POPE v. GRAY

OPINION

PER CURIAM:

This is an appeal from a dismissal granted pursuant to NRCP 41(b) at the conclusion of plaintiffs' case in an action for wrongful death allegedly resulting from medical malpractice. The trial judge held that the action was time-barred by the applicable statute of limitations, NRS 41A.097. We disagree, reverse and remand.

The Facts

On May 8, 1982, Eva Magill, seventy-four, vomited a bloody fluid and was taken by her daughter, Eva Lynn Pope, to the Carson-Tahoe Hospital. The next day respondent Dr. Thomas performed tests on Magill to diagnose her problem. Later that day, he and co-respondent Dr. Gray performed surgery on Magill for a lower bowel obstruction. On May 10, a third physician, Dr. Baggett, performed a Swanz Ganz1 on Magill, who died during or shortly after the procedure. One of the three doctors told Pope that her mother had died and they were not sure why.

On May 11, an autopsy was performed. The autopsy report was apparently filed with Magill's medical records on June 2, 1982. It indicated that the cause of death was coronary heart disease and acute gastrojejunitis. The death certificate, which previously stated that the cause of death would be filled in later, was modified on September 13, 1982 to reflect gastrojejunitis as the cause of death. Pope apparently received a copy of the death certificate around September 17, 1982. On September 11, 1984, Pope and her brother, William Walton Magill, filed a wrongful death action, alleging that respondents' medical malpractice cost them their mother's companionship.

At trial, after presentation of plaintiffs' evidence,2 Gray and Thomas moved for dismissal under NRCP 41(b), arguing that the NRS 41A.097 two-year period of limitations had run before plaintiffs commenced their action. The physicians, citing Gilloon v. Humana, Inc., 100 Nev. 518, 687 P.2d 80 (1984), maintained that the statute began running on May 10, 1982, when Mrs. Magill died. The district court granted the motion, basing its decision in large measure on our holding in Gilloon.

Discussion

The issue before us is whether Pope's3 action was barred by the statute of limitations. NRS 41A.097 provides:

Gray argues that, in wrongful death actions, the two-year statute of limitations begins to run upon death; Pope contends that it commences running only when the decedent dies and the person bringing the wrongful death action suspects or reasonably should suspect that malpractice was the cause. The basic question is whether the discovery rule applied to medical malpractice personal injury actions in Massey v. Litton, 99 Nev. 723, 669 P.2d 248 (1983), also applies to medical malpractice wrongful death actions by heirs. We conclude, in accordance with our decision in Massey, that it does.

In Massey, the injured plaintiff lost the use of her foot after an operation. Several years later, she sued Litton for malpractice. Litton argued that NRS 41A.097 barred the action because it was filed more than two years after Massey discovered the physical harm, loss of foot control. However, Massey countered that she did not discover proof of Litton's negligence until well after she discovered the physical harm, and that the statute's two-year provision should not actuate until the victim discovers both the injury and the facts suggesting negligence.

In deciding Massey, we considered whether the two-year statute, which begins running upon discovery of the "injury," should be interpreted as commencing (1) when the physician performed the allegedly negligent operation; (2) when the patient discovered, or should have discovered, the physical harm, or; (3) when the patient discovered, or should have discovered, that he or she suffered physical harm and that it resulted from the health care provider's negligence. In choosing the third option, we reasoned that the term "injury," as used by NRS 41A.097, meant "legal injury," which "encompasses not only the physical damage but also the negligence causing the damage." Massey, 99 Nev. at 726, 669 P.2d at 250. We concluded that an interpretation providing that the statutory period commenced to run only when a plaintiff discovers or should have discovered "legal injury" would be the most equitable construction of NRS 41A.097. Our ruling was in accord with the rule in many other jurisdictions. See Restatement (Second) of Torts § 899 comment e (1979).

We see no reason why the rule in Massey should not also apply, under the statute, to wrongful death actions for medical malpractice. Accordingly, we conclude that the two-year statutory period for wrongful death medical malpractice actions does not begin to run until the plaintiff discovers or reasonably should have discovered the legal injury, i.e., both the fact of death and the negligent cause thereof.

Respondent argues, however, that in Gilloon, 100 Nev. 518, 687 P.2d 80, we considered and rejected the idea that the discovery rule applies to wrongful death actions. In Gilloon, decedent's daughter filed a wrongful death action in 1981, both as an heir and as a personal representative, alleging that a physician's malpractice in 1976 caused her mother's death in 1979. The district court dismissed the action on summary judgment, reasoning that under NRS 41A.097, the injury occurred in 1976, when the doctor allegedly committed malpractice on the mother, and therefore the two-year limitation barred the daughter's action. We reversed, holding "in an action for wrongful death, the injury contemplated by NRS 41A.097 is the death of the malpractice victim and the two-year period of limitation begins to run from the time of death or the discovery thereof." 100 Nev. at 519-20, 689 P.2d at 81. Gray argues that this statement was a ruling that in wrongful death actions, the statutory period always actuates at the time of death.

