RCA Mut. Ins. Co. v. Sanborn

• Citation: 918 S.W.2d 893
• Decision Date: 14 February 1996
• Docket Number: No. 19989,19989
• Parties: RCA MUTUAL INSURANCE COMPANY, a Corporation, Plaintiff-Respondent, v. John SANBORN, Defendant-Appellant, and Gregory Henry, D.O., Defendant.
• Court: Missouri Court of Appeals

Page 893

918 S.W.2d 893

RCA MUTUAL INSURANCE COMPANY, a Corporation, Plaintiff-Respondent, v. John SANBORN, Defendant-Appellant, and Gregory Henry, D.O., Defendant.

No. 19989.

Missouri Court of Appeals,

Southern District,

Division One.

Feb. 14, 1996.

Motion for Rehearing or Transfer

Denied March 7, 1996.

Application to Transfer Denied

April 23, 1996.

Appeal from the Circuit Court, Newton County; Timothy W. Perigo, Judge.

Glenn R. Gulick, Jr., Hershewe & Gulick, P.C., Joplin, for appellant.

Gregory W. Aleshire, Turner, Reid, Duncan, Loomer & Patton, P.C., Springfield, for respondent.

MONTGOMERY, Presiding Judge.

This appeal arises from a declaratory judgment action brought by RCA Mutual Insurance Company (RCA) against its insured, Dr. Gregory Henry (Dr. Henry), and John Sanborn (Sanborn), Dr. Henry's former patient. ¹ Earlier, Sanborn had filed a malpractice suit on February 13, 1992, against Dr. Henry alleging negligent treatment and surgery on his right hip (the underlying action).

While the underlying action was pending Sanborn and RCA entered into a settlement agreement whereby RCA (1) paid Sanborn $200,000 for a release of Dr. Henry's liability to him, (2) agreed to litigate the instant declaratory judgment action to a conclusion for a determination of whether more than one $200,000 policy limit was owed to Sanborn, and (3) agreed to pay Sanborn an additional $200,000 if it was determined that coverage under two or more policies issued by RCA to Dr. Henry applied to Sanborn's claim.

The trial court determined that Sanborn was entitled to only the $200,000 previously paid by RCA. Sanborn appeals.

The facts are undisputed. For the purposes of the instant action, RCA admitted that the facts pleaded in Sanborn's original petition are true. Pertinent portions of that petition allege:

4. On or about February 2, 1988, John Sanborn presented himself at the office of Gregory Henry, D.O. for evaluation of right hip pain. Radiographs revealed arthritis in the right hip. Dr. Henry assumed the medical care and treatment of Plaintiff John Sanborn.

5. On or about June 23, 1988, Mr. Sanborn was admitted to Oak Hill Hospital and underwent a total replacement arthroplasty of the right hip, utilizing an AML femoral prosthesis and a 58 mm. acetabular component. Mr. Sanborn was discharged on or about July 5, 1988.

6. During an office visit with Gregory Henry, D.O. on or about February 14, 1989, an x-ray revealed an unstable hip with loosening and dislocation of the prosthesis, with the acetabular component rotated.

7. On or about February 24, 1989, John Sanborn underwent a revision surgery at Oak Hill Hospital. The ball of the prosthesis was removed and replaced. An x-ray taken on or about February 24 revealed that the cup of the acetabulum was more superiorly placed, and that the cup was slightly out of the upper portion of the acetabulum when compared with the x-ray taken on or about June 24, 1988.

8. On or about April 11, 1989, John Sanborn complained of right hip pain and right leg pain with swelling. Thereafter, Dr. Henry recommended an acetabular cup revision.

9. On or about August 12, 1990, John Sanborn was re-admitted to Oak Hill Hospital. X-rays taken at this time confirmed the presence of a dislocation/subluxation and showed further malposition of the acetabular component. On or about August 14, 1990 John Sanborn underwent another revision surgery where the AML ball was removed, the hip was disarticulated, and the fractured polyethylene insert was removed. The acetabulum was debrided and the metal back portions of the cup were removed. A new cup was seated and fixed with three cancellous bone screw[s]. The hip was realigned. Post-operative x-rays revealed the prosthetic acetabulum was placed approximately four to five centimeters too high and was superiorly uncovered.

10. Radiographs taken on or about October 7, 1991 revealed malposition of the acetabular cup, which was also uncovered superiorly.

11. As a result of the malposition, Plaintiff John Sanborn has suffered a shortening of his right lower extremity and a permanent functional impairment and instability of the right hip and extremity.

12. Plaintiff John Sanborn was under the continuous care and treatment of Defendant Gregory Henry D.O. until September, 1991.

