Judges： McKusick, Godfrey, Nichols, Carter, Violette, Wathen, Dufresne
Filed Date： 5/4/1982
Status： Precedential
Modified Date： 10/26/2024
In Tantish v. Szendey, 158 Me. 228, 182 A.2d 660 (1962), this Court held that a foreign-object surgical malpractice action accrues, for the purpose of determining when the statute of limitations commences, at the time of the negligent act. In so holding, we conformed to the then contemporary weight of authority and expressly rejected the proposition that such an action accrues only when the patient becomes aware or has reason to be aware of the physician’s alleged failure to remove the foreign-object from his body in the course of surgery. For the reasons set forth herein, we overrule our holding in Tantish and adopt the discovery rule in foreign-object surgical malpractice cases.
I. Facts
On December 31,1980, the plaintiffs .commenced a surgical malpractice action against the defendant, an obstetrician and gynecologist. In their verified complaint, the plaintiffs allege that the defendant performed a partial hysterectomy on the plaintiff Joan L. Myrick on May 17, 1973. Immediately following the operation, Joan Myrick was affected by the onset of significant physical symptoms. She alleges that she sought assistance from other medical practitioners, including a psychiatrist, but none of them was able to alleviate the symptoms arising after the May 1973 operation. In December 1979, a physician other than the defendant suggested that she undergo exploratory surgery. The defendant performed this subsequent operation on January 10, 1980, and he found and removed a surgical sponge from her abdomen. She alleges that this sponge was improperly allowed to remain in her body at the conclusion of the prior surgery by the defendant. Much of her symptomatology is alleged to have disappeared shortly after this operation.
The defendant sought dismissal of this malpractice action on the ground that, under Tantish, the plaintiff’s action accrued on the date of the operation, May 17, 1973. Because a suit arising from these facts is subject to a two-year period of limitations pursuant to 14 M.R.S.A. § 753,
II. Interference With The Legislative Prerogative
In section 753, we are faced with a statute which does not specify when the two-year period of limitations commences to run; the Legislature has not provided a definition of “accrues” applicable to foreign-object surgical malpractice suits. Absent any “explicit legislative direction” which would otherwise foreclose our consideration of the meaning of “accrual,” the process of defining the term remains a judicial function. Anderson v. Neal, Me., 428
The defendant asserts that the legislative activity following our decision in Tantish must be characterized as a ratification of the construction imposed by that, case on the statute of limitations applicable to foreign-object surgical malpractice actions, and that we are thereby forbidden from re-examining that holding today. The issue of the statute of limitations in such cases has been raised in the Legislature three times since Tantish was decided.
The 104th Legislature considered a similar two year statute of limitations which would have invoked the discovery rule in actions for medical malpractice. The Judiciary Committee unanimously recommended passage of the bill with an amendment imposing a ceiling of six years from the date of the negligent act. The House passed the measure, 1969 Leg.Rec. 2863, but the Senate voted for its indefinite postponement. Id. 3013. The proposal subsequently died when the members of a joint committee, established to explore the possibility of reconciling the two legislative branches, reported that they were unable to agree on the matter. Id. 3983. See also id. 2397-2402.
Finally, in P. & S.L.1975, ch. 73, the Legislature created the Commission to Revise the Laws Relating to Medical and Hospital Malpractice Insurance, an entity popularly known as the Pomeroy Commission, charged with formulating proposals “to insure the availability of medical and hospital malpractice insurance to physicians and hospitals . . . and to develop a more equitable system of relief for malpractice claims.” Id., § 1. The fruits of the Committee’s report were enacted in 1977 as the Maine Health Security Act, 24 M.R.S.A. §§ 2501-2905. Included in the Act was a statute of limitations applicable to tort actions against a hospital or its employees. § 2902. This provision removed such actions from the purview of the general six year limitations statute, 14 M.R.S.A. § 752, and situated them in a position similar to malpractice actions against physicians, as provided in section 753. Statement of Fact at 21, Leg. Doc. 727 (108th Leg., 1977).
During the Legislature’s consideration of the Pomeroy Commission Report, four separate amendments were offered which would have attached discovery features to both section 753 and the then pending section 2902 of the Health Security Act. House
Thus, the Legislature has on several occasions considered the adoption of a discovery rule applicable to foreign-object surgical malpractice suits, but it has never enacted such a provision. Several members of the body engaged in debate over the merits of such a provision. Yet, “no one knows why the Legislature did not pass the proposed measure.” Anderson, 428 A.2d at 1191, quoting Franklin, 381 Mass, at -, 411 N.E.2d at 461, and Berry v. Branner, 245 Or. 307, 311, 421 P.2d 996, 998 (1966). Indeed, as we further noted in Anderson, the
legislative failure to give statutory recognition to a discovery rule may have resulted from the “belief that the matter should be left to be handled by the normal processes of judicial development of decisional law, including the overruling of outstanding decisions to the extent that the sound growth of the law requires.”
428 A.2d at 1191, quoting Franklin, 381 Mass. at-, 411 N.E.2d at 461-62, and H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1395-96 (tent. ed. 1958) (emphasis added). See also Neel, 6 Cal.3d at 192, 491 P.2d at 431, 98 Cal.Rptr. at 847.
