Morgan v. Schlanger

• Decision Date: 27 February 1967
• Docket Number: No. 10770.,10770.
• Citation: 374 F.2d 235
• Parties: Eliza K. MORGAN, Appellant, v. Maurice R. SCHLANGER and Lemuel E. Mayo, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

374 F.2d 235 (1967)

Eliza K. MORGAN, Appellant, v. Maurice R. SCHLANGER and Lemuel E. Mayo, Appellees.

No. 10770.

United States Court of Appeals Fourth Circuit.

Argued January 13, 1967.

Decided February 27, 1967.

Edward R. Baird, Norfolk, Va. (Baird, Crenshaw & Ware, Norfolk, Va., on brief), for appellant.

Allan S. Reynolds, Norfolk, Va. (White, Ryan & Reynolds, Norfolk, Va., on brief), for appellees.

Before HAYNSWORTH, Chief Judge, and BELL and WINTER, Circuit Judges.

WINTER, Circuit Judge.

Plaintiff's suit for malpractice was dismissed at the close of her case for lack of medical testimony to support her alleged cause of action. On motion for summary judgment and by pretrial order limiting the issues, before trial, a plea of limitations was sustained as to a major part of her alleged cause of action. She appeals from both rulings. Under the law of Virginia, which we must apply in this diversity action, we think that the rulings of the district judge were correct, and we affirm.

The proof adduced by the plaintiff showed the following: Sometime in 1937, plaintiff underwent a partial hysterectomy. On August 27, 1962, she had occasion to consult Dr. Maurice R. Schlanger for a rapidly beating heart. Dr. Schlanger, as a result of a routine Pap smear, obtained a positive reaction to possible malignancy in her female organs. He immediately had her admitted to the hospital and referred her to Dr. Lemuel E. Mayo, a surgeon, who, three days later, performed a conization of the cervix on her. The sample of tissue so obtained was found to indicate that she was suffering from cancer of the cervix. Drs. Schlanger and Mayo decided not to treat her surgically but to administer internal radium and external x-ray treatments. The irradiation treatments began promptly and were concluded two months later, in November, 1962.

By December, 1962, Mrs. Morgan began to experience severe pains in her lower abdomen and a foul purulent vaginal discharge. Throughout the rest of the winter and the following spring her condition continued to deteriorate and she continued to consult with Drs. Schlanger and Mayo. Dr. Mayo assured her that she was "doing fine" but she was experiencing chills at night, fever during the day, and thought she was getting worse. She was hospitalized from March 16, 1963 until April 6, 1963 under the care of these doctors. Not until March 17, during this first post-radiation hospitalization, did she learn, as a result of her direct inquiry to Dr. Mayo, that she was suffering from radiation burns. She returned to the hospital April 23 and was discharged approximately May 5. Her final hospitalization under the care of Drs. Schlanger and Mayo began May 19 or 20, 1963 and continued until June 16, 1963.

During her third and last hospitalization, Mrs. Morgan was given a blood transfusion and intravenous glucose feedings. Toward the end of her stay, both doctors told her that she could go home and would not need a colostomy in order to recover. Mr. Morgan testified that on June 13, he, too, had a conversation with Dr. Mayo, who told Mr. Morgan that both Dr. Schlanger and Dr. Mayo had decided that Mrs. Morgan would not require a colostomy, that she could go home and live without it. He was told that he had nothing to worry about and that, in the opinion of the doctors, "she's over the hump."¹

On June 16, 1963, the day that Mrs. Morgan was discharged from the hospital, she was still suffering from all of her previous symptoms, including rectal bleeding. As she was rolled out in a wheel chair, she vomited going down the hall to the door. The doctors did not indicate the necessity of further visits or examinations and they gave her a prescription for a bottle of pills for pain "* * * which was everything I was given or anything that I was told."²

When Mrs. Morgan arrived at her home she ascertained her temperature to be 99°. She was in acute distress and was immediately put to bed. She felt worse, weighed less and was weaker than she had been in March, when she had first gone to the hospital after the radiation treatments. Her symptoms had also intensified.

After being home several days, plaintiff acceded to the urgings of her husband, family and neighbors that she seek other medical treatment. Six days after her return home she was taken by ambulance to another hospital and admitted. In the ambulance, she lay down, because, according to her testimony, "I hadn't been able to sit down in a chair for some time." In that hospital she came under the care of Dr. Charles H. Peete, Jr., an obstetrician and gynecologist, and Dr. William P. J. Peete, a surgeon. After examination and tests, Dr. Peete concluded to perform a colostomy, and the operation took place on June 28, 1963, less than a week later.

