It’s a bit of a conundrum: how do you amend a statute to make the legislative intent clearer when the plain and unambiguous meaning clearly demonstrates the Legislature’s intent?

Statutes of limitations govern the deadline for filing suit before a claim is forever time barred. Jurisdictions either follow the common law or have codified statutes of limitations. For purposes of professional malpractice, Idaho is in the latter group, where Idaho Code Section 5-219(4) grants claimants two years in which to file suit. But what triggers the start of that two-year period? Well, all attorneys’ favorite phrase applies: it depends.

The Legislature Mandates Accrual as of the Tortious Act or Omission

In 1971, and in response to recent decisions applying a discovery rule in cases involving a foreign object left in a body, fraudulent concealment, and failure to diagnose,[i] the Legislature amended I.C. § 5-219(4), which governs the statute of limitations in professional malpractice. Under the new version, the limitations period “shall” begin “as of the time of the occurrence, act or omission,” and it “shall not be extended by reason of any continuing consequences or damages resulting therefrom or any continuing professional or commercial relationship.” The amendment codified the discovery rule exceptions for foreign objects and fraudulent concealment but not for failure to diagnose.

In amending the statute, the Legislature explained that “this bill requires diligent and timely prosecution of claims and would re-establish the basic policy of the common law which opposes stale claims and favors a definite cut-off date after which a person need not fear that he will be sued for things that happened in the past; in this case, over two years ago.”[ii] In other words, unless one of the codified exceptions applies, the clock on the two-year limitations period begins to run at the time of the defendant’s act or omission.[iii]

Departure from the Plain Language of I.C. § 5-219(4)

Nevertheless, through three cases in the 1980s, the Idaho Supreme Court began departing from the plain language of the statute and adopting the common law completed tort theory.[iv] The Court justified its departure by (1) citing case law from other states that, unlike Idaho, follow the common law and (2) using an intentional tort example (not negligence) of setting a trap for someone to spring later.[v] The Court explained that the language of the statute had to be interpreted “flexibly” to avoid the “absurd result” of accrual occurring before the plaintiff has suffered “some damage.” As an analytical tool for determining when some damage has occurred, the Court could look to when “some damage” was first capable of being objectively ascertained. Attorneys often refer to this tool as the of being objectively ascertained, i.e., when “objectively ascertainable” standard.

Accrual Currently Depends upon Several Factual Patterns

This departure has created a rambling case law that is difficult to navigate, though there appear to be four main factual pattern categories and some outliers.

Defendant’s Act or Omission (with a Light Sprinkling of “some Damage”). The first category follows the plain language and accrues as of the negligent act or omission. However, the Court will typically only follow the plain language if some damage occurs at the same time as the act or omission. For example, in Stuard, accrual occurred at the time of surgery because, had an MRI been taken at that time, it would have revealed that the surgeon operated on the wrong spinal level.[vi]

Condition Precedent (“Unless and Until”). The second involves a condition precedent: in Walsh, a claim for negligent legal advice did not accrue unless and until the client acted upon the bad advice to her detriment.[vii]

Continuing or Cumulative Effect. The third runs contrary to the statute’s “shall not be extended by reason of any continuing consequences or damages” and involves a continuing or cumulative effect. Examples include Davis, which was remanded to determine at what point the radiation treatment manifested into injury, and Dickson, where the cumulative effect of long-term opioid prescriptions causing addiction did not accrue until the tortious conduct ceased.[viii] Within this category, “a tort should be analyzed for the purposes of time limitations according to whether it is simply one complete act with ensuing damages, or whether it consists of a series of continuous activities.”[ix]

Misdiagnosis or Failure to Diagnose. In the medical arena, the common denominator between these prior three categories is a factual causation between the tortious conduct and the injury, i.e., the physician’s treatment (or lack thereof) factually caused the injury. This brings us to the fourth category: misdiagnosis or failure to diagnose.

