Byers v. Burleson, 82-2126

• Decision Date: 05 August 1983
• Docket Number: No. 82-2126,82-2126
• Parties: Winnie C. BYERS, Appellant, v. William A. BURLESON.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 856

713 F.2d 856

230 U.S.App.D.C. 62

Winnie C. BYERS, Appellant, v. William A. BURLESON.

No. 82-2126.

United States Court of Appeals, District of Columbia Circuit.

Argued March 21, 1983.

Decided Aug. 5, 1983.

As Amended Aug. 5, 1983.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 81-2715).

Charles C. Parsons, Washington, D.C., for appellant.

David B. Wilkins, Washington, D.C., of the Bar of the District of Columbia, pro hac vice, by special leave of the Court, with whom David N. Webster and Earl C. Dudley, Jr., Washington, D.C., were on the brief, for appellee.

Before WALD and SCALIA, Circuit Judges, and FRIEDMAN, ^* Circuit Judge, United States Court of Appeals for the Federal Circuit.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Appellant Winnie C. Byers seeks relief from a decision of the district court granting summary judgment to appellee William A. Burleson and dismissing her complaint against Burleson for legal malpractice. The court granted summary judgment on the ground that the statute of limitations had run on Byers' claim. Because we conclude that there is a genuine issue of material fact as to when Byers knew or should have known of Burleson's alleged malpractice so as to start the running of the statutory period, we reverse the district court's grant of summary judgment and remand the case for further proceedings.

I. BACKGROUND

On June 12, 1975, Dr. Bahman Teimourian performed breast reduction surgery on Byers at Greater Southeast Community Hospital (Greater Southeast) in Washington, D.C. Following her surgery, Byers developed an abscess in her left breast. She therefore sought treatment on several occasions at the Malcolm Grow Hospital (Malcolm Grow) at Andrews Air Force Base in Camp Springs, Maryland. On July 17, the abscess was incised and drained and the wound packed with gauze. On September 19, Byers underwent surgery at Malcolm Grow. During the surgery, a foreign body (described by Burleson as a sponge) was discovered and removed from her left breast.

On May 18, 1978, Burleson filed suit on behalf of Byers against Teimourian and Greater Southeast in the Superior Court of the District of Columbia, alleging medical malpractice by the two defendants and stating that Teimourian had "admitted that he had made a mistake in his operation and treatment of plaintiff [Byers] ...." Appellant's Appendix (App.) at 183-84. He did not file suit against Malcolm Grow or any of its employees. ¹

In May 1978, Byers fired Burleson. He received her letter of discharge on May 27. In June, Byers retained Charles Parson, her present attorney, to pursue her claim of medical malpractice. On August 4, Parsons filed a motion in the medical malpractice suit Burleson had filed in Superior Court for the District of Columbia, seeking an order to compel Burleson to release Byers' case file. On August 11, before the court could act on this motion, Burleson turned over the file.

The file contained the pleadings in the action filed by Burleson against Teimourian and Greater Southeast, including Teimourian's answer; Burleson's correspondence with Greater Southeast and the Hartford Insurance Co.; Byers' medical records; and pictures of Byers. In addition, in a cover memorandum attached to the file, Burleson stated that Greater Southeast had sought to conceal an "Operative Data" report compiled by the operating room nurses which reflected that the nurses had negligently failed to carry out a sponge, tape, or gauze count after Byers' surgery. The memorandum also stated that the hospital had similarly removed the "operating procedure" on Byers from its records, but that Burleson had somehow been able to obtain the "procedure," which showed that tapes, bandages, and strips were used in the operation. Burleson concluded the memorandum: "This case has been won for you, only I could have obtained the above two records." App. at 204.

On August 11, Parsons notified the Superior Court that Burleson had released the file and that he was withdrawing his motion to compel its release. Three days later, Burleson filed a claim for an attorney's lien against any judgment in Byers' lawsuit.

On September 25, Parsons served forty-two written interrogatories on Teimourian. In two of the interrogatories Parsons sought to explore the basis for an affirmative defense Teimourian had raised in his answer to the original complaint, which stated: "This defendant avers that if any foreign object was in plaintiff's breast as alleged, it was placed there by persons who are not parties to this litigation." Brief for Appellee at 7 n. 3; Brief for Appellant at 10.