Significantly, even in the face of these proposals to implement the discovery rule in medical malpractice cases, the Legislature has not adopted the holding in Tantish that a cause of action for surgical malpractice accrues at the time of the occurrence of the negligent act. Thus, ultimately, we are faced with a silent legislative record which cannot be seen to either endorse or reject the discovery rule in the factual context presented by this case. It is an invalid mode of analysis to evaluate the judicial soundness of Tantish by the absence of subsequent legislation. Such legislative inaction cannot be viewed as a rejection of the discovery rule so as to preclude our examination of it ourselves. See Girouard v. United States, 328 U.S. 61, 69-70, 66 S.Ct. 826, 829-30, 90 L.Ed. 1084, 1090 (1946), quoted in N.L.R.B. v. Plasterers’ Local Union No. 79, 404 U.S. 116, 129-30, 92 S.Ct. 360, 368-69, 30 L.Ed.2d 312, 323 (1971). Nor can such inaction be taken as indicative of any intent to in fact legislate the rule previously developed by the court through construction of the generic statutory language. See James v. United States, 366 U.S. 213, 220, 81 S.Ct. 1052, 1056, 6 L.Ed.2d 246, 254 (1961); Girouard, 328 U.S. at 69-70, 66 S.Ct. at 829-30, 90 L.Ed. at 1090; Helvering v. Hallock, 309 U.S. 106, 119-20, 60 S.Ct. 444, 451-52, 84 L.Ed. 604, 612-14 (1939).
In two instances, the Legislature has enacted a form of the discovery rule. These include malpractice actions against design professionals, 14 M.R.S.A. § 752-A, and causes of action fraudulently concealed, 14 M.R.S.A. § 859.
There thus exists no “explicit legislative direction” to divest this Court of its responsibility to define when a foreign-object surgical malpractice action accrues under section 753. In exercising this power, we do not encroach on legislative prerogatives any more than we did in issuing our holding in Tantish. By that decision, we closed the doors of our courtrooms to plaintiffs governed by the harsh accrual rule.
That which we may not do is to change such a rule or policy once the Legislature has specifically taken that rule or policy out of the arena of the judicial prerogative, in which it originally placed it, by a positive and definitive statutory pronouncement, legitimately within its own prerogative, of a specific rule or policy. As we have demonstrated, that has not happened with respect to the accrual rule we enunciated in Tantish. We have said with respect to this rationale as used in a past similar case, Potter v. Schafter, 161 Me. 340, 211 A.2d 891 (1965), that the Court’s refusal there to act, thus deferring to the Legislature, was “wrong in theory . . . [and] in its intimations that action by the judiciary to change the common law where there is involved a ‘collision between the principle of stare decisis and contemporary legal philosophy’ is ‘to usurp legislative authority.’ ” MacDonald, 412 A.2d at 74 n.4. Having once surmounted that doctrinal error, we should not again commit it in this case.
[T]he fact that Congress has remained silent or has re-enacted a statute which we have construed, or that congressional attempts to amend a rule announced by this Court have failed, does not necessarily debar us from re-examining and correcting the Court’s own error.
James, 366 U.S. at 220, 81 S.Ct. at 1056, 6 L.Ed.2d at 254 (emphasis added); accord, Girouard, 328 U.S. at 69-70, 66 S.Ct. at 829-30, 90 L.Ed. at 1090; Helvering, 309 U.S. at 119-22, 60 S.Ct. at 451-53, 84 L.Ed. at 612-14. Where the Legislature has once left to the courts the performance of that definitional function the judicial prerogative remains open, as circumstances require, for re-interpretation in light of changed conditions, so long as the Legislature does not preempt the pertinent statutory meaning by its own definitive and legitimate pronouncement. See Lewis v. Lewis, 370 Mass. 619, 626, 351 N.E.2d 526, 531 (1976); MacDonald, 412 A.2d at 73-74, and cases therein cited. Reconsideration of a prior precedent settling a question of statutory construction is proper where there is nothing in subsequent legislative history sufficient to persuade us that the legislative branch intended to legislate the rule.
III. The Merits of the Two Rules
A discovery rule not unlike the one proposed by the instant plaintiffs was adopted by the Court and held applicable to allegedly negligent title searches, in Anderson v. Neal, Me., 428 A.2d 1189 (1981). The statute of limitations applicable to such actions, found in 14 M.R.S.A. § 752, does not specify when the cause of action accrues and thus when the period of limitations commences. In the absence of explicit legislative direction identifying that moment, we held it proper for this Court to determine when the action accrues by construction of the statute. 428 A.2d 1190-91. Our subsequent examination of the merits of the discovery rule within the factual setting of that case included a recognition of the fiduciary relationship between the client and that attorney who performed the title search, the magnitude of the loss resulting from the attorney’s asserted negligence, and the inherently undiscoverable nature of the tort absent an independent investigation destructive of the confidential relationship between the client and attorney. Id. at 1191-92. The Court finally noted that the Legislature has itself sanctioned the discovery rule in 14 M.R.S.A. § 752-A, establishing the statute of limitations for malpractice actions against design professionals, and in 14 M.R.S.A. § 859, tolling the statute of limitations until the aggrieved party has become aware of the existence of a fraudulently concealed cause of action. 428 A.2d at 1192. Upon these considerations, we concluded that “a cause of action based on an allegedly negligent title search accrues at the time the plaintiff discovers, or reasonably should have discovered, his injury.” Id.
