Robinson v. Weaver

• Decision Date: 06 April 1977
• Docket Number: No. B-6072,B-6072
• Citation: 550 S.W.2d 18
• Parties: Cecil A. ROBINSON, Petitioner, v. C. W. WEAVER et al., Respondents.
• Court: Texas Supreme Court

Page 18

550 S.W.2d 18

Cecil A. ROBINSON, Petitioner, v. C. W. WEAVER et al., Respondents.

No. B-6072.

Supreme Court of Texas.

April 6, 1977.

Rehearing Denied May 18, 1977.

Shafer, Gilliland, Davis, Bunton & McCollum, W. O. Shafer and James M. O'Leary, Odessa, Finley & Scogin, Robert Scogin, Kermit, for petitioner.

James D. Cunningham, Odessa, Little & Little, Jack N. Little, Big Spring, for respondents.

DENTON, Justice.

The trial judge has rendered a summary judgment in this medical malpractice case, holding that the plaintiff's cause of action for damages due to misdiagnosis is barred by the two-year statute of limitations. The court of civil appeals has reversed and remanded, holding that the "discovery rule" applies and that a question of fact exists concerning when the plaintiff knew or should have known of his injury. 536 S.W.2d 243. We reverse the judgment of the court of civil appeals and affirm that of the trial court.

The plaintiff injured his back on July 26, 1971. On August 6, 1971, the defendant performed radiographic and other tests upon the plaintiff, and concluded that plaintiff had a herniated disc between his fourth and fifth lumbar vertebrae. Four days later, the defendant surgically repaired the disc diagnosed as herniated. The plaintiff remained in the defendant's care until late December of 1971, during which time he continued to have back pains. On January 26, 1972, the plaintiff saw another physician, who prescribed a back brace, and later on April 25, 1972, performed radiographic tests which resulted in a diagnosis of a herniated disc. The following day, April 26, 1972, a herniated disc between the third and fourth lumbar, vertebrae was excised. The gravamen of plaintiff's claim is, therefore, that defendant erroneously diagnosed plaintiff's condition and operated on the wrong intervertebral disc.

This action was filed by plaintiff on April 4, 1974, more than two years after plaintiff had changed physicians, but less than two years after the alleged actual discovery of an injury different from that diagnosed and treated by defendant in August of 1971. The applicable statute of limitations is Article 5526 of the revised civil statutes, providing:

There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterwards, all actions or suits in court of the following description:

6. Action for injury done to the person of another.

The defendant asserts that plaintiff's action is barred by limitations. The plaintiff claims he did not actually discover, nor in the exercise of ordinary care should he have discovered, that there was a misdiagnosis until the results of the second operation were known to him, and that his cause of action did not, therefore, accrue until such time.

For the purposes of application of statutes of limitations, a cause of action generally can be said to accrue at the time when facts come into existence which authorize a claimant to seek a judicial remedy. Williams v. Pure Oil Company, 124 Tex. 341, 78 S.W.2d 929 (1935). In personal injury actions, this means when the wrongful act effects an injury, regardless of when the claimant learned of such injury. An exception to this rule of accrual has been applied by this and many other courts in some situations in which a claimant was unable to know of his injury at the time of actual accrual; the exception is known as the "discovery rule." The issue in this case is whether this "discovery rule" will be applied to an action founded upon a misdiagnosis.

In Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967), we held that a "cause of action for negligent leaving of a foreign object in a patient's body by a physician accrues when 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." 417 S.W.2d at 580. Gaddis is representative of what now may be considered the majority rule in the United States. Annot., When Statute of Limitations Commences to Run against Malpractice Action Based on Leaving Foreign Substance in Patient's Body, 70 A.L.R.3d 7 (1976). The statute of limitations in a cause of action for negligent performance of a vasectomy operation was held in Hays v. Hall, 488 S.W.2d 412 (Tex.1972), to have commenced to run "on the date of discovery of the true facts concerning the failure of the operation, or from the date it should, in the exercise of ordinary care and diligence, have been discovered." 488 S.W.2d at 414. And we found no reversible error in the court of civil appeals' holding that a cause of action for excessive treatment with X-rays did not "accrue" for limitations purposes until the plaintiff, a cancer patient, had learned that excessive radiation, and not a recurrence of cancer, was the cause of her ulcerated epidermis. Grady v. Faykus, 530 S.W.2d 151 (Tex.Civ.App. Corpus Christi 1975, writ ref'd n.r.e.).

