Lillicrap v. Martin

Annotate this Case

ENTRY ORDER

SUPREME COURT DOCKET NO. 86-443

FEBRUARY TERM, 1990

James J. Lillicrap } APPEALED FROM:
}
}
v. }
} Orleans Superior Court
Herbert L. Martin, M.D., }
University Assoc. in } DOCKET NO. S158-820sC
Neurology, Inc., J. Bishop }
McGill, M.D., Warren L. }
Beeken, M.D., Surgical }
Associates Foundation, et al. }

In the above entitled cause the Clerk will enter:

In light of the reargument heard in this case, Part IV of the July 14,
1989 opinion is stricken and a revised version is substituted in its stead.
There are no changes in the remaining sections of the opinion, nor in the
Court's order.

BY THE COURT:

________________________________
Frederic W. Allen, Chief Justice

________________________________
John A. Dooley, Associate Justice

__________________________________
Frank G. Mahady, Associate Justice

_________________________________
[ ] Publish James L. Morse, Associate Justice

[ ] Do Not Publish _________________________________
Albert W. Barney, Chief Justice (Ret.)
Specially Assigned
________________________________________________________________________________

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.

No. 86-443

James J. Lillicrap Supreme Court

v. On Appeal from
Orleans Superior Court
Herbert L. Martin, M.D.,
University Assoc. in February Term, 1990
Neurology, Inc., J. Bishop
McGill, M.D., Warren L.
Beeken, M.D., Surgical
Associates Foundation, et al.

Matthew I. Katz, J.

Richard E. Davis and T. Christopher Greene of Richard E. Davis Associates,
Inc., Barre, for plaintiff-appellant

S. Crocker Bennett II, and Michael I. Green of Paul, Frank & Collins, Inc.,
Burlington, for defendants-appellees Martin and University Associates In
Neurology

Pierson, Affolter & Wadhams, Burlington, for defendants-appellees McGill and
Surgical Associates Foundation

Robert D. Rachlin and Robert B. Luce of Downs Rachlin & Martin, Burlington,
for defendant-appellee Beeken

PRESENT: Allen, C.J., Dooley and Morse, JJ., and Mahady, D.J., and Barney,
C.J. (Ret.), Specially Assigned