As the Hawley I Court explained, “the defendants did not cause the tumor to exist in Hawley’s body, and obviously Hawley could not have sued the defendants for the existence of the tumor if they had in fact discovered and disclosed it. The wrong which the defendants are accused of is their failure to diagnose the tumor which they reasonably should have observed.”[x] Thus, in misdiagnosis cases, the cause of action accrues at the time of the misdiagnosis; however, the negligence is only actionable if the condition missed was “progressive, malignant, or otherwise dangerous” at the time of misdiagnosis.[xi]

The Court Has Not Defined “Damage” in Misdiagnosis

A question the Court has yet to answer is what the nature of the injury in misdiagnosis cases is. In other words, what is the “some damage” that causes accrual under the completed tort theory? Nevertheless, considering the Court’s focus on whether the condition missed was harmful at the time of misdiagnosis, it appears likely that misdiagnosis might be either akin to lack of informed consent (where the injury is the lack of knowledge needed to make an informed decision as to medical care) or the delay in treatment.[xii]

Effect of the Uncertainty

The lack of guidance as to the nature of the misdiagnosis injury causes confusion, uncertainty, and significantly increases costs. For example, in a recent case, plaintiff sued a pathologist, asserting that he failed to diagnose certain cells that could, but might never, become cancerous. Plaintiff testified that he would have excised the cells had he known about them.

Plaintiff developed cancer about a year later and sued just shy of two years after the cancer diagnosis. He asserted that it was Defendant’s burden to prove what the damage was and when it occurred but, in any event, no damage occurred earlier than two years before he filed suit. Plaintiffs were essentially playing a game of “guess what we’ll tell the jury that our damage is.”

“This departure has created a rambling case
law that is difficult to navigate, though
there appear to be four main factual
pattern categories and some outliers.”

We asserted that the damage was the lack of knowledge precluding Plaintiff from making an informed decision as to whether to excise the cells before they became cancerous or, in the alternative, later injection of Kenalog into the cells, which caused the cells’ transformation. Note that our arguments required us to bring expert proof that our own client failed to diagnose those cells.

After two motions for summary judgment, two motions for reconsideration, motions for permissive appeal to first the district court, then the Idaho Supreme Court, and a motion to bifurcate trial to decide the statute of limitations issue first, followed by the malpractice issue (if needed), the parties settled on the eve of trial. Had the plain language been followed, the limitations period would have expired two years after the pathologist reported his findings. Such a firm deadline might have precluded the suit from being filed in the first place, or, at a minimum, all these motions and three and a half years of litigation could have been replaced by a simple Rule 12(b)(6) and/or 12(c) motion.

No Rule Without Exceptions

Exceptions and outliers to these four categories include where statutes of repose are implicated;[xiii] the suggested medical methods for objectively ascertaining the injury are too invasive, painful, risky, costly, and had no medical justification at the time of the incident;[xiv] and the identity of the sperm donor was not discoverable until the donor posted his own DNA results on Ancestry.com.[xv]

In addition, equitable estoppel can apply to prevent a defendant from asserting statute of limitations as an affirmative defense where the defendant’s representations or conduct dissuaded the plaintiff from prosecuting his or her cause of action during the statutory period.[xvi]

The Discovery Rule Paradox

Of note, the Court has repeatedly rejected a discovery rule, explaining that “we do not apply a subjective test, based upon when the claimant knew or in the exercise of reasonable diligence should have known of the damage.”[xvii] Nevertheless, if “objectively ascertainable” looks for the point at which, with reasonable inquiry, some damage could have been discovered, is that not an applied discovery rule?

Impacts of Departure from the Plain Language

The departure from the plain language of Section 5-219(4) has numerous negative effects.

Significantly Increased Costs and Delays

The departure from the plain language makes it exceedingly difficult and expensive—to parties and the courts alike—to dismiss time-barred claims until after discovery, after experts have weighed in, and even until a jury verdict.

Expert Opinions Usually Required

To illustrate, in the medical arena, the Idaho Supreme Court has issued 14 opinions on this issue since the early 1980s.[xviii] Every single case was appealed after one or more expert-supported motions for summary judgment.