The formulation of a statute of limitations represents a balance of several competing interests. First, parties injured by the actions of others must be afforded an opportunity to pursue their meritorious claims and seek relief in the courts. On the other hand, potential defendants are entitled to eventual repose and to protection from being required to meet claims which could have been addressed more effectively if asserted more promptly. Difficulties in defending stale claims are caused by faded memories, dead or otherwise unavailable witnesses, and lost or destroyed evidence. United States v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 357, 62 L.Ed.2d 259, 266 (1979); Williams, 342 A.2d at 713; Franklin, 381 Mass. at -, 411 N.E.2d at 463. See generally Developments in the Law— Statutes of Limitation, 63 Harv.L.Rev. 1177, 1185 (1950). Additionally, several courts have attributed to statutes of limitations the function of filtering out those claims which are spurious, inconsequential, and unfounded, because meritorious claims “are not usually allowed to remain neglected.” Riddlesbarger v. Hartford Insurance Co., 74 U.S. (7 Wall.) 386, 390, 19 L.Ed. 257 (1868), quoted in Flanagan v. Mount Eden General Hospital, 24 N.Y.2d 427, 429-30, 248 N.E.2d 871, 872, 301 N.Y.S.2d 23, 25 (1969). Accord, Shinabarger v. Jatoi, 385 F.Supp. 707, 709-10 (D.S.D.1974); Spath v. Morrow, 174 Neb. 38, 39-43, 115 N.W.2d 581, 583-84 (1962); Ruth v. Dight, 75 Wash.2d 660, 663, 453 P.2d 631, 634 (1969). The intended effect, then, of statutes of limitations is to stimulate activity and to punish negligence and slumber. Wood v. Carpenter, 101 U.S. 135, 139, 25 L.Ed. 807, -(1879), quoted in Franklin, 381 Mass. at -, 411 N.E.2d at 463; Fernandi, 35 N.J. at 437, 173 A.2d at 279; Berry, 245 Or. at 312-13, 421 P.2d at 999.
Justice Jackson of the United States Supreme Court accurately synthesized the nature, purpose and effect of statutes of limitation when he said:
Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims,*995 and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost.... They are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the avoidable and unavoidable delay. They have come into the law not through the judicial process but through legislation. They represent a public policy about the privilege to litigate. Their shelter has never been regarded as what now is called a “fundamental” right or what used to be called a “natural” right of the individual.
Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628, 1635-36 (1944) (footnote omitted). It must be recognized that the interests secured by a statute of limitations are procedural in nature and cut against those interests provided by a full and uniform application of rules of substantive law and the adjudication of cases on the merits. See Dishon v. Oliver, Me., 402 A.2d 1292, 1294 (1975); Miller v. Fallon, 134 Me. 145, 147, 183 A. 416, 417 (1936).
While the accrual rule successfully promotes the purposes underlying the statute of limitations in most instances, see Anderson, 428 A.2d at 1191, it works a manifest injustice in foreign-object surgical malpractice cases such as this where a patient, through no personal fault or failure of diligence, is unaware that her sutures hide a foreign object, until the two year period in which to bring an action has elapsed. As the Anderson court found in the context of an attorney examining the title to realty for the benefit of a client, there here exists a “specific complex of interests” which undermines the capacity of the general accrual rule to effect just and sound results in foreign-object surgical malpractice actions.
The inherent complexity of symptomatol-ogy and subsequent diagnosis places the plaintiff-patient in this specific type of case in a position of blameless ignorance as to the cause of her malady and suffering. Franklin, 381 Mass. at-, 411 N.E.2d at 463; Shillady, 114 N.H. at 322, 320 A.2d at 638; Fernandi, 35 N.J. at 450, 173 A.2d at 286; Gaddis v. Smith, 417 S.W.2d 577, 578 (Tex.1967). Cf. Bozzuto, 408 A.2d at 699 (conversion action); Williams, 342 A.2d at 716 (products liability action); Betts, 21 Me. at 319 (action against sheriff for failure to attach sufficient property to satisfy judgment). Typically, the presence of the foreign object is discovered only by means of a subsequent operation. Johnson v. St. Patrick’s Hospital, 148 Mont. 125, 126, 417 P.2d 469, 470 (1966). Here, the plaintiff Joan Myrick alleges that she sought medical treatment, including psychiatric evaluation, in an attempt to diagnose her condition. These efforts proved unsuccessful, and the presence of the surgical sponge and its causal relation to debilitating effects were revealed only during an exploratory operation, performed more than six years after the initial surgery. Therefore, the presence of the foreign-object and thus the plaintiff’s awareness of an act asserted to be negligent remained unknown and unknowable until, under Tantish, the plaintiffs were no longer entitled to bring a malpractice action to fruition.
The patient must repose great confidence and trust in her surgeon. She is utterly helpless during the surgical procedure and must rely absolutely on the satisfactory quality of the care provided to her. Millett v. Dumais, Me., 365 A.2d 1038, 1041 (1976); Melnyk v. Cleveland Clinic, 32 Ohio St.2d 198, 199, 290 N.E.2d 916, 917 (1972); Ayers v. Morgan, 397 Pa. 282, 289, 154 A.2d 788, 792 (1959). Similarly, the surgeon bears the responsibility for exercising the ultimate control, in a supervisory sense at the very least, for placing objects in and removing them from the patient’s body during surgery. Melnyk, 32 Ohio St.2d at 199, 290 N.E.2d at 917; Gaddis, 417 S.W.2d at 580. The reliance placed by the patient on the quality of the surgical treatment, then, is necessarily absolute and irrevocable.
The general accrual rule cannot embrace these factors peculiar to and characteristic of foreign-object surgical malpractice actions, particularly as the loss occasioned by this tort can be catastrophic.
