Myrick v. James

• Decision Date: 04 May 1982
• Citation: 444 A.2d 987
• Parties: Joan L. MYRICK and Bruce A. Myrick v. John A. JAMES, M. D.
• Court: Maine Supreme Court

Page 987

444 A.2d 987

Joan L. MYRICK and Bruce A. Myrick v. John A. JAMES, M. D.

Supreme Judicial Court of Maine.

Argued Sept. 18, 1981.

Decided May 4, 1982.

E. Stephen Murray (orally), Murray, Plumb & Murray, Ellyn C. Ballou, Portland, for plaintiffs.

Hunt, Thompson & Bowie, James M. Bowie (orally), M. Roberts Hunt, Portland, for defendant.

Before McKUSICK, C. J., GODFREY, NICHOLS, CARTER, VIOLETTE and WATHEN, JJ., and DUFRESNE, A. R. J.

CARTER, Justice.

In Tantish v. Szendey, 158 Me. 228, 182 A.2d 660 (1962), this Court held that a foreign-object surgical malpractice action accrues, for the purpose of determining when the statute of limitations commences, at the time of the negligent act. In so holding, we conformed to the then contemporary weight of authority and expressly rejected the proposition that such an action accrues only when the patient becomes aware or has reason to be aware of the physician's alleged failure to remove the foreign-object from his body in the course of surgery. For the reasons set forth herein, we overrule our holding in Tantish and adopt the discovery rule in foreign-object surgical malpractice cases.

I. Facts

On December 31, 1980, the plaintiffs commenced a surgical malpractice action against the defendant, an obstetrician and gynecologist. In their verified complaint, the plaintiffs allege that the defendant performed a partial hysterectomy on the plaintiff Joan L. Myrick on May 17, 1973. Immediately following the operation, Joan Myrick was affected by the onset of significant physical symptoms. She alleges that she sought assistance from other medical practitioners, including a psychiatrist, but none of them was able to alleviate the symptoms arising after the May 1973 operation. In December 1979, a physician other than the defendant suggested that she undergo exploratory surgery. The defendant performed this subsequent operation on January 10, 1980, and he found and removed a surgical sponge from her abdomen. She alleges that this sponge was improperly allowed to remain in her body at the conclusion of the prior surgery by the defendant. Much of her symptomatology is alleged to have disappeared shortly after this operation. ¹

The defendant sought dismissal of this malpractice action on the ground that, under Tantish, the plaintiff's action accrued on the date of the operation, May 17, 1973. Because a suit arising from these facts is subject to a two-year period of limitations pursuant to 14 M.R.S.A. § 753, ² he asserted that the plaintiffs were barred from bringing this action. Relying on the precedential effect of Tantish, the Superior Court, Androscoggin County, granted the defendant's motion and dismissed the complaint. The plaintiffs appeal from this dismissal. We sustain the appeal by overruling Tantish and holding that a foreign-object surgical malpractice case accrues under section 753 when the plaintiff discovers or reasonably should discover the presence of the foreign object in her body.

II. Interference With The Legislative Prerogative

In section 753, we are faced with a statute which does not specify when the two-year period of limitations commences to run; the Legislature has not provided a definition of "accrues" applicable to foreign-object surgical malpractice suits. Absent any "explicit legislative direction" which would otherwise foreclose our consideration of the meaning of "accrual," the process of defining the term remains a judicial function. Anderson v. Neal, Me., 428 A.2d 1189, 1191 (1981); Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal.3d 176, 192, 491 P.2d 421, 431, 98 Cal.Rptr. 837, 847 (1971); Franklin v. Albert, 381 Mass. 611, ---, 411 N.E.2d 458, 462 (1980); Shillady v. Elliot Community Hospital, 114 N.H. 321, 323-24, 320 A.2d 637, 639 (1974); Fernandi v. Strully, 35 N.J. 434, 448-49, 173 A.2d 277, 285 (1961); Morgan v. Grace Hospital, Inc., 149 W.Va. 783, 789, 144 S.E.2d 156, 160 (1965). See Williams v. Ford Motor Co., Me., 342 A.2d 712, 714 (1975). Cf. Laughlin v. Forgrave, 432 S.W.2d 308 (Mo.1968) (construing a statute providing that medical malpractice actions be brought "within two years from the date of the act of neglect complained of"). Particularly as the statute of limitations implicates a technical legal procedure, and as the term "accrual" is regarded as an "obscure ... legislative phraseology," courts have been held to be peculiarly suited to examine the meaning and application of the statute. Neel, 6 Cal.3d at 192, 491 P.2d at 431, 98 Cal.Rptr. at 847; Fernandi, 35 N.J. at 448-49, 173 A.2d at 285.

