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.
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 Ganz
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,
The issue before us is whether Pope's
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
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:
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 Act
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.
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.
Although the autopsy report specifying acute gastrojejunitis as the cause of death was apparently placed with Magill's medical records on June 2, 1986,
Accordingly, having considered the arguments of the parties, we hereby reverse and remand for a new trial.
Gray cites Larcher v. Wanless, 18 Cal.3d 646, 135 Cal.Rptr. 75, 557 P.2d 507 (Cal. 1976), to support his contention that the "majority view in this country" is that the discovery rule does not apply to wrongful death malpractice actions. We do not agree that Larcher supports this assertion. The court in Larcher concluded, as we conclude, that in a wrongful death action, "injury," as used in California's wrongful death statute of limitations, refers to "the death, with its allegedly wrongful cause, which gives rise to the lawsuit." 557 P.2d at 509. The court in Larcher went on to conclude that the plaintiff, in that situation, did have only one year from death to bring her wrongful death action. However, in Larcher, the plaintiff was aware, before death, of the possible negligence that caused decedent's death. 557 P.2d at 509. Accordingly, as in Gilloon, 100 Nev. 518, 687 P.2d 80, the cause of action accrued at the happening of the last event necessary to complete the cause of action, or at death.
We do not agree, as Gray contends, that Larcher stands for the proposition that in California, which has a statute similar to ours, the statute of limitations for malpractice wrongful death actions begins to run at death. In fact, given Larcher's definition of injury and reasoning, it appears that California also applies the discovery rule to wrongful death malpractice actions.
Gray has, on appeal, apparently interpreted his undisputed statement to the judge "The final report down here is June 2, 1982" as an admission by Pope that she actually received the records on June 2, 1982. However, after examination of the record, we do not believe that this statement necessarily constituted such an admission. Although the exact meaning of counsel's statement "The final report down here is June 2, 1982" is not totally clear, it could have, and quite possibly did mean, that the report was placed with Magill's hospital records on June 2; the statement does not imply that the autopsy report was, at that time, sent to Pope. Obviously, the fact that the report was placed with the records June 2 does not necessarily mean Pope "received" them on that day, or reasonably should have examined them on that day.