Summary
holding professional negligence suit was subject to tolling for a mental disorder
Summary of this case from Budler v. General Motors Corp.Opinion
No. 82-301.
Filed December 9, 1983.
1. Medical Malpractice: Limitations of Actions. In cases of professional negligence the discovery rule governs accrual of a cause of action, i.e., a cause of action accrues when the malpractice is discovered or in the exercise of due diligence should have been discovered. 2. ___: ___. Neb. Rev. Stat. § 25-222 (Reissue 1979) is a codification of the discovery rule and the time limits for discovery of professional negligence. 3. Limitations of Actions: Insanity: Words and Phrases. In Neb. Rev. Stat. § 25-213 (Reissue 1979) insanity means such condition of mental derangement which actually prevents the sufferer from understanding and protecting his or her legal rights. 4. Medical Malpractice: Limitations of Actions. Under the discovery rule one suffering a legal disability can, upon removal of such disability, commence an action for professional negligence as provided under Nebraska law.
Appeal from the District Court for Douglas County: SAMUEL P. CANIGLIA, Judge. Reversed and remanded.
Richard J. Dinsmore, and Breeling, Welling and Place, for appellant.
Lyman L. Larsen and William M. Lamson, Jr., of Kennedy, Holland, DeLacy Svoboda, for appellee Blodig.
Bren L. Buckley of Cline, Williams, Wright, Johnson Oldfather, for appellee Hospital.
KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.
Joseph J. Sacchi appeals from a summary judgment granted to the defendant physician, John L. Blodig, and the defendant hospital, Creighton Memorial St. Joseph's Hospital, Inc. (Hospital). Summary judgment was granted upon the allegations contained in the pleadings. We reverse and remand for further proceedings.
Upon a motion for summary judgment a court examines the evidence to discover if any real issue of fact exists, takes that view of the evidence most favorable to the party against whom the motion is directed, and gives to that party the benefit of all favorable inferences which may reasonably be drawn from the evidence. Bank of Valley v. Shunk, 208 Neb. 200, 302 N.W.2d 711 (1981).
On September 6, 1967, Sacchi engaged the professional services of Blodig, a doctor of psychiatric medicine, for treatment of severe depression. Sacchi was admitted to the Hospital on October 31, and on November 4 Blodig diagnosed Sacchi's condition as "acute psychotic paranoid reaction." Blodig's treatment of Sacchi included 11 episodes of "electroshock therapy" from November 4 to November 24. On January 9, 1968, Sacchi was dismissed from the Hospital but remained under the care of Blodig until September 13, 1968, when Blodig readmitted Sacchi to the Hospital. Blodig's diagnosis on this readmission was "schizophrenic reaction, paranoid type." Blodig kept Sacchi in the Hospital until November 10, when Sacchi was discharged from Blodig's care and was dismissed from the Hospital. There was no service rendered by Blodig or the Hospital after November 10, 1968. Sacchi's "mental illness resulting in mental incompetency" was removed September 30, 1979. Sacchi filed his petition on September 17, 1980, which alleged that Blodig and the Hospital collaborated in a negligent diagnosis that Sacchi's condition was a psychosis, whereas Sacchi's true condition was mental incompetence attributable to a physical problem and not a mental disorder as diagnosed. Blodig and the Hospital filed separate motions for summary judgment, and each claimed that Sacchi's cause of action was barred by the statute of limitations under Neb. Rev. Stat. § 25-222 (Reissue 1979). The trial court sustained the motions for summary judgment, and Sacchi appeals from that ruling. Sacchi claims that, as a result of Neb. Rev. Stat. § 25-213 (Reissue 1979), his insanity tolled the statute of limitations and that 25-222 permitted him to file his petition within 1 year from the removal of his disability. Blodig and the Hospital counter that Sacchi's cause of action is barred by 25-222 because the petition was not filed within 10 years from the date of the last service rendered on November 10, 1968.
