Lillicrap v. Martin, No. 86-443

• Docket Nº: No. 86-443
• Citation: 591 A.2d 41, 156 Vt. 165
• Case Date: July 14, 1989
• Court: United States State Supreme Court of Vermont

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591 A.2d 41 156 Vt. 165 James J. LILLICRAP
v.
Herbert L. MARTIN, M.D., University Assoc. in Neurology,
Inc., J. Bishop McGill, M.D., Warren L. Beeken,
M.D., Surgical Associates Foundation, et al. No. 86-443. Supreme Court of Vermont. July 14, 1989.
Motion for Reargument Granted Jan. 17, 1990.
Opinion on Reargument March 1, 1991.

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[156 Vt. 167] Richard E. Davis and T. Christopher Greene of Richard E. Davis Associates, Inc., Barre, for plaintiff-appellant.

S. Crocker Bennett II and Michael I. Green of Paul, Frank & Collins, Inc., Burlington, for defendants-appellees Martin and University Associates In Neurology.

Pierson, Affolter & Wadhams, Burlington, for defendants-appellees McGill and Surgical Associates Foundation.

Robert D. Rachlin and Robert B. Luce of Downs Rachlin & Martin, Burlington, for defendant-appellee Beeken.

Before [156 Vt. 165] ALLEN, C.J., PECK, DOOLEY and MAHADY, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

[156 Vt. 167] MAHADY, Justice.

The plaintiff in this medical malpractice case appeals the action of the trial court granting motions for a directed verdict on behalf of all of the defendants. His appeal requires us to determine the applicability of the statute of limitations, 12 V.S.A. § 521, to the facts of this case as well as the constitutionality of the repose provision of the same statute when applied to those facts. We reverse.

[156 Vt. 168] I. The Facts

In reviewing the trial court's action in directing a verdict for the defendants, we must view the evidence in the light most favorable to the plaintiff, excluding the effect of modifying evidence. Utzler v. Medical Center Hosp. of Vermont, 149 Vt. 126, 128, 540 A.2d 652, 654 (1987). So viewed, the record reveals the following course of events.

In 1971, the plaintiff was diagnosed as suffering from regional enteritis, known as Crohn's Disease. As a result of this disease, the plaintiff's ability to absorb vitamin B-12 through his small bowel into his system was impaired. In 1972, a severe obstruction in the small bowel, also a result of plaintiff's Crohn's Disease, was surgically removed by Dr. McGill. This resection, in turn, further reduced the plaintiff's ability to absorb vitamin B-12.

Accepted standards of medical care required that the plaintiff be informed following such surgery that he must take injections of vitamin B-12 for the rest of his life or until such time as tests demonstrate he is able to absorb sufficient amounts of the vitamin. A failure to take the vitamin under such circumstances can lead to neurological damage, including paralysis and death. At the time of plaintiff's discharge from the surgery, plaintiff's physician, Dr. Beeken, said nothing to the plaintiff about vitamin B-12; Dr. McGill prescribed vitamin B-12, but he also told the plaintiff to take it until he felt better and that the vitamin would not be needed after that time. In 1975, the plaintiff reported that he was indeed feeling better, and he was advised by Dr. McGill to discontinue the injections of vitamin B-12. He did so.

Neurological symptoms can be expected to appear anywhere from two to five years after the cessation of B-12 injections. In 1978, the plaintiff exhibited paresthesia,

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and he was examined by Dr. McGill, who referred him to Dr. Martin. Dr. Martin concluded that the plaintiff's symptoms (dizziness, clumsiness, numbness and tingling of the extremities) were psychosomatic and advised the plaintiff to take a vacation.

From 1978 to 1980, the plaintiff's wife contacted Dr. McGill on a number of occasions. She was repeatedly reassured that the plaintiff's symptoms were the result of his work habits and tension. By July of 1980, however, the plaintiff was barely able [156 Vt. 169] to walk. Following tests which showed a low-normal level of B-12, Dr. McGill prescribed a resumption of the B-12 injections. In October of 1980, Dr. Martin diagnosed the plaintiff's disease as multiple sclerosis and advised the plaintiff to discontinue the B-12.

The plaintiff followed this advice. Within a month, he was unable to walk and was hospitalized. Tests performed in early December of 1980 disclosed that the plaintiff was still absorbing vitamin B-12 at an abnormally low rate. Dr. Martin wrote to the plaintiff on December 12, 1980, indicating that "our best diagnosis at this time [is] that you [are] B-12 deficient," and advised the plaintiff to "take 1,000 micrograms of Vitamin B-12 by injection every two weeks." However, Dr. Martin also wrote, "I am not prepared to say that we have a final diagnosis even now.... Dr. Beeken's group insists that your neurological condition is not related to your Crohn's disease. In fact, I found no literature to support this possibility either." He concluded that if the plaintiff were B-12 deficient, he would be "in a fairly rare group." Subsequently, Dr. McGill told the plaintiff that Dr. Martin "quite possibly ... feels" that the plaintiff had multiple sclerosis and that it was "quite possible" that the plaintiff did have multiple sclerosis.