In this limited class of cases, the discovery rule accomodates the competing interests embodied in the statute of limitations. If the two-year period commences to run from the moment when the patient knows or reasonably should know that the defendant had permitted a foreign object to remain in her body, the plaintiff is given a reasonable opportunity, quantified in the statute, to assert her claim.
Further, the very graphic and tangible basis for a foreign-object surgical malpractice action largely alleviates the difficulties in defending them. There is little likelihood of a high incidence of feigned, frivolous, or fraudulent foreign-object surgical malpractice claims. Such actions do not rest on matters of credibility, or on professional diagnosis, judgment, or discretion. Billings v. Sisters of Mercy, 86 Idaho 485, 495, 389 P.2d 224, 231 (1964); Fernandi, 35 N.J. at 450, 173 A.2d at 286; Flanagan, 24 N.Y.2d at 430-31, 248 N.E.2d at 872-73, 301 N.Y.S.2d at 26. Thus, implementation of the discovery rule in these cases does not
Nor does the rule compromise the statutory objectives of stimulating the prompt assertion of claims and of punishing a lack of diligence in their pursuit. Because the two-year period created by section 753 runs from the time the plaintiff discovers or, in the exercise of reasonable care and diligence, should discover the presence of the object,
As evidenced by the allegations in this case, the existence of a cause of action for foreign-object surgical malpractice is almost always inherently unknowable until the occurrence of events subsequent to the surgery. In 14 M.R.S.A. §§ 752-A and 859, the Legislature has recognized that the “accrual of an undiscoverable cause of action from the time of injury works an injustice on injured plaintiffs.” Anderson, 428 A.2d at 1192. Here, in the face of legislative silence as to the proper application of section 753 to the similarly undiscoverable action for foreign-object surgical malpractice, we extend that legislative solicitude to plaintiffs in actions of this kind.
IV. Stare Decisis Considerations
A noted commentator has recently spoken of the difficulty encountered in attempting to extract firm guidelines from the decided cases that confront and decide in specific factual contexts whether to overrule precedent.
Perhaps it is easier to identify than to explain how to identify appropriate occasions and appropriate methods for overruling. Moreover, the advantages of the common law method over the statutory method of developing law are relevant here: codifying guidelines on this subject would undoubtedly produce mistakes that could be avoided by feeling one’s way along case by case.
It would be entirely consistent with the pursuit of this case-by-case method of developing guidelines, however, for courts to be more candid and articulate about it. At present one who seeks the sense of precedents on this question must do much reading between the lines. All too often, discussion has been almost exclusively limited to gross assertions either that lawmaking is for legislatures or that outmoded court-made rules ought to be corrected by courts. What is needed is, first, acknowledgement of the necessity of distinguishing the appropriate from the inappropriate occasions for overruling precedents, and, second, an attempt to develop a body of case law that gives courts improved guidance.
One step in the right direction is the attempt to articulate reasons for overruling in a particular case, or for not doing so, that are also reasons of general validity. Such a question of legal process, like questions of substantive law should be open to reasoned debate.
Most formulations thus far attempted in this area have been extremely general in character, offering very little specific guidance.
R. Keeton, Venturing to do Justice: Reforming Private Law 39 (1969) (emphasis added).
It is the historic policy of our courts to stand by precedent and not to disturb a settled point of law. Neff v. George, 364 Ill. 306, 307-11, 4 N.E.2d 388, 390-91 (1936). That policy, enshrined as the doctrine of stare decisis, forms the underpinning of an orderly, stable system of common law jurisprudence. Under that doctrine, a deliberate or solemn decision of a court, after
Precedents, once so established, however, do not become totally immune from change for all time. Were that to be so, there would be no room for the viable growth of the law; no opportunity for it to keep pace with the changing conditions of the society in which it must operate as the instrument of justice between citizens; and no capacity on its part to reflect, through time, even the most elemental recognition of the ethical values, the social mores, or any popular consensus as those evolve through societal experience. Rather, the law would be locked rigidly to the decisions of the past, rendered powerless to adapt to the needs and values of the present and deprived of all capacity to mold its content to the exigencies of the future. Proper respect for precedent as a source of stability does not require that each decided case must be held inviolate for all time.
We have repeatedly held that the doctrine of stare decisis is not an inflexible rule requiring this court to blindly follow precedents and adhere to prior decisions and that when it appears that public policy and social needs require a departure from prior decisions, it is our duty as a court of last resort to overrule those decisions and establish a rule consonant with our present day concepts of right and justice.
Molitor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11, 25, 163 N.E.2d 89, 96 (1959) (citations omitted). This Court has been cognizant in the past of the need that established principles of law be subject to change in appropriate circumstances. We have, indeed, on recent occasion expatiated with some eloquence our recognition that by discreetly accomplishing such change,
... we do not undermine the principle of stare decisis. Rather, we prevent it from defeating itself; we do not permit it to mandate the mockery of reality and the ‘cultural lag of unfairness and injustice’, Moulton v. Moulton, . . . [Me., 309 A.2d 224, 228 (1973) ] which would arise if the judges of the present, who like their predecessors cannot avoid acting when called upon, were required to act as captives of the judges of the past, restrained without power to break even those bonds so withered by the changes of time that at the slightest touch they would crumble.
MacDonald v. MacDonald, Me., 412 A.2d 71, 74 (1980). We have, within recent weeks, said that though we perceive and appreciate the need for the uniformity and certainty that the doctrine of stare decisis serves to produce, we also recognize “the dangers of a blind application of the doctrine merely to enshrine forever earlier decisions of this court.” See Adams v. Buffalo Forge Co., Me., 443 A.2d 932, 935 (1982).
