Taylor v. Karrer

• Decision Date: 21 July 1976
• Docket Number: No. 40538,40538
• Citation: 196 Neb. 581,244 N.W.2d 201
• Parties: Natalie TAYLOR, Appellant, v. R. W. KARRER and Gerhard W. Schmitz, Appellees.
• Court: Nebraska Supreme Court

Page 201

244 N.W.2d 201

196 Neb. 581

Natalie TAYLOR, Appellant, v. R. W. KARRER and Gerhard W. Schmitz, Appellees.

No. 40538.

Supreme Court of Nebraska.

July 21, 1976.

Syllabus by the Court

1. Section 25--222, R.S.Supp., 1974, provides that an action for professional negligence must be brought within 2 years provided that if the cause of action is not discovered and could not be reasonably discovered within such 2-year period, then the action may be commenced within 1 year from the date of such discovery or from the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier.

2. A cause of action for medical malpractice does not accrue until the patient discovers, or in the exercise of reasonable diligence should have discovered, that an act of malpractice occurred.

3. The Legislature may make a reasonable classification of persons, corporations, and property for purposes of legislation concerning them, but the classification must rest upon real differences of situation and circumstances surrounding the members of the class relative to the subject of legislation which render appropriate its enactment.

4. While it is competent for the Legislature to classify for purposes of legislation, the classification, to be valid, must rest on some reason of public policy, some substantial difference of situation or circumstance, that would naturally suggest the justice or expediency of diverse legislation with respect to the objects to be classified.

5. A professional act or service is one arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual, rather than physical or manual.

6. It is a general rule that a statute must be reasonably clear and difinite to be valid. But a statute which is otherwise valid will not be held void or unintelligible and meaningless unless it is so imperfect and deficient in its terms as to render it impossible of execution and enforcement.

Wright & Simmons, Scottsbluff, for appellant.

Van Steenberg, Brower, Chaloupka, Mullin & Holyoke, Harry R. Meister, Scottsbluff, for appellees.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

NEWTON, Justice.

This is an action for malpractice against two medical practitioners. Defendants plead the statute of limitations and this issue was presented in a bifurcated trial. The court found that the action was barred by the statute of limitations. We affirm the judgment of the District Court.

On appeal plaintiff asserts that the finding of the court is not supported by the evidence and that section 25--222, R.S.Supp., 1974, is unconstitutional. There is very little conflict in the evidence. The record discloses that in the summer of 1967, Dr. R. W. Karrer ascertained that plaintiff had a thyroid condition and referred her to his codefendant Dr. Gerhard W. Schmitz who advised surgery. Plaintiff was fully advised as to her condition, the various methods of treatment, and all possible consequences, including the fact that hypoparathyroidism sometimes unavoidable resulted. Following surgery on July 24, 1967, her parathyroid tissue failed to function and control the calcium level in her body with the result that she developed hypoparathyroidism and had an abnormally low calcium level. This resulted in her sustaining muscular spasms and at times tetany, which is a severe and widespread form of muscular spasm. The failure of the parathyroid tissue to function is usually transient in nature but sometimes is permanent as was the case with plaintiff. For at least a year the defendant doctors had hopes that she would improve and the parathyroid tissue commence to function. Her condition was treated by administering medicants containing calcium and vitamin D. It is not disputed that the treatment was proper except that it was prescribed in insufficient quantities. Plaintiff was last treated by Dr. Schmitz on January 15, 1968, and told to return in 1 month. She did not do so. Plaintiff was last treated for hypoparathyroidism by Dr. Karrer on April 22, 1969. This action was filed against Dr. Karrer on January 19, 1973, and on February 1, 1974, Dr. Schmitz was made a defendant.

In January 1969, plaintiff consulted Dr. Julian Maier in Denver, Colorado. Dr. Maier informed her that her trouble with tetany and spasms was due to her low calcium count and prescribed for the condition. She improved temporarily. As a result of her low calcium content, she developed cataracts and consulted Dr. John E. Edwards who refused to operate until her blood calcium was brought up to normal range. He referred her to Dr. James Philip Clarke. Dr. Clarke succeeded in restoring her calcium content to a normal level and stabilizing it. Her cataracts were subsequently removed by Dr. Edwards. The medication prescribed by Dr. Clarke was similar to that prescribed by the defendants but given in greatly increased quantities. Plaintiff, after treatment by Dr. Clarke, never again sustained tetany but continued to have muscular spasms at times. All the doctors advised plaintiff that her condition of hypoparathyroidism and its attendant symptoms, despite the most expert medical care, sometimes followed thyroid surgery. It appears that the primary contention of plaintiff and the basis for this action is that the treatment prescribed and followed by defendants was inadequate.

Section 25--208, R.S.Supp., 1974, provides for a 2-year limitation on the time to bring an action for malpractice. Section 25--222, R.S.Supp., 1974, provides that an action for professional negligence must be brought within 2 years provided that: '* * * if the cause of action...