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Pedersen v. Zielski et al (12/6/91), 822 P 2d 903
Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
EINAR R. PEDERSEN, )
) Supreme Court No. S-3694
) Trial Court No.
) 4FA-88-1958 Civil
) O P I N I O N
MICHAEL ZIELSKI, M.D.; EMERGENCY, )
ROOM, INC.; FAIRBANKS MEMORIAL )
HOSPITAL; LUTHERAN HOSPITAL AND )
HOME SOCIETY OF AMERICA, INC.; )
MICHAEL J. FLANNERY, M.D.; WILLIAM )
KIBBEY, M.D.; TONY DIAZ, M.D., )
Appellees. ) [No. 3785 - December 6,
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Mary E. Greene, Judge.
Appearances: Michael W. Flanigan,
Clark, Walther & Flanigan, Anchorage, for
Appellant. R. Collin Middleton, Middleton,
Timme & McKay, Anchorage, for Appellees
Zielski, M.D. and Emergency Room, Inc.
Howard A. Lazar, Delaney, Wiles, Hayes,
Reitman & Brubaker, Inc., Anchorage, for
Appellees Fairbanks Memorial Hospital and
Lutheran Hospitals and Homes Society of
America, Inc. Sanford M. Gibbs, Hagans,
Brown, Gibbs & Moran, Anchorage, for Appellee
Tony Diaz, M.D. Marcus R. Clapp, David F.
Leonard, Hughes, Thorsness, Gantz, Powell &
Brundin, Fairbanks, for Appellees Flannery,
M.D. and Kibbey, M.D.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, and Compton, Justices.
[Moore, Justice, not participating.]
RABINOWITZ, Chief Justice, concurring.
COMPTON, Justice, dissenting.
In this medical malpractice case the trial court
granted summary judgment in favor of the defendants based on the
statute of limitations.1 We conclude that genuine issues of
material fact exist as to when the cause of action accrued and
whether defendant Michael J. Flannery, M.D., is estopped from
relying on the statute of limitations. We therefore reverse.
On November 22, 1983, Einar Pedersen was injured in a
two-car collision near Fairbanks. Pedersen's aorta was severed
in the accident. He was brought to Fairbanks Memorial Hospital
where immediate corrective surgery was performed by Drs. Michael
J. Flannery and William Kibbey. The severed ends of the aorta
were clamped for a total of forty-four minutes in order to stop
the flow of blood during reattachment. After the operation,
Pedersen's legs were permanently paralyzed.
Pedersen filed suit against Flannery, Kibbey, and the
other appellees on November 8, 1988, claiming that his paralysis
was caused by medical malpractice. Specifically, he claimed that
clamping his aorta for forty-four minutes kept blood from flowing
to his spinal cord for too long, causing paralysis. He alleges:
"Reasonably competent and experienced Vascular/Thoracic Surgeons
are aware of this potential hazard and avoid clamping the aortic
heart vessels in such circumstance[s] to less than 30 minutes or
use a shunt to provide blood flow around the clamped area during
the operative procedures."
Following the operation Pedersen asked Dr. Flannery
what had caused his paralysis. Dr. Flannery told him that "he
wasn't sure but that [it] could have been caused by [the] spinal
cord swelling due to a blow to the spine . . . or because of lack
of blood flow to the legs." Pedersen was transferred from
Fairbanks Memorial Hospital to Providence Hospital in Anchorage
in early December 1983. There he asked Dr. Emery what had caused
his paralysis. Dr. Emery replied that "it was a combination of
factors including blood loss from damaged aorta [and] swelling of
the spinal cord." Neither Dr. Flannery nor Dr. Emery gave an
indication that the operation had caused Pedersen's paralysis.
Pedersen's wife, Gloria, also discussed the cause of
Pedersen's paralysis with Dr. Flannery. She states that Dr.
explained . . . that the aorta was
severed like a garden hose, and that he had
to reattach the aorta, and that he had to
work fast to accomplish this in 20 minutes,
or damage to the spinal cord could occur. I
took this to mean that he accomplished the
operative procedures in twenty minutes. He
did not say it actually took him 44 minutes
to accomplish the procedure. He also said
that despite his efforts, spinal cord damage
could occur, because of lack of blood, or
bruising of the spinal cord, which he said
had occurred. He also said the paralysis
might not be permanent or total, and that
only time would tell as to that.
She states that she discussed the operation with Pedersen but
it never occurred to us that Dr.
Flannery or Kibbey had done anything wrong.
