Ruth v. Dight

Citation75 Wn.2d 660,453 P.2d 631
Decision Date10 April 1969
Docket NumberNo. 39714,39714
CourtWashington Supreme Court
PartiesLillie M. RUTH and Nelvin W. Ruth, her husband, Appellants, v. E. K. DIGHT, M.D. and Jane Doe Dight, his wife; Evelyn M. Sutton, Executrix of the Estate of E. K. Dight; and Missionary Sisters of the Sacred Heart, Respondents.

Langlie & Praeger, John R. Praeger, Seattle, for appellants.

Williams, Lanza, Kastner & Gibbs, Henry E. Kastner, Seattle, for respondents.

HALE, Judge.

There is a saying that what one does not know does not hurt him, but, when it comes to surgical operations, this old bromide has turned out to be no more than half a truth. Nature has a mysterious way at times of hiding mishaps in surgery, and cases are legion where foreign objects such as sponges, scalpels, forceps and hemostats have been inadvertently left in a surgical wound and the patient remained oblivious of it for years afterward. Although on discovery of the oversight the surgeon can later provide a medical remedy, the statute of limitations as construed by this court usually blocks a legal remedy.

Plaintiff Lillie M. Ruth commenced this action in 1967 against her surgeon's estate and the hospital alleging medical malpractice committed in 1944. Confronted by the statute of limitations and our rigid application of it in Lindquist v. Mullen, 45 Wash.2d 675, 277 P.2d 724 (1954), the trial court ordered plaintiff's complaint against both the estate and hospital dismissed with prejudice, and plaintiff appeals the final order of dismissal. There is no doubt that the principles and rationale declared in Lindquist were controlling and that the learned trial judge correctly applied them to the complaint.

The appeal from the order of dismissal--an order final in nature and having the properties of a judgment--renews the question of the statute of limitations' it also questions the application of the nonclaim statute to the doctor's estate. The first question, however, is whether Lindquist v. Mullen, Supra, should be overruled. If we overrule it, then we must next decide if the nonclaim statute, RCW 11.40.010, barring claims against a decedent's estate filed more than 6 months after first publication of notice to creditors, precludes a malpractice claim filed long after the 6 months.

The complaint here is designed to bring this case within what has now become a discernible subclassification of medical malpractice cases arising from the presence of foreign articles and substances left inadvertently advertently in surgical wounds and discovered by the patient long after the operation. Plainitff alleges that in July, 1944, while under the care and treatment of Dr. E. K. Dight, then a practicing physician in Seattle, she was admitted at his direction to Columbus Hospital--an institution since renamed St. Francis Xavier Cabrini Hospital. While there, she alleges, the doctor, acting in conjunction with the hospital and its staff and pursuant to the agreement of patient, doctor, hospital and staff, performed a hysterectomy on her. She says that throughout the surgical procedure she was unconscious from a general anesthetic. She adds that, just before becoming unconscious, she knew that Dr. Dight and a number of nurses and staff members of the hospital were present in the operating room, but that she then became unconscious and remained so throughout the operation.

Plaintiff alleges that, after the operation, her incision healed and she returned to her normal duties, but that she 'experienced recurrent pain in her lower abdomen, in varying degrees, which caused extreme pain and discomfort over some period of time.' At intervals during the 20-year period following the operation, 'plaintiff sought the assistance of physicians' who treated her for her discomfort. Her physicians were unable to determine the source of the pain and "heaviness' in her lower pelvic area, but were able to treat plaintiff's symptoms with drugs and with diet restrictions.'

The complaint then goes on to say that plaintiff's condition worsened and on February 22, 1966, an exploratory operation was performed on her during wich her surgeon discovered in her lower abdomen a piece of woven fabric called a 'surgical sponge' to which the surrounding tissue had become adhered. With the removal of the sponge and closing of the incision, her recovery was uneventful. Plaintiff pleads that, during the nearly 22-year interval between Dr. Dight's operating on her in July, 1944, and a different doctor's removal of the surgical sponge in February, 1966, neither she nor her several attending physicians had 'any knowledge of or reason to suspect' the presence of the surgical sponge in her abdomen.

