Cook v. Soltman , 96 Idaho 187 ( 1974 )

McQUADE, Justice.

This appeal involves a claim of malpractice by the plaintiff-appellant, Leroy Cook, against the defendant-respondent, Dr. Don Soltman. On June 22, 1962, Cook was involved in an accident in which a portion of a tree limb penetrated his back. Cook obtained the medical services of Dr. Soltman for treatment and removal of the limb. After the operation, Cook alleges he continued to have back pains and was unable to work. Cook also claims that although he sought professional diagnosis of the pain and suffering from time to time, it was not until April 19, 1972, that he learned that the cause of the pain was that portions of the tree limb and shirt had not been removed from his back.

On September 28, 1972, Cook filed an action in district court against Dr. Soltman alleging that he negligently failed to remove all of the tree limb and shirt from his back. The respondent moved to dismiss the complaint. Memoranda of authorities were submitted to the court by both parties. The district court ordered that the action be dismissed on February 27, 1973, stating,

“[I]t appearing that the claim against defendant physician [respondent] is not based upon a foreign object having been placed and left in plaintiff [appellant] by defendant physician, nor one of misdiagnosis by defendant physician, nor fraudulent concealment by the defendant physician, the same is therefore barred by the provisions of Idaho Code 5-214 [219] the applicable statute of limitations.”

Cook has appealed to this Court.

The initial assignment of error by Cook is that the district court erred in holding that his complaint was barred by the statute of limitations because the defense was not properly presented. Cook contends that I.R.C.P. 8(c) requires the statute of limitations defense to be specifically pleaded, and argues that since Dr. Soltman moved to dismiss the complaint for failure to state a claim upon which relief could be granted and then submitted memoranda on the statute of limitations, the defense was waived.

Cook acknowledged during the oral argument of this appeal that he did answer Dr. Soltman’s memoranda asserting the statute of limitations defense by submitting memoranda arguing that the limitation was not applicable, and therefore Cook had notice of the defense and an opportunity to respond. Based upon the memoranda submitted to it, the district court ordered that Cook’s complaint be dismissed.¹

The procedure followed by the district court was in accordance with I.R.C.P. 12(b)(7) which provides,

“[I]f, in an action in district court, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and, not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such motion by rule 56.” (Emphasis added)

The facts in this action clearly fall within the above procedure. Dr. Soltman filed a motion to dismiss for failure to state a claim upon which relief could be granted and then filed matters outside the pleading, 1. e., memoranda alleging that the statute of limitations barred Cook’s claim. Cook was given an opportunity to respond to the statute of limitations defense and answering memoranda were submitted. After the statute of limitations defense was fully argued before the district court, it ordered that Cook’s complaint be dismissed. The procedure of treating a Rule 12(b) (6) motion accompanied by materials outside of the pleadings as a motion for summary judgment was described in the case of Stewart v. Arrington Construction Company,²

“When a 12(b)(6) motion is made, supported by affidavits and other materials which the court chooses to consider, the motion is then properly treated as one for summary judgment. I.R.C.P. 12(b) and 56; Rush v. G-K Machinery Co., 84 Idaho 10, 367 P.2d 280 (1961). The use and effect of the summary judgment procedure is much like that of the pretrial conference. It helps to separate the real issues and facts from the spurious ones; to eliminate the chaff from the wheat. If the claims or defenses are all chaff, they are eliminated completely.” ³

Although the district court did not state that it was treating the respondent’s motion as a motion for summary judgment, it is clear that is what occurred from the procedure followed by the district court. The statute of limitations defense was properly presented to the district court for disposition and is properly before this Court on appeal.

The statute of limitations as it applies to malpractice actions⁴ was amended on July 1, 1971, and the question arises as to the applicable statute in this action in which the alleged malpractice occurred on June 22, 1962, and the action was filed on September 28, 1972. Both statutory provisions state that the two year limitation commences to run from the date of the wrongful act making the statute that was in force before the amendment applicable unless the new statute is retroactive. It has been repeatedly held that no law in this state is to be applied retroactively absent a clear legislative intent to the contrary.⁵ Since there is no expressed intent by the legislature to make the 1971 amendment retroactive, the statute as stated prior to the amendment applies to this case.

This action comes to this Court on a judgment of dismissal based on Dr. Soltman’s motion for summary judgment. The motion for summary judgment was based on the following statute of limitations,

“Within two years * * *.

“4. An action to recover damages for an injury to the person, or for the death of one caused by the wrongful act or neglect of another.” ⁶

Since this action was not commenced until more than ten years after the alleged wrongful act, this limitation appears to clearly apply to this action.