Quite the contrary since Dr. Flannery had
left us both with the impression that he had
saved Einar's life, and had accomplished the
operative procedures just as he had planned
The Fairbanks Memorial Hospital records tell a somewhat
different story. Dr. Flannery's discharge summary states: "The
biggest problem was that post[-]operatively the patient had an
anterior spinal cord syndrome secondary to repair of the
transected thoracic aorta." The records also show that
Pedersen's aorta was clamped for approximately forty-four
minutes. Although the records were available to Pedersen at the
time he was discharged from Fairbanks Memorial Hospital on
December 5, 1983, he did not obtain or review them then.
Pedersen retained an attorney, Bob Beconovich, on or
about December 30, 1983, initially for the purpose of defending
him on the traffic ticket which he had been issued as a result of
the accident. Eventually Beconovich was instructed to look into
potential claims for Pedersen's injury. In the process of doing
so, Beconovich associated with another attorney, Paul Barrett.
Potential claims against the other driver, and against the
manufacturer of Pedersen's vehicle, Ford Motor Company, were
investigated but were found to be unsupportable. Sometime in the
spring of 1985, Pedersen was referred to his current counsel,
Michael Flanigan. Flanigan was interested in the potential claim
against Ford Motor Company. He retained experts to investigate
it and had Pedersen obtain his medical records from Fairbanks
Memorial Hospital for review by these experts. The medical
records were obtained in June of 1985. A few months later suit
was filed against Ford.
During the suit against Ford, Flanigan obtained a set
of medical records to produce for Ford and for review by
Pedersen's biomechanical experts. At this point, Flanigan
reviewed the medical records and states that he saw nothing in
them which suggested a medical malpractice claim to him.
In the summer of 1988, one of Pedersen's experts in the
Ford case called Flanigan to tell him that medical malpractice
may have occurred during the operation performed by Drs. Flannery
and Kibbey. At about the same time, Flanigan received a similar
report from Ford's counsel, who had obtained similar information
from an expert he had retained. Thereafter, on November 8, 1988,
this suit was filed.
A. Statute of Limitations
The parties agree that this action is governed by AS
09.10.070 which requires an action to be brought within two years
"after the cause of action had accrued." AS 09.10.010.
Ordinarily, a personal injury action "accrues"when the plaintiff
is injured. However, Alaska, along with most other American
jurisdictions, has adopted the discovery rule under which the
statute does not begin to run until the claimant discovers, or
reasonably should have discovered, the existence of the elements
essential to his cause of action. Mine Safety Appliances Co. v.
Stiles, 756 P.2d 288, 291 (Alaska 1988).
The discovery rule first gained general currency in
medical malpractice cases where its need was felt most strongly
when the medical injury did not manifest itself until after the
statute of limitations had run. W. Keeton, D. Dobbs, R. Keeton &
D. Owen, Prosser and Keeton on the Law of Torts 30, at 166-67
(5th ed. 1984). The rule soon spread to malpractice cases
brought against other professionals, e.g., Greater Area Inc. v.
Bookman, 657 P.2d 828 (Alaska 1982) (attorney malpractice), and
then to tort cases in general. E.g., Hanebuth v. Bell Helicopter
Int'l, 694 P.2d 143, 144 (Alaska 1984) ("[I]t is the nature of
the problems faced by plaintiff in discovering his injury and its
cause, and not the occupation of the defendant, that governs the
applicability of the discovery rule.") (quoting Stoleson v.
United States, 629 F.2d 1265, 1269 (7th Cir. 1980)).
Although the need for the discovery rule is most clear
in cases where the plaintiff's injury is undiscovered and
reasonably undiscoverable within two years after it was caused,
it also applies to cases where the injury is known but its cause
is unknown and reasonable diligence would not lead to its
discovery. Hanebuth, 694 P.2d at 143 (helicopter crash wreckage
not discovered until eight years after accident).