Of these 14, six were time barred.[xix] That is six cases that could likely have been dismissed on the plain language shortly after the complaint was filed instead of after at least a year’s litigation and the costs incurred for expert testimony.

Impermissible Burden-Shifting

Four of those were remanded because the defendants were found not to have met their burden of proving the plaintiffs’ damage and when it occurred.[xx] This burden-shifting is impermissible under the plain language of the statute (as well as under established law on case-in-chief burdens of proof), where the only element defendants must prove for the affirmative defense is that the tortious conduct occurred before a certain date.

But the completed tort theory forces defendants to concede duty, breach, and causation and impermissibly shifts the evidentiary burden onto defendants of proving what plaintiffs’ damage was and when it occurred. As the 14 cases demonstrate, to meet this burden, defendants typically must come forth with expert testimony proving when plaintiffs suffered “some damage” to support their dispositive motion.

If the plaintiffs survive the motion—which they often do, because plaintiffs’ damage and start date typically become an issue of material fact under the summary judgment standard—plaintiffs can turn right around and use the defendants’ experts against them.

Issue of Law Is Determined by a Jury

Under the plain language, accrual should be a simple issue of law for the judge to decide: did the defendant perform surgery/prepare tax returns/provide legal advice/stamp engineering plans more than two years before suit was filed?

However, under the completed tort theory, accrual is a fluid concept depending on the credibility of each party’s experts’ testimony. Thus, the completed tort theory “introduces an element of unpredictability” because accrual becomes a jury issue; thus, “the viability of a statute of limitations defense in a [professional malpractice] case would almost never be capable of determination as a matter of law before a trial on the merits.”[xxi]

Increased Malpractice Insurance Premiums

This same unpredictability causes increased malpractice insurance premiums. Under the plain language, a defendant only needs insurance to cover a period of two years after each act. However, the “some damage” rule forces professionals to purchase insurance covering a much greater (possibly indefinite) span of time at a higher cost and may contribute to rising medical costs for patients and legal fees for clients, to name a few.

In Theory, the Completed Tort Theory Was Abrogated in 2011

Taking a small detour, in 1979, the Court explained, “[t]he most fundamental premise underlying judicial review of the legislature’s enactments is that, unless the result is palpably absurd, the courts must assume that the legislature meant what it said.”[xxii] Thirty-two years later, Verska disavowed the premise that plain and unambiguous statutes can be interpreted flexibly to avoid an absurd result: “If this Court were to conclude that an unambiguous statute was palpably absurd, how could we construe it to mean something that it did not say? Doing so would simply constitute revising the statute, but we do not have the authority to do that.”[xxiii]

Because the completed tort theory was adopted on the premise of avoiding the “absurd result” that a cause of action may accrue before there has been any damage, in theory, Verska abrogated the completed tort theory and forced reversion to the plain language of Section 5-219(4).

But not in practice.

Six years after Verska, Wyman reaffirmed that courts have the power to interpret Section 5-219(4) “flexibly to avoid absurd results” and again applied the “objectively ascertainable” modified discovery rule, while simultaneously explaining that Idaho does not have a discovery rule.[xxiv]

The Idaho Constitution Permits Accrual Before any Damage

Justice Smith, in dissent from the Billings majority applying a discovery rule, noted that the open courts provision of Art. 1, § 18 of the Idaho Constitution “is intended to afford judicial process to all persons, and a speedy remedy for such injuries as the law recognizes as actionable. And where a cause of action cannot be sustained due to the bar of a particular statute of limitations, an argument resting upon denial of a remedy is fallacious.”[xxv]

Justices Bistline and Huntley, in their respective Davis concurrences, had the opposite opinion: that the open courts provision demands application of a discovery rule in every case to uphold and protect the constitutional rights of every citizen for open courts and speedy recovery for “every injury.”[xxvi]

Nevertheless, the Court recently affirmed Justice Smith’s opinion in Gomersall, holding that statutes of limitations do not violate the open courts provision because that provision does not guarantee a remedy to every person for every injury; thus, it is within the Legislature’s purview to adopt such limitations.[xxvii] Section 5-219(4) can therefore be applied as written without violating the open courts provision.

