VAUGHN v. LANGMACK, 236 Or. 542

LUSK, J. The plaintiff in this action for malpractice against a duly licensed physician and surgeon has appealed from a judgment for the defendant which followed a ruling of the court below sustaining defendant’s demurrer to the complaint, based upon the ground that the action is barred by the statute of limitation.

As stated in the plaintiff’s brief: “The sole question presented by this appeal is whether a cause of action for medical malpractice, arising out of negligently leaving and failing to remove a surgical needle from plaintiff’s body, accrues at the time of the negligent act, or at the time it was or might reasonably have been discovered.” The complaint alleged that on July 7, 1958, the defendant undertook to repair surgically a strangulated inguinal hernia from which the plaintiff was suffering; that after completing the repair the defendant negligently failed to remove a surgical needle used in the operation and closed the incision in plaintiff’s abdomen leaving the needle still there and that plaintiff experienced pain and bloating in the abdomen thereafter and did not discover the cause thereof until October 10, 1962.

Thereupon it became necessary for him to submit to further surgery for removal of the needle. This action was commenced January 9, 1963, about four and one-half years after commission of the alleged negligent act. We affirm the judgment of the circuit court. OES 12.010 reads: “Actions at law shall only be commenced within the periods prescribed in this chapter, after the cause of action shall have accrued, except where a different limitation is prescribed by statute.

The objection that the action was not commenced within the time limited shall only be taken by answer, except as provided in OES 16.260.” OES 12.110 reads in part: “

(1) An action for assault, battery, false imprisonment, for criminal conversation, or for any injury to the person or rights of another, not arising on contract, and not especially enumerated in this chapter, shall be commenced within two years; provided, that in an action at law based upon fraud or deceit, the limitation shall be deemed to commence only from the discovery of the fraud or deceit. It is not disputed that OES 12.110 (1) applies to this case.

But plaintiff contends that his cause of action did not accrue until he knew or should have known of the injury and that therefore, the statute did not commence to run until that time. We held otherwise in the similar case of Wilder v. Haworth, 187 Or 688, 213 P2d 797. We adhere to that decision. The pertinent legislative history is of prime importance to the determination of the question before us. The first statute of limitations was enacted in 1862. Deady, General Laws of Oregon, 1845-1864, Ch 1, Title II, p 140,

section 3, read substantially as the present OES 12.010. None of the numerous provisions which followed it prescribing time limitations for commencing various classes of actions contained any exception based on the time of discovery of the injury or the wrong. All such actions were barred unless they were commenced within a specified time “after the cause of action shall have accrued.” There was, however, such an exception applicable exclusively to suits in equity.

Section 378,

chapter 5, p 244, Deady, supra, provided that: “A suit shall only be commenced within the time limited to commence an action” but “ [i]n a suit upon a new promise, fraud or mistake, the limitation shall only be deemed to commence from the making of the new promise, or the discovery of the fraud or mistake.”

Section 6, ch 1, Title II, p 141, of Deady prescribed a six-year limitation for “[a]n action for criminal conversation, or for any other injury to the person or rights of another, not arising on contract, and not hereinafter enumerated.” The statute was amended by Oregon Laws 1870,

section 9, page 34, so as to make applicable to the actions just enumerated a limitation of two years. This amendment became a part of

section 8, subdivision 1, L.O.L., and is now included in OES 12.110 (1). An action for malpractice is an action for an “injury to the person or rights of another, not arising on contract”, and is governed by the provision just referred to. These statutes were in effect without change when the cases of Hood v. Seachrest, 89 Or 457, 174 P 734, and Schwedler v. First State Bk. of Gresham, 92 Or 33, 179 P 671, were decided, the former on September 10, 1918, and the latter on April 8, 1919. Both were actions in deceit for fraud growing out of land sale contracts.