The problem to be resolved is to distinguish on a case-by-case basis for articulated reasons those circumstances in which it is appropriate to overrule prior precedent from those in which it is inappropriate to do so. We have said in that regard that “[w]hen the conditions of society change to such an extent that past judicial doctrines no longer fulfill the needs of a just and efficient system of law, we should not be barred by the constraints of stare decisis.” See Davies v. City of Bath, Me., 364 A.2d 1269, 1273 (1976). We have said that judges must have “the power to move ahead amidst the onrushing currents of change in the present” in order to avoid the charge of creating “a cultural lag of unfairness and injustice.” See Moulton v. Moulton, Me., 309 A.2d 224, 228 (1973). Finally, we have also said that where the authorities supporting the prior rule have “been drastically eroded, [and] . .. the suppositions on which it rested are disapproved in the better-considered recent cases and in authoritative scholarly writings, and . .. the holding of the [prior] case is counterproductive” to its purposes, the situation is appropriate
The factual premises for the invocation of the legitimate exercise of the power to overrule Tantish v. Szendey, we think to exist at this time on the question presented by this case. We have a harsh and unjust rule which operates unfairly to erratically deprive patients of meritorious claims of often severe personal injury caused by negligence. Under the existing rule, such deprivation results from the passage of the statutory period of limitations under circumstances such that there is no possible way in which the patient can even be aware of her injury, much less take any effective steps to preserve her rights against the running of the statute of limitations. The existence or non-existence of the privilege to sue in such cases is made to depend, by the rule, on the timing of the discovery of the fact that a surgical object has been left in the patient in a prior surgical procedure. Where such discovery occurs by reasons of fortuitous physiological and medical factors (over which the patient generally has no control) more than two years after the performance of the surgery, the patient is deprived of her right to such relief in the courts, without any lack of diligence on her own part and before she has any knowledge that she has sustained an injury, much less achieved any recognition that she may have any occasion to seek legal relief.
In part, because of such considerations, the basis on which that rule was originally founded has, in the short space of twenty years, fallen into jurisprudential disrepute and is disapproved in the better-considered recent cases and in the authoritative scholarly writings. Cf. Black, 409 A.2d at 639. The rule is counterproductive to the achievement of any principled conception of fair and even-handed justice. The rule can no longer fulfill the needs of a just and efficient system of law. Cf. Davies, 364 A.2d at 1273. Continued adherence to the rule ties the hands of the judges of the present by blind acceptance of outmoded and currently unacceptable concepts of justice. Cf. MacDonald, 412 A.2d at 74. In other areas of the law, that rule has been expressly rejected by this Court. See Anderson v. Neal, Me., 428 A.2d 1189 (1981).
The conceptual basis on which Tantish itself rests has been severely eroded in the twenty years since the case was decided. The Tantish Court acknowledged that, by applying the general accrual rule to acts of foreign-object surgical malpractice, it was following the weight of authority. 158 Me. at 231-32, 182 A.2d at 661. Indeed, the opinion in Tantish includes a lengthy quotation from Capucci v. Barone, 266 Mass. 578, 165 N.E. 653 (1929), in which the Supreme Judicial Court of Massachusetts adopted the identical rule. Capucci, however, was overruled in Franklin, - Mass. -, 411 N.E.2d 458, and few jurisdictions still retain the Tantish accrual rule. See note 8 supra and accompanying text. This substantial shift in authority colors, in part, our perspective on the continuing vitality of Tantish, because the Tantish Court itself found some solace in the number of jurisdictions adhering to that rule. See MacDonald, 412 A.2d at 73, and Black, 409 A.2d at 637, where this Court recognized the erosion of support for the particular rule embodied in the decisions there overruled.
Additionally, the Court in Tantish characterized the adoption of the discovery rule in foreign-object surgical malpractice actions as a legislative rather than a judicial prerogative. 158 Me. at 231, 182 A.2d at 661. This understanding of the limitations on judicial power is no longer viable. See discussion supra at 989 — 993. While the Legislature may expressly change the rule we announce today, our power to construe a statute cannot be regarded as foreclosed by legislative silence and inaction. Further, section 752-A, enacted in P.L.1975, ch. 434, which implements the discovery rule in malpractice actions against design professionals, constitutes a legislative recognition of the need to protect plaintiffs when the existence of the action is unknowable. See discussion supra at 997. A solid legislative endorsement of the discovery rule thereby has come into
And while the analytical underpinnings of Tantish manifest signs of enervating decay, the rule itself does not “fulfill the needs of a just and efficient system of law.” See Davies v. City of Bath, Me., 364 A.2d 1269, 1273 (1976) (overruling cases applying sovereign immunity). On those occasions when the prevailing precedents lack vitality and the capacity to serve the interests of justice, we have departed from them. See, e.g., MacDonald, 412 A.2d 71; Black, 409 A.2d 634; Davies, 364 A.2d 1269; Moulton, 309 A.2d 224; Brewer’s Dairy v. Dolloff, Me., 268 A.2d 636 (1970); Beaulieu v. Beaulieu, Me., 265 A.2d 610 (1970). See also Anderson, 428 A.2d at 1191; Jones v. Billings, Me., 289 A.2d 39 (1972). Because Tantish lacks that vitality and is unsuited to the modern experience, we reject it in favor of the rule announced today.
