Hecht v. First Nat. Bank & Trust Co., 46065

• Decision Date: 06 November 1971
• Docket Number: No. 46065,46065
• Citation: 208 Kan. 84,490 P.2d 649
• Parties: Patsy J. HECHT, Appellant, v. FIRST NATIONAL BANK & TRUST COMPANY of Salina, Kansas, Executor, (substituted for Phillip M. Platten, M.D., (Deceased)), and Phyllis E. Ripley, Executrix,(substituted for G. Sherman Ripley, M.D., (Deceased)), Appellees.
• Court: Kansas Supreme Court

Page 649

490 P.2d 649

208 Kan. 84

Patsy J. HECHT, Appellant, v. FIRST NATIONAL BANK & TRUST COMPANY of Salina, Kansas Executor, (substituted for Phillip M. Platten, M.D. (Deceased)), and Phyllis E. Ripley, Executrix,(substituted for G. Sherman Ripley, M.D., (Deceased)), Appellees.

No. 46065.

Supreme Court of Kansas.

Nov. 6, 1971.

Syllabus by the Court

1. Under the provisions of K.S.A. 60-513 (now 1970 Supp.) a cause of action in malpractice does not accrue until such time as substantial injury results from the alleged acts of malpractice or until the fact of injury becomes reasonably ascertainable.

2. Where there is conflicting evidence as to when a cause of action is deemed to have accrued under 60-513, supra, the matter becomes an issue for determination by the trier of fact.

3. In a malpractice action, wherein the statute of limitations is raised as an affirmative defense, the record is examined and it is held: (1) The evidence before the trial court on motion for summary judgment was not sufficiently conclusive for the court to resolve, as a matter of law, the issue raised by the statute of limitations; and (2) the trial court erred in sustaining the defendants' motion for summary judgment.

Robert Martin, of Martin, Porter, Pringle, Schell & Fair, Wichita, argued the cause, and William Oliver, Jr., Wichita, and John K. Bremyer, of Lehmberg, Bremyer, Wise, Jones & Hopp, McPherson, were with him on the brief for appellant.

C. Stanley Nelson, of Hampton, Royce, Engleman & Nelson, Salina, argued the cause and was on the brief for appellees.

KAUL, Justice:

In this malpractice action plaintiff has sued to recover damages for injuries sustained by her which she claims resulted from defendants' negligence in administering x-ray treatments in a course of radiotherapy for Hodgkin's disease.

While the appeal was pending both defendants died. The First National Bank & Trust Company of Salina was duly appointed and qualified as administrator of the estate of Phillip M. Platten, M.D., deceased, and has been, by order of this court, substituted as an appellee herein. Phyllis E. Ripley was duly appointed and qualified as executrix of the estate of G. Sherman Ripley, M.D., deceased, and has been by order of this court, substituted as an appellee herein.

The question on appeal is when did the applicable statute of limitations commence to run?

Plaintiff filed her petition on March 13, 1968. Defendants filed an answer in the form of a general denial, and as an affirmative defense specifically pleaded that plaintiff's right of action as set forth in her petition did not accrue within two years next before the commencement of this action.

Depositions were taken of plaintiff, both defendants, and Dr. Terry E. Lilly, Jr., a Kansas City, Missouri, physician, who had been consulted by plaintiff.

Defendants filed a motion for summary judgment on the ground that plaintiff's action was barred by the two-year statute of limitations set forth in K.S.A. 60-513 (now 1970 Supp.)

Plaintiff filed a motion for partial summary judgment on the issue of the statute of limitations.

The trial court overruled plaintiff's motion and sustained defendants' motion. The trial court rested its conclusion on a finding to this effect:

'In this case the fact of injury not only became ascertainable to the plaintiff before March 13, 1966, but she also had full knowledge of the fact of the burn injury and its progression to ulceration before that time.'

On appeal, plaintiff proposes two theories for reversal. First, she urges this court to adopt either the so-called 'continuous treatment' rule, or the 'physician-patient relationship' rule under either of which the statute of limitations is tolled with respect to a malpractice action while the defendant physician continues treatment for the injury involved. On this premise, plaintiff claims she is entitled to summary judgment on the limitations issue. Secondly, plaintiff claims the material facts as to whether her injury was substantial or reasonably ascertainable on March 13, 1966, are very much in dispute and cannot be determined as a matter of law. On this theory plaintiff asserts the trial court's summary judgment should be reversed and the issue of limitations be determined on trial.

In the spring of 1964 physicians at the Kansas University Medical Center diagnosed plaintiff's condition as Hodgkin's disease and recommended radiation therapy in the area of her neck. She was referred to defendants who were physicians and radiologists practicing in Salina, which was near her home in Canton. Defendants accepted the pathological diagnosis of the Medical Center physicians and planned a course of treatment based thereon.