The actions were held to be barred because they were not commenced within two years after the cause of action accrued. In Hood v. Seachrest it was contended by the plaintiff that the statute did not commence to run until the discovery of the fraud. This court rejected the contention. After setting out the provisions of the statutes regarding law actions and those regarding suits in equity to which we have referred, the court said: “When we read these two sections together, it is obvious that the legislature intended that the rule adopted in law actions is to differ from the one followed in suits in equity.

It will also be observed that while exceptions to the general effect of

Section 3, L.O.L. were considered by the legislature, the Code is silent as to any exception in the case of fraud and deceit. This also is a convincing fact in the discussion. * * *” 89 Or at

Section 3, L.O.L., was the same as

section 3 in Deady, supra. The statement in the opinion in Hood v. Seachrest that exceptions were considered by the legislature evidently had reference to the following language of

section 3, L.O.L., “except where, in special cases, a different limitation is prescribed by statute.” Schwedler v. First State Bk. of Gresham was decided upon the authority of Hood v. Seachrest. With the decision of this court in Hood v. Seachrest before it and while Schwedler v. First State Bk. of Gresham was pending, though undecided, the legislature in 1919 adopted an amendment to

section 8, L.O.L., so as to make that

section read as follows: “Sec. 8. Within two years: “

(1) An action for assault, battery, false imprisonment, for criminal conversation, or for any injury to the person or rights of another, not arising on contract, and not herein especially enumerated; provided, that in an action at law based upon fraud or deceit, the limitation shall be deemd to commence only from the discovery of the fraud or deceit. “

(2) An action upon a statute for a forfeiture or penalty to the state or county.” (Oregon Laws 1919, ch 122.) The amended statute became OES 12.110 (1) and (2). If a case of statutory construction ever called for the application of the maxim expressio umius est exclusio alterius, we have it here. The maxim is a compendious statement of a logical principle. As a recognized authority says: “[I]t is not of legal origin; rather it is a product of ‘logic and common sense’.” 2 Sutherland Statutory Construction (3d ed) 415, §4916.

Logic and common sense make unavoidable the conclusion that when the legislature, evidently prompted by the decision in Hood v. Seachrest, amended the statute in 1919 sn as to provide that the time limited for bringing an action based upon fraud or deceit should commence to run only from the discovery of the fraud or deceit, it intended that, as to all other actions, the provision that the time commenees to run from the accrual of the cause of action should remain unchanged. Similar considerations moved this court to hold in Hood v.

Seachrest that, when the legislature provided that in suits in equity based upon fraud the time limitation should not begin to run until discovery of the fraud, but included no such provision in the statute governing actions at law, the legislature intended that as to the latter class of actions the time should begin to run when the cause of action accrued, not when the wrong was discovered.

It is, furthermore, obvious that the legislature considered that the phrase “after the cause of action shall have accrued” and the phrase “from the discovery of the fraud or deceit” mean different things; the plaintiff would make them mean the same thing. “[I]t is a well established rule that in the construction of statutes, words used in the statute which have a well-defined legal meaning are to be given that meaning.” Cordon v. Gregg, 164 Or 306, 311-312, 97 P2d 732, 101 P2d 414. See, also, Reed et al v. Reed, Exec. et al, 215 Or 91, 96, 332 P2d 1049; 2 Sutherland Statutory Construction (3d ed) 438, § 4919.

The word “accrued” has a well defined legal meaning, certainly so when used in connection with an action for malpractice. That meaning was elucidated by this court in Piukkula v. Pittsburg Flouring Co., 150 Or 304, 42 P2d 921, 44 P2d 162, 99 ALR 244. At page 324 the court stated the holdings in Cappucci v. Barone, 266 Mass 578, 165 NE 653, and Ogg v.

Robb, 181 Iowa 145, 162 NW 217, LRA 1918C 981, two malpractice actions which we said applied the principle “that the cause of action arises, not when the entire' scope of the injury has revealed itself, but when the tortious act occurred. ” In the former case a physician had left a sponge in the abdomen of the plaintiff upon whom he operated. In the latter an injury caused to the plaintiff by the use of X-rays resulted in the ultimate development of cancer.

