Sorenson v. Pavlikowski , 94 Nev. 440 ( 1978 )

Gunderson, J.,

concurring:

I concur in the legal determination articulated by our brother Manoukian, i.e., that a cause of action for malpractice accrues when a client both sustains damage, and discovers or should discover his cause of action. I consider this holding socially as well as legally sound, since it should operate to spread the cost of oversights, which occur with all practitioners, evenly over all users of professional services — rather than imposing heavy and possibly destructive losses on those users of professional services who discover damage only after a substantial period of time.

Although our holding may seem harsh, professional practitioners may purchase malpractice insurance, to protect both themselves and those they serve from loss by reason of mistakes and oversights. Most careful practitioners do so, and pass the premium cost of such insurance to their clients in their fees, so that a pool to defray losses is thereby created with the consumers’ funds. This court already has held that a professional liability policy is a contractual asset, calling for the payment of money, to which the consumer may obtain access — even through a “subsequent” general administration, if necessary, after the practitioner’s death and probate of her estate. See Kotecki v. Augusztiny, 87 Nev. 393, 487 P.2d 925 (1971).

It is, I think, essential to legal and logical symmetry that this court recognize and apply a statute of limitations consistent with our holding in Kotecki, i.e., that until such time as the cause of action should have been discovered, the statute of limitations does not begin to run against a consumer’s right to proceed against either a negligent professional practitioner, or his estate, thereby seeking access to the risk-sharing pool the consumer indirectly contributed to through payment of fees. Cf. Kirtland v. Tri-State Insurance Company, 556 P.2d 199 (Kan. 1976).