Reynolds v. Porter

Decision Date19 July 1988
Docket NumberNo. 60253,60253
Citation1988 OK 88,760 P.2d 816
PartiesMichelle Roberson REYNOLDS, Petitioner-Plaintiff, v. Warren H. PORTER, M.D., Respondent-Defendant.
CourtOklahoma Supreme Court

Certiorari to the District Court; Jack Parr, Judge.

In a medical malpractice action the trial court rendered partial summary judgment for the defendant pursuant to 76 O.S.1981 § 18, finding that the action could be maintained as timely brought within two years of discovery of the injury but that because the action was brought more than three years from the date of the injury it is limited to recovery of actual medical and surgical expenses. The trial court certified for review the question of the constitutionality of § 18's three-year proviso.


James B. Browne, Thomas Wakely, Oklahoma City, for petitioner-plaintiff.

John Wiggins, George W. Paull, Jr., Cynthia L. Sparling, Short, Barnes, Wiggins Margo & Adler, Oklahoma City, for respondent-defendant.

Carolyn S. Thompson, Howard K. Berry, Jr., Gary L. Brooks, Oklahoma City, for amicus curiae Oklahoma Trial Lawyers Ass'n.

OPALA, Justice.

The petitioner, a plaintiff in a medical malpractice action, challenges the constitutionality of the three-year proviso in 76 O.S.1981 § 18 which limits the scope of recoverable damages when an action is brought more than three years from the date of the injury. She asserts that § 18 violates the Equal Protection Clause of the U.S. Constitution by penalizing only victims of health care providers' malpractice without a corresponding penalty for victims of other tortfeasors; Oklahoma's constitutional prohibition against special laws limiting civil actions, Art. 5, § 46, by creating a limitation period which protects a special class of tortfeasors; Oklahoma's constitutional prohibition against granting exclusive rights, privileges or immunities, Art. 5, § 51, by granting immunity from suit to the health care profession for certain types of damages; and Oklahoma's constitutional prohibition against the limitation of amounts recoverable for injuries resulting in death, Art. 23 § 7.

We rest our holding on adequate and independent state grounds 1 and pronounce that the three-year proviso in 76 O.S.1981 § 18 is a special statute of limitation absolutely prohibited by Art. 5, § 46 of the Oklahoma Constitution. 2 We therefore find it unnecessary to address the remaining contentions.


The respondent doctor performed on the petitioner the alleged negligent hemorrhoidectomy on May 16, 1976. She claims she did not learn that she had been injured by the doctor's negligence until May 22, 1980. She filed a medical malpractice action April 27, 1982. The trial court gave the defendant a partial summary adjudication, ruling that although under 76 O.S.1981 § 18 the action was timely brought within two years of the injury's discovery, because it was filed more than three years from the date of the injury, the petitioner is limited to recovering actual medical and surgical expenses incurred or to be incurred. This ruling barred the petitioner's remedy for past and future loss of income, pain and suffering, humiliation and embarrassment, and permanent disability. The trial court certified for our review in advance of judgment petitioner's attack on the constitutionality of the three-year proviso in 76 O.S.1981 § 18 as it operates to limit damages. We grant the review sought to settle the first-impression question.


The statute under inquiry, 76 O.S.1981 § 18, provides:

"An action for damages for injury or death against any physician, health care provider or hospital licensed under the laws of this state, whether based in tort, breach of contract or otherwise, arising out of patient care, shall be brought within two (2) years of the date the plaintiff knew or should have known, through the exercise of reasonable diligence, of the existence of the death, injury or condition complained of; provided any action brought more than three (3) years from the date of the injury shall be limited to actual medical and surgical expenses incurred or to be incurred as a direct result of said injury, provided, however, the minority or incompetency when the cause of action arises will extend said period of limitation." [Emphasis supplied.]

