Wilkinson v. Harrington

• Citation: 104 R.I. 224,243 A.2d 745
• Decision Date: 25 June 1968
• Docket Number: No. 251-M,251-M
• Parties: Winifred WILKINSON v. Peter F. HARRINGTON. Peter J. O'CONNELL, Administrator v. Peter F. HARRINGTON. Winifred WILKINSON v. John M. VESEY. Peter J. O'CONNELL, Administrator v. John M. VESEY. Winifred WILKINSON v. Russell R. HUNT. Peter J. O'CONNELL, Administrator v. Russell R. HUNT. P.
• Court: United States State Supreme Court of Rhode Island

Page 745

243 A.2d 745

104 R.I. 224

Winifred WILKINSON v. Peter F. HARRINGTON.

Peter J. O'CONNELL, Administrator v. Peter F. HARRINGTON.

Winifred WILKINSON v. John M. VESEY.

Peter J. O'CONNELL, Administrator v. John M. VESEY.

Winifred WILKINSON v. Russell R. HUNT.

Peter J. O'CONNELL, Administrator v. Russell R. HUNT.

No. 251-M.P.

Supreme Court of Rhode Island.

June 25, 1968.

Aisenberg, Decof & Dworkin, Leonard Decof, John H. Hines, Jr., Providence, for petitioner

Gunning & LaFazia, Edward L. Gnys, Jr. and V. James Santaniello, Providence, for John M. Vesey and Russell R. Hunt.

Hinckley, Allen, Salisbury & Parsons, Thomas D. Gidley, Providence, for Peter F. Harrington.

OPINION

KELLEHER, Justice.

This is a petition for certiorari to review certain rulings of law made by a trial justice of the superior court. The writ was issued and in compliance therewith the superior court has duly certified and transmitted all its records in each case for our inspection.

The record discloses that the present controversy stems from six negligence actions for malpractice brought against the three respondents, all of whom are licensed medical practitioners of this state. Three of the original suits were filed by Winifred Wilkinson for injuries directly sustained by her while she was allegedly under the care and treatment of these doctors; the remaining three suits were brought by her husband, Allen, for consequential damages. Subsequent to the initiation of these actions, Allen Wilkinson died. His death was noted on the record and the administrator of his estate was substituted as a party plaintiff. Since the administrator's suits are dependent on Winifred's success, we shall refer only to the actions she has brought against the three doctors.

The petitioner in July, 1951 came under the treatment and care of the present respondents-two of whom are radiologists while the third is a chest specialist. She was referred to these respondents by her family physician. After examining her, respondents diagnosed that petitioner was suffering from a malignant tumor located in the region of her chest. Radiation treatments were prescribed by the chest specialist and then administered by the radiologists for a period of time beginning on July 30, 1951 and ending approximately on January 21, 1952. The respondents contend that their examinations of petitioner subsequent to the radiation therapy disclosed that the malignancy had been arrested and she thereupon was referred back to her family physician.

Some time later petitioner's health began to deteriorate. In 1955 there appeared on petitioner's chest in the area where the x-ray cone had been aimed a small pinkish circle with a circumference about the 'size of a dime.' As time progressed, her condition worsened. The discolored circle on her chest gradually became larger and turned purple. Thereafter, petitioner's skin in this area blistered and these blisters broke and began weeping. This was followed by a breakdown of skin tissue which in turn led to an aperture in her chest. The aperture slowly grew until its circumference equaled that of a 'quarter.' To correct her exacerbating state of health petitioner has undergone approximately nine operations since her radiation treatments, some of which involved delicate skin grafting. There is no question that petitioner has sustained extraordinarily serious and complex injuries.

On April 26, 1962, petitioner commenced her action against respondents alleging that her injuries were a result of the negligent introduction of excessive amounts of X rays into her body. From this date, a procedural foray took place between counsel for petitioner and respondents which, if nothing else, served to bear cogent evidence of the salutary nature of simplified pleadings and discovery under the new rules of civil procedure of the superior court. The flow of declarations, demurrers and replications filed by the respective parties was staunched in 1965 when the superior court in essence upheld respondents' contention that petitioner's suit was barred by the operation of the statute of limitations. In this petition for certiorari petitioner seeks to review the rulings made by the trial justice.