The formulation of the discovery rule which we
typically employ, namely that a cause of action does not accrue
until a plaintiff "discovers, or reasonably should discover, the
existence of all the elements of his cause of action," State,
Dep't of Corrections v. Welch, 805 P.2d 979, 982 (Alaska 1991),
is broad enough to cover other undiscovered and reasonably
undiscoverable elements such as whether the cause of the injury
was tortious.3 Pedersen, in the present case, argues that he did
not know, and had no reason to know, either that the operation
was the cause of his paralysis or that the operation was
The purpose of statutes of limitations is to eliminate
the injustice which may result from the litigation of stale
claims. Johnson v. City of Fairbanks, 583 P.2d 181, 187 (Alaska
1978). Statutes of limitations should be capable of application
without engendering extensive litigation before the case on the
merits is litigated. Thus, in theory, the statutes of
limitations should begin to run on the occurrence of a definite
Application of the discovery rule, however, is
dependent on facts that are often unclear. When a plaintiff
first learned of an injury or its cause is a fact which may
sometimes be in dispute. When a plaintiff first should have
learned of an injury or its cause is frequently debatable. See
Welch, 805 P.2d at 982.4 Reasonable minds may differ as
to whether Pedersen should have discovered that the operation was
probably the cause of his paralysis prior to two years before he
filed suit on November 8, 1988. The statement in Pedersen's
hospital records that he suffered from "anterior spinal cord
syndrome secondary to repair of transacted thoracic aorta" is a
statement that his paralysis was caused by the operation.
However, the ordinary person might not equate "anterior spinal
cord syndrome"with paralysis or understand "secondary"to mean
"resulting from." Pedersen submitted an affidavit authored by
Marshall Eaton, M.D. Dr. Eaton states, based in part on the
hospital records, that "there would have been every reason for
Mr. and Mrs. Pedersen and their attorney to have been led to
believe that Mr. Pedersen's paraparesis was due to the accident
itself causing Mr. Pedersen's aorta to be transected."
It is hard to charge Pedersen personally with any lack
of diligence. He promptly inquired of Drs. Flannery and Emery as
to the cause of the paralysis and was not told that the operation
was the cause. Further, he hired lawyers in a timely fashion to
investigate possible claims against those who may have caused his
paralysis. It is possible that his lawyers were negligent in
failing to review his medical records to look for medical
malpractice.5 However, as the record now stands, we are unable
to conclude as a matter of law that this is the case.
Under the discovery rule, the cause of action accrues
when the plaintiff has information sufficient to alert a
reasonable person to the fact that he has a potential cause of
action. At that point, he should begin an inquiry to protect his
or her rights and he is "deemed to have notice of all facts which
reasonable inquiry would disclose." Mine Safety, 756 P.2d at 292
(quoting Russell v. Municipality of Anchorage, 743 P.2d 372, 376
(Alaska 1987)); Welch, 805 P.2d at 982. If, however, a
reasonable inquiry would not be immediately productive, the cause
of action nonetheless accrues if, within the statutory period,
the essential elements may reasonably be discovered. Palmer v.
Borg-Warner, ___ P.2d ___, Op. No. 3646 at 6 (Alaska, November
There is a difference between asking whether a
reasonable inquiry would have produced knowledge, and whether a
plaintiff's particular inquiry -- which was unproductive -- was
reasonable. Putting the question in the abstract tends to place
the focus on an ideal inquiry, whereas in reality there may have
been several possible reasonable courses of inquiry, some of
which would be productive and some of which would not be
productive. Where the plaintiff actually attempts an inquiry,
the fairer question in our view, is to ask whether his inquiry
was reasonable. Where there is no attempt, however, there is no
choice but to put the question in the abstract.6
In the present case, Pedersen knew that he became
paralyzed following a serious automobile accident which resulted
in major surgery. This knowledge was enough to alert a
reasonable person of a potential cause of action and thus
triggered a duty to begin an inquiry. Pedersen did initiate an
inquiry by talking to his physicians concerning the cause of his
paralysis, and subsequently hiring counsel. This inquiry was,
however, unavailing until more than two years after the surgery.
The main question in this case is whether Pedersen's inquiry was
reasonable. If it was, the statute of limitations should not
accrue until he received actual knowledge of the cause of his
paralysis or he received new information which would prompt a
reasonable person to inquire further. If his inquiry was not
reasonable, the cause of action should accrue at the inquiry
notice point unless a reasonable inquiry would not have been
productive within the statutory period. These are genuine issues
of material fact which must be resolved at an evidentiary
There are also genuine issues of material fact
concerning Pedersen's claim that Dr. Flannery is estopped from
relying on the statute of limitations. The elements of an
estoppel are a misrepresentation, actually and reasonably relied
Establishment of estoppel generally
requires the party seeking to assert it to
show "that the other party made some misrepre
sentation, or false statement, or acted
fraudulently, and that he reasonably relied
on such acts or representations . . . and due
to such reliance did not institute suit
timely." Although "there can be
circumstances where an inaction or silence
combined with acts or representations can
give rise to an appropriate situation calling
for the application of the estoppel
doctrine,". . . a plaintiff generally cannot
evoke estoppel unless he has exercised due
diligence in attempting to uncover the
Russell v. Municipality of Anchorage, 743 P.2d 372, 376 (Alaska
1987) (quoting Groseth v. Ness, 421 P.2d 624, 632 n.23 (Alaska
In order to establish a right to
equitable estoppel under Alaska law, a
plaintiff must produce evidence of fraudulent
conduct upon which it reasonably relied when
forebearing from suit.