MAHADY, J.
IV. The Repose Provision
Defendant Warren L. Beeken, M.D., claims that plaintiff's cause of
action against him is barred by the repose provision in 12 V.S.A. { 521.
Section 521 provides in part that "actions to recover damages for injuries
to the person arising out of any medical or surgical treatment or operation
shall be brought within three years of the date of the incident or two years
from the date the injury is or reasonably should have been discovered,
whichever occurs later, but not later than seven years from the date of the
incident." (Emphasis added.) This seven-year period is designated a
"repose period." Plaintiff contends that the repose provision is
unconstitutional and so does not bar his suit.
The action against Dr. Beeken is based on his alleged failure to
advise plaintiff to take Vitamin B-12 injections following plaintiff's
surgery in 1972. If the repose provision of { 521 is valid and applicable,
plaintiff's action against Dr. Beeken is barred, since the negligent
treatment occurred more than seven years before the lawsuit against Beeken
was filed, in December of 1983. Section 521 contains two exceptions to the
repose provision, but neither is applicable in the present circumstances. (FN1)
Section 521 was enacted in 1978, effective July 1st of that year.
1977, No. 248 (Adj. Sess.). At the time of the alleged malpractice, in
1972, the controlling statute of limitations was 12 V.S.A. { 512, which
contained no repose period, but limited actions for injury to the person to
"three years after the cause of action accrues." The provision was amended
in 1976 to explain that "the cause of action shall be deemed to accrue as of
the date of the discovery of the injury." 1975, No. 248 (Adj. Sess.), { 2.
Under Cavanaugh v. Abbott Laboratories, 145 Vt. at 521-26, 496 A.2d at 160-
61, this "discovery" rule is applied retroactively. At the time of
defendant's negligent act, therefore, plaintiff had a right to sue his
physician for medical malpractice that could be exercised up to three years
after the date of discovery, with no final repose period.
The statute of limitations applicable to any action, however, is
generally the one in effect at the date the cause of action accrued -- in
this case, 1982. Cavanaugh, 145 Vt. at 521, 496 A.2d at 161. This general
rule must give way, of course, if its application would deprive plaintiff,
as he maintains, of his constitutional right to a remedy, under Chapter I,
Article 4 of the Vermont Constitution. (FN2)
Article 4 provides:
Every person within this state ought to find a certain
remedy, by having recourse to the laws, for all injuries
or wrongs which he may receive in his person, property
or character; he ought to obtain right and justice,
freely, and without being obliged to purchase it;
completely and without any denial; promptly and without
delay; conformably (FN3) to the laws.
We stated recently that this provision "has never been held . . . to give
rise to a substantive constitutional right. Instead, it has been treated as
the Vermont equivalent of the federal Due Process Clause." Levinsky v.
Diamond, 151 Vt. 178, 197, 559 A.2d 1073, ____ (1989). Defendant Beeken
argues that because Article 4 creates no affirmative rights and because the
legislature has the power to modify or abolish a previously existing common-
law right, see Duke Power Co. v. Carolina Environmental Study Group, Inc.,
438 U.S. 59, 88 n.32 (1978), the repose provision is valid and must be
enforced.
We disagree, and hold that the seven-year repose period does not bar
plaintiff's suit. We do not, however, reach the broad question of the
statute's general validity under Article 4. Rather, our reason for
rejecting defendant's repose defense lies in the timing of this lawsuit in
relation to the enactment of the statute. Plaintiff alleges that his
injuries were caused by acts or omissions of the defendant, as noted above,
in 1972, six years prior to the enactment of { 521. We hold that his right
to recover vested in 1972 and could not be destroyed by subsequent
legislation. See Gibbes v. Zimmerman, 290 U.S. 326, 332 (1933).
While the legislature may impose reasonable limitations on rights of
action, due process does not permit the legislature to annul vested rights.
"[A]lthough a vested cause of action is property and is protected from
arbitrary interference, the appellant has no property, in the constitutional
sense, in any particular form of remedy; all that he is guaranteed by the
Fourteenth Amendment is the preservation of his substantial right to redress
by some effective procedure." Id. (citation omitted). Dr. Beeken
acknowledges as much, but maintains that plaintiff's right to recover for
his injuries could not vest until his cause of action accrued, that is, when
he discovered the cause of his injuries in 1982, and that at that time { 521
was already in force and its repose period already expired. See Pitts v.
