379 F.3d 892 (10th Cir. 2004), 02-3421, Bradley v. Val-Mejias

Docket Nº:02-3421.
Citation:379 F.3d 892
Party Name:Rick L. BRADLEY, Plaintiff-Appellant, v. J.E. VAL-MEJIAS, M.D., The Galichia Medical Group, P.A., Defendants-Appellees.
Case Date:July 23, 2004
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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379 F.3d 892 (10th Cir. 2004)

Rick L. BRADLEY, Plaintiff-Appellant,


J.E. VAL-MEJIAS, M.D., The Galichia Medical Group, P.A., Defendants-Appellees.

No. 02-3421.

United States Court of Appeals, Tenth Circuit

July 23, 2004

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[Copyrighted Material Omitted]

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Timothy Buxton, (Anthony Viorst and James E. Puga on the briefs) Denver, CO, for Plaintiff-Appellant.

Stephen M. Kerwick, (Amy S. Lemley with him on the brief) Foulston Siefkin LLP, Wichita, KS, for Defendants-Appellees.

Before MURPHY, HOLLOWAY and McCONNELL, Circuit Judges.

HOLLOWAY, Circuit Judge.

This is an appeal from a summary judgment for the Defendants based upon the statute of limitations in a medical malpractice diversity case arising under Kansas state law. Plaintiff was diagnosed in July 1997 with vertigo and shingles by the Defendant Dr. Val-Mejias. In September 1998, it was discovered that the cause of Plaintiff's symptoms was a fractured ventricular pacemaker lead. Plaintiff alleges the Defendant Val-Mejias's July 1997 diagnosis was both malpractice and an intentional falsehood intended to coverup Defendant's earlier malpractice in implanting the pacemaker. By May 1998, however, while Plaintiff did not know he had a fractured ventricular lead, he had some evidence

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that his symptoms were not due to either shingles or vertigo and instead were pacemaker related. Plaintiff brought this suit on September 1, 2000, alleging malpractice against Dr. Val-Mejias and the Galichia Medical Group.

The district judge was persuaded that the 2 year Kansas statute of limitations had run and granted summary judgment on limitations grounds. Memorandum and Order, 238 F.Supp.2d 1242 (2002). We agree.



On September 3, 1998, Plaintiff Rick Bradley was diagnosed with a fractured ventricular lead to his pacemaker after being admitted to a hospital emergency room with chest pain. This ventricular lead was implanted seventeen years earlier in 1981 as part of a pacemaker Bradley received to treat a cardiac rhythm disturbance known as sick sinus syndrome. In 1988, Bradley experienced a problem with his pacemaker and consulted with Defendant Dr. J.E. Val-Mejias who was a member of the Galichia Medical Group (GMED), the other defendant in this case. Bradley complained that his left arm was shaking and that his pacemaker "jumped." As treatment, Dr. Val-Mejias reprogrammed Bradley's pacemaker.

Four years later, in September of 1992, Dr. Val-Mejias, assisted by Dr. Demosthenes Klonis, another GMED physician, replaced Bradley's pacemaker but reused the ventricular leads from the old pacemaker. In August of 1993, Bradley again experienced problems with his pacemaker after being involved in a car accident. As treatment, Dr. Klonis replaced the generator of Bradley's pacemaker but left the ventricular leads untouched.

In February of 1997, Bradley was admitted to a hospital emergency room complaining of heart palpitations, lightheadedness, and left arm numbness. No heart or pacemaker problem was diagnosed at that time. While Bradley was soon released from the hospital, his symptoms continued. Soon thereafter, in March of 1997 Bradley consulted about his health problems with Dr. Val-Mejias who diagnosed him as having an inner ear problem. This diagnosis was repeated by Dr. Val-Mejias during visits with Bradley in May and June of 1997. Following the June consultation, Dr. Val-Mejias wrote that Bradley's pacemaker was "perfectly adjusted" and Bradley's symptoms of vertigo and partial paralysis were due to an inner ear problem and shingles.

On April 29, 1998, Bradley testified before an administrative law judge in order to receive Social Security disability benefits. At that hearing, Bradley testified that he suffered dizziness, numbness, and had been feeling generally poor. Bradley also testified that in his opinion, his symptoms were caused by his pacemaker. One week later, Bradley consulted with a cardiologist, Dr. Candice Morgan, who traced his symptoms potentially to his pacemaker and performed more programming adjustments. The next day, Bradley reported to Dr. Morgan that his symptoms abated and was told to return in six months for a pacemaker evaluation.

Four months later, on September 3, 1998, Bradley was admitted to the emergency room where it was determined that the ultimate cause of his illness was a fractured ventricular lead. On September 1, 2000, Bradley filed suit against Dr. Val-Mejias and GMED for medical malpractice and fraudulent concealment in the United States District Court for the District of Kansas, asserting diversity jurisdiction.

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The District Court order

Bradley asserted a medical malpractice and fraudulent concealment claim against Dr. J.E. Val-Mejias, M.D. and The Galichia Medical Group, P.A. on September 1, 2000 in his federal court suit. Interpreting state law, the district court granted Dr. Val-Mejias summary judgment on both of these claims based upon the two year statute of limitations on such claims. K.S.A. § 60-513. Memorandum and Order, 238 F.Supp.2d 1242 (2002). In granting summary judgment on the medical malpractice claims, the district judge first noted that any cause of action Bradley could assert against Dr. Val-Mejias for acts occurring before September 1, 1996 was seemingly barred by Kansas' four year statute of repose. K.S.A. § 60-513(c). The district court, however, declined to grant summary judgment on that ground because of the possibility that Dr. Val-Mejias had engaged in fraudulent concealment from 1992 to after September 1996 which would equitably estop Dr. Val-Mejias from asserting the statute of repose.

The district court, however, found that the possibility of fraudulent concealment did not bar application of the statute of limitations because by May of 1998, based upon information he received from Dr. Morgan, Bradley knew that his physical problems were due to his pacemaker and, therefore, that Dr. Val-Mejias had misdiagnosed him. This knowledge, reasoned the district court, also served to render...

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