Myrick v. James

DUFRESNE, Active Retired Justice,

with whom NICHOLS, Justice, joins, dissenting.

The legislative and executive departments of the State can be checked by the judicial department when they exceed their powers, but the judiciary is unique among the three branches of government in that the court is the judge of its own power. As stated by Justice Stone, in United States v. Butler, 297 U.S. 1, at 79, 56 S.Ct. 312, at 325, 80 L.Ed. 477, (dissenting opinion) (1936), “the only check upon our own exercise of power is our own sense of self-restraint.” Recognizing that the Constitution of the State of Maine does not grant the judiciary the power to repeal or amend legislation in order to reach results deemed more desirable, I dissented in Anderson v. Neal, Me., 428 A.2d 1189 (1981), where this Court adopted the discovery rule, so-called, in construing the legislative meaning of “accrual” of action in a legal malpractice case. Sensitive to the oath of office which I took and subscribed on assuming the duties as a justice of this Court (see Article IX, Section 1) and viewing with alarm this Court’s repeat performance in judicial legislation in the area of medical malpractice, I *1003must respectfully dissent. The obligation to support the constitution is imperative and unceasing. State v. Butler, 105 Me. 91, at 102, 73 A. 560 (1909).

The dissent in Anderson fully answers the majority’s opinion in this case and I see no useful purpose to be served in restating again in detail my views respecting the construction of the kindred statute, 14 M.R. S.A. § 753, which provides as follows:

“Actions for assault and battery, and for false imprisonment, slander, libel and malpractice of physicians and all others engaged in the healing art shall be commenced within 2 years after the cause of action accrues.”

I do wish to note, however, in summary fashion, that, prior to Anderson, except where mandated by legislative enactment, this Court had religiously adhered to the traditional concept that a cause of action in tort accrues at the time when the plaintiff sustains a judicially cognizable injury, to the extent on numerous occasions of rejection of litigants’ request that a discovery rule be adopted in connection with the application of statutes of limitation.1 The majority further concedes that in the case of Tantish v. Szendey, 158 Me. 228, 182 A.2d 660 (1962), this Court again refused to adopt the discovery rule in construing the meaning of “accrual of action” in connection with the very statute presently under construction and in relation to medical malpractice based on an identical fact pattern such as the leaving of a foreign object in the body of a surgical patient.

Aware of the general principle that there should be no wrong without a remedy, a right guaranteed by the Maine Constitution,2 nevertheless, I do recognize that the implementation of the stated guaranty remains subject to governance and control in its enforcement and administration by regulatory and procedural legislation enacted by the legislative department known as statutes of limitation, which limit the time within which actions to enforce the right of redress may be taken. See Alvarado v. Gonzales, 552 S.W.2d 539, 542 (Tex.Civ.App. 1977); Horn v. City of Chicago, 403 Ill. 549, 87 N.E.2d 642, 649 (1949).

Statutes of limitation are creatures of the Legislature, and the Legislature alone has power to fix the conditions under which they may operate.3 Stevens v. Sacramento Suburban Fruit Lands Co., 109 Cal.App. 120, 292 P. 699, 710 (1930). They have long been recognized as a valid exercise of a state’s right to regulate the functioning of its judicial system. Thompson v. Thompson, 40 Md.App. 256, 390 A.2d 1139, 1141-42 (1978). They represent a public policy about the privilege to litigate. Dunn v. Felt, Del.Super., 379 A.2d 1140, 1141 (1977). It is the prerogative of the Legislature to fix the time in which causes of actions must be commenced and no court will excuse a delay beyond the statutory temporal requirement, provided the time limitation is reasonable, reasonableness being primarily a legislative matter. Plant v. R. L. Reid, Inc., 294 Ala. 155, 313 So.2d 518, 522 (1975).

On the other hand, in Farris, Attorney General v. Goss, 143 Me. 227, 230, 60 A.2d 908 (1948), this Court said that it is not concerned with the consequences of statutory provisions. The court’s duty is to interpret, not to make the law.