The issues involve interpretations of two statutes, namely, (1) whether the legal disability of insanity (25-213) tolls the statute of limitations prescribed by 25-222 and (2) whether 25-222 is a statute of unconditional repose so that any cause of action based on professional negligence is absolutely barred at the expiration of 10 years from the rendition of or failure to render the service which is the basis of the action.
Nebraska adopted the "discovery rule" by Spath v. Morrow, 174 Neb. 38, 43, 115 N.W.2d 581, 585 (1962): "[T]he cause of action . . . did not accrue until the plaintiff discovered, or in the exercise of reasonable diligence should have discovered [the malpractice] . . ." and no time limit was specified for such discovery. Seven years later the "discovery rule" was reiterated in Acker v. Sorensen, 183 Neb. 866, 872, 165 N.W.2d 74, 77 (1969): "This court is already committed to the discovery rule" (citing Spath v. Morrow, supra), but there still was no specified time during which discovery must be made.
With that background, 25-222 was enacted in 1972, namely: "Professional negligence; limitation of action. Any action to recover damages based on alleged professional negligence or upon alleged breach of warranty in rendering or failure to render professional services shall be commenced within two years next after the alleged act or omission in rendering or failure to render professional services providing the basis for such action; Provided, if the cause of action is not discovered and could not be reasonably discovered within such two-year period, then the action may be commenced within one 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; and provided further, that in no event may any action be commenced to recover damages for professional negligence or breach of warranty in rendering or failure to render professional services more than ten years after the date of rendering or failure to render such professional service which provides the basis for the cause of action."
A decade after enactment of 25-222, this court reaffirmed the discovery rule in Colton v. Dewey, 212 Neb. 126, 130, 321 N.W.2d 913, 916 (1982), when, after referring to Spath v. Morrow, supra, we stated: "[A]n action for malpractice did not accrue until a patient discovered, or in the exercise of reasonable diligence should have discovered, the malpractice. Thereafter, the Legislature limited that period of discovery to 10 years."
An examination of the statute discloses that 25-222 consists of one sentence with three distinct but interrelated parts in reference to knowledge affecting a cause of action under our discovery rule. First, there is that knowledge at the time of the occurrence. Such knowledge imposes the basic time limit of 2 years for commencement of the action. Second, there is the situation involving unknown malpractice which is later discovered or discoverable, that is, which becomes known or is knowable at some point in the future following the malpractice. In that situation the "discovery rule" applies and the 1-year period for filing the action is triggered (Spath and Acker). Third, there is the period during which a claimant shall have acquired knowledge within 10 years after the malpractice and shall have acted or the claimant will suffer the consequence that the cause of action is barred (Colton). In this manner 25-222 is a codification of the judicially developed "discovery rule," with a legislated limit of a previously unspecified time for discovering a cause of action.
Throughout this judicial and legislative development of the discovery rule, 25-213 has existed in the following form: "Actions by infants, persons insane or imprisoned; by or against nonresidents; exception comprehensive curative act. Except as provided in sections 76-288 to 76-298, if a person entitled to bring any action mentioned in this chapter, Chapter 23, article 24, and sections 81-8,209 to 81-8,239, except for a penalty or forfeiture, or for the recovery of the title or possession of lands, tenements or hereditaments, or for the foreclosure of mortgages thereon, be, at the time the cause of action accrued, within the age of twenty years, insane or imprisoned, every such person shall be entitled to bring such action within the respective times limited by this chapter after such disability shall be removed . . . ."