RCA does not deny that Dr. Henry was negligent in one or more respects in performing each of the three surgeries. In reaching the aforesaid settlement, the parties' main concern was whether one or more of Dr. Henry's four insurance policies with RCA, covering the time period from February 1988 to September 1991, were applicable to Sanborn's claim.

The four policies were issued from RCA to Dr. Henry beginning on July 1, 1987, to July 1, 1988, and for the same time period in each of the next three years. Each policy contained a different policy number, and each was found by the trial court to be "a renewal and continuation of a preceding policy."

Dr. Henry's policies provide that RCA will pay on his behalf all sums which he "shall be legally obligated to pay as damages because of injury to which this insurance applies caused by a medical incident." ² The policies define "medical incident" as meaning "any act or omission ... in the furnishing of ... professional services" by Dr. Henry and concludes the definition with this paragraph:

Any such act or omission together with all related acts or omissions in the furnishing of such services to any one person shall be considered one medical incident.

The policies contain a limit of $200,000 for each "medical incident" with an annual aggregate of $600,000.

RCA's petition in this case sets forth most of the above-mentioned facts, including an allegation that Sanborn was under the continuous care and treatment of Dr. Henry from February 2, 1988, until September 1991. The petition further alleged that (1) Sanborn's claim constituted one "medical incident," and he was only entitled to the one policy limit of $200,000 previously paid, (2) contrary to paragraph 12 of Sanborn's petition, he now claims his three surgeries constitute three separate and distinct torts entitling him to three $200,000 policy limits, and (3) if each surgery is found to be a separate tort, then any claims by Sanborn arising before his last surgery are barred by the two-year statute of limitation, § 516.105, RSMo 1986. ³ RCA prayed for a determination of the parties' rights under the four policies and for findings consistent with the allegations of the petition.

The trial court entered findings of fact and conclusions of law along with the following judgment:

NOW, THEREFORE, the Court hereby orders and decrees (a) that the acts or omissions by Dr. Henry at the time of the initial surgery performed on Sanborn on June 23, 1988 and the revision surgeries thereafter performed on February 24, 1989 and August 14, 1990 constitute "Separate medical incidents" under the provisions of Dr. Henry's liability policies. (b) that even though this Court did find that each of the three surgical procedures performed by Dr. Henry constitutes a separate tort, that any claims by Sanborn for the surgical procedure on June 23, 1988, was barred by the Statute of Limitations under § 516.105 R.S.Mo. (1976) on June 23, 1990; and that the revision surgery performed on February 24, 1989 was barred by the applicable two-year Statute of Limitations on February 24, 1991; and further that in that event, Sanborn's recovery would be limited to the $200,000.00 which has already been paid by RCA to Sanborn.

Sanborn's lone point relied on alleges that the trial court erred in determining his first two surgeries were time-barred because the statute was tolled by Dr. Henry's continuous treatment of his right hip. Sanborn alleges that each of his three surgeries were negligently performed, "the first for total hip replacement; the second included replacement of the femoral component and replacement/repositioning of the acetabular component; and the third involved relocation of the acetabular cup and replacement with a different type of fixation for the cup."

The standard of review for this court-tried case is set forth in Continental Casualty Co. v. Medical Protective Co., 859 S.W.2d 789 (Mo.App.1993). "The trial court's decision will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Id. at 791. Here, the trial court erroneously declared that Sanborn's claim regarding his first two surgeries was time-barred because the running of the two-year period of limitation was tolled by reason of Sanborn's continued treatment by Dr. Henry.

This exception to the running of § 516.105 was first declared by the Missouri Supreme Court in Thatcher v. De Tar, 351 Mo. 603, 173 S.W.2d 760 (1943). ⁴ The Thatcher rule is discussed and well analyzed in Shaw v. Clough, 597 S.W.2d 212 (Mo.App.1980). Shaw dictates the result reached here because the facts are essentially identical in each case.

In Shaw, the defendant performed corrective cervical surgery on plaintiff on March 13, 1975. During the surgery defendant obtained bone plugs for cervical fusion from plaintiff's anterior right thigh and, in doing so, entrapped plaintiff's lateral femoral cutaneous nerve. After plaintiff complained of leg pain, defendant performed surgery on him on August 25, 1975, to correct the nerve problem. Suit was filed on April 20, 1977.

The trial court sustained defendant's motion for summary judgment finding that plaintiff's claim was time-barred under § 516.105. On appeal, the appellate court reversed and remanded the cause for trial because the statute did not commence running until defendant's treatment of plaintiff had terminated.

In rejecting an argument that plaintiff failed to plead specific negligent acts of defendant after the first surgery, the Shaw court...