Chase v. Sabin , 445 Mich. 190 ( 1994 )

Riley, J.

(dissenting). In this case, we must decide whether a discovery rule should be applied to the 1963 statute of limitations for negligence actions. Because I believe the instant claim is stale, so that it cannot be reasonably defended, I would decline to extend the discovery rule in the instant case. Therefore, I would affirm the Court of Appeals decision, albeit on different grounds.

i

The facts of this case reflect a rather unfortunate event — one certainly deserving of sympathy. Plaintiff lost the use of his eye, allegedly because of the negligence of a nurse anesthetist who improperly administered anesthesia during surgery on the eye. However, our sympathy for this unfortunate event should not dictate the rule of law or obviate the policies behind a statute of limitations. Indeed, "the statute of limitations is not a disfavored plea but a perfectly righteous defense, a meritorious defense . . . .” Bigelow v Walraven, 392 Mich 566, 570; 221 NW2d 328 (1974).

Accordingly, I believe the Court should conduct a two-step inquiry when deciding whether to impose the discovery rule in the instant action where the statute clearly does not impose such a rule. First, the Court should consider whether plaintiff had a reasonable time to file suit, a policy implicit in any statute of limitations.¹ To satisfy this requirement, courts have traditionally looked to whether the plaintiff could allege all the elements of his claim within the statute of limitations. See Moll v Abbott Laboratories, 444 Mich 1, 13; 506 NW2d 816 (1993). If the plaintiff could not allege all the elements of his claim, then the Court should balance the plaintiff’s right to have a reasonable time to file suit against the remaining policies behind the statute of limitations to determine whether the discovery rule is appropriate for the instant case. Id. at 13-14. In the case at bar, I agree that plaintiff could not have discovered the causal connection between the injury and the alleged negligence within the three-year statute of limitations. However, I disagree with the majority’s conclusion that the discovery rule would not offend the other policies behind this statute of limitations. Accordingly, it is on this basis that I dissent.

ii

While one purpose of a statute of limitations is to provide a plaintiff a reasonable opportunity to bring suit, the primary purpose is

one of fairness to the defendant. There comes a time when he ought to be secure in his reasonable expectation that the slate has been wiped clean of ancient obligations, and he ought not to be called on to resist a claim when "evidence has been lost, memories have faded, and witnesses have disappeared.” [Developments in the law — Statutes of limitations, 63 Harv L R 1177, 1185 (1950). Emphasis added.]

Over the years, this Court has described the various policies in the following manner:

They encourage the prompt recovery of damages, Buzzn v Muncey Cartage Co, 248 Mich 64, 67; 226 NW 836 (1929); they penalize plaintiffs who have not been industrious in pursuing their claims, First National Bank of Ovid v Steel, 146 Mich 308; 109 NW 423 (1906); they "afford security against stale demands when the circumstances would be unfavorable to a just examination and decision,” Jenny v Perkins, 17 Mich 28, 33 (1868); they relieve defendants of the prolonged fear of litigation, Bigelow, supra [at] 576; they prevent fraudulent claims from being asserted, Bailey v Glover, 88 US (21 Wall) 342; 22 L Ed 636 (1875); and they " 'remedy . . . the general inconvenience resulting from delay in the assertion of a legal right which it is practicable to assert.’ ” Lenawee County v Nutten, 234 Mich 391, 396; 208 NW 613 (1926). [Lothian v Detroit, 414 Mich 160, 166-167; 324 NW2d 9 (1982).]

In the instant case, plaintiff brings this claim twenty-six years after the alleged negligence. As does the majority, I believe this renders the claim stale. However, unlike the majority, I believe the reasons for finding the claim stale and thereby precluding plaintiff’s claim are compelling and cannot be overcome by simply noting that plaintiff is equally handicapped. Indeed, there are serious evidentiary problems arising from the death of the nurse anesthetist (the alleged tortfeasor), the loss of memory of the ophthalmologist who performed the surgery, and plaintiff’s lack of conscious memory of the procedure. The lack of primary evidence regarding the nurse’s duty and breach, and her role in causing the injury, renders the instant action virtually impossible to reasonably defend. The only evidence regarding this operation would be the notation by Dr. Sabin indicating inadequate anesthesia, his deposition, and the testimony of various experts regarding anesthesia in 1963. In my view, these serious evidentiary problems unfairly infringe upon the defendant’s ability to adequately defend and thereby run counter to one of the primary concerns of a statute of limitations— the fear of defending a claim on the basis of lost or inaccurate evidence of the alleged negligence, thereby presenting circumstances that "would be unfavorable to a just examination and decision.” Jenny, supra at 33.

