Yoshizaki v. Hilo Hospital

• Decision Date: 01 May 1967
• Docket Number: No. 4511,4511
• Citation: 427 P.2d 845,50 Haw. 1
• Parties: Hatsumi YOSHIZAKI v. HILO HOSPITAL, by its Managing Committee.
• Court: Hawaii Supreme Court

Page 845

427 P.2d 845

50 Haw. 1

Hatsumi YOSHIZAKI v. HILO HOSPITAL, by its Managing Committee.

No. 4511.

Supreme Court of Hawai'i.

May 1, 1967.

Syllabus by the Court

1. When notice of appeal is prematurely filed but within the proper appeal period appellant serves and files an amended designation of record referring to the notice of appeal on file, this serves to give life to, and in effect refile, said notice of appeal.

2. When a plaintiff has suffered injury from a radiation treatment to which she submitted as a result of a diagnosis of cancer and alleges a cause of action in tort on the ground that the diagnosis was incorrect and negligent and the radiation treatment was unnecessary, and it appears that the deleterious effects of the treatment manifested themselves more than two years before the bringing of the action, the claim is barred by the two-year statute of limitations (R.L.H.1955, § 241-7) irrespective of the date of discovery of the fault in the diagnosis.

3. R.L.H.1955, § 241-7, limiting the time for bringing an action for injuries to the person, makes no distinction between actions sounding in tort and in contract, and is applicable to medical malpractice actions irrespective of the form of the action. George S. Yuda, Hilo (Ushijima & Nakamoto, Hilo, of counsel), for plaintiff-appellant.

Alexander C. Marrack, Honolulu (Robertson, Castle & Anthony, Honolulu, of counsel; Thomas M. Waddoups, Honolulu, on the brief), for defendant-appellee.

Before RICHARDSON, C. J., and CASSIDY, WIRTZ, LEWIS and MIZUHA, JJ.

LEWIS, Justice.

I.

At the outset we are confronted with a jurisdictional question. Defendant-appellee asserts that the appeal was taken prematurely. Notice of appeal was filed May 28, 1965, at which time the court had merely rendered its decision that summary judgment would be entered in accordance with defendant's motion. This decision, filed April 30, 1965, was entitled 'Order on Defendant's Motion for Summary Judgment,' and concluded with the statement: 'Motion for summary judgment is hereby granted.' Plaintiff mistakenly interpreted this to be a judgment. She appealed from 'the Order on Defendant's Motion for Summary Judgment and Summary Judgment for the Defendant * * * entered herein on April 30, 1965.' Subsequently, on June 30, 1965, judgment was entered. The record does not contain notice of entry of judgment pursuant to H.R.C.P., Rule 77(d), but plaintiff's counsel soon learned of the judgment. He promptly served and filed an amended designation of the record, referring to the appeal as 'taken by Notice of appeal filed on the 28th day of May, 1965.' A majority of the court, consisting of the Chief Justice and Justices Lewis and Mizuha, is of the opinion that this amended designation served to give life to, and in effect refile, the notice of appeal of May 28, 1965 to which it referred; that the designation of the correct date of the judgment in the notice of appeal was not crucial; ¹ and that under the principles laid down in In the Matter of Dean's Trust, 47 Haw. 304, 387 P.2d 218, the appeal is before us. While the two remaining justices do not agree, they deem themselves bound by the majority ruling in this matter and join in Part II of the opinion on the merits.

II.

Summary judgment was entered for defendant on the ground that plaintiff's action was barred by R.L.H.1955, § 241-7, the two-year statute of limitations applicable to personal injury actions. Plaintiff's appeal brings before the court the question when the statute of limitations begins to run in a malpractice suit, and the further question as to the applicability of R.L.H.1955, § 241-1, the six-year statute relating to actions ex contractu.

The complaint was filed September 17, 1963. Pursuant to H.R.C.P., Rule 3 this constituted the commencement of the action. The complaint was in four counts, three sounding in tort and one in contract.

As her first claim, plaintiff alleged that defendant hospital, through its employee and pathologist, one Dr. Dickelmann, undertook to and did furnish pathological services between June 27, 1959 and July 5, 1959, consisting in examination and diagnosis of an ailment in plaintiff's neck area, for which purpose she entered the hospital; that Dr. Dickelmann, in examining and making laboratory tests of plaintiff's neck tissues, negligently diagnosed the neck tissues as cancerous when in fact they were not; that by reason thereof plaintiff underwent injurious radiation treatment at Queen's Hospital, which was unnecessary; that the radiation treatment caused permanent damage to her neck and throat area; and that plaintiff has been compelled to undergo tracheotomy and further surgery as a result of the radiation treatment and the damage that it caused. By answers to requests for admissions it was brought out that the X-ray treatment was administered during the period July 27, 1959 to August 21, 1959.

