Pedersen v. Zielski

• Decision Date: 06 December 1991
• Docket Number: No. S-3694,S-3694
• Citation: 822 P.2d 903
• Parties: Einar R. PEDERSEN, Appellant, v. Michael ZIELSKI, M.D.; Emergency Room, Inc.; Fairbanks Memorial Hospital; Lutheran Hospital and Home Society of America, Inc.; Michael J. Flannery, M.D.; William Kibbey, M.D.; Tony Diaz, M.D., Appellees.
• Court: Alaska Supreme Court

Page 903

822 P.2d 903

Einar R. PEDERSEN, Appellant, v. Michael ZIELSKI, M.D.; Emergency Room, Inc.; Fairbanks Memorial Hospital; Lutheran Hospital and Home Society of America, Inc.; Michael J. Flannery, M.D.; William Kibbey M.D.; Tony Diaz, M.D., Appellees.

No. S-3694.

Supreme Court of Alaska.

Dec. 6, 1991.

Rehearing Denied Jan. 27, 1992.

Michael W. Flanigan, Clark, Walther & Flanigan, Anchorage, for appellant.

R. Collin Middleton, Middleton, Timme & McKay, Anchorage, for appellees Zielski, M.D. and Emergency Room, Inc.

Howard A. Lazar, Delaney, Wiles, Hayes, Reitman & Brubaker, Inc., Anchorage, for appellees Fairbanks Memorial Hosp. and Lutheran Hospitals and Homes Soc. of America, Inc. Sanford M. Gibbs, Hagans, Brown, Gibbs & Moran, Anchorage, for appellee Tony Diaz, M.D.

Marcus R. Clapp, David F. Leonard, Hughes, Thorsness, Gantz, Powell & Brundin, Fairbanks, for appellees Flannery, M.D. and Kibbey, M.D.

Before RABINOWITZ, C.J., BURKE, MATTHEWS, and COMPTON, JJ. [Moore, Justice, not participating.]

OPINION

MATTHEWS, Justice.

In this medical malpractice case the trial court granted summary judgment in favor of the defendants based on the statute of limitations. ¹ We conclude that genuine issues of material fact exist as to when the cause of action accrued and whether defendant Michael J. Flannery, M.D., is estopped from relying on the statute of limitations. We therefore reverse.

FACTS ²

On November 22, 1983, Einar Pedersen was injured in a two-car collision near Fairbanks. Pedersen's aorta was severed in the accident. He was brought to Fairbanks Memorial Hospital where immediate corrective surgery was performed by Drs. Michael J. Flannery and William Kibbey. The severed ends of the aorta were clamped for a total of forty-four minutes in order to stop the flow of blood during reattachment. After the operation, Pedersen's legs were permanently paralyzed.

Pedersen filed suit against Flannery, Kibbey, and the other appellees on November 8, 1988, claiming that his paralysis was caused by medical malpractice. Specifically, he claimed that clamping his aorta for forty-four minutes kept blood from flowing to his spinal cord for too long, causing paralysis. He alleges: "Reasonably competent and experienced Vascular/Thoracic Surgeons are aware of this potential hazard and avoid clamping the aortic heart vessels in such circumstance[s] to less than 30 minutes or use a shunt to provide blood flow around the clamped area during the operative procedures."

Following the operation Pedersen asked Dr. Flannery what had caused his paralysis. Dr. Flannery told him that "he wasn't sure but that [it] could have been caused by [the] spinal cord swelling due to a blow to the spine ... or because of lack of blood flow to the legs." Pedersen was transferred from Fairbanks Memorial Hospital to Providence Hospital in Anchorage in early December 1983. There he asked Dr. Emery what had caused his paralysis. Dr. Emery replied that "it was a combination of factors including blood loss from damaged aorta [and] swelling of the spinal cord." Neither Dr. Flannery nor Dr. Emery gave an indication that the operation had caused Pedersen's paralysis.

Pedersen's wife, Gloria, also discussed the cause of Pedersen's paralysis with Dr. Flannery. She states that Dr. Flannery

explained ... that the aorta was severed like a garden hose, and that he had to reattach the aorta, and that he had to work fast to accomplish this in 20 minutes, or damage to the spinal cord could occur. I took this to mean that he accomplished the operative procedures in twenty minutes. He did not say it actually took him 44 minutes to accomplish the procedure. He also said that despite his efforts, spinal cord damage could occur because of lack of blood, or bruising of the spinal cord, which he said had occurred. He also said the paralysis might not be permanent or total, and that only time would tell as to that.

She states that she discussed the operation with Pedersen but

it never occurred to us that Dr. Flannery or Kibbey had done anything wrong. Quite the contrary since Dr. Flannery had left us both with the impression that he had saved Einar's life, and had accomplished the operative procedures just as he had planned them.

