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BURKE v. WASHINGTON HOSP. CTR.

December 6, 1968

Mary BURKE and Albert O. Burke, Plaintiffs,
v.
WASHINGTON HOSPITAL CENTER and Ernest W. Lowe, Defendants



The opinion of the court was delivered by: HOLTZOFF

 The question presented in this case is when the statute of limitations begins to run in an action against a physician, a nurse, or a hospital for negligence in leaving a foreign substance, such as a sponge, a piece of gauze, or a needle, in a patient's body after a surgical operation; specifically, whether the period of limitations starts when the object is left in the wound, or when its presence in the patient's body is first discovered at some later date. The question is of novel impression in this District and for that reason this Court has made an examination of the authorities in other jurisdictions, as well as a study of the pertinent principles.

 The query arises on plaintiffs' motion for a rehearing of the defendants' motion for summary judgment, which was made solely on the ground that the period fixed by the statute of limitations had expired against the claim prior to the institution of the suit. The complaint alleges that on June 1, 1962, the plaintiff Mary Burke was admitted to the defendant Washington Hospital Center, and that two days later an operation was performed on her at the hospital by the defendant Dr. Ernest W. Lowe. It is further asserted that one of the sponges used by the surgeon during the operation was left in her body when the incision was closed. The presence of the sponge in the plaintiff's body was not discovered until July 1967, when it was removed by another operation. The patient and her husband bring this suit for damages, including the pain and suffering that she suffered during the intervening years.

 The defendants contend that the action is barred by the local three-year statute of limitations prescribed for actions for negligence, D.C. Code ยง 12-301(8), and have moved for summary judgment on that ground. The plaintiffs argue that the statute of limitations did not begin to run until the discovery in July 1967 of the fact that the foreign substance had been left in the wound five years previously, and that, accordingly, this action, which was brought on November 20, 1967, is timely. These opposing contentions present the problem to be solved by this Court.

 The general rule was originally that the period of limitations in such actions commences when the foreign substance is left in the wound, on the basic theory that the time starts when the cause of action arises. One of the leading cases upholding and applying this doctrine is a Massachusetts decision in Cappuci v. Barone (1929) 266 Mass. 578, 165 N.E. 653. There, a surgical operation was performed on the plaintiff in May 1924. The fact that a piece of gauze was left in the wound during the operation was not discovered until more than two years later. The Court held that the statutory period began when the act of negligence occurred and not when the actual injury was ascertained. Accordingly, the conclusion was reached that the action was barred by the applicable statute of limitations, which was two years. Only recently, as late as 1966, the highest court of Massachusetts reasserted this doctrine in Pasquale v. Chandler, 350 Mass. 450, 215 N.E.2d 319, on the authority of the Cappuci case. The Court, however, expressed some misgivings concerning the validity of this rule even though it reaffirmed and applied it (p. 322).

 Ohio adhered to the same doctrine in De Long v. Campbell, 157 Ohio St. 22, 104 N.E.2d 177, 179, and reaffirmed prior cases to the same effect, refusing to adopt the principle that the statute does not begin to run until the discovery of the injury. The Court observed that "the fact that plaintiff did not know of her right of action did not prevent the statute from running * * *." There was a strong dissenting opinion.

 Illinois, in Mosby v. Michael Reese Hospital, 49 Ill.App.2d 336, 199 N.E.2d 633, likewise clung to what is sometimes inaccurately called the majority rule, namely, that the period of limitations begins when the object is left in the wound. The Court observed, however, (p. 635) that a trend was discernible in the direction of the "minority rule", i.e., that the period starts at the time of discovery of the injury. The Court made the following comments on this point:

 
"Even in the opinions of those courts which have more recently followed the majority rule, there is an occasional expression of regret. The harshness of the rule is recognized but the statutes which compel the rule are followed, albeit reluctantly."

 Cases from other States may be cited, which apply the same doctrine, McCluskey v. Thranow, 31 Wis.2d 245, 142 N.W.2d 787; Hawks v. De Hart, 206 Va. 810, 146 S.E.2d 187, 189; Murray v. Allen, 103 Vt. 373, 154 A. 678; Roybal v. White, 72 N.M. 285, 383 P.2d 250; Lindquist v. Mullen, 45 Wash.2d 675, 277 P.2d 724.

 The logical reasoning underlying this theory seems ineluctable and invulnerable, i.e., a cause of action for negligence arises at the moment when the foreign substance is improperly abandoned in the patient's body and hence the statute of limitations begins to run at that time. There are occasions, however, when remorseless, inexorable logic does not necessarily lead to a just result. Logic must then yield to common sense and to substantial justice. As was said by Mr. Justice Holmes in his celebrated work on The Common Law, "the life of the law has not been logic; it has been experience." He adds that common sense should not be sacrificed to a syllogism. When such a cause of action arises, fortunately but rarely, the patient is ordinarily ignorant of what has happened and is physically unable to become aware of the situation until possibly months, or even years later, perhaps after suffering considerable pain in the interim, and then only after another physician or surgeon finally ascertains the fact, at times long after the period of limitations has expired. To say to a patient that the law accords him a cause of action for damages, but that the remedy became extinguished by lapse of time before he discovered or even could have possibly ascertained the facts, seems a futility and a denial of justice.

 The Courts have gradually become uneasy and many have swung away from the original rule. In recent years, State after State started to adopt the principle that the period of limitations does not begin to run until the patient discovers, or should have discovered the fact that a foreign substance had been left in the wound. This doctrine has at times been called "the discovery rule". It is said that the cause of action accrues when the plaintiff first learns of its existence and not when it arose theoretically.

 An early glimmer in that direction came in Louisiana in Perrin v. Rodriguez, La.App., 153 So. 555. This case involved a dentist who when extracting a patient's teeth, left some roots embedded in the sockets. The Court held that the period of limitations did not commence to run until the plaintiff had become aware of the fact that he had sustained the injury and that it had resulted from the defendant's negligence.

 In 1950, Pennsylvania in a detailed, well considered opinion in Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788, adopted the discovery rule. In that case a surgeon had left a sponge in the patient's body when he performed an operation. It was held that the statute of limitations did not begin to run until years later when the presence of the sponge in the patient's body was discovered.

 In 1954, Florida joined the group of States that prefer the discovery rule, City of Miami v. Brooks, 70 So.2d 306, 309. The Court ...


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