By Alex Stein
Malpractice suits filed in connection with reproductive-choice procedures often present unique problems. The suit filed by Jami Conner against her former gynecologist, Dr. Bryan Hodges, is a case in point. The plaintiff, a mother of two children, decided that she did not want to have more children. To avoid future pregnancy, she asked the defendant to perform bilateral ligation of her tubes and the defendant granted her wish. Two and a half years later, however, the plaintiff discovered that she was pregnant again. Her suit against the defendant promptly followed that discovery.
The defendant moved for the suit’s summary dismissal, claiming that it was time-barred. Under controlling state law, Idaho Code section 5–219(4), “[a]n action to recover damages for ‘professional malpractice’ must be commenced within two years after the cause of action has accrued.” The same statute also provides that the cause of action accrues “as of the time of the occurrence, act or omission complained of” and “shall not be extended by reason of any continuing consequences or damages resulting therefrom or any continuing professional or commercial relationship between the injured party and the alleged wrongdoer.”
Because suits for negligence require proof of actual damage, the Idaho Supreme Court held that the statute of limitations cannot begin to run until some damage has occurred as a result of the alleged malpractice, which can only happen when the “fact of injury becomes objectively ascertainable.” Davis v. Moran, 735 P.2d 1014, 1020 (Idaho 1987). This precedent doomed the action in Stuard v. Jorgenson, 249 P.3d 1156 (Idaho 2011)—a case in which an ill-performed spine surgery was readily and promptly discoverable through MRI. This benchmark parallels the more common “injury notice” benchmark for statutes of limitations: see, e.g., Rathje v. Mercy Hospital, 745 N.W.2d 443 (Iowa 2008).
In the case at bar, however, the “fact of injury” wasn’t present because the plaintiff suffered no injury. Her pregnancy, although unwanted, was healthy and hence did not fall into the “injury” category. The only “fact of injury” upon which the plaintiff could rely was her improperly ligated tubes. This injury, however, was more than two years old. Arguably, therefore, it was barred by the statute of limitation, as decided by the District Court of the Fourth Judicial District, Ada County, Idaho.
Luckily for the plaintiff, the Idaho Supreme Court reversed that decision. Conner v. Hodges, — P.3d —- (Idaho 2014).
The Court ruled that the plaintiff was entitled to toll the statute of limitations pursuant to Davis. This ruling distinguished the plaintiff’s situation from that of the plaintiff in Stuard v. Jorgenson. In Stuard, the Court explained, medical malpractice was easily ascertainable by MRI, whereas verification that a tubal ligation had been successfully performed involved a hysterosalpingogram or a laparoscopic chromotubation – procedures that are invasive, painful, risky, and expensive.
The Court thus effectively held that the limitations period starts running not from the “fact of injury” simpliciter, but instead from the fact of injury reasonably ascertainable by the patient.
The problem that arose in this case could easily be avoided if the plaintiff were allowed to sue the defendant for the breach of contract, as opposed to medical malpractice. Alas, she could not file such as a suit. As the Court explained, under Idaho Code § 6–1012, “damages due to injury …. on account of the provision of or failure to provide health care or on account of any matter incidental or related thereto” are actionable only in torts as medical malpractice. Remarkably, not every state mandates such recharacterization of contract suits. Many states still allow patients to sue doctors for a breach of contract especially in connection with elective procedures: see, e.g., the classic case, Sullivan v. O’Connor, 296 N.E.2d 183 (Mass. 1973), which is still good law in Massachusetts.