Owens v. White

• Decision Date: 23 August 1967
• Docket Number: No. 20585.,20585.
• Citation: Owens v. White, 380 F.2d 310 (9th Cir. 1967)
• Parties: Anita T. OWENS, Appellant, v. Raymond L. WHITE et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

380 F.2d 310 (1967)

Anita T. OWENS, Appellant, v. Raymond L. WHITE et al., Appellees.

No. 20585.

United States Court of Appeals Ninth Circuit.

June 30, 1967.

Rehearing Denied August 23, 1967.

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Melvin M. Belli, Frederick A. Cone, San Francisco, Cal., Vernon K. Smith, Boise, Idaho, Belli, Ashe, Gerry & Ellison, San Francisco, Cal., for appellant.

Eugene Thomas, Moffatt, Thomas, Barrett & Blanton, Boise, Idaho, for appellee, St. Luke's Hospital.

J. F. Martin, Boise, Idaho, for other appellees.

Before HAMLIN, KOELSCH, and ELY, Circuit Judges.

ELY, Circuit Judge:

Appellant, plaintiff below, sought damages for alleged medical malpractice against three physicians, Popma, McCarter, and White, and against St. Luke's Hospital, with which McCarter was associated. From an adverse judgment she appeals.

Appellant consulted Popma in August, 1951, complaining of a lump in her left breast. Popma advised her that a biopsy should be performed and furnished her with a list of three surgeons, including defendant White. After making inquiry about the recommended physicians, she selected White. The biopsy, which consisted of the removal of the suspect tissue by White and a microscopic examination thereof by McCarter, pathologist for the hospital, led to the conclusion that the lump in appellant's breast was a malignant cancerous growth. Dr. White thereupon advised appellant that a radical mastectomy, removal of the breast and surrounding tissue, should be done. Surgery was performed by White on September 1, 1951. Shortly afterward, on the advice of Popma and White, appellant underwent a series of treatments in which her chest and ovaries were radiated to prevent reactivation of the assumed malignancy. This brought on the menopause at age 30. Plaintiff's last contact with any of the defendant doctors occurred in 1959, when she moved from Idaho to California. At that time, by mail, White furnished her with renewals of certain drug prescriptions and suggested how she might locate a physician. Almost three years later, while employed as a nurse at a California hospital, appellant attended a series of lectures on cancer by one Shaw, a member of that hospital's staff. Her attendance at these lectures caused appellant to consult Dr. Shaw personally. He obtained her records from the defendant-appellee hospital and, after examining slides of tissue which had been removed from her breast for the biopsy, advised her that, in his opinion, she had never been afflicted with cancer. Thereafter, on October 14, 1963, almost four years after her last contact with any of the defendants, appellant filed her complaint in the Southern District of Idaho. She alleged that the defendants had negligently misdiagnosed her condition.

This case is now before us for the second time. The first appeal followed orders of the district judge which granted appellees' motions for dismissal on the ground that the action had become barred by Idaho's two-year statute of limitations, I.C. Section 5-219(4). In an opinion reported at 342 F.2d 817 (9th Cir. 1965), we reversed because, while the appeal was pending, the Idaho Supreme Court, in Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224 (1964), had adopted the so-called "discovery rule." The rule is, generally, that a cause of action for medical malpractice will be held not to accrue until the patient knows, or, in the exercise of reasonable diligence, should have known of the alleged malpractice.¹ The case was remanded to the District Court with instructions that the discovery rule "may be invoked," but that, since Billings was factually distinguishable, the question as to whether the rule should in fact be "applied" was a preliminary matter for the trial judge to determine, as a matter of law. Pursuant to this mandate, the district judge conducted a hearing, without a jury,² at which he received evidence on various factors suggested as relevant in our prior opinion. His crucial legal conclusion was that "on a balance of equities, the prejudice to the defendants outweighs the desirability of giving the plaintiff her day in court" and that the discovery rule would not, under the circumstances, be applied so as to toll the statute of limitations. In addition, he concluded that appellant could have, through the exercise of due diligence, discovered the alleged malpractice, if such had occurred, at any time after the treatment of which she complains. Accordingly, on motions for summary judgment the district judge dismissed the appellant's amended complaint³ with prejudice.