Gudenau & Co., Inc. v. Sweeney Ins., Inc., 736 P.2d 763, 769
(Alaska 1987). An affirmative misrepresentation is not always
necessary to establish estoppel. As we have observed, "[t]he
settled rule is that the mere failure by a person to disclose a
fact concerning a cause of action which arises against him does
not suffice to toll the statute unless the defendant owed a duty
of disclosure." Russell, 743 P.2d at 376.
Pedersen claims that Dr. Flannery misrepresented the
true cause of his paralysis. To support this, Pedersen points to
Dr. Flannery's response that "he wasn't sure but [Pedersen's
paralysis] could have been caused by [Pedersen's] spinal cord
swelling due to a blow to the spine or because of a lack of blood
flow to the legs." This contrasts with Dr. Flannery's report in
Pedersen's medical records which states "[a]nterior spinal cord
syndrome secondary to repair of transected thoracic aorta."
In our view, Dr. Flannery's statement to Pedersen is on
the borderline of what one would normally consider a misrepresent
ation. In any case, it omits important information. In the
context of a physician-patient relationship, Dr. Flannery had a
duty to disclose the fact that the operative procedures were a
cause of Pedersen's paralysis. The physician-patient
relationship is one of trust. Because the patient lacks the
physician's expertise, the patient must rely on the physician for
virtually all information about the patient's treatment and
health. A physician therefore undertakes, not only to treat a
patient physically, but also to respond fully to a patient's
inquiry about his treatment, i.e., to tell the patient everything
that a reasonable person would want to know about the treatment.
See Carter v. Hoblit, 755 P.2d 1084, 1086 (Alaska 1988) ("Fraud
can be established by silence or non-disclosure when a fiduciary
relationship exists between the parties. . . . The fiduciary has
a duty to fully disclose information which might affect the other
person's rights and influence his action."); Greater Area Inc. v.
Bookman, 657 P.2d 828, 830 (Alaska 1982) ("The duty of a
fiduciary embraces the obligation to render a full and fair
disclosure to the beneficiary of all facts which materially
affect his rights and interests."). Thus, when Pedersen asked
Dr. Flannery what had caused his paralysis, it was not enough to
say he wasn't sure but it could have been a blow to the spine or
loss of blood. A reasonable person in Pedersen's position would
want to know that the operation was a cause.7
Dr. Flannery therefore had a duty to disclose to
Pedersen the fact that the length of time his aorta was cross-
clamped was a cause of his paralysis. His failure to make a full
disclosure satisfies the first requirement in the equitable
The appellees claim that Dr. Flannery subsequently
cured his misrepresentation by making a full disclosure of the
cause of Pedersen's paralysis in the medical records. In our
view this point goes to the reasonableness of Pedersen's reliance
on Dr. Flannery's misrepresentations, the second requirement in
the equitable estoppel analysis, and is a question of fact. It
is closely related to the question which must be answered
concerning application of the discovery rule: whether Pedersen's
actions in inquiring as to the cause of his injury were
The mere fact that the cause of Pedersen's paralysis
would have been apparent upon an informed reading of his medical
records does not necessarily mean that Pedersen's reliance on the
misrepresentations of Dr. Flannery was unreasonable. Similar
fact situations have arisen in other jurisdictions where a
provider of medical services has made a misrepresentation which
was relied on by a plaintiff, but was contradicted by medical
records. Courts have not held that the fact that the true state
of affairs appeared in the medical records necessarily precluded
an estoppel. Nutty v. Jewish Hosp., 571 F. Supp. 1050, 1054
(S.D. Ill. 1983); Almengor v. Dade County, 359 So.2d 892, 894
(Fla. App. 1978); Krueger v. St. Joseph's Hosp., 305 N.W.2d 18,
20-21, 25 (N.D. 1981); cf. Witherell v. Weimer, 421 N.E.2d 869,
874-76 (Ill. 1981) (plaintiff reasonably should have known that
product prescribed by doctors was causing leg problems,
nonetheless, plaintiff should have the chance to prove estoppel),
aff'd, 515 N.E.2d 68, 72-73 (Ill. 1987).
REVERSED and REMANDED.
RABINOWITZ, Chief Justice, concurring.
