No. 12498 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

WILLIAM J. MONROE, 

Plaintiff and Appellant, 

-vs - 

JACK R. HARPER, 

Defendant and Respondent. 

Appeal from: District Court of the First Judicial District, 

Honorable Peter G. Meloy , Judge presiding. 

Counsel of Record: 

For Appellant : 

Scanlon, Brolin and Connors, Anaconda, Montana 

Jack M. Scanlon argued, Anaconda, Montana 

Louis Forsell argued 

For Respondent : 

Gough, Booth, Shanahan and Johnson, Helena, Montana 

Ronald Waterman argued, Helena, Montana 

Submitted: January 14, 1974 

Decided : f%@ - 1 

Filed : FE~ - I 1~4. 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

This is an action for damages arising from a claim of medical 

malpractice. The district court of Lewis and Clark County, Hon. 

Peter G. Meloy, district judge, granted defendant's motion to 

dismiss the complaint. From the district court's judgment of 

dismissal and refusal to grant a motion to vacate the same, 

plaintiff appeals. 

On July 30, 1963, plaintiff William J. Monroe suffered injuries to his back as a result of an accident while he was employed by the Boland Development Company of Butte, Montana, as 

a contract miner in the Kelly shaft. He placed himself under 

the care of Dr. Jack R. Harper, defendant herein, the following 

November. Following an examination in November 1963, defendant 

advised plaintiff that he needed surgery on two ruptured discs in 

the lower spinal area and that if plaintiff submitted to an 

II anterior spinal fusion" with installation of a spinal clamp 

he would be able to return to work within six months. On December 30, 1963, defendant performed an anterior lumbar spinal 

fusion between plaintiff's L-5 vertebra and the sacrum by means 

of attaching to the 5th lumbar vertebra and sacrum a device known 

as a T-Humphrey clamp plate. 

In his complaint, plaintiff alleged that defendant: 

(1) Was negligent in his care and treatment of plaintiff in 

that he failed to possess and exercise that degree of skill 

ordinarily possessed by reputable members of his profession; 

(2) Was negligent in failing to obtain plaintiff's fully 

informed consent to the operation; 

(3) Was negligent in failing to consult with more qualified 

physicians; and 

(4) Fraudulently concealed from plaintiff that the T-Humphrey 

clamp plate was an experimental device, and that plaintiff believed 

and relied upon statements made by defendant to the contrary. 
Plaintiff further alleged that defendant knew and concealed 

from plaintiff his "true condition" and plaintiff did not dis11 cover the fraud" until he read a newspaper account in May 1972, 

of another suit brought against defendant by one Ivar Stenberg. 

It was at this time that plaintiff learned the operation performed was unique, unorthodox and experimental and that the 

II T-Humphrey Clamp Plate was an experimental device. 1 I 

Plaintiff filed this action in district court on January 22, 

1973, to recover damages resulting from the alleged professional 

negligence of defendant. Plaintiff alleged that as a "~roximate 

result" of defendant's negligence he was totally disabled from 

July 30, 1963, the date of the mine accident, until December 1, 

1969; and that he is now permanently partially disabled. 

The district court granted defendant's motion to dismiss and 

denied plaintiff's motion to vacate such dismissal. Although 

the grounds were not stated, both parties concede the court's 

action was based on the bar of the three year statute of limitations. Plaintiff appeals from the district court's judgment 

of dismissal and refusal to vacate the same. 

The only issue is whether the action is barred by the three 

year statute of limitations in section 93-2605, R.C.M. 1947, 

which requires commencement within three years of: 

"3. An action upon an obligation or liability, 

not founded upon an instrument in writing, other 

than a contract, account or promise. 1 I 

Plaintiff contends the three year statute of limitations 

should begin to run from the date plaintiff discovered the "fraud", 

that is, l4ay 1972; the date he read a newspaper account of another suit brought against defendant relating to a similar type 

of operation. Defendant, on the other hand, contends the three 

year statute of limitations should begin to run from the date 

of the alleged negligence, that is, December 1963, the date of 

the operation. 
plaintiff's argument is that the statute was suspended by 

reason of fraudulent concealment. He contends the doctrine of 

fraudulent concealment is recognized in Montana. Carlson v. Ray 

Geophysical Div., 156 Mont. 450, 481 P.2d 327. Further, that 

fraudulent concealment is present in this case by reason of 

defendant's failure to disclose to plaintiff that the operation 

was unique, unorthodox, and experimental. He argues that the 

complaint on its face does not show whether the statute of limitations had run and, therefore, he should be allowed to prove the 

exception of fraudulent concealment to the running of the statute. 

We accept plaintiff's general contention that in certain malpractice actions the limitation period begins to run when the 

patient discovers, or by the use of reasonable diligence could 

have discovered, his injury. Johnson v. St. patrick's Hosp., 

148 Mont. 125, 417 P.2d 469; Grey v. Silver Bow County, 149 Mont. 

213, 425 P.2d 819. But, the doctrine of "discovery" or "fraudulent concealment" is not applicable in the instant case. 

