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468 A.2d 601

Clark v. Stitham

Supreme Judicial Court of Maine

Decided December 7, 1983

Supreme Judicial Court of Maine · decided 1983-12-07

Relies on Great Northern Ry Co v. Sunburst Oil & Refining Co · Myrick v. James · Tantish v. Szendey

Decided 1983-12-07

¶1MEMORANDUM OF DECISION.

¶2This foreign objects medical malpractice case, which arose out of a surgical operation performed in 1973, was commenced on September 15, 1982, within two years after the alleged malpractice was discovered. Nonetheless, the Superior Court (Piscataquis County) dismissed the action, see Tantish v. Szendey, 158 Me. 228, 182 A.2d 660 (1962), because this court, in enunciating the discovery rule in Myrick v. James, 444 A.2d 987 (Me.1982), had declared that the new rule would apply only to operations performed subsequent to May 4, 1982.

¶3The Superior Court in the case at bar correctly anticipated our decision in Box v. Walker, 453 A.2d 1181 (Me.1983). Under the pre-Myrick law that is applicable to them, the present plaintiffs are barred by the two-year statute of limitations. They cite no authority to support their novel ar*602gument that their equal protection rights are violated if they are not given the benefits of the same discovery rule applied for the benefit of the plaintiffs in Myrick v. James, and we cannot find any such authority. See Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U.S. 358, 364, 53 S.Ct. 145, 148, 77 L.Ed. 360 (1932).

¶4The entry is:

¶5Judgment affirmed.

¶6All concurring.

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