Limitation of Actions Consultation - Law Commission

met with constitutional challenges on the basis of due process and equal
protection. 357
(c) Professional negligence
10.115 The general pattern in professional negligence has been a growing recognition of a
discoverability rule. 358
Indeed, medical negligence was the area where
discoverability first spread rapidly.
10.116 However, discoverability has been combined with measures designed to protect
professional defendants. So, for example, medical negligence is subject to special
statutory rules in some states. In Utah, for example, a limitation period is
prescribed of two years from the date when the plaintiff discovers, or could with
reasonable diligence have discovered, the injury, with a long-stop of seven years
from the act or omission giving rise to the claim. 359
There are special statutory
rules relating to other professions, for example attorneys. 360
10.117 Limitation periods applying in respect of architects and other similar professionals
may be affected by “statutes of repose” introduced to protect the construction
industry against “long-tail” litigation involving latent defects. 361
These are
comparable to the statutes introduced in the 1970s and 1980s in relation to
357 Ie that a plaintiff suing a manufacturer had unequal protection compared with a plaintiff
suing a defendant which did not have the benefit of a special limitation period. See S C
Randell, “Comment: Due Process Challenges to Statutes of Repose” (1986) 40
Southwestern LJ 997, 1001 n 18, in which it was reported that, by 1986, the legislation had
been upheld by the courts as constitutional in three states, and held unconstitutional in five,
with the issue yet to be decided in several others.
358 Compare, eg, the following:
Medical negligence Peterson v Roloff 203 NW 2d 699 (Wisc 1973) (cause of action
accrued at time of act/omission); Richardson v Orentreich 477 NE 2d 210 (NY 1985) (cause
of action accrued at time of act/omission, but this is construed to mean the end of the
treatment). Cf Toth v Lenk 330 NE 2d 336 (Ind 1975) (cause of action accrued on
discoverability).
Architects Chrischilles v Griswold 150 NW 2d 94 (Iowa 1967) (cause of action accrued on
discoverability).
Accountants Owyhee County v Rife 593 P 2d 995 (Idaho 1979) (cause of action accrued at
time of act/omission); Wilkin v Dana R Pickup & Co 347 NYS 2d 122 (1973) (cause of
action accrued at time of act/omission, but the act/omission construed to continue up to
the end of the professional relationship between accountant and client). Cf Sato v Van
Denburgh 599 P 2d 181 (Ariz 1979) (cause of action accrued on discoverability).
Attorneys Hoffmann v Insurance Co of North America 245 SE 2d 287 (Ga 1978); Boehm v
Wheeler 223 NW 2d 536 (Wisc 1974) (cause of action accrued at time of act/omission). Cf
Skidmore & Hall v Rottman 450 NE 2d 684 (Ohio 1983); Hendrickson v Sears 310 NE 2d
131 (Mass 1974) (cause of action accrued on discoverability).
359 Utah Code Ann s 78-14-4.
360 See, eg, Schoenrock v Tappe 419 NW 2d 197 (1988) which concerned South Dakota
legislation under which a limitation period of three years from the alleged “malpractice,
error, mistake or omission” is prescribed for attorneys.
361 See S C Randell, “Comment: Due Process Challenges to Statutes of Repose” (1986) 40
Southwestern LJ 997, 999 - 1001.
223