However, the majority attempts to minimize this concern by contending that plaintiff will primarily rely on documentary evidence in pursuing his claim, thereby lessening the need for testimonial evidence. Ante at 199-200. This same argument was made and accepted in Moll, supra at 14, a products liability suit. However, the instant action is substantially different from Moll, and thus the rationale employed therein is inapposite. Unlike a products liability action, the instant negligence action does not rely primarily on documentary evidence, especially where there is only one notation by Dr. Sabin indicating inadequate anesthesia. Instead, the more traditional and prudent approach to proving or defending the action is via testimony regarding the standard of care, breach, and causation, all referring to what actually occurred in the operating room. However, there is no one alive, or at least no one with an actual memory of the event, to testify regarding what occurred in the operating room. Therefore, the only testimony would be from experts indicating the standard of care in 1963, with mere speculation regarding whether the facts of the case indicate a breach or whether this breach actually caused the injury.

Furthermore, unlike a products liability action, the passage of time will not increase the accuracy of the evidence, but instead reduce its accuracy. Id. The death of the primary tortfeasor and the loss of memory by Dr. Sabin clearly evidence this fact. Consequently, I believe the instant action implicates a problem with lost or inaccurate information, one of the primary purposes behind the statute of limitations.

Moreover, I cannot accept the majority’s conclusion that defendant’s primary control of the evidence renders it appropriate to apply the discovery rule. There are no allegations that the hospital or Dr. Sabin prevented plaintiff from discovering this information, and there certainly are no allegations supporting the theory that the hospital or Dr. Sabin had a duty to disclose possible negligence. Indeed, there is no duty to disclose one’s negligence.

Furthermore, I do not accept the majority’s contention that "plaintiff had no reason to be skeptical or distrustful of Dr. Sabin’s explanation for his eye’s deterioration.” Ante at 200. This is not the test to be used in deciding whether to impose the discovery rule or for overcoming the policy justifications behind the statute of limitations. The test is whether (1) the plaintiff can allege all the elements of the offense, and (2) whether the discovery rule would offend the other policies behind the statute of limitations. In my view, the majority’s reasoning would only be relevant in the eventual application of the discovery rule, which would involve a question of fact, at least when the facts are controverted. Moll, supra at 27-28.

Moreover, the majority’s reasoning leads to its implied conclusion that Dr. Sabin fraudulently concealed a known negligence by some affirmative representation. See, e.g., Buchanan v Kull, 323 Mich 381; 35 NW2d 351 (1949); Eschenbacher v Hier, 363 Mich 676; 110 NW2d 731 (1961). As previously indicated, the hospital or Dr. Sabin did not have a duty to disclose. Apparently realizing this fact, the majority couches the hospital’s and Dr. Sabin’s actions in terms of "questionable acts . . . followed by silence.” Ante at 200. However, the majority misses an important distinction; the plaintiff never claimed fraudulent concealment. If plaintiff had alleged such an action, there would be no need to apply a discovery rule in this case because the Legislature already provided the discovery rule by statute:

If a person who is or may be liable for any claim fraudulently conceals the existence of the claim or the identity of any person who is liable for the claim from the knowledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the claim or the identity of the person who is liable for the claim, although the action would otherwise be barred by the period of limitations. [MCL 600.5855; MSA 27A.5855.[²]

Accordingly, I reject the majority’s characterization of this claim wherein it implies a claim of fraudulent concealment and implies that the hospital or Dr. Sabin had a duty to disclose possible negligence. In my view, this does nothing to overcome the policies behind the statute of limitations. Furthermore, the majority’s characterization indicates its view of what the law should be without considering the fact that the Legislature already provided for its implied conclusion via the fraudulent concealment statute.³

hi

Accordingly, absent allegations of a duty to disclose or acts of fraudulent concealment, I believe that on balance, the policies behind the statute of limitations bear in favor of finding the instant claim stale because of defendant’s inability to adequately defend. On this basis, I deem it inappropriate to impose the discovery rule in this case.

Brickley and Griffin, JJ., concurred with Riley, J.

1 Price v Hopkin, 13 Mich 318, 324-325 (1865).

2 A claim of fraudulent concealment is the subject of a completely different body of law. Indeed, the majority in Johnson v Caldwell, 371 Mich 368, 379; 123 NW2d 785 (1963), recognized these distinct claims: The discovery "rule is not to be confused with the completely distinct concept of fraudulent concealment, which is the subject of an express statute which has often been construed.” In my view, the majority muddies the waters by implying both that the hospital or Dr. Sabin had a duty to disclose and that Dr. Sabin fraudulently concealed possible negligence. Plaintiff did not argue either theory, and, nevertheless, the majority’s contentions are not appropriate in determining whether to apply the discovery rule in the instant case, where the statute specifically addresses the majority’s characterization by express statute.

3 "We have no other duty to perform than to construe the legislative will as we find it, without regard to our own views as to the wisdom or justice of the act.” McKibbin v Corp & Securities Comm, 369 Mich 69, 81; 119 NW2d 557 (1963).