply (and respectfully) do not agree with the reasoning adopted in some. Those interested in the authorities primarily relied on by the parties will find them in footnotes 2 2 and 3. 3 The issue and questions presented involve interpretation of §§ 516.100 and 516.140. We look to the history of those sections for any light it may shed on legislative intent.

it revealed a small filling defect in the L5--S1 area. On September 5 a lumbar laminectomy was performed during which the rubber dam left in plaintiff's body at the June, 1951, operation was discovered and removed. Prior to the September 5, 1962, operation plaintiff had no surgical openings in this area of her back, except the surgery performed by defendants on June 4, 1951.

Our statutes of limitations had their beginning July 4, 1807. Sec: 1 Territorial Laws, Chapter 42, p. 144. 4 The first enactment of a part of what is now § 516.100 appears in Laws of Missouri, 1849, Article II, § 2. In 1857, the Nineteenth General Assembly reenacted the limitations Article. Laws of Missouri, 1856--57, p. 77. Section 1, Article II of that reenactment reads:

'Civil actions can only be commenced within the periods prescribed in the sections which follow, after the causes of action shall have accrued.'

The language quoted above remained substantially the same through subsequent revisions 5 until 1919. In that year the Fiftieth General Assembly amended § 1887, RSMo 1909, with an emergency clause, 6 A part of what is now § 516.140 also had its beginning in 1807. See: 1 Territorial Laws, p. 144. An 1825 Act (Laws of Missouri, 1825) provided: 'And all actions on the case for words * * * shall be brought within one year next after the cause of such actions shall have accrued * * *', and actions for assault, battery and false imprisonment within two years. Section 6, Article II of an 1849 Act (Laws of Missouri, 1848--49, pp. 74--75) fixed a two year limitation on '* * * an action for libel, slander, assault, battery, or false imprisonment * * *', and actions for medical malpractice were covered by the general language of the fifth clause of § 4 of that Article providing a five year limitation. The separate limitation periods for actions for assault, battery, etc., and those for medical malpractice remained the same through subsequent enactments and revisions until 1921. 8 In the 1919 revision, section 1319 read: 'Within two years: An action for libel, slander, assault, battery, false imprisonment or criminal conversation.' In 1921, the Fifty-first General Assembly by an Act (Laws of Missouri, 1921, pp. 197--198; Senate Bill 335) amended § 1319 by adding a new section, § 1319a, which reads:

by adding a proviso in virtually the same language as that now found in § 516.100. The language of the statute, with the proviso added, remained substantially the same through subsequent revisions, including the 1959 revision. 7

'All actions against physicians, surgeons, dentists, roentgenologists, nurses, hospitals and sanitoriums for damages for malpractice, error, or mistake shall be brought within two years from the date of the act of neglect complained of.' (Emphasis supplied.)

In the 1929 revision the two year malpractice limitation (§ 1319a, Laws of Mo., 1921) was combined with the two year libel, etc., limitation (§ 1319) in § 864, (RSMo 1929, § 864), the malpractice limitation being the second sentence in the latter section; the language of § 864 remained the same in the 1939 revision (§ 1016, RSMo 1939). In 1945 the General Assembly by an Act (Laws of Missouri, 1945; House Bill 500) repealed and reenacted § 1016, adding the following words to the second sentence of that section: '* * * and an action by an employee for the payment of unpaid minimum wages * * * shall be brought within two years after the cause accrued.' (Emphasis supplied.) The language of our present § 516.140 is exactly the same as § 1016 (RSMo 1939) after reenactment of § 1016 in 1945. 9

The significance of this legislative history, particularly that beginning with the year 1921, is that it shows clearly a legislative intent to treat particularly with medical malpractice actions and fix a specific date when the statute of limitation shall begin to run against those actions, a date different from the date and time when the statute begins to run against other actions covered by what is now § 516.140. Prior to 1921 the limitation period for malpractice actions was five years and prior to 1919, when the General Assembly amended § 1887, RSMo 1909, the limitation period commenced to run on the date the cause of action accrued. When the proviso was added by amendment of § 1887 by the Fiftieth General Assembly in 1919 10 the statute of limitation (the five-year statute) in malpractice actions The rule is: "Where there is one statute dealing with a subject in general and comprehensive terms and another dealing with a part of the same subject in a more minute and definite way, the two should be read together and harmonized, if possible, with a view to giving effect to a consistent legislative policy; but to the extent of any necessary repugnancy between them the special will prevail over the general statute. Where the special statute is later, it will be regarded as an exception to, or qualification of, the prior general one * * *." State ex rel....

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