Hall v. Musgrave, 74-1778
Citation | 517 F.2d 1163 |
Decision Date | 02 June 1975 |
Docket Number | No. 74-1778,74-1778 |
Parties | Sharlene HALL and Ray Hall, Plaintiffs-Appellants, v. Dr. Ernest E. MUSGRAVE and Dr. Charles F. Sowards, Defendants-Appellees. |
Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
James S. Greene, Jr., Greene & Forester, Harlan, Ky., Don R. Pippin, Norton, Va., T. Munford Boyd, Charlottesville, Va., for plaintiffs-appellants.
Robert J. Greene, G. C. Perry, III, J. Michael Noyes, Robert Greene, Paintsville, Ky., William J. Baird, III, Baird & Baird, Ronald W. May, Pikeville, Ky., for defendants-appellees.
Before CELEBREZZE, PECK and ENGEL, Circuit Judges.
This diversity case concerns the date on which a medical malpractice action "accrued" under Kentucky law. The pertinent statute of limitations, K.R.S. § 413.140(1)(e), provides that an action for negligence or malpractice against a physician must be commenced within one year after the cause of action accrued. As the operative facts were not in dispute, the district court correctly determined that the statute of limitations question presented was one for the court to decide as a matter of law. Lynn Mining Co. v. Kelly, 394 S.W.2d 755 (Ky.1965); Slack v. Bryan, 299 Ky. 132, 184 S.W.2d 873 (1945).
Plaintiff-appellant Sharlene Hall gave birth to her first child on March 19, 1969. The breech birth delivery came after protracted labor, appellant having entered the hospital on March 15th, and commenced active labor sometime during the evening on March 18th. Dr. Ernest E. Musgrave, defendant-appellee herein, the attending physician during the prenatal period and through much of labor, did not deliver the baby as planned. Dr. Musgrave was at his home when he received word from the hospital, in the early morning hours of March 19th, that appellant was ready for delivery. By the time he arrived at the hospital, Dr. Charles F. Sowards, also a defendant-appellee, the physician on duty at that time, was in the process of delivering the baby. Dr. Musgrave observed but did not assist Dr. Sowards. Mother and child progressed satisfactorily and were discharged two days later.
Approximately ten days thereafter, appellant discovered that she was unable to hold her water and that urine was leaking from her vagina. On May 3, 1969, she went to see Dr. Musgrave, but he was unable to determine the cause of the leakage and referred her to a surgeon colleague, Dr. Nash. Dr. Musgrave told appellant that her problem "was due to a birth related phenomenon." Dr. Nash, similarly indefinitive as to the origin of appellant's difficulty, suggested that she consult a urologist and gave her a note to take with her which read,
On cross-examination, appellants' counsel pursued this topic further.
Dr. Welling inserted a catheter in appellant's bladder to divert the leakage and to give the affected area an opportunity to regenerate to where plastic repair could be undertaken, a period of some three months. When this point in her treatment was reached, Dr. Welling advised her that she was ready for surgery and that the surgery would cost $250.00. Unable to raise that amount, and being of the belief that Dr. Welling would not proceed unless prepaid for his services, appellant elected to postpone corrective surgery. She did not see a doctor or receive any medical attention during the period from August 1969 to April 1970. She testified that the urine leakage continued unabated during this period, causing severe discomfort and interfering with her function as a wife and mother.
On April 20, 1970, approximately eight months after her last visit to Dr. Welling, appellant went to see Dr. Ronald N. Shelley, a surgeon, for the needed surgical repair. In relating the history of her complaint to Dr. Shelley, appellant made mention of the fact that she had had a difficult breech delivery. Dr. Shelley asked her if a Caesarean section operation had been considered, to which she replied in the affirmative. The plastic repair of the ruptured urethra was commenced in May 1970, progressed in stages, and was finally completed in April 1971. Appellant effected a complete recovery.
A complaint was filed against Dr. Musgrave on February 15, 1971, and amended to include Dr. Sowards on April 15, 1971. Prior to the trial, the district court twice overruled motions to dismiss the complaint on the grounds that the action was barred by the one year Kentucky Statute of Limitations. When the cause came on for trial, appellees asked the court to reconsider its prior rulings on their motions to dismiss. On reconsideration, the motion was sustained but the ruling withheld pending completion of the trial on the merits. *
The district judge orally advised counsel of his reasons for applying the statute of limitations in this case.
Following an extended colloquy between the district judge and counsel, the ruling at issue herein was made.
"Alright, gentlemen, I am going to rule that the Statute of Limitations is effective in this case, I am going to find that the plaintiff was specifically advised of her need for surgery and that she was specifically advised of the nature of her injury at a date not later than May 6th, 1969, when she last visited Dr. Welling."
The trial continued, and the jury returned a verdict in favor of appellants for $150,000. Thereafter, the district court dismissed appellants' complaint ordering that they take nothing. Appellees' motions for judgment notwithstanding the verdict or for a new trial were held in abeyance pending the outcome of this appeal.
Examination of Kentucky law on this statute of limitations question leads, as the district court found, to the cases of Tomlinson v. Siehl, 459 S.W.2d 166 (Ky.1970), and Hackworth v. Hart, 474 S.W.2d 377 (Ky.1971). Prior to 1970, the rule in Kentucky was that a medical malpractice action accrued on the date of the complained of treatment or diagnosis. Guess v. Linton, 236 Ky. 87, 32 S.W.2d 718 (1930); Philpot v. Stacy, 371 S.W.2d 11 (Ky.1963); Jones v. Furnell, 406 S.W.2d 154 (Ky.1966). Tomlinson v. Siehl, supra, brought Kentucky in line with an increasing number of jurisdictions holding that a cause of action accrues upon the discovery of the injury. See Prosser, Law of Torts, § 30, pp. 144-145 (4th ed. 1971).
In Tomlinson, a sterilization operation was performed on Lilly Tomlinson on September 24, 1966. She became pregnant on November 23, 1967, but did not discover this fact until February 25, 1968. A child was born from the pregnancy on August 16, 1968. On November, 1, 1968, a malpractice action was filed against the doctor who performed the operation by Mrs. Tomlinson and her husband. Although the trial judge expressed serious reservations as to the correctness of the prevailing rule, the action was dismissed as untimely filed. The Court of Appeals of Kentucky reversed on the grounds that the "discovery of the injury" rule was the more fair of the two and was less likely to produce injustice in the future.
While Tomlinson did not deal specifically with the manner of discovery, the Court of Appeals noted the position taken by other jurisdictions in this regard. For example, the Tomlinson opinion contains the following language from the Delaware case of Layton v. Allen, 246 A.2d 794, 798 (1968):
"Upon the basis of reason and justice, we...
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