Morgan v. Grace Hospital, Inc.

Calhoun, Judge:

This case involves a medical malpractice action instituted in the Circuit Court of McDowell County on March 10,1964, by Ada Mae Morgan and Thomas V. Morgan, wife and husband, against Grace Hospital, Inc., a private hospital corporation, and Ray E. Burger. The case involves the question whether the cause of action is barred by the provisions of the applicable statute of limitations.

The complaint charges that on January 16, 1953, Dr. S. Douglas Murray, a physician and surgeon who was then employed as such by the defendants, performed a hysterectomy upon Ada Mae Morgan; that she remained in the hospital thereafter until she was discharged on January 23, 1953; that she returned to the hospital and was examined by Dr. S. Douglas Murray on February 14, 1953; that following the operation, both before and after her discharge from the hospital, she suffered severe pain, nervousness and mental anguish as a consequence of negligence in the performance of the operation; that on April 13, 1963, a physician not connected with the defendant hospital discovered by means of an X-ray examination a foreign object in Ada Mae Morgan’s abdomen, as a consequence of which discovery she was admitted to Bluefield Sanitarium at Blue-field for the purpose of submitting to an operation for the removal of the foreign object from her abdomen; that on May 3, 1963, the operation was performed by a surgeon at Bluefield Sanitarium; that the operation resulted in the discovery of a sponge in 'and its removal from her abdomen; that the sponge had been left in her abdomen as a result of the negligence of the defendants, acting through their employee, Dr. S. Douglas Murray, and their other employees, servants and agents in connection with the performance of the initial operation on January 16, 1953; and that Dr. S. Douglas Murray was a nonresident of this state when the civil action was instituted.

Ada Mae Morgan sues for personal injuries, pain, suffering and mental anguish. Her husband, Thomas V. Morgan, sues for recovery of medical and hospital bills and also damages for loss of services and loss of consortium.

The defendants filed a plea of the statute of limitations pursuant to Rule 12 (b) of the Rules of Civil Procedure asserting “that the several supposed causes of action in said complaint mentioned, and if any such there were or still are, did not, nor did any or either of them, accrue to the said plaintiffs, or either of them, at any time within one year before the commencement of this action * * By an order entered on May 2; 1964, the trial court sustained the plea of the statute of limitations, entered judgment for the defendants and dismissed the action on its merits at the costs of the plaintiffs. From that judgment, the plaintiffs have appealed to this Court.

At the time the hysterectomy was performed, the period of limitation applicable to an action such as this was one year, but it has since been changed to two years. The applicable statute (Code, 1931, 55-2-12, as amended-,) required an action of this character to be brought “within one year next after the right to bring the same shall have accrued * * Two prior decisions of this Court furnished an exact and proper basis for the trial court’s ruling that the cause of action was barred at the time the civil action was instituted. It will be noted that the civil action in this case was instituted more than ten years after the date of tne performance of the hysterectomy but in less than one year after the sponge was discovered in Ada Mae Morgan’s abdomen by an X-ray examination.

In Baker v. Hendrix, 126 W. Va. 37, 27 S. E. 2d 275, the defendant surgeon left a sponge in the abdomen of the plaintiff following an appendectomy performed by him. Slightly more than seven years later, another physician performed an operation on the plaintiff in connection with which he discovered and removed the sponge left by the defendant in the plaintiff’s abdomen in connection with the previous operation. The case was certified to this' Court on the sufficiency of a replication to a plea of the statute of limitations. The Court held, pursuant to the allegations of the replication, that the one-year period of limitation is suspended in such a case “during such time as the defendant by fraud or other indirect ways' or means obstructs the prosecution of plaintiff’s right of action.” The Court also held that mere silence on part of the guilty party in such a case will not prevent the running of the statute. Gray v. Wright, 142 W. Va. 490, 96 S. E. 2d 671, involved an allegation that the defendant surgeon negligently failed to remove a hemostat from the plaintiff’s abdomen in connection with a gall bladder operation performed by him. The Court held that the cause of action, if any, against the surgeon accrued at the time of the operation and that “in the absence of actual knowledge, fraud, or concealment on the part of the defendant,” the running of the statute of limitation would not be delayed or tolled.

The complaint in the present case does not allege that defendants, through their employees, servants or agents, had actual knowledge of the fact that the sponge was left in the plaintiff’s abdomen or that they were guilty of actual fraud or concealment of any facts within their knowledge. It follows that the present case was not brought within the rule'of the two prior cases which would prevent the running of the applicable statute of limitations. The appeal was granted in this case by a divided Court in order to permit a reexamination of the principles announced in the Baker case and in the Gray case, in the light of other decisions of this Court in similar or analagous situations.

