Reis v. Cox

• Decision Date: 27 December 1982
• Docket Number: No. 13856,13856
• Citation: 660 P.2d 46,104 Idaho 434
• Parties: Susan Gardner REIS, Plaintiff-Appellant, v. George T. COX, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 46

660 P.2d 46

104 Idaho 434

Susan Gardner REIS, Plaintiff-Appellant, v. George T. COX, Defendant-Respondent.

No. 13856.

Supreme Court of Idaho.

Dec. 27, 1982.

Rehearing Denied March 29, 1983.

Lloyd Webb and Monte B. Carlson, of Webb, Burton, Carlson, Pedersen & Paine, Twin Falls, for plaintiff-appellant.

Wesley F. Merrill, of Merrill & Merrill, Pocatello, for defendant-respondent.

BAKES, Chief Justice.

This appeal is taken from a summary judgment entered in favor of the defendant doctor in a medical malpractice action. The action arose from the defendant respondent's alleged failure to remove a Penrose surgical drain from the plaintiff appellant's abdomen following surgery. Summary judgment was entered on the ground that the applicable statute of limitations, I.C. § 5-219(4), had run, barring plaintiff's cause of action. The primary issue to be decided on appeal is whether the trial court erred in concluding that there were no genuine issues of material fact which would preclude the granting of a summary judgment, and that the defendant respondent was entitled to judgment as a matter of law because the statute of limitations had run. We find that there are disputed questions of material fact, to be resolved by the trier of fact, and reverse the order of the lower court.

The factual dispute centers on when plaintiff acquired knowledge or, by the exercise of reasonable care, should have been put on inquiry regarding her condition. On August 12, 1974, defendant respondent, Dr. George T. Cox, performed an abdominal hysterectomy on Susan Reis, the plaintiff appellant. He inserted a Penrose drain to prevent the accumulation of fluids which might hinder the healing process. Subsequently, when defendant removed the drain, an edge of the drain appeared uneven and irregular. The defendant's suspicion that a portion of the drain might remain in the plaintiff is evidenced by the following notation made on his progress report: "Drain removed. ? Some remains." The defendant, however, admitted that he made no attempt to determine whether a portion of the drain actually remained in the plaintiff. He testified that he chose not to tell plaintiff of the possibility of the remaining drain for medically sound reasons, thinking that if a portion of the drain did remain it would later manifest itself and could then be removed.

The record discloses that the plaintiff experienced recurring pain and abcesses in her abdominal area. She testified that she complained to the defendant that she felt like there was something inside of her, but that defendant ignored her complaints. Defendant, on the other hand, testified that plaintiff never complained of problems along the incisional line and that she exhibited no symptoms which would prompt him to inquire about any problems.

By early 1976, plaintiff decided not to return to Dr. Cox's care. Instead she sought medical attention from other doctors during the following months for various ailments, including pain or infection near the hysterectomy scarline. On occasion various doctors observed bulging in the incisional area, inflammation and tenderness, and generally prescribed antibiotics and heat packs for treatment.

In July, 1977, nearly three years after the surgery and while plaintiff was residing in Woodstock, Illinois, her condition worsened. Tenderness and inflammation around the area was noted by Dr. Reyes on July 14, 1977; an emergency room physician noted a skin reaction around the incisional line on July 16, 1977. Finally, on July 25, 1977, Dr. Reyes felt a lump in the front of the abdominal wall. X-rays taken at his request on July 26, 1977, showed a radiopaque mass in the plaintiff's abdomen. The object, however, was unidentifiable. Dr. Reyes testified that he felt that the mass appearing in the X-rays was an undissolved stitch and referred plaintiff to his associate, a surgeon, Dr. Abando. Dr. Abando admitted that he could not identify the composition of the mass on the basis of the X-rays alone, but suspected it to be a surgical sponge.

The record indicates that Dr. Abando contacted the defendant in Pocatello. According to the defendant's records, they had telephone conversations on July 27 and 29, pursuant to which the defendant sent plaintiff's medical records to Dr. Abando. The defendant failed to include the progress report which contained the notation concerning the possibility of a remaining Penrose drain. He testified in his deposition, however, that during their telephone conversations, he made Dr. Abando aware of the possibility of a remaining drain. Dr. Abando's testimony was that he asked whether there was any sponge count or drain left, and that defendant replied only that the sponge counts were correct. Thus, the inference can be drawn from Dr. Abando's testimony that Dr. Cox made no mention of the drain.

