Hackworth v. Hart

• Citation: 474 S.W.2d 377
• Parties: Harvey HACKWORTH and Carroll Hackworth, Appellants, v. Ernest HART and Robert Jackson, Appellees.
• Decision Date: 17 December 1971
• Court: United States State Supreme Court (Kentucky)

Page 377

474 S.W.2d 377

Harvey HACKWORTH and Carroll Hackworth, Appellants, v. Ernest HART and Robert Jackson, Appellees.

Court of Appeals of Kentucky.

Dec. 17, 1971.

Russell S. Armstrong, Evansville, Ind., George B. Baker, Jr., Rhoads & Baker, Henderson, for appellants.

Morton Holbrook, Sandidge, Holbrook, Craig & Hager, Owensboro, William E. Quisenberry, Calhoune, for appellees.

EDWARD P. HILL, Judge.

The appeal is from a judgment entered pursuant to a directed verdict for the appellees on the trial of appellants' action for damages based upon an allegation that a vasectomy operation performed by appellee Dr. Ernest Hart on the appellant Harvey Hackworth was unsuccessful. The appellants relied both upon a contract and negligence.

The judgment does not state the grounds upon which the trial court directed the verdict for the appellees, but in the appellants' brief it is said that the trial court based its decision upon the failure of the appellants to prove negligence.

The appellants argue on this appeal that (1) the evidence on the question of negligence was sufficient to take the case to the jury both as to the defendant Hart and the defendant Jackson; (2) the evidence on the breach of warranty was sufficient to require the submission of the case to the jury; (3) the evidence was sufficient on the question of damages to justify a jury issue; and (4) the action was not barred by the Statute of Limitations.

The operation in question was performed by the appellee Dr. Hart on November 17, 1961. Shortly thereafter, and just prior to January 15, 1962, the appellee Robert Jackson, a medical technician at McLean County Hospital, at the request of Dr. Hart did a sperm-count test on the semen of appellant Harvey Hackworth and reported his findings to Dr. Hart. On or about January 15, 1962, Dr. Hart informed the appellant Harvey Hackworth of the results of the test and assured the latter that he no longer needed to use contraceptives when having sexual intercourse. In late March 1962, Dr. Hart again assured Mr. Hackworth that he was sterile but was told by Mr. Hackworth that his wife was pregnant. Mrs. Hackworth gave birth to her fifth child on October 11, 1962. This suit was filed March 11, 1963.

At the time this case was tried, and prior to the filing of the briefs herein, the case law of this state held that the Statute of Limitations under KRS 415.140(1)(e) commenced to run on the date of the operation or injury complained of. Our cases so holding were overruled however in June 1970 in Tomlinson v. Siehl, Ky., 459 S.W.2d 166, in which this court held that the limitation period governing such causes of action commences to run upon the discovery of the injury. 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.

Appellants' cause of action commenced to run at the time he discovered or should have discovered that the operation was not successful. Such discovery will usually be made when it is discovered that he is not sterile and that his wife is pregnant by him.

The question of when a woman discovers or should in the exercise of usual care and curiosity have discovered her pregnancy is a difficult one. The theory has been advanced that in many cases pregnancy is not detected until late in the gestation period, and therefore the best rule is to say that the statutory period begins to run from the date of delivery of the child. However, it is not the function of the court to choose a method of extending the statutory period of limitation when it can just as logically choose one that does not do so. We think that with modern technology a great majority of women will have little difficulty discovering pregnancy. The doctor, facing a malpractice case, is entitled to demand due diligence on the part of the person claiming to have been aggrieved. Accordingly, we adopt the rule that the cause of action in malpractice cases, where pregnancy is the critical question, commences to run from the time pregnancy was or should have been discovered.

The evidence is not clear as to when the appellants first discovered the pregnancy of Mrs. Hackworth. If the appellants knew or should have known of the pregnancy at the January 15, 1962, meeting with Dr. Hart, their suit filed more than twelve months thereafter is barred by the Statute of Limitations. If it was during the 'last week' in March or April, the suit was filed within the one-year period and was not barred.

The question of limitation being a matter of defense, the duty of appellees to offer evidence on this question was relieved by the action of the trial court in directing a verdict for the appellees at the close of appellants' case. The evidence thus far produced does not show that the cause of action was barred.

The evidence on another trial may well present a factual issue requiring submission to the jury.

The appellants argue that the continued insistence of Dr. Hart that Mrs. Hackworth could not be pregnant and his assurance prior to the operation that the operation was 100 percent sure to produce infertility tolled the Statute of Limitations. They cite Adams v. Ison, Ky., 249 S.W.2d 791. We do not find Adams, supra, to be factually parallel to the case at bar. In Adams the surgeon inserted a six-inch rubber tube in the patient's lung and failed to remove it. Sometime thereafter, the patient discovered the tube and reported his discovery to the doctor who dismissed the matter with the assurance that the tube would be dissolved by bodily processes. After twenty years the body had not dissolved the rubber tube. The court held that the doctor's assurance tolled the Statute of...