Both actions were held to be barred by the statute of limitations, contrary to the contention that the statutes did not commence to run until discoverey of the injury. Respecting these decisions this court said: “* * * These two cases employed the general rule applicable to malpractice actions. See 15 Minn. Law Rev. 245. The same rule is employed in actions against attorneys, charging that they negligently performed their services. The time runs from the breach of duty. The cases are cited in Greenleaf on Evidence (16th Ed.) p. 410, footnote 4. In Davis v. Boyett, 120 Ga. 649 (48 S.E. 185, 66 L.R.A. 258, 102 Am.

St. Rep. 118, 1 Ann. Cas. 386), the court, in holding that a father’s cause of action for the seduction of his daughter arises when the act of seduction is complete, held: “ ‘The father’s right of action did not depend upon his knowledge of the great wrong which had been done [Mm] by the defendant. He had a right of action before he discovered the facts out of which it arose.’ “It concluded that Ms mere ignorance of the existence of the facts did not prevent the running of the statute of limitations.

The rule employed in the cases above reviewed is of universal application except where the guilty party fraudulently conceals the existing cause of action. We quote from Wood on Limitations, (4th Ed.) § 179: “ ‘In actions for injuries resulting from the negligence or. unskillfulness of another, the statute attaches and begins to run from the time when the injury was first inflicted, and not from the time when the full extent of the damages sustained has been ascertained.

The gist of the action is the négligenee or breach of duty, and not the consequential injury resulting therefrom.’ See also G-reenleaf on Evidence, (16th Ed.) §433, and 31 Mich. Law Rev. 590, ‘Undiscovered Fraud and Statutes of Limitation’.” 150 Or at 325. It was in accordance with the principles thus approved by this court that Wilder v. Haworth was decided in 1950. In 1957 the legislature amended ORS 12.110 (Oregon Laws 1957, ch 374), but it left untouched the language of that

section here applicable, as theretofore construed by this court in the Wilder case. We deem it unnecessary to enter upon a review of the decisions in other jurisdictions. The case of DeLong v. Campbell, 157 Ohio St 22, 104 NE2d 177, however, is so apposite that it should be noticed. This was an action for malpractice against a physician who, it was charged, negligently failed to remove a sponge which he had placed in the abdominal cavity of the plaintiff in performing an operation on her. Ohio had a one-year statute of limitation applicable to actions for malpractice.

A demurrer to the plaintiff’s complaint based on the ground that the action was barred by the statute was sustained in the lower courts and the judgment affirmed on appeal. The plaintiff contended that the cause of action did not accrue until the injury was discovered, some seven years after the commission of the wrongful act. The statutes of limitation of Ohio originally contained no provisions respecting knowledge of the cause of action, save in actions for fraud. In Williams v.

Pomeroy Coal Co., 37 Ohio St 583, the court had held in an action for trespass upon land that the applicable four-year statute of limitation governed regardless of when plaintiff acquired knowledge of the trespass and, in particular, that, in this regard, there is no distinction between trespasses under ground and upon the surface. Following that decision and, as the court said in DeLong v. Campbell, supra, unquestionably as the result of it, the legislature amended the

section which fixed a four-year period of limitation for certain actions by providing that “[i]f the action be for trespassing under ground or injury to mines, * * * the causes thereof shall not accrue until the wrongdoer is discovered; * * *.” The court commented that the general assembly had not seen fit to add a similar provision to the statute of limitation as to a malpractice action, although previously in two cases the Supreme Court of Ohio had held that the latest time at which a malpractice cause of action can accrue is the termination of the physician-patient relationship.

This court has announced similar rulings. The Ohio court continued: “If the proposition for which plaintiff contends was adopted as the law it would nullify many of the statutes of limitation. For instance, if the statute of limitations as to libel or slander did not begin to run until knowledge was had by the one injured by the libel or slander it might result that an action therefor could be brought an indefinite number of years after the libel or slander occurred. Such instances could be multiplied.” 157 Ohio St at 28. See, also, Lindquist v.