Statutes of limitation are regarded as statutes of repose 

governing the period within which actions must be brought and 

are designed to compel the exercise of a right of action within 

a reasonable time, while the evidence remains fresh in the memory 

of the witnesses. They also serve the purpose of suppressing 

stale or fraudulent claims. Anaconda Min. Co. v. Saile, 16 Mont. 

8, 39 B. 909; Billings v, Sisters of Mercy of Idaho, 86 Ida. 485, 

389 P.2d 224; 51 Am Jur 2d, Limitation of Actions, $ 16. 

However, in a tort action based upon malpractice, the application of the general rule becomes difficult where the injured 

person is prevented from knowing of his injury due to concealment 

of facts by the treating physician, or where, by its very nature, 

it is difficult to discover the injury until a later date. In 

such cases most courts give recognition to certain implied exceptions which toll the running of the statute when it can be shown 

that fraud has been perpetrated upon the injured party sufficient 

to place him in ignorance of his right to a cause of action or to 
prevent him from discovering his injury. Buck v. Mouradian, 

(~1a.App. 1958), 100 S.2d 70. The purpose is to promote equity 

and justice of the individual case by preventing a party from 

asserting his rights under a general technical rule of law when 

he has so conducted himself that it would be contrary to equity 

and good conscience to avail himself of his legal defense. 

Lakeman v, La France, 102 N.H. 300, 156 A.2d 123. 

Although not applicable here, the Montana legislature in 1971 

saw fit to adopt by statute this exception to the general rule; 

where such failure to disclose is known or through the use of 

reasonable diligence subsequent to said negligent act would have 

been known to the medical practitioner. Section 93-2624, R.C.M. 

1947. 

The doctrines of "discovery1' and "fraudulent concealment" are 

most commonly applied to fact situations &ere a foreign object 

is negligently left in the patient's body during the course of 

the operation and it is not until a later date that the foreign 

object is discovered. Ruth v. Dight, 75 Wash.2d 660, 453 P.2d 631, 

They also have been applied to actions as to the wrongful removal 

of organs or negligent diagnosis or where subsequent infections 

caused by improper sterilization were not discovered until a 

later date. Janisch v. Mullins, 1 Wash.App. 393, 461 P.2d 895; 

Anno. 80 ALR2d 368. In these cases the plaintiff alleged that 

a past negligent act was fraudulently concealed or a subsequent 

injury occurred which could not have been discovered by the 

patient through reasonable diligence at the time the act took place. 

To toll the statute of limitations the fraud must be of such 

a character as to prevent inquiry, elude investigation, or to 

mislead the party who claims the cause of action. Guy v. Schuldt, 

236 Ind. 101, 138 N.E.2d 891. There first must be injury and then 

concealment. It is the cause of action which must be fraudulently 

concealed by failing to disclose the fact of injury from malpractice, by diverting the patient from discovering the malpractice 
that is the basis of the action. Eschenbacher v. Hier, 363 Mich. 

676, 110 N.W.2d 731. Fraudulent concealment has been described 

as the employment of artifice, planned to prevent inquiry or 

escape investigation, and mislead or hinder acquisition of information disclosing a right of action. Draws v. Levin, 332 Mich. 

447, 52 N.W.2d 180. 

From the face of plaintiff's complaint it is apparent the 

doctrine of fraudulent concealment is not applicable to the instant 

case. In effect, plaintiff is really alleging that the operation 

was performed without his informed consent. The complaint alleges 

that defendant did not make a full disclosure of the "experimental 

naturett of the operation to be performed. 

This is not the typical fact situation in which the doctrine 

is applied where the defendant-physician informed the patient 

that he would operate in one manner, yet selected another method 

of procedure and failed to inform the patient of the change. Nor 

is this a situation where the physician fraudulently conceals 

a past negligent act in order to prevent inquiry or hinder acquisition of information disclosing the fact of injury or a right 

of action. 

In his complaint plaintiff admits knowledge of the type of 

operation to be performed. It is conceded that plaintiff was 

aware that defendant intended to perform an anterior fusion with 

a clamp plate to be inserted in his back. Plaintiff was informed 

in detail of the operation procedure to be performed and admits 

he consented to that operation. 

In addition to plaintiff's failure to prove fraudulent concealment, it appears that he was not reasonably diligent in his 

discovery of the alleged negligent act. Plaintiff admits by way 

of allegation that defendant assured him he would be able to 

return to work within six months of the operation. Yet, for six 

years after the operation plaintiff admits to being totally disabled and permanently partially disabled since then. He had 

notice, by the continuing disability, that the operation had not 
succeeded, as expected. His condition should have provided him 

with notice of failure and should have put on inquiry to ascertain why the failure had occurred. However, plaintiff did not 

inquire, rather he slept on and ignored this notice. Eight years 

elapsed between the time plaintiff was assured recovery and 

the filing of his claim. His allegation that he was damaged 

comes too late. It is now barred by the statute of limitations. 

Section 93-2605, R.C.M. 1947. 

The judgment of the district court is affirmed. 

Justice