However, an examination of Gilloon in its entirety reveals the flaw in Gray's characterization of our holding. In Gilloon, the decedent allegedly received negligent treatment in 1976 that led to her death in 1979. The hospital argued that, for purposes of NRS 41A.097, the injury triggering the statute was the alleged negligent treatment that occurred in 1976. The hospital maintained that because Gilloon did not bring her action until after her mother died in 1979, the action was barred by the two-year statute of limitations. We disagreed with this reasoning, noting that the hospital's construction could bar potential plaintiffs from court "before they had ever had a chance to bring suit." Gilloon, 100 Nev. at 521, 687 P.2d at 82. Moreover, in Gilloon, we cited with approval the definition of injury adopted in Massey and suggested that we intended it to apply in wrongful death cases:

Id. Notwithstanding this language in Gilloon, Gray argues that our holding adopted a construction of NRS 41A.097 in which knowledge of mere physical harm, death, triggers the statute of limitations. However, such a construction would be inconsistent with the rationale of both Gilloon and Massey, in which we held that legal injury, and not mere physical injury, triggers the 41A.097 statute of limitations.6

Although logical consistency with our earlier decisions is important, there are other cogent reasons for applying the discovery rule to wrongful death actions. For example, if we held that death automatically triggers the period of limitations, such a holding could destroy a right of action even before an aggrieved person learns of the existence of the right. A corollary problem would also be created: to avoid a loss of a potentially meritorious claim, plaintiffs' attorneys may precipitously file premature actions, or even actions that later turn out to be frivolous, in order to avoid the risk of having a meritorious action barred by NRS 41A.097. However, as we noted in Massey:

99 Nev. at 727, 669 P.2d at 251 (quoting Foil v. Ballinger, 601 P.2d 144, 147-48 (Utah 1979)).

Moreover, applying the discovery rule to personal injury actions, but not wrongful death actions, is incongruous and difficult to justify. In Fure v. Sherman Hospital, 64 Ill.App.3d 259, 21 Ill.Dec. 50, 380 N.E.2d 1376 (Ill. App.Ct. 1978), after considering defendant's argument that the discovery rule should be limited to medical malpractice personal injury actions, the court stated "it [is] rather difficult to maintain [a] severe legal distinction which allows the law to give more protection to the wounding of a man than to the ultimate disaster of his death." Id. at 1384. In Hanebuth v. Bell Helicopter Int'l, 694 P.2d 143 (Alaska 1984), the Alaska Supreme Court agreed with this reasoning: "if the discovery rule is not applied to wrongful death actions, a tortfeasor whose conduct has been so grievous as to cause death [might] be exonerated, while another tortfeasor, guilty of the same conduct except for the fortuity that it merely caused injury, would be held responsible." Id. at 147.

Other courts have concluded that the discovery rule applies to wrongful death actions, including those for medical malpractice. E.g. Hanebuth, 694 P.2d 143; Fure, 380 N.E.2d 1376; Shaughnessy v. Spray, 55 Or.App. 42, 637 P.2d 182 (Ct.App. 1981); cf. In re Swine Flu Prods. Liab. Litig., 764 F.2d 637 (9th Cir.1985) (in Ninth Circuit, discovery rule applies to medical malpractice wrongful death action under Federal Tort Claims Act7); Myers v. McDonald, 635 P.2d 84 (Utah 1981) (statute tolled until plaintiff learned or reasonably should have learned of decedent's death); White v. Johns-Manville Corp., 103 Wn.2d 693 P.2d 687 (Wash. 1985) (discovery rule applied to action for wrongful death caused by latent disease).8

Finally, we do not believe that the policy considerations behind the statute of limitations would be thwarted by applying the discovery rule to medical malpractice wrongful death actions. The United States Supreme Court has noted that statutes of limitations "are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared." Order of R.R. Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-49, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944). However, the discovery rule does not operate to save those who have slept on their rights. And, in the instant case, respondents have not demonstrated that they suffered prejudice because appellants brought their action two years and four months following death.

Gray argues that even if the discovery rule applies to wrongful death actions, Pope's action is barred because she should have discovered facts suggesting the alleged malpractice at least two years before she filed the action. More specifically, Gray argues Pope should have been alerted to possible malpractice when the doctors informed her that they were not certain of the cause of death, or, at the very latest, on June 2, 1982, when the autopsy report listing acute gastrojejunitis as the cause of death was filed. The district court agreed, ruling that her September 11, 1984 filing was not timely.9 In doing so, the court erred.

Before granting an NRCP 41(b) motion, a district court should view the evidence in a light most favorable to the opposing party. Adelman v. Arthur, 83 Nev. 436, 433 P.2d 841 (1967). The evidence, when so viewed, does not necessarily suggest that Pope should have suspected malpractice before September 11, 1982. Pope's mother died suddenly, after no apparent long-standing illness. Even though the doctors told Pope, on the day of her mother's death, that they did not know why she died, given Magill's age, surgical treatment, and serious manifestation of poor health two days before her death, death alone would not necessarily suggest, to a reasonably prudent person, that the decedent succumbed to the effects of medical malpractice.

Although the autopsy report specifying acute gastrojejunitis as the cause of death was apparently placed with Magill's medical records on June 2, 1986,10 available for Pope's examination, Pope advanced at least a reasonable argument that she should not have been expected to suspect malpractice until September 17, 1982, when she received her mother's death certificate. Given the standard of review for 41(b) motions, requiring the facts to be viewed in a light most favorable to the non-moving party, we conclude it was error to decide this factual issue on motion.

Accordingly, having considered the arguments of the parties, we hereby reverse and remand for a new trial.