Mullen, 45 Wash 2d 675, 678, 277 P2d 724, an action for malpractice against a physician, where the court said: “* * * We are satisfied that had the legislature intended the principle of discovery to apply to tort cases based on negligence, it would have specifically said so, as it did with regard to discovery in fraud cases.” This statement is referred to with approval in the recent case of Roybal v. White, 1963, 72 NM 285, 383 P2d 250. Philpot v. Stacy (1963, Ky) 371 SW2d 11, rejects the doctrine of discovery where the statute makes no exception in that regard.

The subject is annotated in 80 ALR2d 368, 374, 387-400; 144 ALR 209; 74 ALR 1317.

We are told, however, that damage is the gist of the action of malpractice and that it cannot be determined from the allegations of the complaint when any damage was suffered by the plaintiff as the result of the defendant’s negligence in closing the wound without first removing the surgical needle “lodged [as the complaint says] in plaintiff’s abdomen.” This theory appears to be introduced as a means of seeming to avoid the fault of judicial legislation, concerning which more will be said later; though, as it seems to us, it is only another way of saying that the cause of action does not accrue until discovery of the injury.

Por we doubt that it would be contended that if the plaintiff became aware of the presence of the needle in his body the day after the wrongful act he would not then have had a cause of action against the defendant for his want of care or skill, even though up to that time the plaintiff had experienced no pain or discomfort from that cause. It. would seem that he, at least, would have had the right to sue immediately to recover for the cost of an operation for removal of the needle and the pain and suffering incident to such an operation. The case of Bonomi v.

Backhouse, 120 Eng Rep 643, upon which reliance is placed, is beside the mark. The plaintiff in that case sued to recover damages for subsidence of his land caused by withdrawal of lateral support. The defendant owned land contiguous to that of the plaintiff containing underground mines. He worked the mines more than six years before the commencement of the action but no actual damage occurred until within the six years (the period of the applicable statute of limitations).

The court held that the statute commenced to run, not from the time of the working of the mines, but from the time that actual damage occurred. The ground of the decision may best be seen by quoting from the opinion of Willes, J., for the Court of Exchequer: “There is no doubt that for an injury to a right an action lies: but the question is, What is the plaintiff’s right? Is it that his land should remain in its natural state, unaffected by any act done in the neighbouring land, or is it that nothing should be done in the neighbouring land from which a jury would find that damage might possibly accrue?

There is no doubt that in certain cases an action may be maintained although there is no actual damage. The rule laid down by Serjeant Williams, in note (2) to Mellor v. Spateman (1 Wms. Saund. 346 b.), is that, whenever

an act injures another’s right, and would be evidence in future in favour of the wrong-doer, an action may be maintained for an invasion of the right, without proof of any specific damage. This is a reasonable and sensible rule; but it has no application to the present case; for the act of the defendant in getting the coal would be no evidence in his favour as to any future act: getting the coal was

an act done by him in his own soil by virtue of his dominion over it. * * *” (Italics added.) 120 Eng Rep at 656. Similarly, Lord Cranworth in his opinion for the House of Lords, affirming the judgment below, said: “I think the error in the view which has sometimes been taken upon this subject, is this: It has been supposed that the right of the party whose land is interfered with, is a right to what is called the pillars or the support.

In truth his right is a right to the ordinary enjoyment of his land, and till that ordinary enjoyment is interfered with, he has nothing of which to complain.” 9 HCL 503, 11 Eng Rep 825, 829. Were this language to be paraphrased so as to attempt to make it applicable to an action for malpractice, it might be said that the right of a person is to the ordinary enjoyment of his body and that right is interfered with when a surgeon leaves a needle or other foreign substance in his body and the owner of the body eo instanti has something of which to complain.