Plaintiff first reported to Dr. G. Sherman Ripley, one of the defendants, on May 22, 1964. Concerning this first contact, Dr. Ripley testified as follows:

'Then I prescribed the X-ray treatment and I explained to her that I thought she would go through them without any particular complications and that sometimes patients feel nauseated at the time of the treatment and that we would take care of that with medication, towards the end of the treatment her skin would be a little red and would later tan, and I tried to relieve her of any apprehension.'

Plaintiff was given a course of twenty treatments with no significant after effects. She did contract a sore throat near the end of the treatment period.

In November of 1965 plaintiff noticed lumps in the groin area. After an examination by her family physician, the lumps were removed and sent in for laboratory examination. Plaintiff reported to the Kansas University Medical Center in January of 1966, where her condition was diagnosed as a reoccurrence of Hodgkin's disease in the left groin area. She was once again referred to defendants for x-ray therapy. Dr. Platten saw plaintiff on January 28, 1966, at which time he concluded that plaintiff's condition was 'Stage 3 Hodgkin's disease, disseminated,' which he described in these words:

'Reoccurrence of Hodgkin's disease below the diaphragm in a patient previously having the disease primary above the diaphragm is classified as a Stage 3 Hodgkin's disease case. These are not all incurable, but the prognosis for a cure is less than 50 percent.'

Dr. Platten described his treatment plan in this manner:

'A. We wanted to deliver a maximum tumor dose to the entire right pelvis and whether she should tolerate 3,000 R in air through that original converging beam portal would have to be judged on the-her systemic reaction to the volume of tissue treated, and her skin reaction. In other words, that would define tolerance, what we could administer based on her general clinical condition and the skin.

'Q. Then you go on to say, 'It then may be possible to add a third straight AP port to give a total tumor dose calculated at midpelvis of 4,000 R.'

'A. Yes.

'Q. What is a straight AP port?

'A. I started out with two converging beams AP, meaning anterior-posterior, then using the time dose relationship, it is of critical importance in radiotherapy, having used these converging anterior fields, I would then treat a lateral area directed at the deep pelvic nodes and then a posterior area, that then would allow a long interval of time for the skin on the front of her pelvis to recover normally and possibly tolerate additional radiation if the other portals didn't permit delivery of this critical 4,000 R tumor dose.'

A course of twenty treatments was planned. The first treatment was given on January 28, 1966. During this treatment, administered by Dr. Platten, plaintiff testified that she first felt a strange 'crawling like' sensation and so informed Dr. Platten. Plaintiff received a second treatment on January 31, at which time Dr. Platten found that plaintiff had an abnormal skin reaction to the original treatment on the 28th and that there was more redness of the skin than he expected. Plaintiff complained of some pain in both of her ankles. Concerning plaintiff's condition on January 31, Dr. Platten testified as follows:

'A. Yes. There was pre-tibial edema, and I took her very, very seriously and I was extremely concerned that she had diseased nodes in both sides of her pelvis that were blocking the lymphatics or the veins draining her legs. I told her I had no explanation for it, I couldnT understand it, but that I was going to cut down the total dose and switch to a straight AP portal.

'Q. Did you tell her that you suspected that she had cancerous infection of the lymph nodes that was interfering with the drainage of her legs-you did not tell her that, did you?

'A. In my judgment on that date with her state of mind, it would have been wrong.

'Q. I assume by that answer you did not tell her.

'A. I did not tell her.'

As indicated, the treatment was reduced on January 31. Plaintiff was given further reduced x-ray dosages on February 2, 4 and 7, at which point the radiation treatments were discontinued because of a skin reaction. Treatment was prescribed for the skin reaction and plaintiff continued to see defendants.

On March 2, 1966, she was examined by both defendants who noted the skin reaction was subsiding. Plaintiff was seen again by Dr. Platten on March 11, when he described her reaction as slowly healing.

At the suggestion of her mother and sister, plaintiff had made arrangements for consultation with Dr. Terry E. Lilly, Jr., of Kansas City, Missouri, on March 12, 1966. At this time, plaintiff described the skin reaction condition as 'the top was off the treatment area, it was open, raw and draining.' Dr. Lilly discussed with plaintiff the difference between the results of the treatment to the neck and to the groin and told her that 'she was a living example of successful and unsuccessful therapy.' Dr. Lilly's consultation pertained primarily to a skin graft as a remedy. He testified that his impression was 'that there had been a radiation reaction with breakdown.' Dr....