Robinson v. Weaver

POPE, Justice,

dissenting.

I respectfully dissent. The case presents a single question: Does the “discovery rule” apply to an action based upon a medical doctor’s misdiagnosis? The majority answers no. By so holding, the majority treats misdiagnosis differently than we have treated other types of medical malpractice. I disagree with the majority holding. I believe that we should be consistent with our prior holdings and apply the “discovery rule” to a doctor’s misdiagnosis.

In Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967), this court applied the “discovery rule” to a foreign object negligently left in a patient’s body. In Hays v. Hall, 488 S.W.2d 412 (Tex.1973), we extended the “discovery rule’s” coverage to an unsuccessful vasectomy operation. The Corpus Christi Court of Civil Appeals, in Grady v. Faykus, 530 S.W.2d 151 (Tex.Civ.App.1975, writ ref’d n.r.e.), applied the rule to negligently administered X-ray treatments. In Nichols v. Smith, 507 S.W.2d 518 (Tex.1974), both vagus nerves were severed during a hernia operation. This court noted the discovery rule issue was not raised and stated:

In so far as Mrs. Nichols bases her claim on the alleged severence [sic] of . the vagus nerve, it could be argued that the case is governed by the discovery rule .. Our action in affirming . is not to be understood, therefore, as holding that the discovery rule has no application here. Id. at 521 .

In Sanchez v. Wade, 514 S.W.2d 812 (Tex.Civ.App.1974, no writ), the El Paso Court of Civil Appeals applied the “discovery rule” to a doctor’s negligent and incorrect diagnosis. The El Paso court made the same holding in the case now before us. The “discovery rule” has also been applied in other areas of Texas law. 1

*23 As Professor Prosser explains, there has been a “wave of decisions” adopting the “discovery rule” for all medical malpractice actions. PROSSER, LAW OF TORTS, § 30 (4th ed. 1971). 2 The decision of Yoshizaki v. Hilo Hospital, 50 Haw. 150 , 433 P.2d 220 (1967), is the most frequently cited opinion in this line of cases. In Yoshizaki , the court recognizes that there are two conflicting public policies at issue. There is the policy of protecting the practitioner from stale demands, and there is the conflicting policy favoring the adjudication of meritorious claims. Balancing these two policies, the Hawaii Supreme Court concluded that the burden placed upon the doctor is less than the injustice the plaintiff would-suffer if the discovery rule was not applied. The Hawaii court explained that, “A basic reason underlying statutes of limitátionisTron-existentr the^lamHff~Eas'nof~deTayed voluntarily uTassertiñg^ier'craimT’ IñTreach-ing tfie“sáñTg“«jmrtasion, "the Oregon Supreme Court noted that it is impossible on a theoretical basis to apply the discovery rule to one kind of malpractice and not to other types of malpractice. Frohs v. Greene, 253 Or. 1 , 452 P.2d 564 (1969). The Oregon court explained that in all malpractice, “it is unfair to say a person can maintain an action before he knows he has one.” We explained in Hays v. Hall that it is unjust to hold that a “legal remedy is unavailable to the injured party before he can know that he is injured.” I agree with the Oregon Supreme Court that this reasoning is as equally applicable to a misdiagnosis action as it is to a foreign object or vasectomy action.

It is important to note that Mr. Weaver remained under Dr. Robinson’s treatment from August, 1971, through December, 1971. During this period, he continually complained of persistent pain and infection around the incision area. Dr. Robinson responded to these complaints by telling Mr. Weaver that he was “worrying too much.” The majority opinion in effect says that a patient trusts his physician’s advice at his own risk. In a similar situation, the Michigan Supreme Court explained that:

[I]t would be “illogical and unintelligent” to require a patient to determine on the date he last consults a physician that malpractice has taken place, when he in fact relies upon the advice that constitutes the malpractice. So to hold would punish the patient who relies upon his doctor’s advice and places a premium on skepticism and distrust. Johnson v. Caldwell, 371 Mich. 368 , 123 N.W.2d 785 (1963).

The California Supreme Court has long recognized that due to a doctor and patient’s fiduciary relationship, “facts which would ordinarily require investigation may not excite suspicion, and that the same degree of diligence is not required of the injured person.” Stafford v. Shultz, 42 Cal.2d 767 , 270 P.2d 1 (1954); Hobart v. Hobart Estate Co., 26 Cal.2d 412 , 159 P.2d 958 (1945). The Oklahoma Supreme Court has stated that “justice would often be defeated” if victims of medical malpractice must diagnose their injuries where “special knowledge not possessed by an ordinary layman” is required. Seitz v. Jones, 370 P.2d 300, 302 (Okl.1961). The Supreme *24 Court of Rhode Island reasoned that where the discovery rule is not allowed, a patient could only protect his legal rights against a doctor’s malpractice by submitting to a complete examination by an independent doctor after every treatment or operation. Wilkinson v. Harrington, 104 R.I. 224 , 243 A.2d 745 (1968). In the case at hand, Mr. Weaver only discovered the misdiagnosis when he finally did submit to an examination by an independent doctor. His delay in making this discovery resulted from his trust and reliance upon Dr. Robinson’s advice. To hold that his cause accrued when the misdiagnosis occurred encourages patients to distrust their doctors. As we stated in Hays , “A result so absurd and so unjust ought not be possible.”