The vital difference between the two cases is that it is not an unlawful act for a man to make an excavation on his own property, but it is an unlawful act for a surgeon to close the wound without first removing a surgical needle from his patient’s body. The latter is an invasion of a personal right. See Schmidt v. Merchants Despatch Transp. Co., 270 NY 287, 300, 200 NE 824, 104 ALR 450. The doctrine of Bonomi v. Backhouse is said to be regarded by many courts in this country as the settled rule, 15 Harvard Law Rev 574; see Smith v. City of Seattle, 18 Wash 484, 51 P 1057, 63 Am St Rep 910.

The Pennsylvania court rejected it as unsuited to the conditions of coal mining in this country, Noonan v. Pardee, 200 Pa St 474, 483, 50 A 255, 86 Am St Rep 722, 55 LRA 410. We need not concern ourselves with that controversy. We doubt that Bonomi v. Backhouse has ever before been cited as authority touching the operation of the statute of limitations in a malpractice action. This case is governed by the principle stated in Bonomi v.

Backhouse, but there held inapplicable, that “for an injury to a right an action lies.” This is the principle applied in malpractice actions as indicated by the authorities cited with approval by this court in Piukkula v. Pillsbury Flouring Co., supra. To these may be added Tessier v. United States, 269 F2d 305 (1st Cir. 1959); Murray v. Allen, 103 Vt 373, 154 A 678 (failure to remove gauze sponge after operation); Coady v. Reins, 1 Mont 424 (reduction of fracture); Giambozi v. Peters, 127 Conn 380, 384-385, 16 A2d 833 (transfusion of infected blood); Lotten v.

O’Brien, 146 Wis 258, 131 NW 361 (reduction of fracture); Conklin v. Draper, 241 NYS 529 (failure to remove forceps from body); Bernath v. LeFever, 325 Pa St 43 (operation on eye); Graham v. Updegraph, 144 Kan 45, 58 P2d 475 (radium treatment for cancer; failure to remove radium beads); Becker v. Porter, 119 Kan 626, 240 P 584 (broken portion of dentist’s drill left in tooth); Silvertooth v. Shallenberger, 49 Ga App 133, 174 SE 365 (failure to remove needle); Weinstein v. Blanchard, 109 NJL 332 (failure to remove drainage tube); Albert v.

Sherman, 167 Tenn 133, 67 SW2d 140 (root of extracted tooth left in patient’s mouth). The same rule governs in actions against attorneys for their negligence, Wilcox v. Plummer, 4 Pet. 172, 7 L Ed 821; Moore v. Juvenal, 92 Pa St 484, 490. See, generally, 54 CJS 122, Limitations of Actions § 168; idem 142, § 174 b; 34 Am Jur 126, Limitation of Actions, § 160; idem 128, § 161. Tessier v. United States, supra, was an action under the federal tort claims act to recover for the negligence of a government physician and surgeon.

The charge was that the government negligently permitted metal, namely, fragments of a needle, to remain in the plaintiff after an appendectomy. The government claimed that the action was barred by the statute of 'limitations. The court, in an opinion by former Chief Judge Magruder, now retired, held that the statute commenced to run from the time of the wrongful act.

The court said: “Appellant’s injury— the introduction and abandonment of the needle fragments—certainly occurred (if his allegations are accepted) on June 7, 1947 [the date of the operation]; it is irrelevant that the resulting harm became great only subsequently. * * * The tort alleged by appellant Tessier took place in Maine. It seems clear that the law of that state gave him a right of action as soon as the metal fragments were abandoned in him. There was a legal wrong on June 7, 1947, and suit thereon was not suspended because of any duty imposed on the United States to remove the fragments.” 269 F2d at 309.

The opinion in Wilder v. Haworth, supra, recognized that hardships in particular instances might result from the application of the statute as written to this class of cases, but properly refrained from amending the statute under the guise of construction. A few other courts have not been so restrained and their well intended decisions have met with well merited criticism.