To respond, so far as the parameters of this case permit, to the need for a candid articulation of guidelines as to when and under what circumstances a prior precedent should and may be overruled, we may say at least the following. It is not only within the power of courts of last resort but it is their affirmative obligation to grapple with the need for, and the propriety of, a decision to overrule a prior precedent where: (1) the court is convinced that the rule of the prior decision operates harshly, unjustly and erratically to produce, in its case-by-ease application, results that are not consonant with prevailing, well-established conceptions of fundamental fairness and rationally-based justice, (2) that conviction is buttressed by more than the commitment of the individual justices to their mere personal policy preferences, that is, by the substantial erosion of the concepts and authorities upon which the former rule is founded and that erosion is exemplified by disapproval of those conceptions and authorities “in the better-considered recent cases and in authoritative scholarly writings,”
The courts must approach the application of these and other similar guidelines soberly and with a profound reluctance for change in the substance of the law, but with a solid appreciation of their obligation to maintain the viability of the content of the law and thus its ability to operate to achieve a practical as well as an abstract justice by its application to controversies between citizens. It is very much the function of the court “to prevent the application of a universal legal principle in. an eventuality where unconscionable and unjustifiable hardship must otherwise ensue.” See, e.g., Bedell v. Reagan, 159 Me. 292, 298, 192 A.2d 24, 27 (1963) (emphasis added). We usually accomplish that preventative goal, and do so nearly every day, by the use of the technique of reasoned distinction of precedents to avoid unfair or practically unjustifiable results. That technique must remain the preferred instrumentality for the achievement of the goal of such prevention. However, in circumstances where that technique cannot be invoked with integrity, it must be remembered that the goal, not the technique, is controlling in shaping the role of the court in articulating just principles of law. Where such prevention is thought to
V. Temporal Application of the Discovery Rule
Consistently with our prior practice, the holding we announce today shall be applied on remand to the parties in this case. We have always applied the precept of an overruling case to the parties to that case.
1)to reward the diligence of the particular litigant who has secured the change of an outmoded or erroneous rule of law and to provide an inducement to the occurrence of such challenges in the future, Molitor v. Kaneland Community Unit District No. 302, 18 Ill.2d 11, 163 N.E.2d 89 (1959), cert. denied 362 U.S. 968, 80 S.Ct. 955, 4 L.Ed.2d 900 (1960); Barker v. St. Louis County, 340 Mo. 986, 104 S.W.2d 371 (1937); Ramirez v. Amsted Industries, Inc., 86 N.J. 332, 356, 431 A.2d 811, 824 (1981); see Annot. “Prospective or Retroactive Operation of Overruling Decision,” 10 A.L.R.3d 1371, § 8(b) (1966);
2) to prevent the newly announced rule of law from technically being mere dictum, Stovall v. Denno, 388 U.S. 293, 301, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206 (1967); Molitor, 18 Ill.2d at 27, 163 N.E.2d at 97; Kojis v. Doctors Hospital, 12 Wis.2d 367, 374, 107 N.W.2d 292, 294 (1961);15
3) to avoid arbitrariness to individual litigants and to honor the court’s obligation “to do justice to each litigant on the merits of his own case.” Desist v. United States, 394 U.S. 244, 259, 89 S.Ct. 1030, 1039, 22 L.Ed.2d 248, 261 (1969) (Harlan, J., dissenting).
To deny to plaintiffs, who have undertaken to change the law, the fruit of their victory would destroy any incentive for the private litigant to challenge outmoded rules of law, and we would thereby dismantle the machinery by which change in the law is made real.
However, in adopting the new rule, we invoke our inherent authority
Judgment vacated.
Remanded to the Superior Court for further proceedings consistent with the opinion herein.
. A separate count of the complaint alleges that the surgery commenced in May 1973 was not completed until January 1980 when the second operation was performed. The third count, brought by Bruce Myrick, Joan’s husband, sought judgment for his wife’s medical expenses and his loss of consortium.
. In full, § 753 provides: “Actions for assault and battery, and for false imprisonment, slander, libel and malpractice of physicians and all others engaged in the healing art shall be commenced within 2 years after the cause of action accrues.”
. Additionally, the statute of limitations at issue in Tantish was created in P.L.1931, c. 62. This section was recodified in 1964 without change and is now found in 14 M.R.S.A. § 753. The mere re-enactment of the same substantive provision does not constitute a legislative approval and adoption of this Court’s constructions of it “to the extent necessary to foreclose judicial reconsideration of prior cases.” Anderson, 428 A.2d at 1190. The 1964 re-enactment, then, does not by itself prevent us from re-examining Tantish today.
. See also 39 M.R.S.A. § 95, extending the time in which an employee may file a claim for workers’ compensation when the claimant suffers “a mistake of fact as to the cause and nature of the injury.”
. Black overruled Downs v. Poulin, Me., 216 A.2d 29 (1966), thereby limiting application of the doctrine of parental immunity.
