Reed v. Guard

• Decision Date: 19 June 2008
• Docket Number: No. 07-1231.,07-1231.
• Citation: 285 S.W.3d 662
• Parties: Tommie REED, Appellant, v. Peggy GUARD, M.D., Individually; Peggy Guard, M.D., Owner of Arkansas Clinic for Women; Arkansas Clinic for Women, Appellees.
• Court: Arkansas Supreme Court

285 S.W.3d 662

Tommie REED, Appellant, v. Peggy GUARD, M.D., Individually; Peggy Guard, M.D., Owner of Arkansas Clinic for Women; Arkansas Clinic for Women, Appellees.

No. 07-1231.

Supreme Court of Arkansas.

June 19, 2008.

Wilson Law Firm, P.A., by: E. Dion Wilson, Helena, and Gary V. Austin, Helena, for appellant.

Friday, Eldredge & Clark, LLP, by: Kathryn A. Kirkpatrick, Little Rock, for appellees.

TOM GLAZE, Justice.

In this appeal, we are asked to consider what constitutes a "foreign object" that would toll the two-year statute of limitations in a medical malpractice action. See Ark.Code Ann. § 16-114-203(b) (Repl. 2006).

Appellant Tommie Reed was a patient of Appellee Dr. Peggy Guard, a gynecologist in Little Rock; Dr. Guard treated Reed for a variety of complaints from August 1995 until January of 1997, when Dr. Guard recommended that Reed have a total hysterectomy. The surgery was performed on January 21, 1997. After the surgery, Reed complained of abdominal pain and numbness and was told that it was the result of nerves being severed during the surgery. Reed continued to have abdominal problems, and she eventually saw a gastroenterologist, who diagnosed her with gall bladder disease and removed her gall bladder.

In 2002, Reed moved to Memphis. She continued to suffer various symptoms, including bloating, and in 2004, her doctor in Memphis performed an ultrasound and discovered a mass in her abdomen. Reed had surgery to remove the mass on August 17, 2004, at which time it was discovered that her left ovary, which was supposed to have been removed during the 1997 hysterectomy, was still intact.

Reed filed a medical malpractice suit against Dr. Guard on August 11, 2005. She took a voluntary nonsuit of her claims on January 13, 2006, and refiled her complaint on January 11, 2007. Dr. Guard responded with a motion to dismiss in which she alleged that, because Reed's cause of action accrued in January 1997, the statute of limitations had expired.

The circuit court held a hearing on Dr. Guard's motion to dismiss on August 7, 2007. At the hearing, Reed argued that the two-year statute of limitations should have been tolled by operation of either the "foreign-object exception" or fraudulent concealment. On August 16, 2007, the circuit court entered an order granting Dr. Guard's motion on the grounds that the foreign-object exception did not apply and that the statute of limitations had expired; Reed's complaint was dismissed with prejudice. Reed filed a timely notice of appeal on September 12, 2007, and argues on appeal that the circuit court erred in dismissing her complaint.

In her first argument on appeal, Reed argues that the "foreign-object exception" to the general two-year statute of limitations for medical malpractice actions should apply "to body organs that were not removed during surgery." The statute of limitations is found in Ark.Code Ann. § 16-114-203, which provides, in relevant part, as follows:

(a) Except as otherwise provided in this section, all actions for medical injury shall be commenced within two (2) years after the cause of action accrues.

(b) The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time. However, where the action is based upon the discovery of a foreign object in the body of the injured person which is not discovered and could not reasonably have been discovered within such two-year period, the action may be commenced within one (1) year from the date of discovery or the date the foreign object reasonably should have been discovered, whichever is earlier.

(Emphasis added.)

When the running of the statute of limitations is raised as a defense, the defendant has the burden of affirmatively pleading this defense; moreover, once it is clear from the face of the complaint that the action is barred by the applicable limitations period, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of limitations was in fact tolled. Meadors v. Still, 344 Ark. 307, 312, 40 S.W.3d 294, 298 (2001).

In this case, Dr. Guard affirmatively pled that the statute of limitations had expired two years after her treatment of Reed, in January of 1999. Because Reed did not file her lawsuit until August 2005, it was her burden to prove that the statute of limitations was tolled. Reed urges that her remnant ovary is a "foreign object" that she did not and could not reasonably have discovered within the two years following her hysterectomy. Therefore, she urges, the statute of limitations was tolled until such time as she "discovered" that the ovary had not been removed, which she claims was at the time of the 2004 ultrasound.

For Reed's argument to have merit, this court would have to hold that a person's own internal organ constitutes a "foreign object" when it is left behind after a surgery that was intended to remove it. While § 16-114-203 does not define "foreign object," this court has held that the "typical foreign object case . . . involve[s] the inadvertent leaving of objects in a patient's body[.]" Skaggs v. Johnson, 323 Ark. 320, 325, 915 S.W.2d 253, 256 (1996). For example, in what appears to be this state's oldest foreign-object case, a one-and-a-half inch ball of surgical gauze was determined to be a foreign object that the surgeon should have known had been left in the patient's abdomen. Burton v. Tribble, 189 Ark. 58, 70 S.W.2d 503 (1934). In Owen...