Dr. Charles H. Peete, Jr., as a result of his examination, found principally proctitis and periproctitis, a type of inflammation involving the large and small bowel, with swelling and tenderness. This was the result of infection in and around the lower bowel, with swelling, a lot of scar tissue and inflammation. He and Dr. William P. J. Peete, at first, thought this was a result of an active malignancy. Such was not the case however, and Dr. Charles H. Peete, Jr. "presumed" that the intestine was affected by radiation. In response to more specific questioning, he said that the intestine was infected from the tumor, or treatment of the tumor, or a combination of the two conditions.³ Dr. William P. J. Peete, in his testimony, characterized plaintiff's operation as not "an emergency." She has made a good recovery from the operation, although her colostomy is probably permanent.

Plaintiff's suit was filed March 12, 1965.⁴ This date was more than two years after the radiation treatments were concluded (November, 1962) but within two years after the termination of her third post-radiation hospitalization (June 16, 1963).

We must decide two questions. The first is, assuming malpractice either in the decision to use, or in the administration of radiation, in the period September to November, 1962, whether plaintiff may sue on March 12, 1965, unhindered by a plea of limitations, when she did not learn of any malpractice until March 17, 1963 at a time when she was under continuing treatment by the physicians guilty of malpractice, the purpose of which was to correct the medical problems that the malpractice caused. Next we must consider, even if the first question is answered in the negative, whether plaintiff presented sufficient proof, in the absence of direct expert medical testimony to that effect, that her hospital discharge on June 16, 1963 and the failure to advise her of the necessity of a colostomy, or to perform it on her, prior to that date constituted malpractice. These questions we must answer not by our own views of what the law is, or what the law should be, but what we perceive the courts of Virginia have said the law of Viginia is, or, to the extent the precise question has not been decided by the Viginia courts, what the law of Virginia would be.

Limitations

Virginia has a two year statute of limitations in actions ex delicto. Code of Virginia (1950 Ed) § 8-24. Virginia also is "committed * * * to the rule that in personal injury actions the limitation on the right to sue begins to run when the wrong is done and not when the plaintiff discovers that he has been damaged," even in malpractice cases. Hawks v. DeHart, 206 Va. 810, 146 S.E.2d 187, at 189 (1966).

The general problem of limitations in malpractice cases was thoroughly reviewed in the recent Maryland decision of Waldman v. Rohrbaugh, 241 Md. 137, 215 A.2d 825 (1966). There, Chief Judge Hammond, writing for the Court, acknowledged that the general and older rule in malpractice cases is that limitations begin to run from the date of the alleged wrong and not from the time that the wrong is discovered by the patient. That strict application of this rule leads to a shockingly harsh result, particularly where the advice given the patient is the claimed malpractice or where the patient is unqualified to ascertain the imperfection, was recognized. Judge Hammond pointed out that, in addition to fraudulent concealment of facts constituting negligence,⁵ courts in many jurisdictions have sought to mitigate this unenlightened standard by saying, in appropriate cases, that limitations begin to run from the time the patient first knows, or should have known, of the malpractice (the "discovery rule"), or that if treatment by the doctor is a continuing course, limitations do not begin to run until treatment by the medical man for the particular disease or condition involved has terminated (the "continuing treatment rule"), unless, of course, during the course of treatment the patient learns, or should reasonably have learned, of the harm, in which event limitations begin from the time of actual or constructive knowledge. Judge Hammond stated that, "Since about 1940 there has been a slow but steady trend towards judicial acceptance of the continuing treatment rule" (215 A.2d at p. 828), and collected the cases from courts which indicate liberality in this regard. To his collection, we would add Johnson v. St. Patrick's Hospital, Mont., 417 P.2d 469 (1966).

Judge Hammond also pointed out that recently West Virginia, another state in this Circuit, in Morgan v. Grace Hospital, Inc., W.Va., 144 S.E.2d 156 (1965), had expressly overruled two of its earlier decisions and had adopted the discovery rule in the malpractice case there considered, recognizing also that in an appropriate case the continuing treatment rule is proper. We have no difficulty in concluding that the "continuing treatment" rule is the fairer rule, but we must determine whether it is the rule in Virginia.

The Supreme Court of Appeals of Virginia has not directly decided whether the continuing treatment rule is the law of Virginia. In Hawks v. DeHart, supra, it has decided, in spite of substantial...