Determination of legislative intent is the fundamental rule in the judicial construction or interpretation of statutes. State v. Hussey, Me., 381 A.2d 665, 666 (1978); Labbe v. Nissen Corp., Me., 404 A.2d 564, 567 (1979). Legislative intent must be factually determined as of the time of the enactment or reenactment of the law under *1004consideration, with resort to the history of the legislation, if need be. See Mundy v. Simmons, Me., 424 A.2d 135, 138 (1980). When legislative intent can be,determined, whether by direct analysis of the statute involved viewed as a whole or by consideration of statutes in pari materia, or indirectly by resorting to legislative history surrounding the legislation, courts must give effect to the legislative will as ascertained. See State v. Goyette, Me., 407 A.2d 1104, 1110 (1979); Cummings v. Town of Oakland, Me., 430 A.2d 825, 829 (1981).

A proper construction of the statutory language in the instant case, 14 M.R.S.A. § 753, can be found in the light of the legislative grouping in one single two-year limitation statute the tort action of malpractice of physicians with the four other tort actions of assault and battery, false imprisonment, slander and libel. Such structural arrangement, wherein the common terminology “within 2 years after the cause of actions accrues” was used with respect to all five enumerated actions, is a clear indication on the part of the Legislature that the traditional meaning of accrual of a cause of action in tort (i.e. the time when the plaintiff sustains a judicially cognizable injury), which undisputably would apply to the actions of assault and battery, false imprisonment, slander and libel, was meant to carry over to the action for medical malpractice. In the construction of statutes, the maxim “noscitur a soeiis” serves as a useful aid in ascertaining the meaning or application of words of broad implication such as “within 2 years after the cause of action accrues.” The association of the confusing expression with an enumerated group of subjects to which it is intended to have application should reveal, as it does in the instant case, the intent on the part of the Legislature to use the expression in light of the common thread underlying the several objects upon which it is made to operate. Words may be known by the company they keep. Associated terms, expressions or word^ are properly held to take their color from each other. See Trafton, Appellant, 94 Me. 579, 580, 48 A. 113 (1901); Rockland Water Company v. Camden and Rockland Water Company, 80 Me. 544, 566, 15 A. 785 (1888).

Also, we must presume that the Legislature, in anchoring the running of this specific statute of limitation respecting physician malpractice actions at a broad but single point of departure such as the accrual of the cause of action as applied to all five stated causes, including assault and battery, false imprisonment, slander and libel, sought to establish a collective but uniform and consistent Iimitational pattern, compelling a similar construction of its singular statutory provision even though applicable to different particular types of judicial processes. See Colonial Builders and Investors v. Meier, Me., 417 A.2d 422, 424-25 (1980); Delano v. City of South Portland, Me., 405 A.2d 222, 227 (1979). Such precludes any intent on the part of the Legislature to incorporate into the statutory provision the discovery concept in favor of physician malpractice actions alone.

The majority claims that, when the Legislature in 14 M.R.S.A. § 753 failed to specify when the respective causes of action enumerated therein accrued, it intended to delegate to the courts the power from time to time to determine and establish that point of time from which the intended limitations statute would commence running, and that, absent future “explicit legislative direction” thereon, the process of defining the term “accrual” of these respective causes of action remains a judicial function. Such judicial activism as displayed in the instant case is constitutionally prohibited and contrary to legal precedents of this Court which have stood for more than one hundred and fifty years.

Our Constitution mandates that the separation of powers among the three branches of government be maintained:

“The powers of this government shall be divided into three distinct departments, ' the legislative, executive and judicial. “No person or persons, belonging to one of these departments, shall exercise any of the powers properly belonging to either of the others, except in the cases *1005herein expressly directed or permitted.” Constitution of Maine, Art. Ill, Sections 1 and 2.

Not only is the Legislature not authorized to transfer any of its legislative power and responsibility, but it is expressly forbidden to transfer any part thereof to either the executive or the judicial or to any member of either department. In State v. Butler, 105 Me. 91, 73 A. 560 (1909), this Court cited with approval the holding of the Michigan Court in King v. Concordia Ins. Co., 140 Mich. 258, 103 N.W. 616 (1905), wherein a statute purporting to empower a commission to frame a standard insurance policy and to make such changes in it from time to time as justice and equity might require was held void. See also Brown v. State, Dept. of Manpower Affairs, Me., 426 A.2d 880, 884 (1981); State v. Fixaris, Me., 327 A.2d 850, 853 (1974).

