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 theFirstJudicial District, Honorable Peter G. Meloy

## ,Judge presiding. Counsel of Record: For Appellant: Scanlon, Brolin and Connors, Anaconda, Montana JackM. 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, districtjudge, 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 tohisback as a result of an accident while he was employed by the Boland Development Company of Butte, Montana, as
a contract miner inthe Kelly shaft. He placed himself under the care of 

### Dr. Jack R. Harper, defendant herein, the following November. Following an examination inNovember 1963, defendant advised plaintiff that he needed surgery on two ruptured discs in the lower spinal area and that if plaintiff submitted to an
IIanterior spinal fusion" with installation of a spinal clamp he would be able toreturn towork within sixmonths. 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 inhis care and treatment of plaintiff in that he failed to possess and exercise that degree of skill ordinarilypossessed 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 toconsult with more qualified physicians; and (4) Fraudulently concealed from plaintiff that the T-Humphrey clamp platewas 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" untilhe read a newspaper account inMay 1972, of another suitbrought against defendant by one Ivar Stenberg. It was atthis time that plaintiff learned the operation performed was unique, unorthodox and experimental and that the

II

T-Humphrey Clamp Platewas an experimental device. 1I Plaintiff filed this action in district court on January 22, 1973, torecover 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, untilDecember 1, 1969; and that he 

### isnow permanently partially disabled. The district court granted defendant's motion to dismiss and denied plaintiff's motion tovacate such dismissal. Although the grounds were not stated, both parties concede the court's action

### was based on thebar of the three year statute of limitations. Plaintiff appeals from the district court's judgment of dismissal and refusal tovacate the same. The only issue 

### iswhether the action 

### isbarred by the three year statute of limitations in section 93-2605, 

### R.C.M. 1947, which requires commencement within three years of: "3. An actionupon an obligation or liability, not founded upon an instrument inwriting, other than a contract, account or promise. 1I Plaintiff contends the three year statuteof limitations should begin to run from the date plaintiff discovered the "fraud", that 

### is, l4ay 1972; the datehe read a newspaper account of another suitbrought against defendant relating to a similartype of operation. Defendant, on the other hand, contends the three year statuteof limitations should begin torun from the date of the allegednegligence, that is, December 1963, the date of the operation.plaintiff's argument 

### isthat the statutewas suspended by
reason of fraudulent concealment. He contends the doctrine of fraudulent concealment 

### isrecognized inMontana. Carlson v. Ray Geophysical Div., 156 Mont. 450, 481 P.2d 327. Further, that fraudulent concealment 

### ispresent inthis caseby reason of defendant's failure to disclose toplaintiff that the operation
was unique, unorthodox, and experimental. He argues that the complaint on 

### its face does not show whether the statuteof 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 incertain malpractice actions the limitationperiod begins to run when the patient discovers, orby 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, 149Mont. 213, 425 P.2d 819. But, the doctrine of "discovery" or "fraudulent concealment" 

### isnot applicable inthe instant case. Statutes of limitation areregarded as statutes of repose governing the period within which actions must be brought and
are designed tocompel the exercise of a right of actionwithin


### a reasonable time, while the evidence remains fresh in the memory of thewitnesses. They also serve the purpose of suppressing staleor fraudulent claims. Anaconda Min. Co. v. Saile, 16Mont. 8, 39 B. 909; Billings v, Sistersof Mercy of Idaho, 86 Ida. 485, 389 P.2d 224; 51

### Am Jur 2d, Limitation of Actions, $ 16. However, ina tort actionbased upon malpractice, the application of the general rulebecomes difficultwhere the injured person isprevented from knowing of his injury due to concealment of factsby the treating physician, orwhere, by itsvery nature, it is difficult to discover the injuryuntil a later date. In such cases most courts give recognition to certain implied exceptions which toll the running of the statutewhen it can be shown that fraud has been perpetrated upon the injured party sufficient toplace 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 caseby preventing a party from asserting his rightsunder a general technical rule of lawwhen he has so conducted himself that it would be contrary to equity and good conscience to availhimself of his legal defense. Lakeman v, La France, 102

### N.H. 300, 156A.2d 123. Although not applicablehere, 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 actwould 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 isnegligently left in the patient's body during the course of the operationand it isnot 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 orwhere subsequent infections caused by improper sterilizationwere not discovered until a later date. Janisch

### v. Mullins, 

### 1Wash.App. 393, 461 P.2d 895; Anno. 

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


### a past negligent actwas 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 firstmust be injury and then concealment. It is the cause of action which must be fraudulently concealedby failing to disclose the fact of injury frommalpractice,by diverting the patient from discovering the malpracticethat 

### 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 toprevent 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 isapparent the doctrine of fraudulent concealment isnot applicable to the instant
case. In effect, plaintiff 

### isreally alleging that the operation
was performed without his informed consent. The complaint alleges that defendant didnot make a fulldisclosure of the "experimental naturettof the operation tobe performed. This 

### isnot the typical fact situation inwhich 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 

### isthis a situationwhere the physician fraudulentlyconceals a past negligent act inorder toprevent inquiry orhinder acquisitionof information disclosing the fact of injury or a right of action. Inhis complaint plaintiff admits knowledge of the type of operation tobe performed. It 

### isconceded that plaintiff was
aware that defendant intended toperform an anterior fusionwith
a clamp plate tobe inserted inhisback. Plaintiff was informed indetail of the operation procedure tobe performed and admits he consented to that operation. In addition to plaintiff's failure toprove fraudulent concealment, it appears that he was not reasonably diligent inhis discovery of the alleged negligent act. Plaintiff admits by way of allegation that defendant assured him he would be able to return towork within sixmonths of the operation. Yet, for six years after the operation plaintiff admits tobeing totally disabled and permanently partially disabled since then. He had notice, by the continuing disability, that the operation had notsucceeded, as expected. Hiscondition should have provided him with notice of failure and should have put on inquiry to ascertainwhy the failurehad occurred. However, plaintiff did not inquire, rather he slept on and ignored thisnotice. Eight years elapsed between the timeplaintiff was assured recovery and the filing of his claim. Hisallegation that he was damaged
comes too late. It isnow barred by the statute of limitations. Section 93-2605, 

### R.C.M. 1947. The judgment of the district court isaffirmed.

Justice