The result in "discovery rule" cases like Gaddis, Hays v. Hall and Grady v. Faykus stems from the recognition of the purposes of statutes of limitations; and, at the same time, recognition of what is not the statutes' purpose, but an unfortunate, occasional by-product. The primary purpose of a statute of limitations is to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend while witnesses are available and the evidence is fresh in their minds. Price v. Estate of Anderson, 522 S.W.2d 690 (Tex.1975); Hallaway v. Thompson,148 Tex. 471, 226 S.W.2d 816 (1950). Statutes of limitations are not directed to the merits of any individual case, they are a result of the legislative assessment of the merits of cases in general. The fact that a meritorious claim might thereby be rendered nonassertible is an unfortunate, occasional by-product of the operation of limitations. All statutes of limitations provide some time period during which the cause of action is assertible. However, preclusion of a legal remedy alone is not enough to justify a judicial exception to the statute. The primary purpose of limitations, to prevent litigation of stale or fraudulent claims, must be kept in mind. See Note, 30 Sw.L.J. 950 (1976).

This Court has specifically limited its prior holdings regarding this discovery rule in malpractice cases. In Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967), this Court limited its holding to causes of action in which a foreign object is left in the body of a patient, noting that in this type of case there is an "inability to know of the negligent act" and that it is a "peculiar type of case which is not particularly susceptible to fraudulent prosecution." This same rationale was also expressed in the "vasectomy" case, Hays v. Hall, 488 S.W.2d 412 (Tex.1973). There this Court held "that in malpractice cases arising from vasectomy operations the Statute of Limitations commences to run on the date of the discovery of the true facts concerning the failure of the operation, or from the date it should, in the exercise of ordinary care and diligence, have been discovered." 488 S.W.2d at 414. In Gaddis v. Smith, supra this Court quoted with approval, the following language from Fernandi v. Strully, 35 N.J. 434, 173 A.2d 277 (1961):

(T)he question when a cause of action accrues is a judicial one, and to determine it in any particular case is to establish a general rule of law for a class of cases, which rule must be founded on reason and justice. . . .

In the absence of legislative definition and specification, the . . . courts have often been called upon to delineate the statute; they have conscientiously sought to apply it with due regard to the underlying statutory policy of repose, without, however, permitting unnecessary injustices. . . . (I)n still other instances they have declined to find the bar inequitable though the plaintiff admittedly knew nothing about the cause of action until shortly before the institution of his action; in reaching this result they were not unaware of the individual injustice to the plaintiff but presumably determined that, on balance, it was outweighed by the need for repose and the danger that a different approach might undermine the statutory goal.

173 A.2d at 285.

Immediately following the above quoted language, the New Jersey Court in Fernandi v. Strully distinguished the "foreign object" case from other types of medical malpractice cases, noting that it "does not raise questions as to (plaintiff's) credibility nor does it rest on matters of professional diagnosis, judgment or discretion." In such a case, "the lapse of time does not entail the danger of a false or frivolous claim nor the danger of a speculative or uncertain claim."

The case before us however does "rest on matters of professional diagnosis, judgment or discretion." This distinction between an "alleged misdiagnosis" case and a "foreign object" case was also clearly drawn in Owens v. White, 380 F.2d 310 (9th Cir. 1967), in the following language:

Extension of the discovery rule to encompass a case of the type involved here would subject physicians to the possibility of liability, or at least to the embarrassment and expense of litigation, upon claims of mistaken diagnosis of any illness, however great may have been the lapse of time between the date of cessation of the doctor-patient relationship and the formal prosecution of the claim. The danger of "fraudulent and stale" claims, which the Idaho court recognized to be diminished in foreign object cases, is obviously enhanced when the claim of medical malpractice is predicated upon alleged misdiagnosis. In such a case, unlike the foreign object situations, not even the fact of injury can always be clear. Even in its present stage of advanced development, medicine is not an exact science. Symptoms and diseases thought at one time, even recently, to fall into one category are later discovered, through the evolution of the science, to fall...