It is to be presumed that the Legislature in enacting 14 M.R.S.A. § 753 was fully aware that incorporation into our statutes, by express reference or implicit understanding, of future judicial revisions or alterations of the meaning of “accrual” of the enumerated causes of action as the judiciary may from time to time deem advisable would constitute an unlawful delegation of legislative power. See State v. Intoxicating Liquors, 121 Me. 438, 443, 117 A. 588 (1922); State v. Webber, 125 Me. 319, 321, 133 A. 738 (1926). The Legislature may not constitutionally delegate general legislative authority. State v. Prescott, 129 Me. 239, 242, 151 A. 426 (1930).

To restructure the limitations statute respecting the accrual of the cause of action of medical malpractice by rewriting it into a mold which would accommodate the requirements of the discovery rule, so-called, after this Court in Tantish v. Szendey had specifically given the very same statute its narrow construction in relation to an identical situation, would in the light of State v. Holbrook, Me., 318 A.2d 62 (1974) be a transgression of the proper bounds for interpretation of the meaning of a statute and smack of judicial legislation, constitutionally forbidden by the Constitution.

In construing statutes, courts expound the law; they cannot extend their application, nor amend them by the insertion of qualifying conditions. See State v. Standard Oil Co., 131 Me. 63, 64, 159 A. 116 (1932).

To overrule Tantish v. Szendey, supra, and adopt the discovery rule as part and parcel of 14 M.R.S.A. § 753 would constitute a flagrant usurpation of a prerogative belonging solely to the Legislature and be subversive of those principles which are the foundation of orderly government. It would also signal a radical departure from a well-recognized rule of statutory construction to the effect that, absent a clear purpose to intend otherwise, the Legislature is presumed to have in mind the decisions of this Court and, when using legislative language which has been given a specific meaning by judicial construction, it must be deemed to have adopted the judicially declared interpretation.

This Court has repeatedly held that the reenactment of a statute which has received judicial construction adopts the construction given to it. General Motors Acceptance Corporation v. Anacone, 160 Me. 53, 78, 197 A.2d 506, 521 (1964); Hutchins v. Libby, 149 Me. 371, 379, 103 A.2d 117 (1953); Inhabitants of Town of Winslow v. Inhabitants of City of Old Town, 134 Me. 73, 76-77, 181 A. 816 (1935); Bennett v. Bennett, 93 Me. 241, 242, 44 A. 894 (1899).4

In State v. Crocker, Me., 435 A.2d 58, decided as late as September 18,1981, nearly 5 months after the decision in Anderson v. Neal, this Court held that previous constructions by this Court of the undefined term “depraved indifference to the value of human life,” as employed in the depraved indifference murder statute, “became a part of the statute as definitely as if the Legislature itself had amended the statute to reflect expressly the judicial construction.” Accord: State v. Davenport, Me., 326 A.2d 1 (1974).

*1006To advance the conjecture that the legislative failure to give statutory recognition to a discovery rule may have resulted from the ‘belief that the matter should be left to be handled by the normal processes of judicial development of decisional law, including the overruling of outstanding decisions to the extent that the sound growth of the law requires’

as quoted in Anderson v. Neal, at 1191, not only involves the entertainment of a concept invidious to the separation-of-powers clause of our Constitution as indicated previously, but is clearly contrary to the historical facts surrounding legislative activity relating to the existing limitations statute applicable to causes of medical malpractice as interpreted by this Court in Tantish v. Szendey. In the first legislative session following this Court’s decision in Tantish v. Szendey, and in the One Hundred and Fourth Legislature, bills were introduced to incorporate the discovery rule in the medical malpractice statute of limitations. Both failed. During consideration of the Pomer-oy Commission Report by the One Hundred and Eighth Legislature similar proposals were attempted. The transcript of the legislative debate definitely shows an awareness on the part of the members of the Legislature that