Jurisdiction of the District Court rested upon diversity of citizenship and the requisite amount in controversy, 28 U. S.C. § 1332. Our power of review is conferred by 28 U.S.C. § 1291.

The applicable statute of limitations rule in this diversity action is that of the State of Idaho. Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949). Billings, the first Idaho decision to adopt the discovery rule, involved a claim arising from the fact that a foreign object which had been placed in plaintiff's body during surgery had not been removed. The Idaho Supreme Court has not yet determined whether or not it will apply the rule to a case involving the type of malpractice which is alleged to have been committed here. The duty of a federal court exercising diversity jurisdiction, when the state tribunals have not supplied an answer to the direct problem involved, is to apply the rule which it believes would be applied by the highest court of the state if the specific question should be presented to it. Fidelity Union Trust Co. v. Field, 311 U.S. 169, 61 S.Ct. 176, 85 L.Ed. 109 (1940). The appellant urges that the forecast of Idaho law which we announced on the first appeal was erroneous. She contends that the rule applies without qualification and that the Idaho court would not, in this case, as we anticipated there, "temper application of the discovery doctrine by hedging it with equitable considerations." 342 F.2d at 820. The appellees counter that, because she failed to petition for rehearing following the issuance of our opinion, that which we there announced must stand as the law of the case. We see the doctrine of law of the case as a matter of judicial self-restraint. It should not constitute a limitation upon our power. See Messenger v. Anderson, 225 U.S. 436, 32 S.Ct. 739, 56 L.Ed. 1152 (1912). We pass, then, to the question presented.

The object of statutes of limitation, said the Idaho Supreme Court in Billings, "is to prevent fraudulent and stale actions from springing up after a great lapse of time. * * * These considerations are not present in a foreign object case." 389 P.2d at 231. In support of its decision to apply the discovery rule in the situation then before it, the Idaho court quoted language from a New Jersey "foreign object" case, Fernandi v. Strully, 35 N.J. 434, 173 A.2d 277 (1961),

"It must be borne in mind that plaintiff\'s claim does not raise questions as to her credibility nor does it rest on matters of professional diagnosis, judgment or discretion. * * * Justice cries out that she fairly be afforded a day in court and it appears evident to us that this may be done, at least in this highly confined type of case, without any undue impairment of the two-year limitation or the considerations of repose which underlie it." 389 P.2d at 231-232. (Emphasis supplied.)

The Idaho court then announced a specific rule,

"Where a foreign object is negligently left in a patient\'s body by a surgeon and the patient is in ignorance of the fact, and consequently of his right of action for malpractice, the cause of action does not accrue until the patient learns of, or in the exercise of reasonable care and diligence should have learned of the presence of such foreign object in his body." 389 P.2d at 232.

Appellant points to language from several decisions in which there is indication that certain jurisdictions might broadly apply the discovery rule to a case of the type before us. Most helpful to appellant is language found in Calvin v. Thayer, 150 Cal.App.2d 610, 310 P.2d 59 (1957), wherein the California intermediate appellate court held that the statute of limitations should not commence to run until the plaintiff acquires knowledge of the facts constituting his cause of action, "namely, that the defendant doctor * * * had not made a correct diagnosis * * *." 310 P.2d at 62. The policy behind such a liberalized rule is well stated in the concurring opinion in Lundberg v. Bay View Hospital, 175 Ohio St. 133, 191 N.E.2d 821 (1963),

"In this and similar situations, the patient does not know and in most cases the physician does not know that the patient has any basis for a cause of action until * * * the error in diagnosis * * * is discovered by another doctor. * * * To say that the patient had a cause of action all the while, although no one knew about it or suspected it, may meet the tests of some legal theory, but the result hardly meets the standards of justice or logic.

"The practical effect of a holding that the statute of limitations * * * begins to run in case of malpractice at any time before the patient discovers or, in the exercise of reasonable diligence, should have discovered the injury requires the legally prudent patient to consult another physician promptly after any medical treatment or surgery for a check on the procedures followed and judgments made by the physician upon whom he relied initially. Even if it were always possible to secure the services of a physician to check the work of another, such a practice would undermine the professional relationship between the physician and his patient, which in many cases is as important to the health of the patient as the medical or surgical treatment administered." 191 N.E.2d at 824-825.

It cannot be denied that application of the discovery rule so as to enable a diligent plaintiff to...