The precise question raised by the decision of the trial justice, couched in its simplest form, is when does our statute of limitations begin to run in a medical malpractice case. Is it from the moment when the alleged negligent treatment was given, as respondents contend, or is it, as petitioner urges, from the time when she discovered or, in the exercise of due care, should have discovered that she was the victim of the physicians' negligent conduct? Essentially the decision of the trial justice stands in support of the position espoused by respondents.

At the outset we wish to direct a comment to respondents' argument as to whether this case is a proper one for the issuance of our writ of common-law certiorari. It is true that a petition for review by a writ of certiorari is addressed to the discretion of this court and such a writ is withheld in those instances where the petitioner has another express remedy available to him to review any errors of law complained of. Concededly, certiorari does not ordinarily lie for those seeking review of interlocutory orders or decrees. Cohen v. Superior Court, 39 R.I. 272, 97 A. 794; Parker v. Superior Court, 40 R.I. 214, 100 A. 305. But in cases of unusual hardship and in the furtherance of justice this court has permitted the use of the writ of certiorari to supplement the method of review which the law expressly provides. Parker v. Superior Court, supra. On occasion, again in the interest of justice, this court has heretofore allowed certiorari to be utilized as a vehicle by which petitioners can obtain immediate review, even though another remedy would be available later. Brickle v. Quinn, 63 R.I. 120, 7 A.2d 890; White v. White, 70 R.I. 48, 36 A.2d 661, 151 A.L.R. 1374; Conte v. Roberts, 58 R.I. 353, 192 A. 814. It is our belief that petitioner in this case would very likely sustain serious hardship and be greatly aggrieved if her only recourse to obtain review of the trial justice's rulings was by way of appeal after a full trial on the merits. Cf. Dyer v. Keefe, 97 R.I. 418, 198 A.2d 159. Accordingly, because of the peculiar circumstances presented in this case, we have decided to exercise our discretion and have granted certiorari in order to review the legal question raised by the decision of the trial justice relative to respondents' plea of the statute of limitations.

The Rhode Island general assembly has provided that all civil actions at law for personal injuries shall be brought '* * * within two (2) years next after the cause of action shall accrue and not after.' G.L.1956, § 9-1-14. Earlier we have held that this statute prescribes the period of limitation within which medical malpractice suits must be commenced. Griffin v. Woodhead, 30 R.I. 204, 74 A. 417.

The present controversy revolves around the word accrued as it appears in § 9-1-14. As counsel for both sides correctly state, the prime issue to be decided on this appeal is at what point in time does a cause of action accrue in medical malpractice cases. In substance, when does the statute of limiations begin to run in such suits, absent concealment or fraud on the part of the medical practitioner. It was conceded by counsel in oral argument that petitioner is not contending there was either fraud or concealment practiced by respondents. Both sides of the issue raised have been exhaustively treated in the written briefs submitted by counsel in the present matter. We wish to note at the outset that what we are deciding on this appeal is merely the law of this jurisdiction relative to the statute of limitations in medical malpractice cases. It is not our intention to decide how the law is to be applied to the facts in the present case. What we are deciding, is whether or not petitioner's cause survives the preliminary pleas in bar filed herein by respondents.

Initially we address our remarks to the argument of counsel for respondents who contend that the statute of limitations for personal injuries is clear and unambiguous and needs no construction; moreover, they assert that even if it were determined that the statute of limitations was in need of construction in its application to medical malpractice cases, we should refrain from doing so inasmuch as such a decision is pregnant with important policy considerations. They assert that the question should be left for the legislature's determination. We cannot yield to either contention. While this court has passed on § 9-1-14 on prior occasions, ¹ we have never had before us the question as to how the word accrued should be defined in the context of this statute when its application is sought in medical malpractice cases. There is a plethora of case law which involves the construction of statutes of limitations strikingly similar to the one in Rhode Island in cases like the one at bar and even the most cursory examination of such authorities unmistakably indicates that few courts indeed would support the contention that the statute is so clear as to warrant no construction thereof. See 80 A.L.R.2d 368, 144 A.L.R. 209, 74 A.L.R. 1317, for an extensive listing of the host of cases on this issue.

In regards to respondents' second contention, we are even less inclined to agree with them. The realities of the legislative process persuade us that courts should not defer questions to the enacting branch of state government merely because the questions may in some form or another relate to public policy. In a narrow view, hardly a case before a court is devoid of some public policy consideration. For courts to adopt the approach suggested by respondents would seriously retard the attainment of justice which, after all, is the true purpose of a court's existence. When presented with issues...