“Maine already has one of the most restrictive statutes of limitations of any state in this nation;” (Mr. Kelleher, Legislative Record, 1977, Vol. II, at 1946) “The current situation is and current law [is] that you have up to two years after the act with respect to a physician and up to six years after the act with respect to a hospital to bring suit. That is after the act has occurred.” (Emphasis provided) * * * * * * “What I can’t live with is my telling somebody who finds out that they have been malpracticed against two years and one day afterward, I have to say to them, sorry, you have no remedy whatsoever.
That is the way the law is. It seems the fairer way to proceed is to say that a person has two years from the day they did discover the incident of malpractice. This proposal would give a person the right to sue two years after the date they discover the situation but not more than six years.” (Emphasis added). (Mr. Henderson, Legislative Record, at 2090). “Physicians, under the present law, have two years from the date of occurrence .... I think that it would ill provide us to increase this with the very vehicle that we are making a sincere attempt and it is obvious by the action of this legislature to turn around the proliferating costs of health care.” (Emphasis superimposed). (Mr. Norris, Legislative Record, at 2091).

A proposed amendment5 to the Pomeroy Commission legislative recommendations which would have subjected the limitations period in the case of physician malpractice suits to the requirements of the discovery rule was indefinitely postponed, and thus defeated in the House, by a vote of 83 to 17. See Legislative Record, One Hundred and Eighth Legislature, Vol. 11, at 2091. The indefinite postponement of legislative proposals which would have incorporated the discovery rule as part of the medical malpractice limitations statute, 14 M.R.S.A. § 753, clearly demonstrates positive action on the part of successive legislatures in maintaining the original policy underlying such legislation and completely dispels the notion of legislative silence or inaction as some have suggested.

Furthermore, not only did the One Hundred and Eighth Legislature knowingly leave in full force and effect the medical malpractice limitations statute, as construed by this Court in Tantish v. Szendey, in situations to which it applied, but it added further limitations on the cause of action of medical malpractice by providing immunity from civil liability to licensed physicians for volunteer activities on their *1007part in specified circumstances, “unless it is established that the injuries or the death were caused wilfully, wantonly, recklessly or by gross negligence of the licensed physician.” 24 M.R.S.A. § 2904.

Following legislative debates which made it crystal clear that the expression “within 2 years after the cause of action accrues” was intended and understood to mean within 2 years of the occurrence of the malpractice incident as this Court had construed the identical terminology in Tantish v. Szendey, this same Legislature enacted 24 M.R.S.A. § 2902, which brought within the same two-year period of limitations actions for damages against nurses and hospitals and their employees.6 To contend that the Legislature in this instance intended to leave it to the judicial department to construe these words of art contrary to the interpretation given to them in Tantish v. Szendey is to be blind to reality and foster invidious judicial intrusion in the legislative process to which under the constitutional mandate of the separation-of-powers clause we should pay just deference.

Legal terms of art should be construed according to their accepted usage, especially when it appears that such a construction was legislatively intended. See Pride’s Corner Concerned Citizens Association v. Westbrook Board of Zoning Appeals, Me., 398 A.2d 415, 417 (1979). If a term or expression as used in a statute have already been given a legal meaning by the courts, it is presumed that the Legislature attached the same meaning to them when used on a subsequent occasion. See Sweeney v. Dahl, 140 Me. 133, 138, 34 A.2d 673, 675, 151 A.L.R. 356 (1943). The Legislature must be supposed to employ language relating to legal proceedings, in its well known legal acceptation. McLellan v. Lunt, 14 Me. 254, 258 (1837).

As stated by Justice Holmes in Johnson v. United States, 1st Cir., 163 F. 30, at 32 (1908):

The Legislature has the power to decide what the policy of the law shall be, . and if it has intimated its will, however indirectly, that will should be recognized and obeyed.

See also, Wichelman v. Messner, 250 Minn. 88, 83 N.W.2d 800, 812, 71 A.L.R.2d 816 (1957).

