Southeastern Kentucky Baptist Hospital, Inc. v. Gaylor

756 S.W.2d 467, 1988 Ky. LEXIS 56, 1988 WL 92834

• Court: Kentucky Supreme Court
• Decided: September 8, 1988
• Docket: 86-SC-724-DG, 86-SC-727-DG and 86-SC-951-DG
• Status: Published

Opinions

REVERSING

GANT, Justice.

Respondent and cross-movant, Linda Gaylor, was a 43-year-old expectant mother, classified as a “high risk case” because of her age and smoking propensities. She began consultation with the movant and cross-respondent, Dr. James D. Dawson, in January, 1982, and on March 1,1982, developed complications. Dr. Dawson immediately placed Mrs. Gaylor in Southeastern Kentucky Baptist Hospital where she was examined, sent to a labor room and fitted with a fetal monitor. At the outset, the fetal signs were stable, and Dr. Dawson was called to deliver another baby who was in apparent distress. While Dr. Dawson was absent, the Gaylor baby began to show signs of fetal distress, and Mrs. Gaylor was moved to the delivery room. A Caesarean section was performed, but the fetus, named Rachel Elizabeth Gaylor, was stillborn.

This action was filed against the doctor and the hospital on October 26, 1983, nearly 20 months later, seeking compensatory damage for the destruction of the child’s power to labor and earn money; for pain and suffering of the child; for the medical expenses of the mother, and for the mother’s pain and suffering. Motions to dismiss were immediately filed by the movants herein, asserting that the claims were barred by the statute of limitations, particularly KRS 413.140(l)(a), (e). The lower court overruled said motions at this point, stating that “under the present status of the record it would be error to summarily dismiss the complaint.” There ensued a discovery period of approximately one year, during which time interrogatories and depositions were utilized, particularly the depositions of Linda Gaylor and Dr. Dawson.

Movants herein then moved for a summary judgment, again based on KRS 413.-140, the one-year statute of limitations. The trial court, after reviewing the record and memoranda of counsel and after hearing argument, granted summary judgment to both movants. On appeal the Court of Appeals reversed and permitted the admin-istratrix to amend her complaint from pain and suffering to the child to pain and suffering to the unborn fetus.

INDIVIDUAL CLAIM OF LINDA GAYLOR

The statute relied on by the movant is as follows:

413.140. Actions to be brought within one year. — The following actions shall be commenced within one (1) year after the cause of action accrued:

(a) An action for an injury to the person of the plaintiff, or of her husband, his wife,'child, ward, apprentice or servant.

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(e) An action against a physician, surgeon, dentist or hospital licensed pursuant to KRS Chapter 216 for negligence or malpractice.

The primary action of the mother is based on KRS 411.135, which permits recovery by the parent for loss of affection and companionship of a child in a wrongful death action. The alleged wrongful death occurred on March 1, 1982, and the one-year statute of limitations had expired by almost eight months unless tolled by one of the statutory provisions as forwarded by the respondent and cross-movant, Linda Gaylor, individually.

The first premise advanced by Linda Gaylor is found in KRS 413.170(1) which tolls the statute in the case of a person of “unsound mind.” The evidence relating to the mental condition of Linda Gaylor is extremely sparse. In her answer to interrogatories and in a letter filed with the deposition of Dr. Dawson, we learn that Mrs. Gaylor was sent by Dr. Dawson to see a Dr. C. William Briscoe because of her depression and emotional distress. She states that she saw Dr. Briscoe on April 29, 1982, and that his diagnosis was “(1) hysteria and (2) secondary effective disorder with depressive syndrome with dysphoric mood and accompanying loss of interest in usual interests, feelings of hopelessness, insomnia and loss of weight.” “Dysphoric” is defined in Schmidt’s Attorney’s Dictionary of Medicine, Vol. 1, as “the feeling of being unwell; a vague but troubling discomfort. Nervous restlessness; the condition of being fidgety.” There is no other proof by the respondent, Mrs. Gaylor; there is no deposition by Dr. Briscoe; and there is no evidence from other witnesses which would indicate that Mrs. Gaylor was of such unsound mind as to render her incapable of managing her own affairs. See Stair v. Gilbert, 209 Ky. 243, 272 S.W. 732 (1925). Once the statute of limitations is raised, the burden falls on the complainant to prove such facts as would toll the statute, and there is simply no proof in this record that Mrs. Gaylor was of unsound mind which would so toll the one-year statute of limitations. It is our opinion that the trial court was correct in granting the summary judgment against Linda Gaylor, individually.

CLAIM BY LINDA GAYLOR AS AD-MINISTRATRIX OF RACHEL ELIZABETH GAYLOR

It was apparently assumed at the instigation of this action that Rachel Elizabeth Gaylor lived a short while after birth, but it is now conceded that the child was stillborn. The original complaint was for personal injury to the child, but the Court of Appeals, in its opinion, seems to grant an amendment to permit an action for personal injury to a fetus. No cases were cited in which a claim for personal injury was allowed when the fetus was not bom alive. However, under the circumstances of this case, we do not need to face this problem.

Commencing with Louisville & N.R.R. Co. v. Brantley’s Admr., 106 Ky. 849, 51 S.W. 585 (1899), this court has consistently held that “... unless a personal representative shall qualify within one year from the injury, the action is barred.” See also Wilson’s Admr. v. Illinois Cent. R.R. Co. Ky., 92 S.W. 572 (1906); Totten v. Loventhal, Ky., 373 S.W.2d 421, 422 (1963).

The law in Kentucky is well summarized in Drake v. B.F. Goodrich Co., 6th Cir., 782 F.2d 638, 641, 642 (1986):

It has been a longstanding requirement that the action must be filed by the personal representative of the estate within one year. Further, if no valid personal representative is appointed within one year of the date of death, any action for wrongful death dies. However, if a personal representative is appointed within one year of the date of death, he then is granted one year from the date of his appointment to file suit. If no suit is filed within that time, the action for wrongful death dies.

Mrs. Gaylor further contends that KRS 413.190(2) — which statute tolls the statute of limitations in the event someone “obstructs the prosecution of the action” — applies. We concur with the Court of Appeals when they say: “The evidence available to the trial court established that neither Dr. Dawson nor the hospital concealed any facts from [Linda Gaylor] nor misled her in any way.”

We reverse the Court of Appeals, and affirm the judgment of the Whitley Circuit Court.

STEPHENS, C.J., and LAMBERT, LEIBSON, STEPHENSON and VANCE, JJ., concur.

LEIBSON, J., files a separate concurring opinion in which LAMBERT, J., joins.

WINTERSHEIMER, J., dissents and files a separate dissenting opinion.