The procedure to overcome a motion for summary judgment based on the statute of limitations was set forth in the case of Johnson v. Gorton.⁷ In that case it was held that the plaintiff had failed to submit sufficient materials in opposition to the motion for summary judgment to avoid dismissal. This Court stated the test for measuring the sufficiency of the materials to overcome the motion for summary judgment as,

“Summary judgment is proper if the evidence before the court on the motion would warrant a directed verdict if the case were to go to trial. When the moving party presents materials which would entitle him to a directed verdict if presented at trial, the responding party may not hold back his evidence; he must present sufficient materials to establish a triable issue. Those materials must set forth the facts with particularity; for if general averments were sufficient the summary judgment procedure would lose its utility. The requirement of specificity is underscored in cases where the moving defendant has established, prima facie, a defense grounded on the statute of limitations.” ⁸

To overcome Dr. Soltman’s motion for summary judgment, Cook argues that his action falls within the discovery exception to the statute of limitations announced in Billings v. Sisters of Mercy of Idaho.⁹ In that case a physician left a sponge in a patient’s body that was not discovered until fourteen years after the operation. It was held that,

“[W]here a foreign object is negligently left in a patient’s body by a surgeon and the patient is in ignorance of the fact, and consequently of his right of action for malpractice, the cause of action does not accrue until the patient learns of, or in the exercise of reasonable care and diligence should have learned of the presence of such foreign object in his body.” ¹⁰

To overcome the statute of limitations bar raised by Dr. Soltman’s motion for summary judgment, Cook was required to present sufficient materials to bring him within the discovery exception.

The record establishes that this action is not sufficiently similar to the Billings case to make the discovery exception applicable. The Billings case is limited on its facts to a situation in which a doctor places a foreign object in a patient’s body without the patient’s knowledge and fails to remove it. In the case at bar, Cook came to Dr. Soltman for treatment with the limb and shirt already embedded in his back, and Cook knew that the limb and shirt had penetrated into his back. The gravamen of Cook’s complaint is that Dr. Soltman failed to properly cleanse his wound which resulted in a portion of the limb and shirt remaining in his body. It was pointed out in the Billings case that the purposes of the statute of limitations of prevention of fraudulent and stale claims arising after great lapses of time was not served by barring foreign object actions.

“First of all, the existence of a sponge, or gauze, or pin in the body of a plaintiff negatives fraud. Secondly we do not often encounter a plaintiff who is guilty of ‘sitting on his rights.’ If one is unaware that he has any rights, it cannot be said that he is ‘sitting’ on them.” ¹¹

Cook had notice that the tree limb and shirt were in his back. Moreover Cook alleges in his complaint that the wound never healed properly and continuously caused him pain. This allegation reveals that he had notice that the wound had not fully responded to the treatment. The complaint does not disclose whether Cook returned to Dr. Soltman for further treatment or whether he sought out other physicians. Irrespective of these options, Cook alleges that he was aware that his wound was not responding satisfactorily to Dr. Soltman’s original treatment. This knowledge required Cook to be prompt and diligent in avoiding a further deterioration of his condition which he failed to do. Since Cook’s action does not fall within the discovery exception, it is barred by the statute of limitations.

Judgment affirmed. Costs to respondent.

McFADDEN, J., and COGSWELL, District Judge, concur.

1 . Order of the district court: [the parties having submitted memorandums [sic] of authorities and having argued said motion, and the court being fully advised * *

2 . 92 Idaho 526, 446 P.2d 895 (1968); see also: Izquierdo v. Cities Service Oil Co., 244 F.Supp. 758 (S.D.N.Y., 1965); 2 A. Moore, Federal Practice § 12.10 (1972).

3 . 92 Idaho, at 531, 446 P.2d, at 900.

4 . I.C. § 5-219.

5 . Edwards v. Walker, 95 Idaho 289, 507 P.2d 486 (1973); Kent v. Idaho Public Utilities Commission, 93 Idaho 618, 469 P.2d 745 (1970); Utility Light & Power Co. v. City of Burley, 92 Idaho 499, 445 P.2d 720 (1968).

6 . I.C. § 5-219(4), (prior to 1971 amendment).

7 . 94 Idaho 595, 495 P.2d 1 (1972).

8 . Id., at 598, 495 P.2d, at 4.

9 . 86 Idaho 485, 389 P.2d 224 (1964).

10 . Id., at 497-498, 389 P.2d, at 232.

11 . Id., at 496, 389 P.2d, at 231.