Jakeway ex rel. Estate of Jakeway v. Siva, No. 481-7-11 Rdcv (Teach out, J., July 2, 2012)

[The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the accompanying data included in the Vermont trial cou rt opinion database is not guaranteed.] STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Rutland Unit Docket No. 481-7-11 Rdcv

CYNTHIA LYNN JAKEWAY, Administratrix of Estate of Wayne Jakeway and PAMELA JAKEWAY,

Plaintiffs

v.

ROSHAN SIVA, M.D.,

Defendant

DECISION

Defendant’s Motion for Summary Judgment

In this medical malpractice action brought by the A dministratrix of the Estate of Wayne Jakeway, the present motion calls upon the Co urt to determine which of two possible statutes of limitations applies to the cas e. Defendant Roshan Siva, M.D. moves for summary judgment on the grounds that the suit i s barred by the two-year statute of limitations for medical malpractice actions found i n 12 V.S.A. § 521. Plaintiffs (the

Administratrix of the Estate and the decedent’s wif e, who asserts a loss of consortium claim) assert that because this is a survival actio n, their suit is timely filed under 12 V.S.A. § 557(a), as it was commenced within two yea rs of the appointment of an administrator as required by that statute. Oral arg ument on this motion was heard March 5, 2011. Defendant was represented by Karen S. Heal d, Esq. Plaintiffs were represented by John J. Welch, Jr., Esq.

The relevant facts for purposes of this motion are not in dispute. The claim is that Defendant negligently failed to diagnosis a lung le sion visible in Wayne Jakeway’s chest x-rays in November 2005. Notice of the missed diagn osis occurred no later than July 2006. Wayne Jakeway died on April 13, 2007. Cynthi a Jakeway was appointed as Administratrix of Wayne Jakeway’s Estate on May 23, 2011. Plaintiffs commenced this suit on July 14, 2011.

12 V.S.A. § 521 sets forth the statute of limitatio ns generally applicable to medical malpractice actions. It provides that medic al malpractice actions must be brought within three years of the date of the incident or t wo years from the date the injury is or reasonably should have been discovered, whichever i s later. Id . If the statute applies here, Plaintiffs’ suit should have been brought no later than November 2008. It was filed after

that date.2 12 V.S.A. § 557(a) addresses the tolling of the sta tute of limitations in the event of a death of a party. It states that if a potentia l plaintiff dies before the statute of limitations applicable to his cause of action has r un, “the period of limitation as to such action shall cease to operate at the date of his de ath.” Id . It continues: “After the issuance of letters testamentary or of administration, such action, if the cause of action survives, may be commenced by or against the executor or admi nistrator within two years, and not

after.” Id . The suit is timely if this action is controlled b y § 557(a) rather than § 521.

12 V.S.A. § 464 is in the same chapter (Title 12, C hapter 23) as both 12 V.S.A. § 557(a) and 12 V.S.A. § 521 and states: “The provisi ons of this chapter shall not affect an action otherwise specially limited by law.” Defend ant claims that Plaintiffs’ suit is “otherwise specially limited by law” by operation o f the medical malpractice statute of limitations contained in 12 V.S.A. § 521.

However, the medical malpractice statute of limitat ions, § 521, and the death of party statute of limitations, § 557(a), are both “p rovisions of this chapter.” In fact, all of

Vermont’s general statutes of limitations are found within this chap ter. See, e.g., 12 V.S.A. § 501 (fifteen-year statute of limitations f or recovery of lands); 12 V.S.A. § 511 (six-year statute of limitations for civil actions) ; 12 V.S.A. § 512 (three-year statute of limitations for injuries to person or property). As noted below, there are special statutes of limitations contained in statutory causes of act ion in other titles.

By its very terms, 12 V.S.A. § 557(a) interferes wi th the normal operation of the statutes of limitations. Section 557(a) allows for tolling when, as here, a potential plaintiff dies before a suit is brought. See Benson v. MVP Health Plan, Inc. , 2009 VT 57, at ¶ 6, 186 Vt. 97. (stating that Section 557(a) tolls the normal limitations period upon a potential plaintiff’s death and imposes a new two-y ear limitations period upon the appointment of an administrator). This tolling can have the effect of allowing a claim that could otherwise not have been brought due to the ap plicable statute of limitations. See Estate of Harris v. Eichel , 152 Vt. 180, 183 (1988) (holding that, depending on the circumstances, Section 557(a) can have the effect o f either lengthening or shortening the limitations period).

It would be a strange result to conclude that exist ing statutes of limitations, contained within the same chapter as the tolling pr ovision, are provisions that “ otherwise specially limit[] by law” the operation of 12 V.S.A . § 557(a) (emphasis added) when they are specifically “provisions of this chapter.” Rat her, Section 557(a) is designed to amend the normal limitations periods. If Section 557(a) d oes not function to toll statutes of limitations also found in Title 12, Chapter 23, it serves no purpose whatsoever. The most natural and consistent reading of these provisions is that tolling is not allowed on the basis of a conflict with a statutory provision cont ained outside of Title 12, Chapter 23, but that tolling is allowed when the conflict is wi th a provision contained within Title 12, Chapter 23.