. The seminal lesson to be derived from the Court’s experience in deferring to legislative action in regard to the abrogation of the sovereign immunity doctrine is instructive for purposes of assessing the validity of any contention that may be made that we should defer to future legislative action in achieving change in this court-made rule of law. In 1961, the Court stated that the doctrine had “served its purpose and ought to be destroyed.” Nelson v. Maine Turnpike Authority, 157 Me. 174, 186, 170A.2d 687, 693 (1961). It refused to accomplish the indicated destruction, deferring, for that purpose, to legislative action. Id. Eleven years later, sovereign immunity still being in place, the Court stated flatly that “application of the so-called doctrine has been incorrect and its application cannot withstand the test of logic.” Bale v. Ryder, Me., 286 A.2d 344, 345 (1972). Despite what has been described as Bale’s “clear repudiation of the rule”, Davies v. City of Bath, Me., 364 A.2d 1269, 1270 (1976), the Court refused again to abrogate sovereign immunity by judicial fiat, deferring to the Legislature. A year later the Court again refused, awaiting legislative action, to abrogate what was acknowledged to be “this court made legal rule.” Bartashevich v. City of Portland, Me., 308 A.2d 551 (1973). In spite of some legislative activity, the doctrine, then in such a deep state of judicial disrepute with this Court, remained legislatively unimpaired in its essential vitality. Finally, in 1976, pressed to the limit of its patience, the Court abrogated, subject to remedial legislation within sixty-three days of its Opinion, the doctrine it had then deprecated with consistency for fifteen years. Davies, 364 A.2d 1269. By that time the Court could accurately describe the doctrine as having “been so discredited that an overwhelming majority of jurisdictions has abolished it either by judicial decision or by statute.” Id. at 1272 (footnote omitted). Of the twenty-three decisions from as many jurisdictions cited by the Court in support of that description, all but three were of more recent vintage than 1961, when the Court first recognized in Nelson that the doctrine “ought to be destroyed.” See Davies, id. 364 A.2d at 1272 n.8.
The end result of the Court’s tender solicitude for what was conceived to be the legislative prerogative in that situation was that a judge-made rule of the common law, Bale, 286 A.2d 344, was imposed upon the citizens of this State for fifteen years after the time this Court recognized, on principled analysis and considerations of fundamental fairness, that it was archaic, irrational and deserving of destruction, while the courts of at least twenty other jurisdictions acted to relieve the citizenry of those jurisdictions from the burden of the erroneous and unfair rule. One such experience should be enough to convince any court of its responsibility to tend to the care and pruning of the perennials of its own garden. It has never been demonstrated that when the Court finally did act to abrogate the doctrine any great calamity
. We said in Anderson that “[t]he principles we here apply may require a re-examination of Tantish v. Szendey ... in the medical malpractice area when the issue is properly before us.” 428 A.2d at 1193.
. We note that the plaintiff discovered the presence of the tubing in her back before the two year period of limitation, commencing at the time of the surgery in September 1956, had expired. Because, however, she instituted the malpractice action within two years of discovering the foreign object and not within two years of the operation itself, her suit would be timely only if the cause of action was deemed to have accrued at the moment she became aware that the defendant had left the tubing in her. The Court was thus faced squarely with the question of whether to adopt such a rule.
. In the following cases, the discovery rule has been applied to foreign-object medical malpractice actions in the face of legislative silence: Mayer v. Good Samaritan Hospital, 14 Ariz.App. 248, 482 P.2d 497 (1971); Huysman v. Kirsch, 6 Cal.2d 302, 57 P.2d 908 (1936); Rosane v. Senger, 112 Colo. 363, 149 P.2d 372 (1944); Puro v. Henry, 32 Conn.Sup. 118, 342 A.2d 65 (1975); Burke v. Washington Hospital Center, 293 F.Supp. 1328 (D.D.C.1968); Billings v. Sisters of Mercy, 86 Idaho 485, 389 P.2d 224 (1964); Mathis v. Hejna, 109 Ill.App.2d 356, 248 N.E.2d 767 (1969); Franklin v. Albert, 381 Mass. 611, 411 N.E.2d 458 (1980); Johnson v. St. Patrick’s Hospital, 148 Mont. 125, 417 P.2d 469 (1966); Spath v. Morrow, 174 Neb. 38, 115 N.W.2d 581 (1962); Shillady v. Elliot Community Hospital, 114 N.H. 321, 320 A.2d 637 (1974); Fernandi v. Strully, 35 N.J. 434, 173 A.2d 277 (1961); Flanagan v. Mount Eden General Hospital, 24 N.Y.2d 427, 301 N.Y.S.2d 23, 248 N.E.2d 871 (1969); Melnyk v. Cleveland Clinic, 32 Ohio St.2d 198, 290 N.E.2d 916 (1972); Seitz v. Jones, 370 P.2d 300 (Okl.1962); Berry v. Branner, 245 Or. 307, 421 P.2d 996 (1966); Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959); Shinabarger v. Jatoi, 385 F.Supp. 707 (D.S.D.1974) (construing South Dakota law); Gaddis v. Smith, 417 S.W.2d 577 (Tex. 1967); Christiansen v. Rees, 20 Utah 2d 199, 436 P.2d 435 (1968); Ruth v. Dight, 75 Wash.2d 660, 453 P.2d 631 (1969); Morgan v. Grace Hospital, Inc., 149 W.Va. 783, 144 S.E.2d 156 (1965). See generally Annot., 70 A.L.R.3d 7 §§ 1-6 (1976 & Supp.1980).
