Newberry v. Tarvin
| Decision Date | 24 January 1980 |
| Docket Number | No. 1458,1458 |
| Citation | 594 S.W.2d 204 |
| Parties | Linda Kay NEWBERRY, Appellant, v. Charles T. TARVIN, Appellee. |
| Court | Texas Court of Appeals |
This is a medical malpractice case. Linda Kay Newberry, plaintiff, appeals from a summary judgment rendered in favor of Dr. Charles T. Tarvin, defendant. The trial court's judgment is based upon a determination that plaintiff's action is barred, as a matter of law, by Tex.Rev.Civ.Stat.Ann. art. 5526 (1958), the two-year statute of limitations.
Suit was filed on July 3, 1978. 1 In summary, plaintiff alleged: she first consulted defendant in November, 1973, who diagnosed her condition as "Asherman's Syndrome" (cervical or uterine adhesions); he treated her condition by the insertion of an intrauterine device (IUD) into her body; in November, 1974, she went to defendant's office for the removal of the IUD; defendant then hospitalized her and performed a "D & C," but did not locate the IUD; defendant suggested that plaintiff be x-rayed to determine the location of the missing IUD, but three days later told her that the same would not be necessary; defendant prescribed valium for pain; plaintiff, in June, 1976, again consulted defendant about her condition; defendant referred her to a urologist, who found no abnormality in her urinary tract; the urologist referred her to a Dr. Fox, who found a "questionable IUD palpable outside of the uterus"; Dr. Fox, on June 29, 1976, hospitalized plaintiff, located the IUD and removed the same from plaintiff's body. Plaintiff further alleged that defendant was negligent in several particulars including, among other allegations, the following: in failing to properly insert the IUD; in failing to properly supervise plaintiff's condition during the use of the IUD to determine whether such treatment was successful following his diagnosis of her ailment; in failing to discover whether the insertion of the IUD "could, in fact, relate to her continuing problem"; in failing to locate and remove the IUD; and, in failing to conduct her treatment "in a medically correct method as an ordinary prudent doctor of medicine would have."
Defendant, in both his original answer and in his motion for summary judgment, alleged that plaintiff's cause of action, if any, arose on the date that Dr. Fox surgically removed the IUD (June 29, 1976), and because plaintiff did not file this suit until July 3, 1978, her action was barred by the two-year statute of limitations. Plaintiff controverted the motion for summary judgment.
The only summary judgment evidence before the trial judge consists of an affidavit, signed by plaintiff, which, in pertinent part, reads:
"In November of 1973, Dr. Tarvin inserted an IUD (intrauterine device) into me for a treatment of a condition he diagnosed as Asherman's Syndrome. In November of 1974, I went back to Dr. Tarvin's office to have my IUD removed. He admitted me to Valley Baptist Hospital for a D & C and performed said operation on November 22, 1974. He did not locate the IUD, he told me that x-rays should be taken to locate the IUD. Three days later, when I called Dr. Tarvin, he told me I didn't need x-rays because he believed the IUD had been removed or had 'dissolved' itself.
In June of 1976, I again complained to Dr. Tarvin of pain, he referred me to a urologist. The urologist, after finding nothing abnormal in my urinary tract, referred me to Dr. Fox. Dr. Fox located the IUD, which was located in my stomach, and removed it on June 29, 1976. However, because of pain and other illnesses, I remained in the hospital, and under constant sedation until July 22, 1976.
It was after I was released that I continued to have abdominal pains and headaches, as well as vomiting and fever.
When I moved to El Paso, Texas, in November of 1976, I was still suffering from these pains, and in January of 1977, I went to a Dr. Ramon who performed surgery at Eastwood General Hospital for my problem with adhesions.
It wasn't until after my July 22, 1976, release that I realized that the IUD had traveled from my uterus into my abdomen and was causing all my pain and suffering."
The first question to be determined is whether the "discovery" rule applies in the disposition of this case.
The rule was first applied to a medical malpractice case in Gaddis v. Smith, 417 S.W.2d 577, 580 (Tex.Sup.1967), which held:
"Causes of action based upon the alleged negligence of a physician in leaving a foreign object in his patient's body are proper subjects for the 'discovery rule.' . . . we hold that the cause of action for the negligent leaving of a foreign object in a patient's body by a physician accrues when the patient learns of, or, in the exercise of reasonable care and diligence, should have learned of the presence of such foreign object in his body . . . "
Our Supreme Court, in Weaver v. Witt, 561 S.W.2d 792, 793-794 (Tex.Sup.1977) stated:
"The discovery rule referred to may be stated as the legal principle that a statute of limitations barring prosecution of an action for medical malpractice runs, not from the date of the practitioner's wrongful act or omission, but from the date the nature of the injury was or should have been discovered by the plaintiff. . . . " (emphasis in original).
The rule as originally applied in Gaddis v. Smith, supra, was expressly limited "to causes of action in which a physician leaves a foreign object in the body of his patient." The rule has since been extended to apply to medical malpractice cases other than "foreign object" cases. See Hays v. Hall, 488 S.W.2d 412 (Tex.Sup.1972), (failure of a vasectomy operation); Weaver v. Witt, supra, (negligently performed operation); Grady v. Faykus, 530 S.W.2d 151 (Tex.Civ.App. Corpus Christi 1975, writ ref'd...
To continue reading
Request your trial
-
Rodriguez v. Manhattan Medical Group, P.C.
...the patient that it was no longer present, the IUD was discovered, several years later, in the patient's body. In Newberry v. Tarvin, 594 S.W.2d 204, 205 (Tex.Civ.App.1980), defendant, who had inserted the IUD, was subsequently asked to remove it. Upon conducting a dilation and curettage (D......
-
Schmiedt v. Loewen
...the device [is] not performing any birth control chemistry in the appellant's abdominal cavity[.]” Id. See also Newberry v. Tarvin, 594 S.W.2d 204, 206 (Tex.Civ.App.1980) (concluding that an IUD, which became lost in the patient's body necessitating surgery to locate and remove, was conside......
-
Ogle v. De Sano
...considered a foreign object after the date it was supposed to have been removed before a second I.U.D. was inserted); Newberry v. Tarvin, 594 S.W.2d 204 (Tex.Civ.App.1980) (a negligently inserted I.U.D., which became lost in the patient's body necessitating surgery to locate and remove, was......
-
Harrison County Finance Corp. v. KPMG Peat Marwick, LLP
...n.r.e.) (assuming that a cause of action would not accrue if the plaintiffs had not discovered the cause of their injury); Newberry v. Tarvin, 594 S.W.2d 204, 207 (Tex.Civ.App.-Corpus Christi 1980, no writ) (when plaintiff states a cause of action against her doctor for negligently insertin......