The court's characterization of the main question in
this case as whether Pedersen's inquiry was reasonable is
As the court correctly notes, Pedersen is chargeable
with any negligence on the part of his attorney for statute of
limitations purposes, and that "[i]t is possible that his lawyers
were negligent in failing to review his medical records to look
for medical malpractice."10
I think it significant that in the course of the
Pedersen - Ford litigation, Flanigan (one of Pedersen's
attorneys) reviewed the medical records and saw nothing in them
which suggested a medical malpractice claim to him. In my view,
the medical records which were in Flanigan's possession placed
him on inquiry notice. In other words, these medical records
should have led Flanigan, commencing in February 1986, to conduct
a reasonable inquiry into the cause of Pedersen's paralysis.11 If
Flanigan's inquiry was not reasonable, Pedersen's medical
malpractice cause of action accrued, for statute of limitations
purposes, in February of 1986.12
COMPTON, Justice, dissenting in part.
A person is alerted to the fact that he or she has a
potential cause of action when he or she discovers, or reasonably
should have discovered, the existence of all elements essential
to his or her cause of action. It is settled law that when a
reasonable person is so alerted, the person is put on inquiry
notice. This means that the person is "deemed to have notice of
all facts which reasonable inquiry would disclose." Mine Safety
Appliances Co. v. Stiles, 756 P.2d 288, 292 (Alaska 1988)
(quoting Vigil v. Spokane County, 714 P.2d 692, 695 (Wash. App.
It is not clear just what "inquiry" the court is
referring to throughout its opinion. The discovery rule this
court adopted in Greater Area Inc. v. Bookman, 657 P.2d 828
(Alaska 1982), contemplates a sequence of activities by a
plaintiff. First, the plaintiff discovers, or reasonably should
discover, the existence of all elements essential to his or her
cause of action. Presumably this discovery can result from any
number of unrelated or interrelated activities. The plaintiff
may actively solicit information, a third person may volunteer
information to the plaintiff, a pain may lead to a new medical
examination, which may itself uncover information. Any of these
may lead to discovery of the elements essential to a cause of
action. The examples are endless. Whatever the activity or
source of information, the plaintiff discovers, or reasonably
should discover, the elements essential to a cause of action. At
that point the statute of limitations begins to run.
As the last sentence of the following quote
demonstrates, the court contemplates a far different course of
Under the discovery rule, the cause
of action accrues when the plaintiff has
information sufficient to alert a reasonable
person to the fact that he has a potential
cause of action. At that point, he should
begin an inquiry to protect his or her rights
and he is "deemed to have notice of all facts
which reasonable inquiry would disclose."
If, however, a reasonable inquiry would not
be immediately productive, the cause of
action nonetheless accrues if, within the
statutory period, the essential elements may
reasonably be discovered. Palmer v. Borg-
Warner, ___ P.2d ___, Op. No. 3646 at 6
(Alaska, November 16, 1990).
Slip Op. at 9 (other citations omitted).
It is clear from this statement that the court is
identifying at least two separate accrual dates. Neither of
these is the discovery rule accrual date we adopted in Bookman,
and reaffirmed as recently as in the republished Palmer v. Borg-
Warner, P.2d , Op. 3646 at 4 n.3 (Alaska 1990). See also
State v. Welch, 805 P.2d 979, 981-82 (Alaska 1991). One
separately identifiable accrual date is "when the plaintiff has
information sufficient to alert a reasonable person to the fact
that he has a potential cause of action." Slip Op. at 9. This
phrase expresses a meaning different than that expressed in "the
existence of all elements essential to a cause of action," Mine
Safety, 756 P.2d at 291, or "the existence of all the elements of
[the] cause of action,"Bookman, 657 P.2d at 829, two phrases
which I consider to mean the same thing. It is also an earlier
accrual date, since the plaintiff does not have to be aware of as
much information to be alerted to the fact that he or she has a
"potential" cause of action as is the case when information
extends to the "essential elements"of a cause of action. In
this case the court concludes that Pedersen was alerted and put
on inquiry notice13 when he "knew that he became paralyzed
following a serious automobile accident which resulted in major
surgery." Slip Op. at 10.
The second accrual date is somewhat more difficult to
understand, because of the circuity of the court's reasoning. If
"reasonable inquiry would not be immediately productive," the
cause of action accrues, i.e. the statute of limitations begins
to run, "if, within the statutory period, the essential elements
may be reasonably discovered." (Emphasis added). Slip Op. at 9.
