Tantish v. Szendey

Citation182 A.2d 660,158 Me. 228
PartiesMarjorie C. TANTISH v. Dr. Andrew SZENDEY.
Decision Date02 July 1962
CourtMaine Supreme Court

Carl R. Wright, Skowhegan, for plaintiff.

Robert W. O'Connor, Locke, Campbell, O'Connor & Lund, Augusta, for defendant.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY and SULLIVAN, JJ.

WILLIAMSON, Chief Justice.

This malpractice action is before us on report and an agreed statement of facts. The defendant surgeon contends that the action is barred by the statute of limitations. For our purposes in testing the applicability of the statute it appears: that the alleged negligence lies in the failure of the defendant to remove a tubing inserted by him in the plaintiff's back in the course of an operation on September 5, 1956; that the defendant treated the plaintiff through October 27, 1956; that the plaintiff was not aware until July 21, 1958 of a foreign substance, that is to say, of the tubing, in her back, or of consequential damage and injury therefrom; that the defendant had no knowledge of the tubing in the plaintiff's back until after the discovery thereof by the plaintiff; and that the present action was commenced on July 20, 1960 by service of a complaint and summons on the defendant. Maine Rules of Civil Procedure, Rule 3.

The plaintiff makes no charge of negligence on the part of the surgeon during the postoperative period ending October 27, 1956. The negligence of which she complains consists only of the failure to remove the tubing on the completion of the operation. There is no assertion of negligence in failing to find and remove the tubing at a later time. We also note there is no suggestion of fraudulent concealment of the situation by the defendant which might under certain circumstances toll the statute. Further, there is no charge that the plaintiff failed reasonably to discover the tubing prior to July 21, 1958. In brief, we have before us the application of the statute of limitations to the case wherein a foreign substance was negligently left in the patient's body by the surgeon in the course of an operation in September 1956 and not reasonably discovered until July 1958, with no fraudulent concealment or other negligence on the part of the surgeon.

The statute of limitations reads:

'Actions for assault and battery, and for false imprisonment, slander, libel and malpractice of physicians and all others engaged in the healing art shall be commenced within 2 years after the cause of action accrues.' R.S. c. 112, § 93.

The decisive question is this: When did the action accrue? If the action accrued at the time of the operation in September 1956, the statute is a bar. If the action accrued when the tubing was discovered in July 1958, the action was seasonably brought.

In our opinion the action accrued at the time of the operation and specifically when the surgeon failed to remove the tubing on completion of the operation. The nature and time of the negligent act charged is tied plainly and with certainty to the fact of the operation.

On the one hand there is what appears to be justice for the patient in commencing the accrual of the right of action when the negligence of the defendant is discovered, or reasonably should have been discovered and not before. How, says the patient, may I as a practical matter bring an action until the wrong, that is to say, the failure to remove the foreign substance, is known to me?

On the other hand, the surgeon may with justice urge that the statute of limitations is a statute of repose designed by the Legislature to cut off claims which grow increasingly stale with greater age. The production of evidence and records necessary to meet malpractice claims becomes progressively more difficult with time.

Meritorious claims may, it is true, be barred by commencing the running of the statute from the time of the negligent act when discovery is later made. Statutes of limitations in general, however, in their operation cut off both meritorious and unmeritorious claims. It is well understood that the purpose of such statutes is to bring repose and security to persons who might otherwise be faced for long periods with the possibility of meeting claims under more difficult conditions. The decision here rests upon the choice to be made between competing policies.

In the event the discovery of the legal wrong comes after the expiration of the statutory period of limitations, there is obviously a hardship to the plaintiff. The possibility of hardship, however, does not, in our opinion, outweigh the need of certainty in establishing the time when an action accrues under the circumstances here disclosed. In retrospect the time of the particular wrongful act is here readily fixed. We do not have the case of negligence arising in the course of continuous treatment. In such a case it would be difficult and perhaps impossible to determine the precise moment in which a particular negligent act or acts occurred.

In the instant case the tubing was discovered in July 1958 about six weeks less than two years after the operation. Within this period the plaintiff could have commenced her action with no question of the applicability of the statute. The relative lack of hardship to the plaintiff arising from the discovery before and not after the two-year period, however, is given no weight by us in determining the applicable rule. It is more properly material for the Legislature to consider in fixing the statutory period.

In placing the accrual of the action at the time of the operation, we follow the weight of authority, namely, that the cause of action accrues from the date of the wrongful act or omission. Annot., 80 A.L.R.2d 368, 387, 388, 397.

