Sharlene Hall and Ray Hall v. Dr. Ernest E. Musgrave and Dr. Charles F. Sowards

517 F.2d 1163, 1975 U.S. App. LEXIS 14420

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 2, 1975
• Docket: 74-1778
• Status: Published

Opinions

JOHN W. PECK, Circuit Judge:

This diversity case concerns the date on which a medical malpractice action “accrued” under Kentucky law. The pertinent statute of limitations, K.R.S. § 413.140(l)(e), provides that an action for negligence or malpractice against a physician must be commenced within one year after the cause of action accrued. As the operative facts were not in dispute, the district court correctly determined that the statute of limitations question presented was one for the court to decide as a matter of law. Lynn Mining Co. v. Kelly, 394 S.W.2d 755 (Ky.1965); Slack v. Bryan, 299 Ky. 132, 184 S.W.2d 873 (1945).

Plaintiff-appellant Sharlene Hall gave birth to her first child on March 19, 1969. The breech birth delivery came after protracted labor, appellant having entered the hospital on March 15th, and commenced active labor sometime during the evening on March 18th. Dr. Ernest E. Musgrave, defendant-appellee herein, the attending physician during the prenatal period and through much of labor, did not deliver the baby as planned. Dr. Musgrave was- at his home when he received word from the hospital, in the early morning hours of March 19th, that appellant was ready for delivery. By the time he arrived at the hospital, Dr. Charles F. Sowards, also a defendant-appellee, the physician on duty at that time, was in the process of delivering the baby. Dr. Musgrave observed but did not assist Dr. Sowards. Mother and child progressed satisfactorily and were discharged two days later.

Approximately ten days thereafter, appellant discovered that she was unable to hold her water and that urine was leaking from her vagina. On May 3, 1969, she went to see Dr. Musgrave, but he was unable to determine the cause of the leakage and referred her to a surgeon colleague, Dr. Nash. Dr. Musgrave told appellant that her problem “was due to a birth related phenomenon.” Dr. Nash, similarly indefinitive as to the origin of appellant’s difficulty, suggested that she consult a urologist and gave her a note to take with her which read, “To GU [urology] Department. Please see this girl for urethral sphincter problems as a result of child birth.”

Appellant was seen by Dr. Welling, a urologist, on May 5, 1969, and she remained under his care until August 1969. Dr. Welling’s initial examination revealed a IV2 centimeter hole near the neck of the urethral bladder down into the vagina. Although it is unclear as to whether he explained the specific origin of the condition to appellant, Dr. Welling did tell her that it was not uncommon for this condition to develop following the birth of a woman’s first child. When, on direct examination as a defense witness, Dr. Welling was asked if he thought that appellant was aware of the origin of her problem, he replied,

“A. Just from her initial history, she stated that she had a ‘traumatic child birth’ the quote being mine, and that she had stitches and could not empty her bladder and then by forcing and straining some ‘X’ number of hours later was able to empty her bladder and it leaked continuously, since that time. I wouid assume through association with her that the patient had had such a labor and repair and then a leakage following that. I think anybody with normal intelligence would assume that something happened, during the delivery, to have caused such a thing.”

On cross-examination, appellants’ counsel pursued this topic further.

“Q. As I understand your answer to the last question, doctor, you’d assume that she understood that her condition of which she was complaining was in some way connected with the delivery of her ehild?

“A. Yes, sir.”

Dr. Welling inserted a catheter in appellant’s bladder to divert the leakage and to give the affected area an opportunity to regenerate to where plastic repair could be undertaken, a period of some three months. When this point in her treatment was reached, Dr. Welling advised her that she was ready for surgery and that the surgery would cost $250.00. Unable to raise that amount, and being of the belief that Dr. Welling would not proceed unless prepaid for his services, appellant elected to postpone corrective surgery. She did not see a doctor or receive any medical attention during the period from August 1969 to April 1970. She testified that the urine leakage continued unabated during this period, causing severe discomfort and interfering with her function as a wife and mother.

On April 20, 1970, approximately eight months after her last visit to Dr. Welling, appellant went to see Dr. Ronald N. Shelley, a surgeon, for the needed surgical repair. In relating the history of her complaint to Dr. Shelley, appellant made mention of the fact that she had had a difficult breech delivery. Dr. Shelley asked her if a Caesarean section operation had been considered, to which she replied in the affirmative. The plastic repair of the ruptured urethra was commenced in May 1970, progressed in stages, and was finally completed in April 1971. Appellant effected a complete recovery.