The steps in the discovery of Mr. Weaver’s cause of action are closely akin to the steps taken in Gaddis . Like Gaddis , Weaver had knowledge of internal pain but had no knowledge of cause. Only after the second myelogram, on April 25, 1972, which revealed the ruptured disc, did Weaver reasonably know of the existence of his cause of action. As in Gaddis and Hays , the statute of limitations in this case should run from the date of discovery.

It is true that in a misdiagnosis case, a physical object is not involved, but this does not mean that a fraudulent claim may be more easily asserted. As the Hawaii Supreme Court stated in Yoshizaki v. Hilo Hospital:

[Treatment generally follows diagnosis. The treatment is an objective fact which may be proved or disproved by people other than plaintiff. The fact that the treatment is the kind normally administered for the ailment the doctor allegedly improperly diagnosed is strong evidence of the diagnosis. 50 Haw. 150 , 433 P.2d 220 (1967).

We have already applied the discovery rule in cases which did not involve physical objects. See, Hays v. Hall, supra; Grady v. Faykus, supra. In our facts, the care and treatment that Dr. Robinson prescribed for Mr. Weaver are safe indicia of the misdiagnosis. In addition to the treatment, the office and hospital records supply further reliable evidence of misdiagnosis.

The New York courts have not limited the discovery rule to foreign object cases. In Murphy v. St. Charles Hospital, 35 A.D.2d 64 , 312 N.Y.S.2d 978 (1970), a prosthesis was inserted in a patient’s hip. Four years later the prosthesis broke, and surgery was required to remove it. In Dobbins v. Clifford, 39 A.D.2d 1 , 330 N.Y.S.2d 743 (1972), a patient’s spleen was severely damaged during a pancreas operation. In both cases, the discovery rule was applied. The court in each case reasoned that discovery was difficult because the malpractice was committed internally. The same reasoning applies to Dr. Robinson’s myelogram of Mr. Weaver which was also performed internally-

I would affirm the judgment of the court of civil appeals and make the Texas law consistent with our other malpractice decisions instead of applying the “discovery rule” sometimes and sometimes denying its applicability. The rule announced by the majority encourages a spirit of distrust of one’s doctor, it unfairly denies a cause of action before one learns that he has a cause, and it is contrary to the leading cases throughout the country. The rule denies protection to the uninformed victim of the malpraetitioner.

I would affirm the judgment of the court of civil appeals.

McGEE, JOHNSON and YARBROUGH, JJ., join in this dissent.

. The “discovery rule” applies in actions based on fraud, Ellison v. McGlaun, 482 S.W.2d 304 (Tex.Civ.App.1972, writ ref’d n.r.e.), and fraudulent concealment in medical malpractice cases, Thompson v. Barnard, 142 S.W.2d 238 (Tex.Civ.App.1940), affd, 138 Tex. 277 , 158 S.W.2d 486 (1942). In an action for breach of contract, or implied warranty, the statute of limitations runs from the time plaintiff knew or should have known of the breach. Rothman v. Gulf Coast Investment Corp., 497 S.W.2d 792 (Tex.Civ.App.1973), rev’d on other grounds, 506 S.W.2d 856 (Tex.1974). Recently, the rule was applied in a suit for defamation. Kelley v. Rinkle, 532 S.W.2d 947 (Tex.1976).

. Courts now more generally applying the discovery rule to medical malpractice cases are: Mayer v. Good Samaritan Hospital, 14 Ariz. App. 248 , 482 P.2d 497 (1971); Stafford v. Shultz, 42 Cal.2d 767 , 270 P.2d 1 (1954); Owens v. Brochner, 172 Colo. 525 , 474 P.2d 603 (1970); City of Miami v. Brooks, 70 So.2d 306 (Fla.1954); Yoshizaki v. Hilo Hospital, 50 Haw. 150 , 433 P.2d 220 (1967); Renner v. Edwards, 93 Idaho 836 , 475 P.2d 530 (1970); Lipsey v. Michael Reese Hospital, 46 Ill.2d 32 , 262 N.E.2d 450 (1970); Baines v. Bienderman, 223 N.W.2d 199 (Iowa 1974): Tomlinson v. Siehl, 459 S.W.2d 166 (Ky.1970); Springer v. Aetna Casualty and Surety Company, 169 So.2d 171 (La.App.1964); Waldman v. Rohrbaugh, 241 Md. 137 , 215 A.2d 825 (1966); Johnson v. Caldwell, 371 Mich. 368 , 123 N.W.2d 785 (1963); Acker v. Sorensen, 183 Neb. 866 , 165 N.W.2d 74 (1969); Iverson v. Lancaster, 158 N.W.2d 507 (N.D.1969); Frohs v. Greene, 253 Or. 1 , 452 P.2d 564 (1969); Wilkinson v. Harrington, 104 R.I. 224 , 243 A.2d 745 (1968); Teeters v. Currey, 518 S.W.2d 512 (Tenn.1974); Janisch v. Mullins, 1 Wash.App. 393 , 461 P.2d 895 (1969). Six states, including Texas and three of the above jurisdictions, have enacted special statutes of limitation placing a maximum limitation on the time allowed for discovery. 7 St. Mary’s L.J. 770 (1976).