This court addressed the constitutionality of the two-year limitation in McCarroll v. Doctors General Hospital. 3 It upheld that time restriction against challenges under the Equal Protection Clause of the U.S. Constitution and the prohibitions of Art. 5, §§ 46 and 51 of the Oklahoma Constitution. Today we consider the constitutionality of the emphasized portion of § 18 on which McCarroll explicitly declined to pass. We recognize initially that legislative acts are presumed to be constitutional and that courts of review will uphold a statute unless it is clearly inconsistent with our fundamental law. 4





Because there is a strong policy in Oklahoma against unwarranted modification of statutory limitations, 6 we must first determine whether the three-year proviso is a statute of limitation or a statute of repose. Early treatise writers and judges considered time bars created by statutes of limitations, escheat and adverse possession as periods of repose. 7 As the courts began to modify statutory limitations by applying the "discovery rule", 8 legislatures responded by enacting absolute statutes of repose. Modern limitations and statutes of repose are similar because they both provide repose for the defendant. Yet, they are significantly different since a statute of limitation merely extinguishes the plaintiff's remedy while a statute of repose bars a cause of action before it arises. 9 In practical terms, a statute of repose marks the boundary of a substantive right whereas a statute of limitation interposes itself only procedurally to bar the remedy after a substantive right has vested. 10

The time prescribed by a statute of repose runs from a specific negligent act or event regardless of when the harm or damage occurs. A limitation period runs from the time the elements of a cause of action arise. It may or may not allow for the plaintiff's discovery of the injurious event. 11 Oklahoma's three-year provision here under scrutiny runs from the "date of the injury". That date may be construed as 1) the date the damage or harm occurred, 12 2) the date of the doctor's negligent omission or commission, 13 or 3) the date the claimant discovers the injury. 14 Applying time-honored canons of statutory construction, we choose the first of these options and hold today that the time prescribed by the three-year provision runs from the date the damage or harm occurs.

Were we to settle instead on the third option, the three-year provision would become an extended duplicate of the two-year restriction--a three-year statutory limitation with the benefit of a discovery rule. That could not have been the intent of the legislature. Under the second option, the statute would act as one of repose in cases where harm from the negligent omission or commission occurs more than three years later. In such a case, the three-year provision would extinguish the right to bring an action for all damages except actual medical and surgical expenses before the right to bring the action can arise.

In the majority of malpractice cases, as in the case before us, the injury occurs contemporaneously with the negligent act. 15 Yet, the act and the resulting injury are distinct and separate. The legislature could have used the term "negligent act" rather than "injury", but it did not. In the absence of specific statutory definition, we must assume that the law-making body intended a common word to be interpreted in its ordinary and usual parlance. 16 The presumption to be followed is that the legislature expressed its intent and that it intended what it expressed. 17 Both Webster and Black define injury as "damage done to another." 18 In its usual and ordinary meaning then the statutory time begins to run when damage or harm occurs as a result of a negligent act. 19 At that point a cause of action arises in favor of one who was harmed regardless of whether one knows of the injury or is unaware of its occurrence. Construed in this manner, the three-year restriction serves as an outer limit on the discovery rule for the recovery of certain types of damages and will never act to destroy a cause of action before it arises.

In Kenyon v. Hammer 20 the Supreme Court of Arizona construed similar legislative language in that state's statute of limitations. The Arizona statute barred all medical malpractice actions brought more than three years from the date of the injury. The court held that the "date of the injury" was the date the plaintiff suffered the actual injury and not the date of the negligent act.

In Hammer, the negligent act was a nurse's mistake in recording plaintiff's blood type as RH positive instead of RH negative. The court held that for limitation purposes the plaintiff's bodily injury occurred seventy-two hours after the delivery of plaintiff's RH positive child--several months after the negligent act. At that time plaintiff developed an immune response which affected her ability to bear additional children. A drug which suppresses such a response was not administered because of the incorrect information on plaintiff's chart. The court specifically refused to interpret the statute as a statute of repose running from the negligent act. It held that the proviso was a statute of limitation without the benefit of a discovery rule. 21

The text of § 18 neither impliedly nor expressly abolishes any claims or causes of action before they can arise. Rather, the section limits recovery for a class of actionable medical malpractice claims whose...

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