Thus in Wood on Limitations, an authority frequently cited by this as well as other courts of the country, it is said: “The cause of action, except where the statute otherwise provides, in cases of fraud, arises from the time of its commission; and when courts of law hold to the contrary, it is by force of a judicial exception engrafted upon the statute, by the assumption of legislative and equitable powers, and is not warranted by any principle or rule of law, nor can it be supported by any known rule for the construction of statutes.” 2 Wood on Limitations (4th ed) 1362, % 274.

From the earliest days of our judicial history to the present, eminent jurists have spoken against the evil of judicial legislation. We quote from Endlich,

Interpretation of Statutes, § 5: “What is called the ‘policy’ of the government, with reference to any particular legislation, is said to be too unstable a foundation for the construction of a statute. The clear language of a statute can be neither restrained nor extended by any consideration of supposed wisdom or policy. So long as a legislative enactment violates no constitutional provision or principle, it must be deemed its own sufficient and conclusive evidence of the justice, propriety and policy of its passage. The language of Mr.

Justice Story, concerning constitutional construction, applies almost equally to that of statutes: ‘Arguments drawn from impolicy or inconvenience ought here to be of no weight. The only sound principle is to declare ita lex scripta est, to follow and to obey. Nor, if a principle so just [and conclusive] could be overlooked, could there well be found a more unsafe guide [in] practice than mere policy and convenience. Men on such subjects complexionally differ from each other.

The same men differ from themselves at different times. . . . the policy of one age may ill suit the wishes or the policy of another.’ ” (Citing 1 Story on the Constitution (5th ed) 326, § 426.) In August of 1963 Mr. Justice John M. Harlan of the Supreme Court of the United States delivered an address in Chicago entitled “Thoughts at a Dedication: Keeping the Judicial Function in Balance.” While he was speaking with particular reference to the federal-state relationship, his observations upon the subject of judicial legislation have general application.

We quote from his address as published in the American Bar Association Journal for October 1963, page 943, at 944: “Apart from what they regard as the shortcomings of the federal system, some well-meaning people apparently believe that the judicial rather than the political process is more likely to breed better solutions of pressing or thorny problems. This is a compliment to the judiciary but untrue to democratic principle. That point of view is sometimes difficult for judges to resist for it carries ostensibly authentic judicial hallmarks—the function of statutory construction and the power of judicial review.

If the Congress or a state legislature has passed an inadequate statute, why should it not be revised by judicial construction? If the statute is one that is manifestly unwise, harsh or out-of-date, why should it not be abrogated by the exercise of the power of judicial review? It is said that there can be nothing wrong with the courts so acting because whatever they may do can always be undone by legislative enactment or constitutional amendment. “The objections to such alluring but deceptive plausibilities are more deepseated than might appear at first blush.

For in the end what would eventuate would be a substantial transfer of legislative power to the courts. A function more ill-suited to judges can hardly be imagined, situated as they are, and should be, aloof from the political arena and beholden to no one for their conscientious conduct. Such a course would also denigrate the legislative process, since it would tend to relieve legislators from having to account to the electorate.

The outcome would inevitably be a lessening, on the one hand, of judicial independence and, on the other, of legislative responsibility, thus polluting the blood stream of our system of government. We should be on guard against any such deliberate or unwitting folly.” Upon this subject a distinguished state judge has written: “* * * We consider it our duty to give the statute a fair and reasonable meaning and not, by a process of indirect attenuation, repeal or partially repeal it.

The legislature, unlike the court, could hear testimony pro and con and could, as a matter of policy, determine whether the statute should be repealed, qualified, or remain as it is. We have no such freedom in determining the law. * * *” Schwartz, J., in Pink v. Dempsey, 350 Ill App 405, 416, 113 NE2d 334. We quote from the opinion of Mr. Justice Hay in Wilder v. Haworth, supra; “Counsel for plaintiff, on oral argument before this court, urged that we should ignore precedent and determine the question presented by the appeal upon broad considerations of justice.