In June of 1982, the plaintiff was examined at the Lahey Clinic in Burlington, Massachusetts. On June 25, 1982, he was advised that they could not make a diagnosis of multiple sclerosis. They wrote to the plaintiff that "all of your symptoms and findings can be explained by a deficiency of Vitamin B-12, causing disfunction in the central nervous system, and the trend to slow improvement with B-12 therapy is in keeping with such a conclusion." The plaintiff was advised to continue taking B-12 injections, because his "system apparently is deficient in the ability to assimilate this compound."

On December 10, 1982, the plaintiff commenced this action against Dr. Martin. On December 5, 1983, Dr. Beeken and Dr. McGill were added as defendants. The plaintiff's claim of negligence against Dr. Beeken and Dr. McGill is predicated upon their alleged failure to advise him following the 1972 surgery to take vitamin B-12 injections for life; the claim against Dr. Martin is predicated upon his alleged failure to diagnose the plaintiff's B-12 deficiency in a timely fashion.

[156 Vt. 170] Prior to the trial the defendants moved for summary judgment on the ground that the plaintiff's action was barred by the statute of limitations. That motion was denied. In their responsive pleadings, neither Dr. Beeken nor Dr. McGill pled the statute of limitations. On the sixth day of trial, they moved to amend their answer to include this affirmative defense. The trial court allowed the amendment and subsequently directed a verdict in favor of all of the defendants, having concluded that the statute of limitations barred the plaintiff's claims.

II. The Amendments

The plaintiff argues that the trial court abused its discretion when it allowed Dr. Beeken and Dr. McGill to amend their answer on the sixth day of the trial so as to affirmatively plead the statute of limitations.

The statute of limitations must be pled as an affirmative defense. V.R.C.P. 8(c); White Current Corp. v. State, 140 Vt. 290, 292, 438 A.2d 393, 394 (1981). Otherwise, the defense is waived. See R. Brown & Sons v. Credit Alliance Corp., 144 Vt. 142, 145-46, 473 A.2d 1168, 1170 (1984).

Amendments to the pleadings may be allowed with leave of the court at

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any time. V.R.C.P. 15(a). Whether an amendment should be permitted is an issue addressed to the sound discretion of the trial court. We will reverse the action of the trial court on such rulings only where there is an abuse of discretion. Bevins v. King, 143 Vt. 252, 254, 465 A.2d 282, 283 (1983).

The trial courts are to be liberal in permitting amendments to the pleadings. V.R.C.P. 15(a). The rationale for this rule has been explained:

The principal reasons underlying the liberal amendment policy are (1) to provide maximum opportunity for each claim to be decided on its merits rather than on a procedural technicality, (2) to give notice of the nature of the claim or defense, and (3) to enable a party to assert matters that were overlooked or unknown to him at an earlier stage in the proceedings.

Bevins v. King, 143 Vt. at 255, 465 A.2d at 283. In short, "[t]he purpose of Rule 15 is to facilitate the disposition of litigation on [156 Vt. 171] the merits and to subordinate the importance of pleadings." 1 R. Field, V. McKusick & L. Wroth, Maine Civil Practice § 15.1, at 301 (2d ed. 1970) (describing the identical Maine rule).

The record in this case clearly indicates that the trial court exercised its discretion and that it carefully and thoughtfully considered the policy objectives of the rule before doing so. In particular, the court balanced the right of the defendants to present their defense based upon the statute of limitations on its merits, rather than being precluded from doing so because of a procedural technicality, against the right of the plaintiff to be provided with adequate notice of the defense.

Having done so, the trial court concluded that "it would be unjust to the defendants to not permit the limitations defense to be raised at this point," that "the statute of limitations defense has permeated this case from the start," and that the defendants had "forcefully put the plaintiff on notice that [they] intend to rely on the limitation defense."

These conclusions are well supported by the record. We will not disturb a discretionary ruling of the trial court where that court, as it did here, carefully considered and applied the relevant criteria appropriate to the exercise of its discretion. There was no error in allowing the defendants to amend their pleadings. Nevertheless, we feel constrained to repeat our previous warning that "the practice of filing motions to amend pleadings on the day of trial is clearly to be avoided." Bevins v. King, 143 Vt. at 256, 465 A.2d at 284. We would further note that in an appropriate case such motions may be granted subject to terms. Id.

III. The Statute of Limitations

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