In Cappuci v. Barone, 266 Mass. 578, 165 N.E. 653, 654, in which a surgeon had failed to remove a piece of gauze and a gauze sponge in the course of an operation, the principle is stated as follows:

'Upon this branch of the defense the single question is, When did the cause of action accrue? The defendant as a surgeon, on May 11, 1924, impliedly undertook to use care in the operation which he was about to perform. Any act of misconduct or negligence on his part in the service undertaken was a breach of his contract, which gave rise to a right of action in contract or tort, and the statutory period began to run at that time, and not when the actual damage results or is ascertained, as the plaintiff contends. The damage sustained by the wrong done is not the cause of action; and the statute is a bar to the original cause of action although the damages may be nominal, and to all the consequential damages resulting from it though such damages may be substantial and not foreseen.'

See also Maloney v. Brackett, 275 Mass. 479, 176 N.E. 604.

In New York it has been held that a malpractice action accrues when a wrongful act is committed and not as of the date damage was discovered or reasonably should have been discovered. Budoff v. Kessler, 284 App.Div. 1049, 135 N.Y.S.2d 717; Golia v. Health Insurance Plan of Greater New York, 6 A.D.2d 884, 177 N.Y.S.2d 550; Affirmed 7 N.Y.2d 931, 197 N.Y.S.2d 735, 165 N.E.2d 578; Dorfman v. Schoenfeld, 26 Misc.2d 37, 203 N.Y.S.2d 955. Other illustrative cases are: Murray v. Allen, 103 Vt. 373, 154 A. 678; Giambozi v. Peters, 127 Conn. 380, 16 A.2d 833. (See comment 144 A.L.R. 211.); Shearin v. Lloyd, 246 N.C. 363, 98 S.E.2d 508.

The contrary view is taken by the New Jersey Court in Fernandi v. Strully, 35 N.J. 434, 173 A.2d 277 (1961), in which it was held that 'the period of limitations on a cause of action for malpractice based on negligent failure to remove a foreign object from patient's body during course of an operation began to run when the patient knew or had reason to know about the foreign object and existence of a cause of action based upon its presence; * * *.' An earlier decision Weinstein v. Blanchard, 109 N.J.L. 332, 162 A. 601, was disapproved by the Court insofar as it embodied a contrary view. The arguments for and against the rule and the competing policies are ably set forth in opinions of Justice Jacobs for the Court and of Justice Hall in dissent.

The precise question of when an action for malpractice accrues in the undiscovered foreign substance situation has not arisen in our Maine cases. It is of interest, however, that in the Federal Courts it became necessary to find and apply Maine law. Metallic needle fragments left in the plaintiff's body in the course of an operation at the Veterans' Administration Hospital in Togus in 1947 were not discovered until 1954. The Court of Appeals, First Circuit, held that under the Federal Tort Claims Act a 'claim accrues' when a private person similarly situated would become suable under the law of the state. In Tessier v. United States, 1 Cir., 269 F.2d 305, 309, Judge Magruder, writing for the Court. said:

'The tort alleged by appellant Tessier took place in Maine. It seems clear that the law of that state gave him a right of action as soon as the metal fragments were abandoned in him. There was a legal wrong on June 7, 1947, and suit thereon was not suspended because of any duty imposed on the United States to remove the fragments. See Jones v. Grand Trunk Railway Co., 1882, 74 Me. 356; Perkins v. Maine Central R. R. Co., 1881, 72 Me. 95. See also Wilcox v. Plummer, 1830, 4 Pet. 172, 29 U.S. 172, 7 L.Ed. 821. Hence his claim accrued within the meaning of 28 U.S.C. § 2401(b) in 1947.'

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  • Wyman v. U.S. Surgical Corp., 1:18-cv-00095-JAW
    • United States
    • U.S. District Court — District of Maine
    • 22 Abril 2020
    ...He just did not know it.In this sense, Mr. Wyman's special damage is like the injury to the patients in the Tantish v. Szendey , 158 Me. 228, 182 A.2d 660 (1962), and Myrick v. James cases. These cases involved surgical procedures where a surgeon negligently left a foreign object in a patie......
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    ...James, 444 A.2d 987 (Me.1982) (statute-of-limitation discovery rule applied in medical malpractice cases), overruling Tantish v. Szendey, 158 Me. 228, 182 A.2d 660 (1962) (injury from surgeon's leaving foreign object in patient's body occurred at time of operation). See also Anderson v. Nea......
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