The application of statutes of limitations has been considered by appellate courts in innumerable medical malpractice cases. This has resulted in various exceptions to or qualifications of the rule that the period of limitation commences to rim from the date of the act of malpractice rather than from the date of its discovery. Some of these rules may be stated as follows: (1) The statute does not commence to run so long as the physician’s treatment of the patient continues; (2) the statute commences to run at the time of the commission of the tort or at the time of the injury, these terms being sometimes used interchangeably; (3) the statute commences to run from the date of the patient’s injury rather than from the date of the commission of the tort; (4) the statute does not commence to run until the termination of the physician’s treatment of the patient, except where the patient, prior to such termination discovers, or by the exercise of reasonable diligence could have discovered, his injury; (5) the statute will not run so long as the physician fraudulently conceals the cause of action, unless the patient in the meantime discovers, or by the exercise of reasonable care should have discovered, the injury, but the cases differ as to what constitutes a fraudulent concealment; and (6) the period of limitation commences to run only from the time the patient discovers, or in the exercise of reasonable care should have discovered, the wrong committed by the surgeon. Exhaustive annotations, pointing out the variety of legal principles applied in such cases, are found in 80 A. L. R. 2d 368; 144 A. L. R. 209; and 74 A. L. R. 1317. To the same effect see 41 Am. Jur., Physicians and Surgeons, Section 123, page 233; 54 C. J. S., Limitations of Actions, Section 174b, pages 142-144; 70 C. J. S., Physicians and Surgeons, Section 60, pages 983-985. It has been said that the rule that the period of limitation commences to run from the date of the tort or wrong is subject to various exceptions and, therefore, it cannot be said to represent the general rule. Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P. 2d 224.

By the'Baker case and the Gray case this Court is apparently committed to the rule that, in cases such as this, the statute commences to run from the date the surgeon negligently failed to remove the foreign object from the abdomen of the patient, in the absence of proof, by a preponderance of the evidence, of actual knowledge, fraud or concealment on the part of the surgeon; and that the rule must be applied even though the patient did not know and had no reasonable means of knowing of the wrong until after the expiration of the period of limitation. We believe that the Court in this respect is committed to a rule which is unrealistic and cruelly harsh and a rule which places a burden upon the wronged plaintiff which he or she would rarely, if ever, be able to carry. Furthermore, we believe the Court in this respect is out of harmony with a more reasonable rule first applied by the Court in a strikingly analogous situation in 1920, long before the Baker and Gray cases were decided.

Petrelli et al. v. West Virginia-Pittsburgh Coal Co., 86 W. Va. 607, 104 S. E. 103, involved an action to recover damages for the wrongful removal of coal by the defendant by extending its subterranean mining operations into adjoining property belonging tp the plaintiff. The fourth point of the syllabus in that case is as follows: “Where a cause of action accrues for the unlawful removal of coal by wrongfully extending mining operations into adjoining property, the statute of limitations begins to run only from the time of actual discovery of the trespass, or the time when discovery was reasonably possible.” It will be noted that the Court stated the rule in that syllabus point without any reference to knowledge, fraud or fraudulent concealment on part of the defendant. The same principle was reiterated and applied in Knight et al. v. Chesapeake Coal Co., 99 W. Va. 261, 128 S. E. 318, the first point of the syllabus being as follows: “In an action to recover the penalty imposed by section 7, c. 79, Code 1923, for mining within five feet of a division line, under a plea of the statute of limitations, the burden rests upon the defendant to establish by a preponderance of the evidence: (1) that the encroachment was made more than a year before the institution of the suit; and (2) that the plaintiff knew of the encroachment, or that discovery thereof could have been made by the use of reasonable diligence, more than one year prior to the bringing of the action.” The Petrelli case was cited, apparently with approval, in Burner v. Smith Coal Co. et al., 107 W. Va. 158, 161, 147 S. E. 545, 546, and in State ex rel. Ashworth v. The State Road Commission et al., 147 W. Va. 430, 439, 128 S. E. 2d 471, 477.

It appears, therefore, that the Court is committed to two variant rules in the application of the statute of limitations in two analogous and strikingly similar types of cases. In cases involving the negligence of surgeons in leaving foreign objects in the abdomens of patients, the rule is that the period of limitation will run against the patient’s cause of action from the date of the operation unless the patient can prove by a preponderance of evidence that the surgeon knowingly and fraudulently concealed the wrong from the patient. In the cases involving wrongful or negligent subterranean mining by a defendant of a plaintiff’s coal, the period of limitation does not run from the date of the wrong or tort, but rather from the date the plaintiff learned, or by exercise of reasonable care Should have learned, of the wrong committed against him by the defendant. As one member of this Court has commented in relation to these variant applications of the statute of limitations, it is difficult to conceive why, in right, reason or justice, one rule should apply when a defendant’s wrong is concealed in the bowels of the earth and another, harsher rule should apply when the wrong has been concealed by the defendant surgeon in the bowels of a human being. It is difficult to conceive why limitations should be applied with such strictness and harshness in case of an injury to the person of a human being and yet applied with much less strictness and with far greater indulgence and reason when the wrong has been done to the plaintiff’s coal and incidentally to his pocketbook. We believe that the two rules cannot, in reason and justice, be permitted to coexist in two situations of such similar and analogous nature.