The trial court, in its opinion granting summary judgment, stated that "on August 3, 1977, Dr. Abando advised plaintiff that she, in fact, had a foreign object within her body which was apparently left there at the time of the surgery performed by the defendant." Plaintiff contends, however, that the record does not disclose that Dr. Abando ever described the foreign body or object to her or that she was told that the foreign body could be attributed to the operation performed by the defendant until after the surgery.

Dr. Abando operated on plaintiff on August 12, 1977, at which time he identified the mass seen on the X-ray as a Penrose drain, encrusted in calcium. Plaintiff admits that she was advised after the operation that it had been left in her abdomen by the defendant.

Plaintiff filed for a prelitigation hearing panel with the State Board of Medicine on August 8, 1978, ¹ tolling the statute of limitations, and filed a complaint charging the defendant with negligence on February 8, 1979. The defendant filed a motion for summary judgment on the basis that the statute of limitations had run. The trial court held that "the plaintiff knew or should have known of the foreign object within her body on or before August 3, 1977," and held, "as a matter of law that her failure to file for prelitigation panel until August 8, 1978, bars her recovery."

The question before us on appeal is whether the record supports the trial court's conclusion that plaintiff's claim was barred by the statute of limitations as a matter of law. I.C. § 5-219(4), the statute of limitations applicable to professional malpractice actions, provides, in relevant part:

"[W]hen the action is for damages arising out of the placement and inadvertent, accidental or unintentional leaving of any foreign object in the body of any person by reason of the professional malpractice of any hospital, physician or other person or institution practicing any of the healing arts ... the same shall be deemed to accrue when the injured party knows or in the exercise of reasonable care should have been put on inquiry regarding the condition or matter complained of; ... provided further, that an action within the foregoing foreign object ... [exception] must be commenced within one (1) year following the date of accrual as aforesaid or two (2) years following the occurrence, act or omission complained of, whichever is later." (Emphasis added.)

Therefore, whether plaintiff's claim was barred by the applicable one year limitation period hinges on a determination of when plaintiff's cause of action accrued, or, more specifically, when plaintiff "[knew] or in the exercise of reasonable care should have been put on inquiry regarding the condition or matter complained of."

Plaintiff alleges that her cause of action did not accrue until August 12, 1977, the date the foreign object disclosed by the X-rays was removed from her abdomen and positively identified as a Penrose drain. Alternatively, plaintiff alleges that the question of when an injured party is put on notice of her claim is one of fact to be decided by the trier of fact.

The defendant, on the other hand, claims that the one year period began to run no later than August 3, 1977, when Dr. Abando allegedly confirmed, on the basis of the X-rays, the presence of the unidentifiable foreign object, and allegedly stated that it could be attributed to the prior surgery performed by the defendant. The defendant argues that the information learned on August 3, 1977, put plaintiff on inquiry of her claim, thus causing her cause of action to accrue. Without acknowledging the disputed testimony concerning whether Dr. Abando informed plaintiff that the foreign object was present as a result of the earlier surgery, the trial court agreed with the defendant's position, holding, as a matter of law, that the plaintiff knew or should have known of the foreign object within her body on or before August 3, 1977.

Summary judgment can be granted only where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. I.R.C.P. 56(c); Smith v. Boise Kenworth Sales, Inc., 102 Idaho 63, 625 P.2d 417 (1981); Schaefer v. Elswood Trailer Sales, Inc., 95 Idaho 654, 516 P.2d 1168 (1973). In ruling on a summary judgment motion, the facts are to be liberally construed in favor of the party opposing the motion; he is to be given the benefit of all favorable inferences which might reasonably be drawn from the evidence. Taylor v. Choules, 102 Idaho 222, 628 P.2d 1056 (1981). If the record contains conflicting inferences or reasonable minds might reach different conclusions, a summary judgment must be denied. Farmers Ins. Co. of Idaho v. Brown, 97 Idaho 380, 544 P.2d 1150 (1976).

The time when a cause of action accrues may be a question of law or a question of fact, depending upon whether any disputed issues of material fact exist. See Brown v. Babcock, 273 Or. 351, 540 P.2d 1402 (1975). Where there is no dispute over any issue of material fact regarding when the cause of action accrues, the question is one of law...