Statutes codifying the discovery rule in foreign-object medical malpractice cases include Ala.Code § 6-5-482 (1975); Ariz.Rev.Stat. § 12-564 (1982); Ark.Stat.Ann. § 34-2616 (1981); Cal.Civ.Proc.Code § 340.5 (West 1980); Colo.Rev.Stat. § 13-80-105 (1980); Del.Code tit. 18 § 6856 (1980); Fla.Stat. § 95.11(4)(b) (West 1981); Ga.Code Ann. § 3-1103 (1981); Haw.Rev.Stat. § 657-7.3 (1981); Idaho Code § 5-219(4) (1979); Ill.Rev.Stat. ch. 83, § 22.1 (Smith-Hurd 1980); Iowa Code § 614.1(9) (1981); Kan.Stat. § 60-513(a)(7)(c) (1976); Ky. Rev.Stat.Ann. § 413.140(2) (1980); Md.Cts. & Jud.Proc.Code Ann. § 5-109 (1974); Mich.Stat. Ann. § 600.5838 (1980); Miss.Code Ann. § 15-1-36 (1981); Mo.Rev.Stat. § 516.105 (1978); Mont.Rev.Codes Ann. § 27-2-205 (1981); Neb. Rev.Stat. § 44-2828 (1978); Nev.Rev.Stat. § 41A.097 (1979); N.H.Rev.Stat.Ann. § 507-C:4 (1979); N.Y.Civ.Prac. § 214-a (McKinney 1981); N.C.Gen.Stat. § l-15(c) (1981); N.D. CentCode § 28-01-18(3) (1981); Ohio Rev. Code Ann. § 2305.11 (Baldwin 1982); Okla. Stat.Ann. tit. 76 § 18 (1980); Or.Rev.Stat. § 12.110(4) (1979); R.I.Gen.Laws § 9-1-14.1 (1981); S.C.Code § 15-3-545 (1981); Tenn. Code Ann. § 29-26-116 (1980); Utah Code Ann. § 78-14-4 (1979); Vt.Stat.Ann. tit. 12, § 521 (1981); Wash.Rev.Code Ann. § 4.16.350 (1979); Wis.Stat. § 893.55 (West 1981); Wyo. Stat. § 1-3-107 (1977).
. Adoption of this rule avoids the unseemly possibility that plaintiffs who suffer post-operative complications but who are unaware of the cause of those complications will initiate a malpractice action against the surgeon merely to preserve the availability of a remedy. See Spath v. Morrow, 174 Neb. 38, 41, 115 N.W.2d 581, 584 (1962).
. The time of actual or constructive discovery is an issue of fact. Franklin, 381 Mass. at-, 411 N.E.2d at 463; Ayers, 397 Pa. at 291, 154 A.2d at 793; Hill v. Clarke, 241 S.E.2d 572, 573 (W.Va.1978). If the trier of fact were to determine that the plaintiff had actual or constructive knowledge of the foreign-object’s presence more than two years before the action was commenced, section 753 would operate to foreclose recovery.
. Black, 409 A.2d at 639.
.We have had occasion to consider, in only five cases over the last decade, the scope of the retrospective effect accorded to an overruling decision of this Court. Davies v. City of Bath, Me., 364 A.2d 1269 (1976) abolished the doctrine of sovereign immunity, overruled Nelson v. Maine Turnpike Authority, 157 Me. 174, 170 A.2d 687 (1961), and limited its retroactivity to the parties to the case. The holding was otherwise to have only prospective application. Jones v. Billings, Me., 289 A.2d 39 (1972) adopted the modified “attractive nuisance” doctrine of Restatement (Second) of Torts § 339, overruled Lewis v. Mains, 150 Me. 75, 104 A.2d 432 (1954), and limited retroactivity to the parties to that case and cases arising out of accidents occurring on or after date of accident in the case. Black v. Solmitz, Me., 409 A.2d 634 (1979), which limited the application of the doctrine of parental immunity and overruled Downs v. Poulin, Me., 216 A.2d 29 (1966), limited retroactivity to the parties to that case and cases arising out of injuries occurring on or after date of injury in the case. Poulin v. Colby College, Me., 402 A.2d 846 (1979) abolished the common-law distinction between licensees and invitees as basis for liability for defects in premises, overruling Patten v. Bartlett, 111 Me. 409, 89 A. 375 (1914), and limited retroactivity to the parties to that case and cases arising out of injuries occurring on or after the date of injury in that case. MacDonald v. MacDonald, Me., 412 A.2d 71 (1980) abolished the doctrine of interspousal immunity under Maine law, overruling Abbott v. Abbott, 67 Me. 304 (1877), and mandated full retroactivity.
. But see R. Keeton, Venturing To Do Justice: Reforming Private Law 33-34 (1969), quoted in R. Aldisert, The Judicial Process 899-900 (1976), suggesting that a purely prospective application of a newly created rule is identical in effect to an affirmation of the vitality of the old rule. As the latter constitutes a “holding,” Keeton asserts, so too does the former.
. A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later
Great Northern Ry. Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360, 366 (1932).
. In Durham, the federal court was determining the substantive criminal law of the District of Columbia. The court functioned as a state court as the case was not based upon federal statutes of national applicability. See Keller v. Potomac Elec. Power Co., 261 U.S. 428, 442-43, 43 S.Ct. 445, 448-49, 67 L.Ed. 731, 736 (1923). Its inherent power was therefore parallel to that of state courts generally in that circumstance.
Since the federal court issued its opinion in Durham, Congress has created a court system in the District of Columbia, separate and distinct from the federal courts, which is analogous to those found in the states. District of Columbia Court Reorganization Act of 1970, Pub. L. No. 91-358, 84 Stat. 473.
. Tantish established the accrual rule in 1962. There has been no challenge to that rule in this Court until the present case. It has been accepted as the law of this jurisdiction by the federal courts. See Clark v. Gulesian, 429 F.2d 405 (1st Cir. 1970). The only intimation of any inclination in this Court to reconsider that rule occurred only one year ago in Anderson v. Neal, Me., 428 A.2d 1189, 1193 (1981), when we said, “The principles we here apply may require a re-examination of Tantish v. Szendey, supra, in the medical malpractice area when the issue is properly before us.”