Before examining the effect of a legal disability upon the time limits found in 25-222, we must first reach the meaning of insane used in 25-213. In 54 C.J.S. Limitations of Actions 242 at 269 (1948), there is the statement: "The term `insane' . . . has been given a generic, rather than a technical, meaning, and has been held to mean such a condition of mental derangement as actually to bar the sufferer from comprehending rights which he is otherwise bound to know . . . ." See, also, Gottesman v. Simon, 169 Cal.App.2d 494, 337 P.2d 906 (1959); Hornig v. Hornig, 6 Mass. App. 109, 374 N.E.2d 289 (1978); Mtr. of Hurd v. County of Allegany, 39 A.D.2d 499, 336 N.Y.S.2d 952 (1972). For the purpose of 25-213 the word insane means such condition of mental derangement which actually prevents the sufferer from understanding his or her legal rights or instituting legal action. See Kyle v. Green Acres at Verona, Inc., 44 N.J. 100, 207 A.2d 513 (1965). Insanity within 25-213 results in an incapacity which disqualifies one from acting for the protection of one's rights. See, Wescott v. Upham, 127 Wis. 590, 107 N.W. 2 (1906); Western Coal Min. Co. v. Hilvert, 63 Ariz. 171, 160 P.2d 331 (1945); Terre Haute, etc., Traction Co. v. Reeves, 58 Ind. App. 326, 108 N.E. 275 (1915).
Discovery, as used in our "discovery rule," means that an individual acquires knowledge of a fact which existed but which was previously unknown to the discoverer. See, Myers v. Stratmann, 245 Iowa 1060, 65 N.W.2d 356 (1954); In re Mangan's Will, 83 N.Y.S.2d 393 (Broome Co. Sur. Ct. 1948).
According to the allegations in the pleadings, Blodig diagnosed Sacchi's condition as an acute psychotic paranoid reaction and schizophrenic reaction, paranoid type, and treated Sacchi from October 1967 to November 1968. Some of the treatment included 11 "electroshock" episodes and 130 days of confinement in the Hospital. Sacchi's condition persisted until November 1979. From such alleged circumstances it is a reasonable inference that Sacchi's condition may have come within the insanity provisions of 25-213. It would be a legal paradox to state that the insane are required to learn and comprehend facts which would put persons of ordinary intelligence and prudence on inquiry for discovery of malpractice. Clearly, the purpose of 25-213 is to lift the burden of severe time restrictions or limitations from those under legal disability, that is, from those who do not have the ability and capacity to protect their rights existing under our laws. Therefore, in keeping with our discovery rule to prevent manifest injustice, a person under a legal disability described in 25-213 is exempted from the provisions of 25-222 until the legal disability is removed. In the case at hand, if Sacchi is such a person within 25-213, then the action was commenced within 1 year after removal of his legal disability. Such determination of fact must be made, and for this reason further proceedings are required in the District Court.
Assuming that the contention of Blodig and the Hospital were correct and that the time limit in 25-222 is a statute of repose rather than a codification of the discovery rule, the fact remains that a cause of action for professional negligence exists at common law. We note that 25-213 has been amended twice in recent years — once in 1972, which is the same year 25-222 was enacted, and again in 1974. None of those amendments excluded professional negligence from the operation and effect of 25-213, although such statute regarding persons under legal disability does exclude certain situations from the effect of 25-213. By omitting professional negligence from those excluded situations mentioned in 25-213, the Legislature has dictated that the time limits for commencing an action based on malpractice shall not apply to persons under legal disability. Persons suffering mental derangement cannot be expected to evaluate and communicate information so that their rights can be protected and enforced. Nebraska has a long-standing policy of protection extended to those under legal disability who are, therefore, unable to help themselves. Were the limitation urged by Blodig and the Hospital accepted, such drastic and draconian definitude for commencement of an action would effectively eliminate a cause of action of one unable to protect himself or herself. See, Braden v. Yoder, 592 S.W.2d 896 (Tenn. App. 1979); Parlato v. Howe, 470 F. Supp. 996 (E.D. Tenn. 1979); Chaffin v. Nicosia, 261 Ind. 698, 310 N.E.2d 867 (1974). Any repose effectuated by expiration of 10 years from rendition of or failure to render service, as stated in 25-222, is neither absolute nor unconditional, for a person suffering a legal disability, as described in 25-213, upon removal of the legal disability can commence an action for professional negligence as provided under Nebraska law.
It was error to enter a summary judgment that Sacchi's cause of action was barred by the statute of limitations. For this reason the judgment of the District Court is reversed and the cause is remanded for further proceedings in accordance with this opinion.
REVERSED AND REMANDED.