Pittman v. Hodges

• Decision Date: 19 December 1984
• Docket Number: No. 54501,54501
• Citation: 462 So.2d 330
• Parties: Harrison V. PITTMAN v. Linda HODGES, Administratrix of the Estate of Joseph R. Hodges.
• Court: Mississippi Supreme Court

Page 330

462 So.2d 330

Harrison V. PITTMAN v. Linda HODGES, Administratrix of the Estate of Joseph R. Hodges.

No. 54501.

Supreme Court of Mississippi.

Dec. 19, 1984.

Cary E. Bufkin, Jim Bullock, Shell, Buford, Bufkin, Callicutt & Perry, Jackson, John S. Holmes, Yazoo City, for appellant.

Michael T. Lewis, Oxford, for appellee.

Before ROY NOBLE LEE, P.J., and HAWKINS and SULLIVAN, JJ.

SULLIVAN, Justice, for the Court:

This judgment based upon a jury verdict of $20,000 in favor of appellee for nerve damage to the face and mouth of Joseph Hodges is appealed from the Circuit Court of Yazoo County, Mississippi.

Three issues are raised:

I. Was this action barred by the two-year statute of limitations?

II. Was there competent medical evidence showing causal connection between appellant's treatment and Hodges' injuries?

III. Was the jury properly instructed regarding damages?

I.

WAS THE ACTION BARRED BY MISSISSIPPI CODE ANNOTATED Sec. 15-1-36 (SUPP.1984)

, THE TWO YEAR STATUTE OF LIMITATIONS ON DENTAL MALPRACTICE?

This suit was filed two years and seven days after Hodges last saw Dr. Pittman. In the interim, Hodges was divorced and ultimately died. The suit was revived in his daughter's name and when the child died was revived again by his former wife, as Administratrix of his estate.

October 5, 1978, Hodges was examined by Dr. Pittman.

October 16, 1978, Dr. Pittman extracted two wisdom teeth, packed the cavity with gauze and put two stitches across the socket.

October 23, 1978, Hodges returned to Dr. Pittman to have the packing and stitches removed. He complained to Dr. Pittman of numbness in his lip.

November 17, 1978, Hodges returned, still complaining of numbness and a feeling of material still in the socket. Dr. Pittman removed a piece of gauze from the hole in Hodges' jaw, which Pittman had overlooked on October 23, 1978. Dr. Pittman also prescribed an antibiotic.

November 27, 1978, Hodges returned to Dr. Pittman to have a stitch removed which had been overlooked by Dr. Pittman on October 23, 1978, and November 17, 1978. Dr. Pittman told Hodges the complained-of numbness might last from two to six weeks or perhaps as long as six months to a year. This was the last visit Hodges made to Dr. Pittman.

The Mississippi statute of limitations on bringing a dental malpractice action reads as follows:

No claim in tort may be brought against a ... dentist ... for injuries arising out of the course of medical or surgical treatment unless it is filed within two (2) years from the date of the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.

Sec. 15-1-36, Mississippi Code Annotated (Supp.1984).

The appellant urges that this statute begins to run from the date the alleged act or omission shall or with reasonable diligence might have been first discovered, and not from the manifestation of an effect of the alleged act. From the facts in this case and that theory, the appellant urges that when Hodges first expressed dissatisfaction with the surgery or no later than November 27, 1978, the statute of limitations was triggered. The permanence of the numbness was unknown or unpredictable at that time.

In Struthers-Wells Gulfport, Inc. v. Bradford, 304 So.2d 645 (Miss.1974), we held that the two-year workmen's compensation statute of limitations did not begin to run against a claimant who sustained a spider bite until by reasonable care and diligence it was discoverable and apparent that a compensable injury had been sustained. We pointed out in Bradford that under the statute the claim period runs from the time that a compensable injury becomes apparent, and that nothing in the Bradford record indicated that the claimant as a reasonable person should have recognized the nature, seriousness, and probable compensable character of the injury. 304 So.2d at 649. It would appear, therefore, that in Mississippi the principle relied upon by appellant to determine when the statute of limitations begins to run does not invariably focus upon the date on which the act or omission occurs; the focus is rather upon when the plaintiff discovers the injury by the exercise of reasonable care and diligence.

In Tribou v. Gunn, 410 So.2d 378 (Miss.1982), Sec. 15-1-36, Mississippi Code Annotated (Supp.1984), was applied to a case involving a series of negligent diagnoses occurring during a course of treatment lasting several years by the defendant physician. Tribou was examined by the physician concerning a lump in her breast in 1976. Two months later a pap smear by another doctor suggested some malignant growth. Tribou brought the pap smear to Dr. Gunn in January, 1977, but he maintained that she did not have breast cancer. On May 12, 1978, Dr. Gunn performed a biopsy on Tribou which revealed breast cancer and required a radical mastectomy. Tribou brought suit on March 19, 1980, and Dr. Gunn interposed the statute of limitations.