A complaint was filed against Dr. Musgrave on February 15, 1971, and amended to include Dr. Sowards on April 15, 1971. Prior to the trial, the district court twice overruled motions to dismiss the complaint on the grounds that the action was barred by the one year Kentucky Statute of Limitations. When the cause came on for trial, appellees asked the court to reconsider its prior rulings on their motions to dismiss. On reconsideration, the motion was sustained but the ruling withheld pending completion of the trial on the merits.

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The district judge orally advised counsel of his reasons for applying the statute of limitations in this case.

“Assuming the view most favorable to the plaintiff ... I want to show you what this record reveals, gentlemen. It reveals that the plaintiff’s baby was born March 19, 1969. Now, this is from the plaintiff’s own testimony. It reveals that she went back to the doctor’s office on May the 2nd, 1969, and that ignores subsequent testimony that she went back three weeks later. It shows that she went to Dr. Welling on May 5, 1969 . . . Dr. Welling told her that she had a hole in the tube to her bladder. Gentlemen, as far as I can see from the expert testimony, that is the injury. She stopped seeing Dr. Welling sometime in August of 1969 on the occasion that he advised apparent surgery because the reason she stopped seeing him was, by her testimony, that she could not raise the two hundred fifty dollars ($250.00) necessary.

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“ . . . [Tjhis plaintiff was aware, by her own testimony, of her medical condition, that there was a hole in the urethra, or whatever you gentlemen call it. If that becomes the measuring stone,' then the action would have had to be filed within one year from May the 6th of 1969. This action was filed, gentlemen, on February 25, 1971.”

Following an extended colloquy between the district judge and counsel, the ruling at issue herein was made.

“Alright, gentlemen, I am going to rule that the Statute of Limitations is effective in this case, I am going to find that the plaintiff was specifically advised of her need for surgery and that she was specifically advised of the nature of her injury at a date not later than May 6th, 1969, when she last visited Dr. Welling.”

The trial continued, and the jury returned a verdict in favor of appellants for $150,000. Thereafter, the district court dismissed appellants’ complaint ordering that they take nothing. Appellees’ motions for judgment notwithstanding the verdict or for a new trial were held in abeyance pending the outcome of this appeal.

Examination of Kentucky law on this statute of limitations question leads, as the district court found, to the cases of Tomlinson v. Siehl, 459 S.W.2d 166 (Ky.1970), and Hackworth v. Hart, 474 S.W.2d 377 (Ky.1971). Prior to 1970, the rule in Kentucky was that a medical malpractice action accrued on the date of the complained of treatment or diagnosis. Guess v. Linton, 236 Ky. 87, 32 S.W.2d 718 (1930); Philpot v. Stacy, 371 S.W.2d 11 (Ky.1963); Jones v. Furnell, 406 S.W.2d 154 (Ky.1966). Tomlinson v. Siehl, supra, brought Kentucky in line with an increasing number of jurisdictions holding that a cause of action accrues upon the discovery of the injury. See Prosser, Law of Torts, § 30, pp. 144— 145 (4th ed. 1971).

In Tomlinson, a sterilization operation was performed on Lilly Tomlinson on September 24, 1966. She became pregnant on November 23, 1967, but did not discover this fact until February 25, 1968. A child was born from the pregnancy on August 16, 1968. On November, 1, 1968, a malpractice action was filed against the doctor who performed the operation by Mrs. Tomlinson and her husband. Although the trial judge expressed serious reservations as to the correctness of the prevailing rule, the action was dismissed as untimely filed. The Court of Appeals of Kentucky reversed on the grounds that the “discovery of the injury” rule was the more fair of the two and was less likely to produce injustice in the future.

While Tomlinson did not deal specifically with the manner of discovery, the Court of Appeals noted the position taken by other jurisdictions in this regard. For example, the Tomlinson opinion contains the following language from the Delaware case of Layton v. Allen, 246 A.2d 794, 798 (1968):

“Upon the basis of reason and justice, we hold that when an inherently unknowable injury, such as is here involved [failure to remove a metallic hemostat following surgery], has been suffered by one blamelessly ignorant of the act or omission and injury complained of, and the harmful effect thereof develops gradually over a period of time, the injury is ‘sustained’ * * * when the harmful effect first manifests itself and becomes physically ascertainable.” (Emphasis supplied.)

