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CHOROSZY v. TSO9/20/1994
The Choroszys contend that the statute of
limitations violates the "Open Courts" provision of the Maine
Constitution, Me.Const. art. I, § 19, and the equal protection
clauses of the Maine and United States Constitutions. Me.Const.
art. I, § 6-A; U.S. Const. amend. XIV. We find no constitutional
violation and therefore we affirm the judgment.
Because the Choroszys appeal from the dismissal of their claim, M.R.Civ.P. 12(b)(6), we accept as true the allegations in their notice of claim. See Hall v. Board of Env'tl Protection, 498 A.2d 260, 267 (Me. 1985) (examined complaint for alleged facts that would support recovery under some theory). The notice of claim asserts that Rodney Choroszy consulted Tso in January 1988 after Choroszy noticed some hearing loss in his left ear. Tso examined Choroszy, conducted an audiological evaluation that confirmed the hearing loss, and ordered a CT Scan at the Southern Maine Medical Center in February 1988. The report issued by the Medical Center to Tso stated that: "I do not see any obvious enhancing tissue here, however small lesions could be missed. For further evaluation, if there are symptoms relating to the left side, should include magnetic resonance imaging of this area." The notice of claim further asserts that Tso told Choroszy his CT Scan was negative, never provided Choroszy with a copy of the report, and never suggested magnetic resonance imaging.
Choroszy's condition remained unchanged until the fall of 1992 when he experienced facial numbness, further hearing loss, and problems with vision and balance. Choroszy then consulted another doctor, who referred him to a neurosurgeon, Thomas Mehalic, who found a tumor in Choroszy's left ear canal. The notice of claim asserts that prior to the fall of 1992, Choroszy was unaware of any reason to doubt Tso's 1988 diagnosis, and as a result of Tso's negligent misdiagnosis and treatment, Choroszy has suffered significant injury.
The Choroszys filed a statutory notice of claim against Tso on February 17, 1993, nearly five years after Choroszy's last contact with Tso. The doctor responded with a successful Rule 12(b)(6) motion to dismiss the claim as barred by the three-year statute of The Choroszys' timely appeal followed.
I. The Open Courts Provision of the Maine Constitution
We are asked the constitutional question whether by requiring a medical malpractice victim to discover his injury within three years of the act or omission "giving rise to" the injury, the Legislature has imposed "time limits so unreasonable as to deny meaningful access to the judicial process" and violated the Open Courts provision of our Maine Constitution. Maine Medical Ctr. v. Cote, 577 A.2d 1173, 1176 (Me. 1990). The Choroszys' position is that they did not know and reasonably could not have known about the negligent misdiagnosis by Tso until Fall 1992. According to the Choroszys, it is unreasonable to cut off a cause of action before the potential claimant could reasonably discover that he has a cause of action.
The judgment of our Legislature, however, is to the contrary. In 1977, the Legislature debated changing the statute of limitations when it enacted the original Maine Health Security Act, P.L. 1977, ch. 492. The legislative debate reflects the Legislature's awareness of the issues of fairness raised by the passage of a statute of limitations that would cut off some causes of action. See Legis.Rec. 2090 (1977) (statement of Rep. Henderson). Ultimately unable to reach a conclusion on the statute of limitations issue, the Legislature resolved to postpone addressing the problem. 2 Legis.Rec. 2091 (1977).
With the issue still unresolved, in Myrick v. Jam
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