This Court held that plaintiff's suit for acts occurring prior to May 12, 1978, was not barred by the statute of limitations because the defendant did not diagnose her cancer until that date and there is nothing in the record to indicate that she could have known or discovered her cancer by the exercise of reasonable diligence by that time. This Court held that she was entitled to a trial on her claim which charged a series of negligent acts or omissions beginning in 1976, because she filed her suit within two years from the date that she discovered the acts which constituted medical malpractice. 410 So.2d at 379.

Under the theory of Tribou, appellant urges that the statute would begin to run against Hodges from the date that he first discovered his numbness or on October 23, 1978. This is incorrect. Dr. Pittman testified that he told Hodges that a numbness of this type could take from two to six weeks or even up to six months to a year to go away, and he did not tell Hodges this until November 27, 1978. In our view, Hodges was entitled to rely upon Dr. Pittman's statements that the numbness would temporarily last from two to six weeks or even longer, and only thereafter could Hodges then by the exercise of reasonable diligence have known or discovered that his numbness was permanent and would not go away.

The trial court was eminently correct when it followed this principle in ruling on appellant's motion for a directed verdict which asserted this statute of limitations. We quote the trial court as follows:

BY THE COURT: The motion will be denied. It is a question of when it reasonably could have been discovered .... The fact that he had experienced numbness in the jaw does not necessarily mean that he could have reasonably expected or suspected at that time that there was any neglect or omission, if any.

In summary, the essence of the injury to Hodges was the permanent nature of the numbness, which could not reasonably have been discovered until the period of temporary numbness described by Dr. Pittman had passed. At the very least this period was from two to six weeks, and if the minimum figure of two weeks is added to November 27, 1978, then this suit was timely filed within two years following the very earliest date at which Hodges could reasonably have discovered the permanent numbness resulting from Dr. Pittman's treatment. The first assignment of error is, therefore, without merit.

II.

WAS THERE COMPETENT MEDICAL EVIDENCE SHOWING CAUSAL

CONNECTION BETWEEN DR. PITTMAN'S TREATMENT AND THE

INJURIES OF HODGES?

During the direct examination of Dr. Elgene G. Mainous, chairman of oral maxillofacial surgery at the University of Mississippi Medical Center, who testified as an expert on behalf of Hodges, the following took place:

Q Dr. Mainous, do you have an opinion as to the cause of numbness based on a reasonable degree of medical certainty and related to the same hypothetical which I posed to you earlier? Do you have such an opinion?

A Well--

Q As to the cause of numbness?

A There could be three possible causes of numbness. One, the--the nerve could have been damaged during the surgical procedure. Two, the nerve could be damaged from exerting extreme pressure on a material that does not change its intensity when it's in the presence of a solution. And three, the presence of infection secondary to a foreign body that doesn't resorb.

Dr. Mainous also testified that in his opinion the use of the xrays in question as a diagnostic tool prior to surgery did not conform to the standard of care in Yazoo City, Mississippi.

Based upon this response, Dr. Pittman urges that the peremptory instruction should have been granted because by setting forth three alternative actions the testimony of Dr. Mainous was incompetent to prove proximate cause. The incompetency theory arises because Dr. Mainous expressed his opinion in terms of medical possibilities, and not probabilities. That medical probability is required by our law is supported by our decision in Garrett v. Wade, 259 So.2d 476 (Miss.1972) to the effect that:

This Court has consistently held that medical testimony is not probative unless it is in the terms of probabilities and not possibilities. In Scott County Co-Operative v. Brown, 187 So.2d 321 (Miss.1966), we held that the doctor's statement that he was of the opinion that the mental condition "could have been caused" by the accident was insufficient to justify submitting to the jury the question of causal connection between the malady and the accident. This Court has ruled to the same effect in Morrell & Company v. Shultz, 208 So.2d 906 (Miss.1968); Kramer Service, Inc. v. Wilkins, 184 Miss. 483, 186 So. 625 (1939); Mutual Benefit Health & Accident Association v. Johnson, 186 So. 297 (Miss.1939); Teche Lines, Inc. v. Bounds, 182 Miss. 638, 179 So. 747 (1938); Berryhill v. Nichols, 171 Miss. 769, 158 So. 470 (1935).

In Scott County Co-Op v. Brown, cited in Garrett v. Wade, supra, this Court made a careful reading of all of the...