Yet it is the accrual of the cause of action that puts the
plaintiff on inquiry notice in the first place. The court is
saying that after the cause of action has accrued, and during the
running of the statute, the cause of action may again accrue,
i.e. the statute may start running again.
I do not agree that the discovery rule contemplates
these separately identifiable accrual dates. The rule applied by
the court is not the discovery rule adopted in Bookman. Indeed,
it is in part a rule we abandoned in Bookman. It is a harsh
rule, because in Palmer v. Borg-Warner, P.2d , Op. No.
3646 at 5, this court held that "upon notification of injury or
death, the claimant or estate has an affirmative duty to
investigate all potential causes of action before the statute of
limitations expires." (Emphasis in original). If this is indeed
the law, Pedersen was under a duty to investigate all potential
causes of action before the statute expired. Applying the
court's Borg-Warner rule, Pedersen should lose, just as Palmer
lost. Inexplicably, however, Pedersen does not lose. What is
apparent is that a potential cause of action is to be presumed
from nothing more than an accident and an injury.14
I also do not agree that once a plaintiff is put on
inquiry notice, the statute of limitations is somehow tolled as
long as the plaintiff is making reasonable, but unproductive,
efforts to establish his or her cause of action. A reasonable
inquiry should disclose facts which tend to establish a
sufficient basis to support filing a cause of action. If an
inquiry does not disclose such facts, the inquiry may not have
been reasonable. However, it also may be that a reasonable
inquiry does not disclose such facts because "there is another
legally sufficient reason to toll the statute or estop [the
defendant] from relying on the statute." Gudenau & Co., Inc. v.
Sweeny Insurance , Inc., 736 P.2d 763, 768 (Alaska 1987). For
instance, conduct of the defendant may hinder inquiry, i.e.
engaging in fraud, concealment, and like conduct; the nature of
the incident itself may render inquiry fruitless, i.e. failing to
find wreckage of an aircraft in desolate, rugged terrain, despite
the best efforts of military and civilian air and ground
searchers. Yet if a reasonable inquiry would have disclosed
facts which tend to establish a sufficient basis to support
filing a cause of action, the statute of limitations will
commence running when the person is put on inquiry notice. What
constitutes a "reasonable inquiry"should be measured by an
objective standard, and not simply by whether the inquiry made by
a particular person is reasonable.
This court concludes that Pedersen was on inquiry
notice. If that is correct, he is deemed to have notice of all
facts which reasonable inquiry would disclose, not just the facts
which his particular inquiry discloses.
In my view this question, if indeed it is the "main
question in this case,"is whether reasonable inquiry would have
disclosed facts which tend to establish a sufficient basis to
support filing a cause of action within the time permitted by the
statute of limitations. The question is not whether Pedersen's
inquiry was reasonable. The standard must be an objective one to
achieve uniform application of the statute of limitations, a
result I believe best serves affected interests.
More importantly, based on the record before us I do
not agree that Pedersen was on inquiry notice. Inquiry notice
presupposes that a person is alerted to the fact that he or she
has a potential cause of action. Slip Op. at 9. As this rule is
stated in Mine Safety Appliances Co. v. Stiles, 756 P.2d at 291,
the statute of limitations begins to run when the person
"discovers, or reasonably should have discovered, the existence
of all elements essential to his cause of action." This is but a
restatement of the discovery rule this court adopted in Greater
Area Inc. v. Bookman, 657 P.2d 828 (Alaska 1982). If a person
does not discover all the elements of his or her cause of action,
and reasonably could not have discovered all such elements, the
person is not alerted to the fact that he or she may have a
potential cause of action. The statute of limitations does not
begin to run until the person "discovers, or reasonably should
discover"all elements. Id. at 829.
Discovery by a reasonable person of all elements of a
cause of action is not the same as discovery through reasonable
inquiry of facts tending to establish a sufficient basis to
support filing a cause of action.
The "main"question in this case, in my view, is when a
reasonable person should have discovered the existence of all the
elements of his or her cause of action against the medical care
providers sued, thereby triggering "inquiry notice." In my view
that is by no means clear. Pedersen was looking for someone to
whom he could attach liability for his injuries, including the
driver of the automobile with whom he collided, the manufacturer
of his own automobile, and even the ambulance crew that
transported him to the hospital following the collision. He sued
and settled with the manufacturer of his automobile. The
settlement was for approximately $600,000. That was not a
nuisance value settlement. It cannot be said that Pedersen was
not alerted to the fact that he had a potential cause of action
against the automobile manufacturer or that he failed to uncover
facts concerning that cause of action through apparently
reasonable inquiry. Obviously his focus was not on his medical
care providers. Would a reasonable person have acted
The record before us discloses that Pedersen was
seriously injured in a traumatic automobile collision. The
impact was so severe that his aorta was ruptured, necessitating
use of special survival clothing to minimize internal
hemorrhaging pending surgery. Loss of blood into the body cavity
was depriving the cardiovascular system of oxygen and fluid
necessary to sustain bodily functions. Immediate surgery was
required to "repair"the aorta (sew it back together), and thus
save the Pedersen's life. Although his legs were responsive to
stimulus upon admission to the hospital and prior to surgery,
they were not afterward. Pedersen is partially paralyzed.