In support of the contention that we should continue to adhere to the rule applied in the malpractice cases, it is urged that the construction of a statute by a court of last resort becomes a component part of the statute. Scott v. Rinehart & Dennis Co. et al., 116 W. Va. 319, pt. 2 syl., 180 S. E. 276; State ex rel. Zirk v. Muntzing, 146 W. Va. 349, pt. 2 syl., 120 S. E. 2d 260. We believe there are in this case several sound answers to that contention. First, how can that legal principle be applied in a situation of two divergent constructions of the same statute by the same court? Can it be said that both constructions have become component parts of the statute? In' the second place, the rule announced in the Petrelli case relating to wrongful mining operations' had been “a component part of the statute” for almost a quarter of a century, without any change therein by the legislature, before the Court first announced the variant rule in the Baker case in relation to a foreign object left by a surgeon in the abdomen of a patient. During all the period of the coexistence of the two rules, the legislature has not changed either rule. If there is any fair inference to be drawn from the inactivity of the legislature during that period, perhaps it should be that the legislature has left it to this Court to reconcile its apparently variant, inconsistent or illogical holdings in this area.

It is contended in behalf of the defendant that we cannot change the rule announced in the two medical malpractice cases previously referred to in this opinion without invading the province of the legislature. We consider this contention wholly untenable. We readily and willingly recognize that this Court cannot change the limitation period from one year, as it was at the time the alleged tort was committed in this case, or from two years, as it is at present. We are merely called upon to construe the statute as it was enacted by the legislature and that function is one peculiarly for the judicial branch of government.

The statute does not expressly provide that the period of limitation shall commence to run from the time the tort or wrong is committed; nor does the statute expressly provide that the period of limitation shall commence to run from the time the wronged plaintiff discovers, or, in an exercise of reasonable care, should have discovered that the tort or wrong has been committed by the defendant with a consequent damage to the plaintiff’s property. Those rules are not found in the express language of the statute but, on the contrary, they are products of this Court’s construction of the statute. We are merely called upon in this case to construe the phrase, “within one year [now two years] next after the right to bring the same shall have accrued * * That is exactly what the Court did in the two coal mining cases and in the two medical malpractice cases. It cannot be said that the Court changed the statute in any of the four cases, unless it be said that the holding of the Petrelli case had become “a component part of the statute” and that the Court, therefore, changed the statute in the subsequent case of Baker v. Hendrix, supra.

Our task in the present case is not merely to construe the statute as the Court did in the four cases to which we have referred previously; but we have in the present case that which we conceive to be the additional task of reconciling, if possible, the two divergent rules of construction applied to the statute. We simply feel that the two rules of construction applied by the same court to the same statute are divergent and inconsistent, leaving needless uncertainty in judicial construction; and that one or the other of the two divergent constructions should now be adopted and the other abandoned in order to bring about consistency in this respect in the decisions of this Court.

We believe that we recognize fully the significance of the doctrine of stare decisis and that we are disposed to apply it reasonably. We do not believe, however, that a judicial construction of a statute by this Court, whether sound or unsound, becomes immutable and beyond the power of the Court subsequently to reconsider its soundness. An overruling of Baker v. Hendrix, supra, and Gray v. Wright, supra, cannot unsettle property rights. It is doubtful that such an overruling would affect any cause of action existing in this state at this time other than that involved in the present case. On the other hand, it is conceivable that property rights might become unsettled if we were to overrule the Petrelli case and the Knight case. We earnestly believe that the bench and bar will be well served by the Court if we diligently endeavor at all times to accomplish consistency and certainty in our decisions, rather than laboriously to endeavor to distinguish decisions in such a way as needlessly to create uncertainty where none need exist.