Unarco Ind., Inc., 712 F.2d 276, 279 (7th Cir.), cert. denied, 464 U.S. 1003
(1983).
Accrual and vesting, however, are not identical concepts. We measure
accrual from the date of discovery so that a limitations period will not
unfairly bar relief. See Cavanaugh, 145 Vt. at 522, 496 A.2d at ___
(overruling prior case law, "this Court has decided . . . that the term
'accrue' should be given a uniform meaning, regardless of when any
particular cause of action actually arose"). Plaintiff's right under the
common law, by contrast, vested, or "arose" in Cavanaugh's language, in 1972
at the time of the alleged malpractice. A vested right is "[a] right
complete and consummated, and of such character that it cannot be divested
without the consent of the person to whom it belongs, and fixed or
established, and no longer open to controversy." Black's Law Dictionary
1402 (5th ed. 1979). Plaintiff's right was fixed in this sense in 1972
because the controlling statute of limitations at the time, { 512, did not
contain a repose provision. The right, that is, would not be rendered
unenforceable by the mere passage of time. The exercise of the right
awaited only plaintiff's discovery of the injury and its cause. In
contrast, had { 521 been in force in 1972, plaintiff's right would have
vested only upon discovery of his cause of action within seven years of the
treatment. Cavanaugh's effort to mitigate unfairness to plaintiffs by
measuring accrual from the date of discovery should not be turned against
plaintiffs, with no apparent logic, by also measuring the dissimilar concept
of vestedness from the date of discovery.
Plaintiff's cause of action arose at the time of the defendant's
negligence, at which moment his cause acquired the status of a property
right in the form of a "substantial right to redress by some effective
procedure." Gibbes v. Zimmerman, 290 U.S. at 332. Section 521 deprives
plaintiff of due process because it forecloses all manner of redressing the
violation of his vested rights.
Precisely the same circumstances were addressed in Pucci v. Santi, 711 F. Supp. 916 (N.D. Ill. 1989). In Pucci, the defendants, sued in August
1987 for April 1981 violations of Illinois securities laws, claimed that
the action was barred by a five-year statute of repose. The repose
provision was added only in January 1986, however. Id. at 921. Prior to
the amendment, the Illinois statute of limitations for state law securities
claims was three years, which could be extended by principles of equitable
tolling. Id. at 922-23. The federal court found that "[b]y establishing
their right to toll the old version of ^ 137.13 D, the plaintiffs have shown
that their state securities claims remained viable when the amended version
took effect in 1986." In contrast, "the new version contains a period of
repose which cannot be tolled and which expired before the plaintiffs filed
their suit." Id. at 923. Consequently, the court was required to consider
the effect of the amendment on the plaintiffs' claims.
Under established Illinois law, the court stated, an amendment
shortening a limitation period is applied retroactively, provided there is a
reasonable time after the effective date of the amendment within which to
bring the action. Id. at 924. The court calculated that the plaintiffs'
claims would be barred under the new statute in April 1986, four months
after the amendment became effective, and concluded: "Since the plaintiffs
allegedly did not even discover the wrongdoing until September 1986, this
court cannot say that the four-month period between January and April was a
reasonable time for them to file suit." Id. (FN4)
As in Pucci, plaintiff here discovered (in 1982) the defendant's
wrongdoing only after the repose period, measured from the date of the
treatment (1972), had expired. As in Pucci, the wrongdoing occurred when a
more liberal statute of limitations was in force and the plaintiff's claims
under the earlier statute remained viable when the new version took effect
(1978). We agree with the federal court that in such circumstances
plaintiff is unconstitutionally denied a reasonable time within which to
bring his action. Identical principles are stated by other courts. Thus
the Sixth Circuit Court of Appeals, applying Ohio law, recently stated: "The
retroactive application of a shorter statute of limitations 'is not unlawful
as long as a prospective claimant is still afforded a reasonable time in
which to enforce his right.'" Lundblad v. Celeste, 874 F.2d 1097, 1104 (6th
Cir. 1989) (quoting Mominee v. Scherbarth, 28 Ohio St. 3d 270, 278, 503 N.E.2d 717, 723 (1986)). Accord Currie v. Schon, 704 F. Supp. 698, 701
(E.D. La. 1989).
We hold that a person must be permitted a reasonable time in which to
file an action that arose and remained viable under a prior statute of
limitations, and that plaintiff was denied that right by the trial court.