Pedersen and his wife both inquired of his physicians
about the cause of the paralysis. They were given information
that was less than complete, and that arguably could be viewed as
misleading. Medical records indicate that the flow of blood was
interrupted for a period longer than one of the physicians said
was acceptable before complications might arise. The records
also state that the paralysis was "secondary"to the "repair,"
meaning that it was caused by the operation. However, neither
Pedersen's treating physicians, consulting physicians or hospital
ever stated directly to Pedersen or his wife that the operation
was the cause of the paralysis, medical negligence aside.
Even if a person understood that the surgery caused the
paralysis, would a reasonable person's attention be directed to
his medical care providers to the extent that reasonableness
would require him to investigate the surgery? Would a reasonable
person be more likely to look to those most apparently culpable,
such as the other automobile driver, the automobile manufacturer,
or possibly the ambulance crew? Would it be reasonable for a
person to proceed on the theory that culpability lay in the
actors involved in the accident, which itself was the reason the
person had to have the life saving surgery? Was it reasonable
for the person's attorney to continue to pursue those most
apparently culpable, even after having reviewed the hospital
records? Do the incomplete and arguably misleading answers given
by the person's physician affect the reasonableness of the
I conclude that reasonable minds could differ on how a
reasonable person would respond in the circumstances described.
A jury question is presented whether Pedersen, as a reasonable
person, should have discovered all the elements of his cause of
action against his medical care providers more than two years
before he sued them.
Assuming the court's conclusion that Pedersen was put on
inquiry notice upon learning that his legs were paralyzed, a
discovery made immediately following the surgery that resulted
from the accident, under the formulation of the rule applied by
this court in Borg-Warner, Pedersen should have been under a duty
to investigate all possible causes of the injury. This would
obviously include the conduct of his medical care providers.
Only one of his physicians allegedly failed to make a full
disclosure to Pedersen and his wife. It is difficult to conclude
that the physician's alleged failure to fully disclose matters to
them would have had any effect on a reasonable inquiry, since the
medical records themselves, always available to Pedersen,
disclosed what the physician had not. An inquiry based on those
records would have led to the surgery as the cause of the
paralysis. This discovery would or should have focused inquiry
on the physician. Reliance on his alleged failure to disclose
would have become unreasonable at a point earlier than two years
before suit was filed. As to the other medical care providers,
no legally sufficient cause has been shown to postpone accrual of
the statute beyond the inquiry notice date the court establishes.
Thus if we accept the court's analytical framework, Pedersen
1 AS 09.10.070 provides in relevant part that "[n]o person
may bring an action . . . for any injury to the person . . .
unless commenced within two years."
2 In reviewing judgments based on orders granting summary
judgment, we take that view of the facts which is most favorable
to the non-moving party. Carter v. Hoblit, 755 P.2d 1084, 1085
n.1 (Alaska 1988). This statement of facts is made from that
3 We note that the United States Supreme Court has refused
to extend the discovery rule to the element of tortiousness.
United States v. Kubrick, 444 U.S. 111 (1979) (interpreting the
statute of limitations applicable to Federal Tort Claims Act
4 Holding an evidentiary hearing well in advance of trial to
resolve fact questions goes part way toward meeting the early
resolution goals of statutes of limitations. We recommend such a
hearing in this case.
5 Pedersen is chargeable with any negligence on the part of
his attorneys for statute of limitations purposes. "Insofar as
`constructive notice' and `diligent investigation' affect the
computation of the limitations period, the plaintiff is generally
charged with the lapses of attorneys acting in his behalf."
Gutierrez v. Mofid, 705 P.2d 886, 891 (Cal. 1985). That a
plaintiff is so charged was assumed in Palmer v. Borg-Warner, ___
P.2d ___, Op. No. 3646 (Alaska, November 16, 1990).