The basic purpose of statutes of limitations is to encourage promptness in instituting actions; to suppress stale demands or fraudulent claims; and to avoid inconvenience which may result from delay in asserting rights or claims when it is practicable to assert them. 53 C. J. S., Limitations of Actions, Section lb, page 901; 34 Am. Jur., Limitation of Actions, Sections 9 and 10, pages 18-20; 12 M. J., Limitation of Actions, Section 2, page 180. The rule announced by the Court in the coal mining cases comports with these underlying purposes of such statutes more than the rule announced later in relation to medical malpractice cases. It would be unwarranted to assert that the plaintiff in this case has slept on her rights; that she is asserting a stale or fraudulent demand; or that she has needlessly delayed the institution of this action or displayed lack of diligence in asserting her claim with reasonable promptness after it was practicable for her to do so. Gan it be said that any attorney would or could have advised her to sue within a year after the hysterectomy was performed? Can anybody reasonably assert that she was guilty of lack of diligence when the evidence of the alleged wrong or tort committed by the surgeon was effectively sealed and hidden from view by the sutures which he applied? Must she be penalized and denied a day in court and must the defendants and their employees be rendered immune from any redress of the wrong inflicted upon the plaintiff merely because apparently the wrong or tort could be discovered only by means of an X-ray or by a second incision in her abdomen? Doubtless it is fair and accurate to say that neither the operating surgeon nor anybody else knew of the presence of the sponge in the plaintiff’s abdomen until another physician discovered it years later by means of an X-ray examination. It simply places an undue strain upon common sense, reality, logic and simple justice to say that a cause of action had “accrued” to the plaintiff until the X-ray examination disclosed a foreign object within her abdomen and until she had reasonable basis for believing or reasonable means of ascertaining that the foreign object was within her abdomen as a consequence of the negligent performance of the hysterectomy.

A rule which has been applied by various courts to cases such as the present case, and which has been referred to as the “discovery rule,” was stated in the syllabus by the court in Spath v. Morrow, 174 Neb. 38, 115 N. W. 2d 581, as follows: “A cause of action for malpractice based upon the alleged failure of a physician to remove a foreign object left in the body of a patient by mistake does not accrue until the patient discovers, or in the exercise of reasonable diligence should have discovered, the presence of the foreign object.” The rule was stated in similar language in the first point of the syllabus of Ayers v. Morgan, 397 Pa. 282, 154 A. 2d 788, as follows: “Where a surgeon negligently leaves a sponge in the body of his patient resulting in harm to the patient, the statute of limitations on the patient’s cause of action does not begin to run until the patient learns, or by the exercise of reasonable diligence could have learned, of the presence of the sponge within his body.” In the opinion in Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P. 2d 224, at page 232 the Court stated: “In reality, the ‘general rule’ has little to recommend it. It is neither the position of a majority of the jurisdictions nor is it firmly based on considerations of reason or justice. We will, therefore, adhere to the following rule: where 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.” “Where a foreign object or substance is negligently left in a patient’s body by an operating physician and surgeon, and the patient is in ignorance of the fact, the limitation period does not begin to run against a malpractice action until the patient learns, or in the exercise of reasonable care and diligence, should have learned of the presence of such foreign substance in his body.” Seitz v. Jones, (Okl.) pt. 2 syl., 370 P. 2d 300. To the same effect see Fernandi v. Strully et al., 35 N. J. 434, 173 A. 2d 277; Johnson v. Caldwell, 371 Mich. 368, 123 N. W. 2d 785; Hemingway v. Waxler et al., (Cal.), 274 P. 2d 699; Stafford v. Shultz et al., 42 Cal. 2d 767, 270 P. 2d 1; Wohlgemuth v. Meyer, 139 Cal. App. 2d 326, 293 P. 2d 816; City of Miami v. Brooks, (Fla.) 70 So. 2d 306; Perrin v. Rodriquez et al., (La.) 153 So. 555; Davis et al v. Bonebrake, (Colo.) 313 P. 2d 982; Burton v. Tribble, 189 Ark. 58, 70 S. W. 2d 503; Morrison v. Acton, 68 Ariz. 27, 198 P. 2d 590; Rosane v. Senger, 112 Colo. 363, 149 P. 2d 372.

We believe that the “discovery rule” as stated and applied in cases cited above represents a distinct and marked trend in recent decisions of appellate courts throughout the nation and that it is in harmony with the rule announced by this Court in the decisions involving subterranean coal mining operations. We are of the opinion that this rule should be applied in this case. By this decision we merely apply the rule of Petrelli v. West Virginia-Pittsburgh Coal Co., 86 W. Va. 607, 104 S. E. 103 and Knight v. Chesapeake Coal Co., 99 W. Va. 261, 128 S. E. 318, to the analogous situation presented in this case. We merely extend the rule so that it will apply to an action in which a plaintiff alleges that a foreign object was negligently left in his or her body following a surgical operation. To the extent that Baker v. Hendrix, 126 W. Va. 37, 27 S. E. 2d 275 and Gray v. Wright, 142 W. Va. 490, 96 S. E. 2d 671, are inconsistent with the decision in this case, they are hereby disapproved.

For reasons stated in this opinion, the judgment of the Circuit Court of McDowell County is reversed and the case is remanded to that court for such further proceedings, consonant with this opinion, as may be proper.

Reversed and remanded.