Might the Conflict Soon Be Cleared Up?

The departure from the plain language of Section 5-219(4) has caused significant confusion in the professional malpractice legal field and resulted in accrual being a fluid concept based upon the strength of expert opinions instead of the “definite cut-off date” the Legislature intended. Nevertheless, Verska and Gomersall indicate that, unless and until the Legislature ties accrual to a time other than the defendants’ tortious conduct, courts are duty-bound to apply the language as written.

The Issue Is Currently Pending Before the Court

I recently brought up the departure from the plain language to the Idaho Supreme Court and urged reversion to the plain language and legislative intent in Evans v. Wright, Docket No. 50094, which was heard May 10, 2024. For the first time in the medical arena, the appeal was of a grant of a 12(b)(6) and/or 12(c) motion, as opposed to a motion for summary judgment. As such, reversion to the plain language will not overturn prior medical malpractice cases, which were decided on the admissible evidence presented rather than on the sufficiency of the complaint.

“Nevertheless, the Court recently affirmed Justice
Smith’s opinion in Gomersall, holding that statutes
of limitations do not violate the open courts provision
because that provision does not guarantee a remedy
to every person for every injury; thus, it is within the
Legislature’s purview to adopt such limitations.”

Reversion to the plain language would remove the ambiguities inherent in the completed tort theory, give professionals peace of mind where they “need not fear that [they] will be sued for things that happened in the past,” permit courts (not the jury) to decide the statute of limitations affirmative defense, return the burden of proof to the plaintiffs, where it belongs, decrease malpractice insurance costs, and further the goal of “secur[ing] the just, speedy and inexpensive determination of every action and proceeding.”[xxviii]

At the time of writing, the Evans decision remains pending.

Legislature’s Burden to Fix What Is Not Broken

If the Court decides Evans on the completed tort theory basis rather than legislative mandate, the Legislature will need to step up and amend the statute to get its intent across. But, when the statute, coupled with the Statement of Purpose, plainly and unambiguously requires accrual as of the time of the defendants’ tortious conduct, how is the Legislature to improve the language such that the courts will adhere to it?

After graduating law school, Norway-native Anita H.S. Hurlburt clerked at the Hawai`i Intermediate Court of Appeals before leaving her world-traveling days behind to settle permanently in Idaho. She is with Quance McColl, PLLC, where she practices professional liability defense, with a primary focus on medical malpractice.

Endnotes:

[i] Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224 (1964); Renner v. Edwards, 93 Idaho 836, 475 P.2d 530 (1969).

[ii] Curtis v. Firth, 123 Idaho 598, 603 n.3, 850 P.2d 749, 754 n.3 (1993) (Bakes, J., concurring in part and dissenting in part) (quoting Statement of Purpose, H.B. 93 (1971)).

[iii] Holmes v. Iwasa, 104 Idaho 179, 182 n.5, 657 P.2d 476, 479 n.5 (1983) (explaining that the Legislature clearly intended to confine the discovery exception to only foreign objects and fraudulent concealment).

[iv] Stephens v. Stearns, 106 Idaho 249, 678 P.2d 41 (1984); Streib v. Veigel, 109 Idaho 174, 706 P.2d 63 (1985); Davis v. Moran, 112 Idaho 703, 735 P.2d 1014 (1987).

[v] See Streib, 109 Idaho at 179, 706 P.2d at 68 (trap example) and 109 Idaho at 180, 706 P.2d at 70 (Bistline, J., dissenting).

[vi] Stuard v. Jorgenson, 150 Idaho 701, 249 P.3d 1156 (2011); see also Conway v. Sonntag, 141 Idaho 144, 106 P.3d 470 (2005) (time of treatment); Owyhee Cty v. Rife, 100 Idaho 91, 593 P.2d 995 (1979) (time of each audit).

[vii] Walsh v. Swapp L., PLLC, 166 Idaho 629, 462 P.3d 607 (2020); see also Chapman v. Cardiac Pacemakers, Inc., 105 Idaho 785, 673 P.2d 385 (1983); Streib, 109 Idaho 174, 706 P.2d 63.