6 Mine Safety and Palmer are cases where there was no
reasonable inquiry as a matter of law by the plaintiff within two
years after learning of the injury or death. In Greater Area
Inc. the plaintiff did inquire, but the inquiry was not
immediately productive. We found that the plaintiff's inquiry
was reasonable and held that the cause of action did not accrue
until the inquiry was productive. Id. at 831.
7 Contrary to what the appellees claim, this duty of
disclosure does not require doctors to admit liability. Rather,
if asked a direct question, a doctor must inform the patient of
any relevant information which a reasonable person would want to
know about his treatment. In this case, the fact that the
operative procedures themselves caused Pedersen's paralysis does
not establish that any of the defendants are liable. It is
possible that the procedures, despite their effects, were the
most appropriate under all the circumstances.
8 Citing Reyes v. County of Los Angeles, 243 Cal. Rptr. 35,
40-41 (Cal. App. 1988), the appellees argue that a
misrepresentation does not toll the statute of limitations.
However, Reyes does not consider, or mention, a physician's duty
of disclosure. There are numerous cases in California and in
other jurisdictions which recognize this duty in a statute of
limitations context. See, e.g., Emmett v. Eastern Dispensary &
Casualty Hosp., 396 F.2d 931, 935 (D.C. Cir. 1967); Brown v.
Bleiberg, 651 P.2d 815, 821 (Cal. 1982) (en banc); Pashley v.
Pacific Elec. Co., 153 P.2d 325, 330 (Cal. 1944); Witherell v.
Weimer, 515 N.E.2d 68, 73 (Ill. 1987); Kern v. St. Joseph Hosp.,
697 P.2d 135, 139 (N.M. 1985); see also 61 Am. Jur. 2d Physicians
and Surgeons, 167, 229 (1981).
9 In Carter v. Hoblit, 755 P.2d 1084, 1087 (Alaska 1988), we
held that there is no requirement that a fraud victim act
reasonably in order to be entitled to the benefit of a statutory
discovery rule. We noted the growing trend of courts "to move
toward the doctrine that negligence in trusting a
misrepresentation will not excuse positive willful fraud or
deprive the defrauded person of his remedy." Id. (quoting W.
Jaeger, Williston on Contracts 1515B, at 487 (3rd ed. 1970)).
We observed in Carter that in actions not involving the statutory
discovery rule reasonable reliance remains an element of
estoppel. Pedersen does not argue that the Carter holding should
be extended to this case.
10 In this regard the court notes that a plaintiff is
generally charged with the lapses of an attorney acting in his
behalf insofar as constructive notice and diligent investigation
impact upon the computation of the applicable limitations period.
11 Dr. Martino's November 23, 1984, report reads in part as
[A]fter surgery his legs were flaccid.
Currently, on examination he has paraplegia
with sensory level at TII . . . . This is
consistent with spinal cord injury, probably
at TR 10 or 11. In light of the preservation
of posterior function, this may very well be
due to ischemia suffered as a result of his
ruptured aorta and the ensuing surgery.
12 If necessary, on remand the superior court should
determine whether a physician's misrepresentation trumps any
negligence on the part of the patient's attorney.
13 The inquiry notice to which Chief Justice Rabinowitz
refers in his concurring opinion contemplates "a reasonable
inquiry into the cause of Pedersen's paralysis". (Footnote
omitted). This patently is not the same as "an affirmative duty
to investigate all potential causes of action"required by Palmer
14 Until today's application of the rule stated in Palmer v.
Borg-Warner to a medical malpractice claim, Borg-Warner could be
rationalized as an air crash exception to the discovery rule.
This could be derived from Borg-Warner, Op. No. 3646 at 11 n.6
("air crashes do not normally occur absent negligence, even in
inclement weather . . . the estate reasonably should have known
from the date of being informed of the crash that potential
claims existed against the pilot, the carrier, or the
manufacturer."). However, since Pedersen's duty to inquire was
triggered by his knowledge that "he became paralyzed following a
serious automobile accident which resulted in major surgery,"
Borg-Warner is not simply an air crash exception to the discovery
rule. Ironically, Borg-Warner's comment about the cause of air
crashes, taken from Widmyer v. Southeast Skyways, Inc., 584 P.2d
1, 14 (Alaska 1978), was published just two months after an
article appeared attributing the deaths of most air crash victims
in Alaska to the poor judgment of pilots. The article contained
a quote from the National Transportation Safety Board's chief
accident investigator in Alaska, who stated:
The common denominators [in light plane
crashes in Alaska] are lack of experience,
lack of training and, for the commercial
operators, lack of supervision.
Anchorage Daily News, September 11, 1990, at 1, col. 6.