Statutes of limitation are established by the legislative branch of government and their purpose is to cut off rights that might otherwise be asserted. They often operate against meritorious claims. They may bring about inequitable results and prevent relief in hardship cases, catastrophic or otherwise. In any case, they must be strictly adhered to by the judiciary and relief from their harsh and inequitable consequences must be provided by the legislative department, and not by the courts. See Abbott v. Johnston, 130 Ark. 1, 195 S.W. 676, 678 (1917); Carver v. Moore, Com.App., 288 S.W. 156, 159 (Tex.1926); Glashoff v. Glashoff, 57 Cal.App.2d 108, 134 P.2d 316, 319 (1942); Kavanagh v. Noble, 332 U.S. 535, 68 S.Ct. 235, 237, 92 L.Ed. 150, reh. denied 333 U.S. 850, 68 S.Ct. 656, 92 L.Ed. 1132 (1947); Hunter v. Hunter, 361 Mo. 799, 237 S.W.2d 100, 104, 24 A.L.R.2d 611 (1951); Shearin v. Lloyd, 246 N.C. 363, 98 S.E.2d 508, 514 (1957); Gamma Tau Educational Foundation v. Ohio Casualty Ins. Co., 41 Wis.2d 675, 165 N.W.2d 135, 139 (1969); Tilden v. Anstreicher, M. D., Del.Supr., 367 A.2d 632, 635 (1976).

Where, except for the 1977 amendment (24 M.R.S.A. § 2904) as heretofore stated, the Legislature failed to insert in the medical malpractice limitations statute any specific exception such as the discovery rule would generate, our courts are not free to engraft any therein. See Davis v. Howe, Com.App., 213 S.W. 609, 611 (Tex.1919); McMahan v. Dorchester Fertilizer Co., 184 Md. 155, 40 A.2d 313, 316 (1944); Harrison v. Holsenbeck, 208 Ga. 410, 67 S.E.2d 311, *1008313 (1951); Frazee v. Partney, 314 S.W.2d 915, 919 (Mo.1958); Jones v. Rabinowitz, 296 F.Supp. 123, 125 (1969); Moore v. Delivery Services, Inc., Okl.App., 618 P.2d 408, 409 (1980).

If I were a member of our Legislature, I might conclude that medical malpractice actions of any kind, including those based on foreign objects left in the body of surgical victims, should be barred after two years from the time the plaintiff discovers, or, in the exercise of reasonable care and diligence, should have become aware of, the malpractice and that for the benefit of the general public the existing law, as interpreted in Tantish v. Szendey, should be amended. But as a member of this Court, I have no right to be blind to the separation-of-powers clause of the Constitution and amend existing law contrary to the clear wishes of our Legislature, solely because in the instant case the enforcement of the statute of limitations does result in a harsh and inequitable result. The wisdom of a statute is for the Legislature, and not the Court, to consider. See Camp Emoh Associates v. Inhabitants of Lyman, 132 Me. 67, 70, 166 A. 59 (1933). It is not our duty to sit in judgment as to the efficacity or wisdom of a particular statute. Shapiro Bros. Shoe Co., Inc. v. Lewiston-Auburn S.P.A., Me., 320 A.2d 247, 257 (1974).

We must realize that we are not dealing, here, with a rule of law or policy created and adopted wholly by the courts and which remains subject to judicial change, unless specifically and expressly enacted into law by the Legislature. Such are all our rules inherited from the common law and several of our past judicial doctrines which this Court has now repudiated and from which the majority claims so much support. I view the doctrines of sovereign immunity, municipal immunity, parental immunity, in-terspousal immunity, attractive nuisance, the common law status distinctions between licensees and invitees, as wholly created by the court and subject to court demolition, a stance in no way inconsistent with my present position respecting the reference statute of limitations as construed by this Court in Tantish v. Szendey.