The Fairbanks Memorial Hospital records tell a somewhat different story. Dr. Flannery's discharge summary states: "The biggest problem was that post[-]operatively the patient had an anterior spinal cord syndrome secondary to repair of the transected thoracic aorta." The records also show that Pedersen's aorta was clamped for approximately forty-four minutes. Although the records were available to Pedersen at the time he was discharged from Fairbanks Memorial Hospital on December 5, 1983, he did not obtain or review them then.

Pedersen retained an attorney, Bob Beconovich, on or about December 30, 1983, initially for the purpose of defending him on the traffic ticket which he had been issued as a result of the accident. Eventually Beconovich was instructed to look into potential claims for Pedersen's injury. In the process of doing so, Beconovich associated with another attorney, Paul Barrett. Potential claims against the other driver, and against the manufacturer of Pedersen's vehicle, Ford Motor Company, were investigated but were found to be unsupportable. Sometime in the spring of 1985, Pedersen was referred to his current counsel, Michael Flanigan. Flanigan was interested in the potential claim against Ford Motor Company. He retained experts to investigate it and had Pedersen obtain his medical records from Fairbanks Memorial Hospital for review by these experts. The medical records were obtained in June of 1985. A few months later suit was filed against Ford.

During the suit against Ford, Flanigan obtained a set of medical records to produce for Ford and for review by Pedersen's biomechanical experts. At this point, Flanigan reviewed the medical records and states that he saw nothing in them which suggested a medical malpractice claim to him.

In the summer of 1988, one of Pedersen's experts in the Ford case called Flanigan to tell him that medical malpractice may have occurred during the operation performed by Drs. Flannery and Kibbey. At about the same time, Flanigan received a similar report from Ford's counsel, who had obtained similar information from an expert he had retained. Thereafter, on November 8, 1988, this suit was filed.

DISCUSSION

A. Statute of Limitations

The parties agree that this action is governed by AS 09.10.070 which requires an action to be brought within two years "after the cause of action had accrued." AS 09.10.010. Ordinarily, a personal injury action "accrues" when the plaintiff is injured. However, Alaska, along with most other American jurisdictions, has adopted the discovery rule under which the statute does not begin to run until the claimant discovers, or reasonably should have discovered, the existence of the elements essential to his cause of action. Mine Safety Appliances Co. v. Stiles, 756 P.2d 288, 291 (Alaska 1988).

The discovery rule first gained general currency in medical malpractice cases where its need was felt most strongly when the medical injury did not manifest itself until after the statute of limitations had run. W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts § 30, at 166-67 (5th ed. 1984). The rule soon spread to malpractice cases brought against other professionals, e.g., Greater Area Inc. v. Bookman, 657 P.2d 828 (Alaska 1982) (attorney malpractice), and then to tort cases in general. E.g., Hanebuth v. Bell Helicopter Int'l, 694 P.2d 143, 144 (Alaska 1984) ("[I]t is the nature of the problems faced by plaintiff in discovering his injury and its cause, and not the occupation of the defendant, that governs the applicability of the discovery rule.") (quoting Stoleson v. United States, 629 F.2d 1265, 1269 (7th Cir.1980)).

Although the need for the discovery rule is most clear in cases where the plaintiff's injury is undiscovered and reasonably undiscoverable within two years after it was caused, it also applies to cases where the injury is known but its cause is unknown and reasonable diligence would not lead to its discovery. Hanebuth, 694 P.2d at 143 (helicopter crash wreckage not discovered until eight years after accident).

The formulation of the discovery rule which we typically employ, namely that a cause of action does not accrue until a plaintiff "discovers, or reasonably should discover, the existence of all the elements of his cause of action," State, Dep't of Corrections v. Welch, 805 P.2d 979, 982 (Alaska 1991), is broad enough to cover other undiscovered and reasonably undiscoverable elements such as whether the cause of the injury was tortious. ³ Pedersen, in the present case, argues that he did not know, and had no reason to know, either that the operation was the cause of his paralysis or that the operation was negligently performed.

The purpose of statutes of limitations is to eliminate the injustice which may result from the litigation of stale claims. Johnson v. City of Fairbanks, 583 P.2d 181, 187 (Alaska 1978). Statutes of limitations should be capable of application without engendering extensive litigation before the case on the merits is litigated. Thus, in theory, the statutes of limitations should begin to run on the occurrence of a definite event.

Application of the discovery rule, however, is dependent on facts that are often unclear. When a plaintiff first learned of an injury or its cause is a fact which may sometimes be in dispute. When a plaintiff first should have learned of an injury or its cause is frequently debatable. See Welch, 805 P.2d at 982. ⁴

Reasonable minds may differ as to whether Pedersen should have discovered that the operation was probably the cause of his paralysis prior to two years before he filed suit on November 8, 1988. The statement in Pedersen's hospital records that he...