Defendant nevertheless asserts that the more specif ic provision of 12 V.S.A. § 521, dealing explicitly with medical malpractice ac tions, trumps the more general3

language of 12 V.S.A. § 557(a), which applies to al l survival actions. He argues by way analogy from the cases of Parent v. Beeman , 138 Vt. 607 (1980), and Pike v. Chuck’s Willoughby Pub, Inc. , 2006 VT 54, 180 Vt. 25.

Neither of these cases is directly on point. Parent v. Beeman concerned a wrongful death action and not an action for injurie s incurred prior to death. 138 Vt. at 609. The Vermont Supreme Court held that because th e suit was a wrongful death action (which is a direct claim by a family member and not a claim held by decedent at the time of death), the provisions of 12 V.S.A. § 557(a) di d not apply. Id

. Parent is not analogous to the present case because Plaintiffs have brought a survival action for injuries incurred before death and not a wrongful death action. Thus, there is no external statute of limitations to look to as in the wrongful death con text. See 14 V.S.A. § 1492(a) (two-year statute of limitations for wrongful death actions).

Pike v. Chuck’s Willoughy Pub, Inc. addressed a minority tolling provision in relation to a claim under the Dram Shop Act. As wit h the wrongful death statute, the Dram Shop Act contains its own two-year statute of limitations and is not in Title 12, Chapter 23 but in 7 V.S.A. § 501(d). The Vermont Su preme Court rejected the plaintiffs’ argument that the minority tolling provision found in 12 V.S.A. § 551(a) could allow a suit to be brought beyond the Dram Shop Act’s limit ations period. Pike , 2006 VT 54, at ¶

11. The Pike Court held: “Because the DSA contains its own limitations provision and is not codified in chapter 23 , an action under the statute is “otherwise special ly limited” and removed from the operation of the minority tolling provision by § 464.” Id . (emphasis added).

As the italicized language indicates, Pike is not a useful precedent for Defendant and in fact bolsters Plaintiffs’ position. Unlike t he Dram Shop Act or the wrongful death statute, the statute of limitations on which Defend ant seeks to rely is codified in Title 12, Chapter 23. The medical malpractice statute of limi tations found in 12 V.S.A. § 521, like any other statute of limitations contained in that chapter, is thus subject to 12 V.S.A. § 557(a) when a decedent dies before commencing a cla im.

Defendant claims that the medical malpractice statu te of limitations is more specific than the death of party statute of limitat ions, and that rules of construction favor application of the specific statute over the more g eneral one. In the context of this case, the death of party statute of limitations in § 557( a) is the more specific statute as it pertains to the particular circumstances of the dea th of a party claimant prior to filing suit, whereas the medical negligence statute of limitatio ns in § 521 is the more general one applicable to medical negligence cases generally.

12 V.S.A. § 557(a) is an overlay over the general t ime limitations, and specifically provides that an executor or administr ator, once appointed, has a two year limit from the date of appointment to commence a su it. As noted in Chuck’s Willoughby, id., “the [normal] period of limitation as to such actio n shall cease to operate at the date of his death.” § 557(a). The two year period addr esses the special circumstances that an

administrator needs time to become familiar with an d evaluate the decedent’s affairs,4

including any potential legal claims, but must proc eed within a reasonable two year period to pursue timely resolution of those affairs . The two year time period can either shorten or lengthen the underlying statute of limit ations, depending on timing, but it is the governing statute as the regular statute of limitat ions has ceased to operate.

Defendant argues that such an interpretation means a potentially indefinite time period that amounts to no limitation at all. The f act that there is no required time limit on the appointment of an administrator is understandab le in that there can be a wide variety of reasons for justifiable delay in the issuance of letters testamentary or the appointment of an administrator. As a practical matter, any ex ecutor or administrator, acting on behalf of the beneficiaries of the estate, has a practical incentive to proceed without undue delay in order to avoid loss of evidence necessary to mee t the burden of proof.

Defendant argues that a medical negligence claim do es not survive the decedent’s death because it is not specifically designated as a survival action in Title 14, Chapter 11. 14 V.S.A. § 1453 cross references sections 1451 and 1452, which sufficiently include personal injury actions, of which a medical neglige nce case is a type, and specifically references claims commenced by an executor or admin istrator in addition to those commenced by the decedent prior to death.

Because the applicable statute of limitations had n ot run at the time Mr. Jakeway died and because the present suit was brought withi n two years of the appointment of the administrator as required by Section 557(a), the Ad ministratrix’s claim is not timebarred. Since Pamela Jakeway’s claim for loss of consortium is derivative from the claim of the Administratrix, it is similarly not ti me-barred.

ORDER

Defendant’s Motion for Summary Judgment is denied

.

Dated this ___ day of June, 2012.

________________________ Hon. Mary Miles Teachout Superior Court Judge