But the constitutional authority of a court of law is limited to the

interpretation and enforcement of the law as it is written. Moreover, broad considerations of justice require that there should be statutes of repose to prevent the presentation of stale claims and discourage the assertion of fraudulent ones. ‘The statute of limitations is a statute of repose, designed to protect the citizens from stale and vexatious claims, and to make an end to the possibility of litigation after tbe lapse' of a reasonable time.’ Guaranty Trust Co. v. United States, 304 U.S. 126, 82 L. ed. 1224, 58 S. Ct. 785. Such protection is especially necessary in cases of tbe present sort.

The physician and surgeon often are handicapped in their defense, because of the mute appeal that is made to the sympathies of jurors by the pitiable condition of plaintiffs in many malpractice cases. For obvious reasons, they should not be further handicapped by having to combat stale claims.” 187 Or at 695-696. The statute of limitations applicable to this case has no different meaning than it had in 1935 when Piukkula v. Pillsbury Flouring Co., supra, was decided, or in 1950 when Wilder v. Haworth was decided. The legislature, in the meantime, has not chosen to amend the statute.

And while the legislature, like Humpty Dumpty, can make a word mean just what it chooses it to mean, the court cannot, with propriety, make legislative words mean what it chooses. Our statutes of limitations are not court-made law, but mandates of the legislature acting within its acknowledged competency. The court has no commission to amend, correct, or repeal any of these statutes. Were we to yield to the plaintiff’s insistence, this is precisely what we would be doing.

As pointed out in Louisell and Williams, Trial of Medical Malpractice Cases, § 13.07, a few states have provided that any tort action may be brought at any time within the statutory period following the plaintiff’s discovery of the wrongful act or the time when, by the exercise of reasonable diligence, he should have discovered it; and two states, Alabama and Connecticut, have statutes specifically pertaining to malpractice which may permit the period to commence at discovery, but both set a maximum period calculated from the date of the negligent act or omission.

A measure similar to the two last mentioned (House Bill 1576) was introduced at the 1963 Regular Session of the Oregon Legislative Assembly and passed the house, but died in the judiciary committee of the senate. See Senate and House Journal, 1963, p 758. Those who think that the policy of our statute of limitations as it affects malpractice actions, or any others, is unwise and unjust do well to seek a remedy at the hands of the legislature. The legislature enacted the statute and should be held responsible for the consequences, good or ill, which may flow from it.

This court is not a policy making body and is not authorized to change a statute because it does not comport with the court’s notion of justice. This view of the proper function of a court was expressed by Judge Magruder in Tessier v. United States, supra, 269 F2d at 310: “It is argued on one hand that the statute of limitations expresses a policy of repose and should be interpreted accordingly. Undeniably the legislature intends to strike down all stale claims, meritorious as well as frivolous.

On the other hand, it is said that a person has in effect no remedy if his claim is barred before he knows that he has been wronged, and that such a person cannot be accused of sleeping on his rights. This court can not resolve this policy conflict. In the present state of the law we cannot possibly say, contrary to the plain mandate of 28 U.S.C. § 2401(b), that Congress intended that the statute be suspended until the plaintiff knows of the wrong; and we cannot remold the statute in the image of the equitable doctrine of laches. Soriano v.

United States, supra, 352 U.S. 270, 77 S.Ct. 269.” In the recent case of Schwartz v. Heyden Chem. Corp., 12 NY2d 212, 188 NE2d 142 (1963), the plaintiff charged that a product manufactured by the defendant and inserted in the plaintiff’s sinuses for the purpose of making them perceptible in X-rays produced a carcinoma requiring the removal of an eye. The action was brought 15 years after the alleged negligent act was committed.

In holding that the action was barred by the statute of limitations, the court (two judges dissenting) applied the rule of its decisions in malpractice actions rejecting the discovery doctrine. Answering the argument that the rule “is unjust, ” the court said: “We should put aside the contention, often justifying abandonment of prior holdings, that social change or advancement in the sciences has so altered the subject matter upon which the law operates that a different result is called for.