The decisions of James v. United States, 366 U.S. 213, 81 S.Ct. 1052, 6 L.Ed.2d 246 (1961), Girouard v. United States, 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084 (1946) and Helvering v. Hallock, 309 U.S. 106, 60 S.Ct. 444, 84 L.Ed. 604 (1940), cited by the majority, are not persuasive in support of the majority’s position. They stand for the principle that the Court has an inherent right to correct itself where no settled statutory construction is involved. James purported to correct the Court’s original “blunder” in deciding that embezzled funds are not taxable gains and reportable as gross income within the federal act in the year in which the funds are misappropriated. In our present case, nobody claims that the Williamson court mistakenly construed the statute at the time of its decision in Tantish v. Szendey. Rather, the majority arrogates to this Court the very broad power to redefine any legislative term, as circumstances require, and to re-interpret the legislation in light of changed conditions, “so long as the Legislature does not preempt the pertinent statutory meaning by its own definitive and legitimate pronouncement,” contrary to this Court’s long precedential history of one of its most consistently followed rules of statutory construction to the effect that legislative language once judicially interpreted acquires a settled meaning binding on the courts thereafter. General Motors Acceptance Corp. v. Anacone, 160 Me. 53, 197 A.2d 506 (1964); Hutchins v. Libby, 149 Me. 371, 103 A.2d 117 (1953); Inhabitants of Town of Winslow v. Inhabitants of City of Old Town, 134 Me. 73, 181 A. 816 (1935); Sacknoff v. Sacknoff, 131 Me. 280, 161 A. 669 (1932); East Livermore v. Livermore Falls Trust & Banking Co., 103 Me. 418, 429, 69 A. 306, 15 L.R.A., N.S. 952 (1907); Tuxbury’s Appeal, 67 Me. 267 (1877); Cota v. Ross, 66 Me. 161, 165 (1877); Osgood v. Holyoke, 48 Me. 410, 414 (1861); Myrick v. Hasey, 27 Me. 9, 17, 46 Am.Dec. 583 (1848).

Girouard repudiated prior court holdings that barred admission to citizenship to aliens who refused to bear arms, on the ground that it was error as an original *1009proposition for the court to insert in the Act of Congress by implication a prerequisite which Congress in no way had indicated should be in the legislation. In our present case, some twenty years after specific, articulate and well-reasoned judicial construction of this limitations statute in the area of medical malpractice, the majority worms into the legislation the discovery rule, which the Legislature, not only never implied should be part of this legislation, but on numerous occasions refused to let become the law of the land.

The instant case does not present a similar situation as found in Helvering v. Hallock, supra, where the court refused to hon- or a previous holding of the court relating to certain trust property as being included in a decedent’s gross estate, where, on further examination, the distinctions, espoused in the prior holding, appeared “consonant neither with the purpose of the statute nor with this Court’s own conception of it.” The majority’s amendment of the instant statute is not based on any such rationale as mentioned in the Helvering case.

As stated by Justice Jackson in Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628, 1635-36 (1945):

[Statutes of limitation] are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the voidable and unavoidable delay. They have come into the law not through the judicial process but through legislation. They represent a public policy about the privilege to litigate.
... [The individual] may, of course, have the protection of the policy while it exists, but the history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control. (Emphasis additional).

I would deny the appeal and affirm the judgment of the Superior Court in favor of the defendant.

. The discovery rule was repudiated in Bishop v. Little, 3 Me. 405 (1825); Betts v. Norris, 21 Me. 314, 38 Am.Dec. 264 (1842) and Bozzuto v. Ouellette, Me., 408 A.2d 697 (1979).

. See Article 1, § 19 of the Constitution of Maine: “Every person, for an injury' done him in his person, ... shall have remedy by due course of law; .... ”

.We are not dealing here with the doctrine of laches developed by courts of equity in analogy to statutes of limitation, but grounded on equitable principles. See Spaulding v. Farwell, 70 Me. 17 (1879); Stewart v. Grant, 126 Me. 195, 201, 137 A. 63 (1927).

. For other cases, see cases cited in Anderson v. Neal, Me., 428 A.2d at 1197.

. House Amendment “E” read as follows:

Sec. 1. 14 M.R.S.A. § 753 is amended to read:
Actions for malpractice of physicians and all other engaged in the healing art shall be commenced within 2 years from the date that the act of malpractice was or, with the use of reasonable diligence, could have been discovered, but in any case no action may be commenced more than 6 years after the cause of action accrues.

. § 2902. Statute of limitations for hospitals and employees

An action for damages for injury or death against any nurse licensed under Title 32, chapter 31; any hospital or its employee, whether based upon tort or breach of contract or otherwise, arising out of patient care, shall be commenced within 2 years after the cause of action accrues.