Vidrine v. Enger

• Decision Date: 02 August 1984
• Docket Number: No. 83-4624,83-4624
• Citation: 752 F.2d 107
• Parties: John D. VIDRINE, Plaintiff-Appellant, v. Daniel ENGER, M.D., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 107

752 F.2d 107

John D. VIDRINE, Plaintiff-Appellant, v. Daniel ENGER, M.D., Defendant-Appellee.

No. 83-4624.

United States Court of Appeals Fifth Circuit.

Aug. 2, 1984.

Stephen A. Anderson, Hopkins, Logan, Vaughn & Anderson, Gulfport, Miss., for plaintiff-appellant.

Thomas L. Stennis, II, Bryant & Stennis, David B. Strain, Gulfport, Miss., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before RUBIN, REAVLEY, and TATE, Circuit Judges.

PER CURIAM:

The magistrate, whose jurisdiction in this diversity case for medical malpractice was consented to by the parties, rendered summary judgment on the basis that the claims are barred by the Mississippi statutes of limitations. Finding the conclusion correct, we affirm.

The material facts established beyond genuine dispute are these. John D. Vidrine suffered a fracture of his left forearm on October 5, 1972, while working on an automobile tire. He was admitted to Singing River Hospital in Pascagoula that day and treated by Dr. Daniel J. Enger. Dr. Enger applied a longarm cast to immobilize Vidrine's arm.

Dr. Enger continued to see Vidrine at the hospital until his discharge on October 14, then continued to treat Vidrine at the doctor's office. On January 2, 1973, Dr. Enger removed the longarm cast that had been applied to Vidrine and replaced it with a sugar tong splint. This was removed on January 30. Vidrine called on Dr. Enger at his office eight or more times thereafter, over a three-year period, his last visit being in March, 1976 for a complaint unrelated to his arm. The only time Dr. Enger saw Vidrine for his arm condition within six years of the date suit was filed was on June 10, 1974, when he took x-rays of Vidrine's arm and discharged Vidrine, telling him to return if he had further trouble. Vidrine testified that on this occasion Dr. Enger pointed out that the x-rays showed a hairline crack and told him this was all the doctor could do and that his tenderness was just part of the normal healing process. Although Vidrine received medical treatment from Dr. Enger thereafter on several occasions, Dr. Enger's deposition and his office records establish that these were all for matters relating to other injuries.

Suit was filed on March 24, 1980, more than four years after Vidrine last visited Dr. Enger for treatment of the fracture. The suit seeks both actual and punitive damages. Vidrine contends that Dr. Enger was negligent in failing to perform the 1972 operation properly, in allowing him to return to work in 1973, in failing to diagnose a non-union of his left forearm in 1973, in failing to take x-rays and reexamine his arm in 1974, and in failing to have tomograms performed in 1974 to determine whether reunion of his ulna had been effected.

The Mississippi statute of limitations for negligent actions requires suit to be filed within six years "next after the cause of such action accrued." Miss.Code Ann. Sec. 15-1-49 (1972). ¹ In this case, as the magistrate correctly found, suit was barred for all causes of action that "accrued" before March 24, 1974. While none of Mississippi's limitations statutes explicitly applies to an action for punitive damages, the state has two one-year statutes that may be applicable to such claims, one a general torts statute and the other applicable to suits for a penalty or forfeiture. The magistrate applied these separately and held the claim for punitive damages barred. Neither the magistrate nor the parties apparently viewed that claim as so dependent on the basic malpractice claim as to be precluded by loss of the negligence claim.

We turn first to the basic negligence claim. In most cases, the Mississippi statute commences to run on the date of the wrongful act; the date injury was or should have been discovered is the date the cause of action "accrues" only in exceptional cases, such as those in which the plaintiff establishes fraudulent concealment. Wilder v. St. Joseph Hospital, 225 Miss. 42, 82 So.2d 651, 652 (1955). The Mississippi Supreme Court refused in Wilder to start the statutory period with the date of discovery of the act of malpractice (leaving sponges, gauze, and other substances in a patient during a hysterectomy) for two reasons: her allegations were insufficient to establish that the malpractice was fraudulently concealed from her, and her delay in discovering her condition was unreasonable. The court explained:

In view of the allegation of continuous pain, etc., from the date of the operation it is obvious that the plaintiff, in the exercise of ordinary care, should have discovered her alleged condition within six years. 82 So.2d at 653.

The Wilder court's analysis of an exception cannot be read as the announcement of a new general rule, especially in the light of the Mississippi Supreme Court's subsequent treatment of its own precedent. Interpreting Wilder, the state supreme court later said "the general rule on malpractice is that a cause of action accrues and the statute begins to run on the date of the wrongful act or omission which constitutes the malpractice and not from the time of discovery thereof, and the decisions of this Court are in accord therewith." Smith v. McComb Infirmary Association, 196 So.2d 91, 92-93 (Miss.1967). The Mississippi Supreme Court again explained the decision in M.T. Reed Construction Co. v. Jackson Plating Co., 222 So.2d 838 (Miss.1969), in which property damages were sought for alleged negligence in building a roof. The court there said that it had in Wilder "rejected the 'know or ought to know' rule and adopted the majority rule that 'a cause of action for malpractice accrues and the statute begins to run at the time of the injury, or, as otherwise stated, on the date of the wrongful act or omission constituting the malpractice, and not from the time of discovery thereof ....' " 222 So.2d at 840. It added: "we note that the legislature has had ample opportunity to express its opposing concept, if any, to the Court's refusal in Wilder v. St. Joseph Hospital, supra, to adopt the 'know or ought to know' rule through new and contrary legislative action." Id. In Ford Motor Company v. Broadway, 374 So.2d 207 (Miss.1979), the Mississippi court returned to the issue and reiterated that in Wilder and Reed it had held that the cause of action "accrued on the date of the negligence or omission and not on the date the negligence was finally discovered." ²

Vidrine finds a platform for argument in our statement in a case involving limitation of actions for products liability. Alabama Great Southern Railroad Co. v. Allied Chemical Corp., 467 F.2d 679 (5th Cir.1972). "This comment [in M.T. Reed ] injects some confusion into the area since such a refusal [to apply the "know or ought to know" rule] is not apparent in the Wilder opinion." ³ This observation was not applied, however, for we simply held that "Mississippi is [not] wedded to an immutable time of delivery or time of wrongdoing rule," ⁴ and held that a products liability tort was not barred until the occurrence of the event that caused injury.

Vidrine contends that, when a doctor treats a patient over an extended period of time, the statute of limitations should begin only when the patient actually discovers that the doctor has been negligent. In 1976, the Mississippi legislature adopted this view and set up a special statute for malpractice suits imposing a two-year limit from the date the negligence was discovered or might, with reasonable diligence, have been known or discovered. Miss.Code Ann. Sec. 15-1-36 (Supp.1983). Nevertheless, we are confident that, as to cases...