The insidious and ‘inherently unknowable’ nature of cancer and similar diseases was common knowledge in 1936 when Schmidt was decided. The affecting plea of a plaintiff who could not know he was being destroyed from within fell then upon ears no less sensitive to sncli appeals than those now hearing this case.

To our minds, the adoption of and adherence to the accrual rule "by the Judges of our court from 1930 onward renders the simple assertion ‘it is unjust’ inadequate. “Considering the function of a Statute of Limitations as a device for repose, a potential defendant’s equities are the same whether the plaintiff knows of his condition or not. Repose is as beneficial to society in the one case as in the other.

While the plaintiff’s equities are greater in one case, it was presumably pursuant to a determination that the interests of an occasional claimant were subordinate to society’s interest in repose that resulted in the Statute of Limitations in the first place. The existence of a discovery provision in the fraud statute bespeaks a legislative judgment that only in fraud cases, by their very nature, were there a sufficient number of unknown wrongs to justify a departure from the general rule.

Apparently the rarity of such unfortunate eases in other types of actions did not outweigh the disadvantages of imposing a possible exception to the grant of repose to every person and industry who could be a potential defendant. It is hard to say for certain, but perhaps the possibility of feigned cases against unprepared defendants and. the difficulties of proof in meritorious cases led to a decision that society is best served by complete repose after a certain number of years even at the sacrifice of a few unfortunate cases.

Whatever the policy considerations, the recent amendment of the malpractice statute from two to three years (CPLR, §214, subd. 6) makes it clear that the legislative choice was deliberately made in the face of strenuously advocated alternatives. (See 1942 Report of N. Y. Law Rev. Comm., pp. 141-143, recommending a discovery provision with an outside limit of six years. A similar recommendation was made in 1962. See N. Y. Legis. Doc., 1962, No. 65 [C].) “If is not without reason that change in this area has been thought by us to be the responsibility of the Legislature.

Our court has no facilities to inquire into the incidence of hardship cases under the statute, nor the peculiarly legislative prerogative to balance the result of such an inquiry against the countervailing considerations of prudence and social tranquillity that are supposed to justify Statutes of Limitations. Moreover, how could we set limits to the right plaintiff would have us grant? Is it for a court to say that there shall be an outside limit of six years ? If so, what of the fact that 15 years passed before plaintiff brought this action?” 12 NY2d at 218-219.

As Chief Justice Marshall said in response to a claim of injustice consequent upon the enforcement of a statute of limitations: “If this difficulty be produced by the legislative power, the same power might provide a remedy; but courts cannot, on that account, insert in the statute of limitations an exception which the statute does not contain.” M’Iver v. Ragan, 2 Wheat. 25, 4 L Ed 175, 177. The circuit court was right in sustaining the demurrer to the complaint and the judgment is affirmed. Hotelling v. Walther, 169 Or 559, 130 P2d 944, 144 ALR 205; Shives v. Chamberlain, 168 Or 676, 126 P2d 28. In Dowell v.

Mossberg, 226 Or 173, 179, 355 P2d 624, 359 P2d 541, we said: “It is equally well settled, and the plaintiff conceded, that the time begins to run with the termination of treatment rather than with the discovery of the malpractice unless fraud or concealment is involved.” Citing Hotelling v. Walther, supra. On rehearing the opinion in this case was withdrawn, but not for any reason connected with the quoted statement. “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” Lewis Carroll, Through the Looking: Glass (Modern Library, p 214).

The statutes of limitations of all the states applicable to actions for malpractice are set forth in this work, §§ 13.14 to 13.64. “A BILL FOR

AN ACT “Relating to the statute of limitations upon actions for damages for personal injuries arising out of malpractice. “Be It Enacted by the People of the State of Oregon: “Section 1. An action to recover damages for injury to the person caused by malpractice of a physician, dentist, podiatrist or operator of a hospital or sanitarium shall be commenced within two years from the date when the injury is first discovered or in the exercise of. reaspnable care should have been discovered; provided that such action shall be commenced within four years from the date of the act or omission upon which the action is based.” ..... • •