Under the two-year statute of limitations (§ 241-7), in order to escape the bar of the statute the cause of action must have accrued no earlier than September 17, 1961. Plaintiff alleged in her complaint that she 'had no knowledge of the negligent actions of Dr. Lorin E. Dickelmann, as alleged herein, until after September 19, 1961.' However, plaintiff argued in her brief that 'the period of limitations does not start to run until the date of discovery of the wrongful act or the date when by the exercise of reasonable diligence that act should have been discovered.' (Emphasis added.) At the oral argument, plaintiff's counsel conceded that, under the line of cases which he seeks to have this court follow, ² the circumstances that led to discovery of the wrongful act should have been alleged, that it would be a question of fact as to when discovery should have been made, and that the complaint would have to be amended in order to come under the rationale of the cases cited by plaintiff. Thus plaintiff's position is that the statute of limitations did not start running until she knew or should have known that Dr. Dickelmann was negligent.

Were we able to agree that the running of the statute of limitations is deferred until discovery of or reasonable opportunity to discover the cause of action, our task would be easier. However, we do not deem it within our prerogative to graft such a provision onto the statute. Where the legislature has intended to provide for discovery of the cause of action it has so stated, as in R.L.H.1955, § 241-19, discussed infra. Whether this state should have a special malpractice statute providing for discovery of the cause of action, and if so whether there nevertheless should be an overall limit on the time allowed for suit, are matters for the legislature to decide. Only the legislature can give the matter the complete treatment on policy grounds which it merits.

In the present case it is evident that there were four different things occurring or which may have occurred at different times, i. e., the incorrect and negligent diagnosis the X-ray treatment; the suffering of damage from the treatment; and the discovery of the fault in the diagnosis. We hold that the statute of limitations commenced running at the time of the suffering of damage from the treatment, and was not deferred until the discovery of the fault in the diagnosis.

At what point did damage from the X-ray treatment manifest itself? Defendant requested an admission that plaintiff, on December 12, 1960, wrote to the doctor who had administered the X-ray treatment, stating that she had been advised that she had received more radiation than she could take. Plaintiff admitted writing to this doctor but stated that she could not admit or deny the matter set forth in the request. However, from the pleadings and the facts that do appear we take it that plaintiff knew before September 17, 1961 that she had been burned by the radiation treatment, even though she did not yet know that the treatment from which she thus suffered was unnecessary. It is to be noted that the complaint alleges merely that plaintiff 'had no knowledge of the negligent actions of Dr. Lorin E. Dickelmann until after September 19, 1961.' It does not allege that plaintiff was without knowledge that damage had been done by the radiation. However, plaintiff under the terms of the remand should not be foreclosed from amending in the court below should she be in a position to allege facts and circumstances presenting a genuine and material issue of fact as to when damage from the radiation first manifested itself, for the consideration of the court. The significance of this issue of fact is that, in our opinion, the statute of limitations does not commence running on a cause of action in tort for medical malpractice prior to the time when the patient has suffered deleterious effects. ³ Cf., Hahn v. Claybrook, 130 Md. 179, 100 A. 83, 86, L.R.A.1917C, 1169; Vaughn v. Langmack, 236 Or. 542, 564, 390 P.2d 142, 152 (dissenting opinion of Sloan, J.). We proceed to further examination of this point.

The applicable statute, R.L.H.1955, § 241-7, as amended (Supp.1965), provides that actions for the recovery of compensation for damage or injury to person or property 'shall be instituted within two years after the cause of action accrued, and not after', with certain exceptions incorporated by a reference to section 241-12, which relates to persons under disability and is inapplicable here. The statute does not begin to run until the cause of action accrues, ⁴ and there is no cause of action for negligence without damages. ⁵ However, the commencement of the running of the statute of limitations is not dependent upon the development of the full damages. ⁶

As to when there is damage, we find the rule of Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949) ⁷ applicable in this class of cases. ⁸ Urie was a workmen's compensation case which expressed a rule that had been followed in Hawaii in Silva v. Wheeler & Williams,...