A similar idea was manifest in a paragraph taken from a Pennsylvania decision.

“In this case Ayers became injured when the healthful forces within his body fell over the sponge negligently left by Dr. Morgan on the highway of anatomical normality. Dr. Morgan’s actionable negligence stemmed from his failure to timely remove the sponge. This failure constituted a blameworthiness which continued until such time as Ayers learned, or, by the exercise of reasonable diligence, could have learned of the presence of the foreign substance within his body.” Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788, 793 (1959).

And finally, there appears the following passage from Hundley v. St. Francis Hospital, 161 Cal.App.2d 800, 806, 327 P.2d 131, 135 (1958):

“The rule is clear, as to malpractice actions, that ‘while the physician-patient relation continues the plaintiff is not ordinarily put on notice of the negligent conduct of the physician upon whose skill, judgment and advice he continues to rely.’ (Citation omitted.) Thus, in the absence of actual discovery of the negligence, the statute does not commence to run during such period . . . and this is true even though the condition itself is known to the plaintiff, so long as its negligent cause and its deleterious effect is not discovered . . ..”

In Tomlinson, as well as in Layton and Ayers, the injury was not discoverable due to the complete absence of physical manifestations. Mrs. Tomlinson had no reason to suspect that the sterilization procedure was faulty until she learned that she was pregnant. Likewise, in Layton and Ayers, the plaintiffs’ injuries lay buried and unseen in their bodies until the foreign objects were removed. The Hundley decision deals with a related problem. As is evident in the passage quoted, the court there was concerned that the continuation of the physician-patient relationship, in which the patient must rely upon the knowledge and skill of the physician, serves to mask the injury.

The case before us does not involve a hidden physical condition. Appellant herein, according to her own testimony, knew no later than May 5, 1969, that she had a hole in her urethra that needed surgical repair and that this condition was probably a result of childbirth. Answers elicited from other witnesses serve to buttress this conclusion. Further, there existed no physician-patient relationship between appellant and Drs. Musgrave and Sowards after May 5, 1969.

Eighteen months after the Tomlinson decision was handed down, the Court of Appeals found it necessary to restate the discovery rule.

“It may be appropriate here and now to say that there should have been added to the rule in Tomlinson a further statement that the statute begins to run on the date of the discovery of the injury, or from the date it should, in the exercise of ordinary care and diligence, have been discovered.” Hackworth v. Hart, 474 S.W.2d 377, 379 (1971). (Emphasis in original.)

Although the additional language probably did not, in our opinion, alter the newly adopted rule (see Prosser, Law of Torts, § 30, p. 144 (4th ed. 1971) as to the usual language employed), the facts of the case merit comment.

Hackworth v. Hart involved a vasectomy operation performed on Mr. Hack-worth on November 17, 1961. On October 11, 1962, his wife gave birth to a child. On March 11, 1963, suit was filed by the Hackworths against the physician who performed the operation. The Court of Appeals held that the “cause of action commenced to run at the time he [the husband] discovered or should have discovered that the operation was not successful.” Hackworth, supra at 379. And, as the court explained, “Such discovery will usually be made when it is discovered that he is not sterile and that his wife is pregnant by him.” Id.

Hackworth v. Hart, like Tomlin-son v. Siehl, involved an injury that was “inherently unknowable” and not manifest until the wife became aware that she was pregnant. In this sense, these cases closely resemble the classic sponge left in the incision situation encountered in the Layton and Ayers cases.

In light of the above, we think it clear that the Court of Appeals of Kentucky intended the discovery rule to extend the commencement of the statute of limitations only up to the time that the harmful effect of the complained of negligence first manifests itself. In the case at bar, appellant became aware of the harmful effects of the alleged negligence within two weeks after delivery and was advised of the specific problem and the required surgical repair at the very latest on May 5, 1969, some 21 months before the filing of the initial complaint. As we read Kentucky law, this suit was barred by the one year statute of limitations.

The judgment of the district court is affirmed.

The district judge explained, “[I]f I am wrong, then I do not want plaintiff to have to sit on the docket for another three or four years trying to get another trial date.”