FOR THE COURT:

_________________________
Associate Justice

FN1. The repose period does not apply "where fraudulent concealment has
prevented the patient's discovery of the negligence" or where "the action is
based upon the discovery of a foreign object in the patient's body." 12
V.S.A. { 521. Also inapplicable is the twenty-year repose provision of {
518 for actions "to recover for ionizing radiation injury or injury from
other noxious agents medically recognized as having a prolonged latent
development."

FN2. Plaintiff also claims that the repose provision violates the Equal
Protection Clause of the Fourteenth Amendment of the United States
Constitution. This argument is based on { 521's differential treatment of
medical malpractice plaintiffs with foreign objects in their bodies -- who
are not limited by the seven-year repose period -- and those whose injuries
do not arise from foreign objects -- who are limited by the repose period.
See Carson v. Maurer, 120 N.H. 925, 424 A.2d 825 (1980). In light of our
disposition on the state constitutional claim, we advance no view on the
equal protection argument.

FN3. The word is spelled "comformably" in the Constitution; we presume
"conformably" was intended. "Comformably" also appears in Rhode Island's
counterpart provision. R.I Const. art. I, { 5.

FN4. The court in Pucci went on to state that, under Illinois law, "where
a statute of repose replaces a statute of limitations, a plaintiff whose
cause of action would not have been barred under the limitations statute has
from the effective date of the amendment until the expiration of the repose
period to file his lawsuit." 711 F. Supp. at 924-25 (citing Costello v.
Unarco Ind., Inc., 111 Ill. 2d 476, 486, 490 N.E.2d 675 (1986) (Clark, C.J.,
concurring)). The plaintiffs, that is, had five years from January 1986,
the effective date of the repose provision, in which to commence their
action. Since they complied, their securities claims were timely. Id. at
925. Other states have adopted the same rule. See, e.g., Merrigan v.
Epstein, 112 Wash. 2d 709, 716-17, 773 P.2d 78, 82 (1989) ("The time limit
for bringing a claim under a new statute begins to run upon pre-existing
claims only on the effective date of the statute.").

________________________________________________________________________________

Concurring

No. 86-443

James J. Lillicrap Supreme Court

Matthew I. Katz, J.

Richard E. Davis and T. Christopher Greene of Richard E. Davis Associates,
Inc., Barre, for plaintiff-appellant

S. Crocker Bennett II, and Michael I. Green of Paul, Frank & Collins, Inc.,
Burlington, for defendants-appellees Martin and University Associates In
Neurology

Pierson, Affolter & Wadhams, Burlington, for defendants-appellees McGill and
Surgical Associates Foundation

Robert D. Rachlin and Robert B. Luce of Downs Rachlin & Martin, Burlington,
for defendant-appellee Beeken

PRESENT: Allen, C.J., Dooley and Morse, JJ., and Mahady, D.J., and Barney,
C.J. (Ret.), Specially Assigned

Morse, J., concurring. Although I agree with the result, I concur
separately because the Court's analysis is overbroad and unnecessarily
reaches a constitutional issue. State v. Clarke, 145 Vt. 547, 551, 496 A.2d 164, 167 (1985).
A simpler answer is that retroactive application of the repose
provision to bar plaintiff's action is prohibited by 1 V.S.A. { 214, which
deals with the effect of amendment or repeal of legislation on pre-existing
rights and remedies. Under 1 V.S.A. { 214 (b)(2), a statutory change shall
not "[a]ffect any right, privilege, obligation or liability acquired,
accrued or incurred prior to the effective date of the amendment or repeal."
At the time of plaintiff's injury in 1972, he acquired a right of redress.
The nature of that right -- vested or inchoate -- is not relevant. By the
express terms of { 214(b)(2), that right cannot be affected -- and certainly
not eliminated -- by a later change in the statute of limitations. Rather,
the repose provision of 12 V.S.A. { 521, enacted in 1978, is limited to
prospective application; it cannot operate to affect plaintiff's previously
acquired right to bring this action. Stewart v. Darrow, 141 Vt. 248, 252,
448 A.2d 788, 790 (1982).
Likewise, the Court's adoption of a rule providing plaintiff with a
reasonable amount of time after the amendment of the statute of limitations
to bring an action is unnecessarily uncertain. The more straightforward
remedy is to not apply the offensive portion of { 521 -- i.e., the repose
period -- against the plaintiff, but to enforce the remainder of the
statute, giving plaintiff two years from the date the injury is or
reasonably should have been discovered to bring an action.
I am authorized to say that Justice Barney joins in this concurrence.

Associate Justice

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