Teimourian served Parsons with his answers to these interrogatories on November 2. In response to interrogatories 40 and 41(e), Teimourian stated:

40 A. On an operation of this magnitude an instrument and sponge count is routinely done by the circulating nurse. If an instrument or sponge is missing this is reported to the surgeon and an xray of the operative site is obtained. In this case no sponges were used. I was told that the instrument and tape counts were correct as I am told in every case by the circulating nurse. The count is done at the time of closure. If the count is incorrect the surgeon is told and an xray is obtained to identify the object and its location. I have not used any sponges on reduction mammoplasty since I have been in practice. I insist that the circulating nurse communicate to me the accuracy of the needle, blade, instrument and tape count; and sponge count if they are used in a certain procedure.

41(e). Not applicable. I understand that there was surgery at Andrews Air Force Base Clinic to remove some foreign material which was apparently packing, at some later period of time. This information can be obtained from the Air Force records.

See App. at 133. ²

Five months later, on April 9, 1979, Parsons deposed Teimourian to determine what evidence existed to demonstrate that the sponge removed from Byers' breast had not been left there during her hospitalization at Greater Southeast. Teimourian reiterated at the deposition that he does not use sponges in mammoplasty operations and produced X-rays that showed that sponges could not have been left in Byers' body until after she began receiving treatment at Malcolm Grow.

Parsons deposed Burleson on May 7, 1979, to discover why he had concluded that Teimourian and Greater Southeast were responsible for the foreign body in Byers' breast. Burleson gave several reasons, including (1) that Byers' hospital chart at Greater Southeast indicated she had an elevated temperature at the time of her release, demonstrating that she had an infection caused by the presence of a foreign body; (2) that the "Operative Data" sheet from Greater Southeast confirmed that no sponge count was done during Byers' surgery; (3) that Teimourian had admitted fault to Dr. Schwamm, a pathologist at Malcolm Grow; (4) that Dr. Thomas Williams, a dermatologist at D.C. General Hospital, would testify that Teimourian's negligence during Byers' surgery caused her post-surgical problems; (5) that another doctor had referred to Teimourian as a "butcher"; and (6) that Teimourian's insurance company had evaluated Byers' case at a substantial figure.

On November 9, 1979, Byers sued Burleson in Superior Court for legal malpractice for allowing the statute of limitations to run on her claim against Malcolm Grow, and on November 16 moved to consolidate the case with her medical malpractice action against Teimourian and Greater Southeast. The motion was denied.

Shortly thereafter, Teimourian and Greater Southeast moved for, and on July 17, 1980 received, summary judgment in the medical malpractice action. Byers did not appeal this decision.

On November 2, 1981, the Superior Court dismissed one of the counts in the legal malpractice action against Burleson. On November 9, Byers moved to dismiss her case against Burleson without prejudice. The next day, November 10, Byers filed this case against Burleson in the district court. November 10 was three years and a week after Teimourian served his answers to interrogatories on Parsons.

On May 7, 1982, Burleson moved for summary judgment on the ground, inter alia, that all three counts of the new complaint were barred by the District of Columbia's three-year statute of limitations for malpractice actions. The district court granted summary judgment in favor of Burleson on August 20, 1982, holding that Parsons should have been alerted to the possibility that the foreign body was left in Byers' breast by someone at Malcolm Grow as early as August 11, 1978, when he received Byers' case file containing Teimourian's answer asserting that a third party had left the foreign matter in her breast, or at the very latest by November 2, 1978, when Teimourian served his interrogatory answers on Parsons swearing he had not used any sponges in the surgery. ³ Since both of these events occurred over three years before Parsons filed suit in district court against Burleson, the court concluded that the complaint was time-barred and should be dismissed with prejudice. This appeal followed.

II. ANALYSIS

A. Standard of Review

Under Fed.R.Civ.P. 56(c), summary judgment is proper only where there is no genuine issue of material fact and, viewing the evidence in the light most favorable to the nonmoving party, the movant is entitled to prevail as a matter of law. E.P. Hinkel & Co. v. Manhattan Co., 506 F.2d 201, 204 (D.C.Cir.1974); Davidson v. Coyne, 347 F.2d 471, 472 (D.C.Cir.1965). Our role in reviewing the grant of summary judgment is to determine whether there is any genuine issue of material fact underlying the adjudication and, if not, whether the substantive law was correctly applied. Bloomgarden v. Coyer, 479 F.2d 201, 206-07 (D.C.Cir.1973).

Legal malpractice claims in the District of Columbia "may not be brought" more than three years...