Finally, plaintiff alleges that the sponge was left in her abdomen and resulting injuries incurred because of the negligence of Dr. Dight and the defendant hospital's staff members and employees who were present in the operating room during her operation in July, 1944. She alleges that the defendant hospital had complete control over its operating room and surgical facilities, and over its nurses, anesthesiologists and other staff members present in the surgery during the operation. She asks damages for pain, loss of time from employment, and expenses and costs of the subsequent exploratory surgery from both the estate of Dr. Dight and the Missionary Sisters of the Sacred Heart who owned and operated the hospital.

The record shows that Dr. E. K. Dight, the surgeon who had performed the hysterectomy in July, 1944, died August 21, 1964, and that his surviving spouse, now Evelyn M. Sutton, was thereafter appointed executrix of his estate. Notice to creditors, according to the agreed facts, was first published October 28, 1964, but plaintiff's creditor's claim embodying the instant complaint for malpractice was not filed in the estate until December 1, 1966--about 25 months after the first publication of notice to creditors. Following the estate's rejection of the plaintiff's claim on February 9, 1967, the instant action was commenced March 9, 1967--the estate still being open.

Both the defendant estate and defendant hospital moved to dismiss the complaint on the ground that the action was barred by the 3-year statute of limitations (RCW 4.16.010 and RCW 4.16.080(2)); but defendant estate's motion rests on the additional ground that the nonclaim statute, RCW 11.40.010 and RCW 11.40.080 (precluding claims against decedent estates not filed within 6 months of the first publication of notice to creditors), also bars the instant action.

The problem of applying the statute of limitations correctly in medical malpractice cases has been a vexing one and a continuing source of judicial uncertainty. Our opinion in Lindquist v. Mullen, 45 Wash.2d 675, 277 P.2d 724 (1954)--holding that, in cases involving allegations of foreign substances left in surgical wounds, the statute of limitations commences to run when the act occurs, I.e., at the time the foreign article is enclosed in the incision--did little to quiet the matter. Thus, the Lindquist rule has since been under constant intellectual bombardment. These persistent attacks on the rule, illuminating as they do the results fostered by it, now compel us to reexamine the basic reasons for the statute and our interpretation of it to see if our traditional understanding of the legislative intention as asserted in Lindquist was correct.

There is nothing inherently unjust about a statute of limitations. Limitations on the time in which one may sue also limit the time in which another may be sued. If one cannot bring an action, by the same token he cannot compel another to defend it. Statutes of limitations, although having their origins in legislative proceedings--aside from equitable principles of laches and estoppel--thus contemplate that a qualified freedom from unending harassment of judicial process is one of the hallmarks of justice. No civilized society could lay claim to an enlightened judicial system which puts no limits on the time in which a person can be compelled to defend against claims brought in good faith, much less whatever stale, illusory, false, fraudulent or malicious accusations of civil wrong might be leveled against him.

In applying the statutes of limitation, the courts have made many assumptions. Stale claims, from their very nature, are more apt to be spurious than fresh; old evidence is more likely to be untrustworthy than new. Time dissipates and erodes the memory of witnesses and their abilities to accurately describe the material events. In time witnesses die or disappear, and the longer the time the more likely this will happen. With the passing of time, minor grievances may fade away, but they may grow to outlandish proportions, too. Finally, and not to be ignored, is the basic philosophy underlying the idea that society itself benefits, except in capital cases, when there comes a time to everyone, be it long or short, that one is freed from the fears and burdens of threatened litigation.

While it has been a long cherished ambition of the common law to provide a legal remedy for every genuine wrong, it is also a traditional view that compelling one to answer stale claims in the courts is in itself a substantial wrong. After all, when an adult person has a justiciable grievance, he usually knows it and the law affords him ample opportunity to assert it in the courts. Consequently, as a matter of basic justice, the courts usually have a cogent reason to give limitation statutes a literal and rigid reading, and to declare that the right to sue begins with the wrongful acts and ends with the statutory period unless earlier terminated by laches or estoppel. The Lindquist rationale comports with these principles and assumptions.

But what happens to the concepts of fundamental fairness and the common law's purpose to provide a remedy for every genuine wrong when, from the circumstances of the wrong, the injured part...

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