[viii] Davis v. Moran, 112 Idaho 703, 735 P.2d 1014 (1987); Dickson v. Scoville, 210 F.3d 382 (9th Cir. 2000) (Mem.) (applying Idaho law); but see Curtis v. Firth, 123 Idaho 598, 603, 850 P.2d 749, 754 (1993) (Bakes, J., concurring in part and dissenting in part) (discussing three different contexts of “continuing tort”).

[ix] Curtis, 123 Idaho at 602, 850 P.2d at 753.

[x] Hawley v. Green (“Hawley I”), 117 Idaho 498, 503, 788 P.2d 1321, 1326 (1990).

[xi] Hawley I; see also Holmes; Wyman v. Eck, 161 Idaho 723, 390 P.3d 449 (2017).

[xii] See Dambro v. Meyer, 974 A.2d 121, 132 (Del. 2009) (“The injury was the delay in treatment. That injury occurred on the date that the cancer could have been diagnosed but was not.”); Frankel v. Clark, 213 Ga.App. 222, 223, 444 S.E.2d 147 (1994) (“The misdiagnosis itself is the injury[.]”); cf. Wilson v. Ramirez, 269 Kan. 371, 380, 2 P.3d 778, 785 (2000) (explaining that one diagnosis and the continuing course of treatment relying on that diagnosis are one occurrence or claim).

[xiii] Gomersall v. St. Luke’s Reg’l Med. Ctr., Ltd., 168 Idaho 308, 483 P.3d 365 (2021) (minors and I.C. § 5-230); Stephens (construction of real property and I.C. § 5-241).

[xiv] Connor v. Hodges, 157 Idaho 19, 333 P.3d 130 (2014) (a woman who became pregnant after tubal ligation could pursue a claim even though the 2-year limitations period had run).

[xv] Rowlette v. Mortimer, 352 F. Supp. 3d 1012 (D. Idaho 2018) (holding that, although DNA testing would render objectively ascertainable that the husband was not the biological father, the cause of action did not accrue until the doctor who performed the artificial insemination and had contributed his own sperm posted his own DNA results on Ancestry.com).

[xvi] Gomersall.

[xvii] Davis, 112 Idaho at 709, 735 P.2d at 1020; see Wyman, 161 Idaho at 726, 390 P.3d at 452.

[xviii] Stephens; Streib; Davis (remanded); Werner v. Am.-Edwards Lab’ys, 113 Idaho 434, 745 P.2d 1055 (1987) (remanded); Cosgrove v. Merrell, 117 Idaho 470, 788 P.2d 1293 (1990) (barred); Hawley I (remanded); Hawley v. Green (“Hawley II”), 124 Idaho 385, 860 P.2d 1 (Ct. App. 1993) (remanded); Watts v. Lynn, 125 Idaho 341, 870 P.2d 1300 (1994) (barred); Conway; Stuard (barred); Conner; English v. Taylor, 160 Idaho 737, 378 P.3d 1036 (2016) (barred); Wyman (barred); Gomersall (barred).

[xix] Id.

[xx] Id.

[xxi] Kaminer v. Canas, 282 Ga. 830, 835, 653 S.E.2d 691, 696 (2007).

[xxii] State v. One 1955 Willys Jeep, 100 Idaho 150, 153, 595 P.2d 299, 302 (1979).

[xxiii] Verska v. St. Alphonsus Reg. Med. Ctr, 151 Idaho 889, 895, 265 P.3d 502, 508 (2011).

[xxiv] 161 Idaho at 726, 390 P.3d at 452.

[xxv] 86 Idaho at 505, 389 P.2d at 237.

[xxvi] 112 Idaho at 710, 735 P.2d at 1021 (emphasis in original) and 112 Idaho at 711, 735 P.2d at 1022.

[xxvii] 168 Idaho at 316-17, 483 P.3d at 373-74.

[xxviii] I.R.C.P. 1(b).

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