The defendant asserts that the legislative activity following our decision in Tantish must be characterized as a ratification of the construction imposed by that case on the statute of limitations applicable to foreign-object surgical malpractice actions, and that we are thereby forbidden from re-examining that holding today. The issue of the statute of limitations in such cases has been raised in the Legislature three times since Tantish was decided. ³ In 1963, Leg.Doc. 1581, amending Leg.Doc. 1352, was introduced to create a two year statute of limitations which would commence when the injury is first sustained, discovered, or should have been discovered with the exercise of reasonable care; the bill also would have imposed an ultimate limitation of four years from the date of the negligent act. This proposal was indefinitely postponed.

The 104th Legislature considered a similar two year statute of limitations which would have invoked the discovery rule in actions for medical malpractice. The Judiciary Committee unanimously recommended passage of the bill with an amendment imposing a ceiling of six years from the date of the negligent act. The House passed the measure, 1969 Leg.Rec. 2863, but the Senate voted for its indefinite postponement. Id. 3013. The proposal subsequently died when the members of a joint committee, established to explore the possibility of reconciling the two legislative branches, reported that they were unable to agree on the matter. Id. 3983. See also id. 2397-2402.

Finally, in P. & S.L.1975, ch. 73, the Legislature created the Commission to Revise the Laws Relating to Medical and Hospital Malpractice Insurance, an entity popularly known as the Pomeroy Commission, charged with formulating proposals "to insure the availability of medical and hospital malpractice insurance to physicians and hospitals ... and to develop a more equitable system of relief for malpractice claims." Id., § 1. The fruits of the Committee's report were enacted in 1977 as the Maine Health Security Act, 24 M.R.S.A. §§ 2501-2905. Included in the Act was a statute of limitations applicable to tort actions against a hospital or its employees. § 2902. This provision removed such actions from the purview of the general six year limitations statute, 14 M.R.S.A. § 752, and situated them in a position similar to malpractice actions against physicians, as provided in section 753. Statement of Fact at 21, Leg.Doc. 727 (108th Leg., 1977).

During the Legislature's consideration of the Pomeroy Commission Report, four separate amendments were offered which would have attached discovery features to both section 753 and the then pending section 2902 of the Health Security Act. House Filings 771, 780, 788 and 853. Only one of the four amendments (H.F. 788) reached the House floor, where it was indefinitely postponed. 1977 Leg.Rec. 2090-91. See also id. 1832-33, 1945-50.

Thus, the Legislature has on several occasions considered the adoption of a discovery rule applicable to foreign-object surgical malpractice suits, but it has never enacted such a provision. Several members of the body engaged in debate over the merits of such a provision. Yet, "no one knows why the Legislature did not pass the proposed measure." Anderson, 428 A.2d at 1191, quoting Franklin, 381 Mass. at ---, 411 N.E.2d at 461, and Berry v. Branner, 245 Or. 307, 311, 421 P.2d 996, 998 (1966). Indeed, as we further noted in Anderson, the

legislative failure to give statutory recognition to a discovery rule may have resulted from the "belief that the matter should be left to be handled by the normal processes of judicial development of decisional law, including the overruling of outstanding decisions to the extent that the sound growth of the law requires."

428 A.2d at 1191, quoting Franklin, 381 Mass. at ---, 411 N.E.2d at 461-62, and H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1395-96 (tent. ed. 1958) (emphasis added). See also Neel, 6 Cal.3d at 192, 491 P.2d at 431, 98 Cal.Rptr. at 847.

Significantly, even in the face of these proposals to implement the discovery rule in medical malpractice cases, the Legislature has not adopted the holding in Tantish that a cause of action for surgical malpractice accrues at the time of the occurrence of the negligent act. Thus, ultimately, we are faced with a silent legislative record which cannot be seen to either endorse or reject the discovery rule in the factual context presented by this case. It is an invalid mode of analysis to evaluate the judicial soundness of Tantish by the absence of subsequent legislation. Such legislative inaction cannot be viewed as a rejection of the discovery rule so as to preclude our examination of it ourselves. See Girouard v. United States, 328 U.S. 61, 69-70, 66 S.Ct. 826, 829-30, 90 L.Ed. 1084, 1090 (1946), quoted in N.L.R.B. v. Plasterers' Local Union No. 79, 404 U.S. 116, 129-30, 92 S.Ct. 360, 368-69, 30 L.Ed.2d 312, 323 (1971). Nor can such inaction be taken as indicative of any intent to in fact legislate the rule previously developed by the court through construction of the generic statutory language. See James v. United States, 366 U.S. 213, 220, 81 S.Ct. 1052, 1056, 6 L.Ed.2d 246, 254 (1961); Girouard, 328 U.S. at 69-70, 66 S.Ct. at 829-30, 90 L.Ed. at 1090; Helvering v. Hallock, 309 U.S. 106, 119-20, 60 S.Ct. 444, 451-52, 84 L.Ed....