Scarpa v. Melzig, 870952

• Decision Date: 21 April 1989
• Docket Number: No. 870952,870952
• Citation: 379 S.E.2d 307,237 Va. 509
• Parties: JoAnn C. SCARPA v. Eric P. MELZIG, M.D., et al. Record
• Court: Virginia Supreme Court

Page 307

379 S.E.2d 307

237 Va. 509

JoAnn C. SCARPA v. Eric P. MELZIG, M.D., et al.

Record No. 870952.

Supreme Court of Virginia.

April 21, 1989.

Stephen W. Bricker (John E. Lichtenstein, Bremner, Baber & Janus, Richmond, on brief), for appellant.

Robert S. Brewbaker, Jr. (Browder, Russell, Morris & Butcher, P.C., Richmond, on brief), for appellees.

Present: All the Justices.

COMPTON, Justice.

In this medical malpractice case, we consider whether the trial court erred in ruling that the plaintiff's claim was barred by the applicable statute of limitations.

Appellant JoAnn C. Scarpa brought this action against appellees Eric P. Melzig, M.D., and Wanda L. Radford, M.D., seeking damages for injuries allegedly suffered as the result of the professional negligence of the physicians. The defendants filed a special plea of the statute of limitations.

The parties agreed to a limited stipulation of facts, which included copies of two operative reports and a hospital discharge summary, solely for the purpose of enabling the trial court to rule on the plea. Upon consideration of the stipulation and argument of counsel, the trial court sustained the plea and dismissed the action in a May 1987 final order, from which we awarded the plaintiff this appeal.

In June 1975, the plaintiff was hospitalized under the care of defendant Melzig for treatment of a pelvic infection. During an operation, Melzig removed tissue and certain body structures. In a written operative report, Melzig erroneously recorded that he had removed the plaintiff's left fallopian tube. In fact, the left fallopian tube was not among the structures removed. A hospital discharge summary, signed by Melzig and dated four days after the operation, likewise erroneously indicated removal of the left fallopian tube.

In August 1980, plaintiff was hospitalized under the care of defendant Radford because the plaintiff desired a permanent sterilization. A sterilization procedure was performed by Radford on August 5, during which the physician noted that the plaintiff's left fallopian tube was not present when, in fact, the left tube was present. Thus, Radford confined tubal ligation to the right fallopian tube; she did not ligate, cut upon, or alter the left tube.

In late March 1984, the plaintiff conceived and became pregnant, and a child was born at full term. Subsequently, during an assessment of her reproductive system, the presence of the left fallopian tube was confirmed. Thereafter, the plaintiff still desiring sterilization, was hospitalized for completion of the procedure.

On November 12, 1985, the plaintiff first gave notice of this malpractice claim, and the applicable two-year statute of limitations was tolled for a period of 120 days. Code § 8.01-581.9. The present action was filed on July 11, 1986.

In her motion for judgment, the plaintiff alleged that defendant Melzig negligently failed to describe accurately the surgical procedures he performed on the plaintiff, thereby preventing subsequent health care providers from being fully apprised of the status of her reproductive system. The plaintiff further alleged that defendant Radford was negligent either in "not adequately visualizing the left fallopian tube" or in "not ligating or attempting to ligate" the tube.

The trial court ruled that the plaintiff's cause of action against both defendants accrued and the statute of limitations commenced running on August 5, 1980. Consequently, the court held the action was untimely.

On appeal, the plaintiff contends, as she did at the trial level, that her cause of action was not time-barred in that she was not "injured," under the applicable case law and statute of limitations, until she conceived and became pregnant in March 1984. She argues that she "was never touched, never injured, and never hurt, in that part of her anatomy relevant to this suit, the left fallopian tube." She also says there was no "wrongful" injury during the 1980 procedure because "that surgery was sought by the plaintiff and consented to by her." Instead, she states, her "only hurt" occurred when she conceived through her left tube and became pregnant in March 1984, and her July 1986 action was timely. We disagree.

The applicable statute of limitations provides, as pertinent, that "every action for personal injuries, whatever the theory of recovery ... shall be brought within two years after the cause of action accrues." Code § 8.01-243(A). Accrual of the cause of action is governed by Code § 8.01-230, which provides, as pertinent, that a "cause of action shall be deemed to accrue and the prescribed limitation period shall begin to run from the date the injury is sustained in the case of injury to the person ... and not when the resulting damage is discovered...." We construe the word "injury," as used in § 8.01-230, "to mean positive, physical or mental hurt to the claimant." Locke v. Johns-Manville Corp., 221 Va. 951, 957, 275 S.E.2d 900, 904 (1981).

Moreover, when any injury, though slight, is sustained as the consequence of an alleged wrong, the right of action for a personal injury accrues and the statute of limitations begins to run at once. See Richmond Redevelopment and Housing Authority v. Laburnum Construction Corp., 195 Va. 827, 838-39, 80 S.E.2d 574, 581 (1954). It is immaterial that all the damages resulting from the wrong may not have been sustained at the time of the negligent act; the running of the statute of limitations is not postponed by the fact that substantial damages do not occur until a later date. Id. at 839, 80 S.E.2d at 581.

Therefore, the crucial question in this case becomes, as to both defendants, whether the plaintiff sustained any injury, that is, any positive, physical or mental hurt, though slight, on August 5, 1980 when the sterilization procedure was performed. The plaintiff's theory of recovery against both defendants focuses on that date as culmination of defendants' joint wrongs. She asserts that Melzig's negligent reporting in 1975 tended in 1980 to mislead Radford who negligently failed to observe that the plaintiff still possessed a left fallopian tube, and that these wrongs proximately caused her only positive, physical injury in March 1984.

The facts and circumstances of this case, however, contradict the plaintiff's contention that she sustained no injury on August 5, 1980. In the motion for judgment, the plaintiff alleged that the 1980 sterilization procedure was performed "in an inadequate and incomplete manner." According to the operative report, a general anesthesia was administered to the plaintiff, an incision was made in her stomach and a needle was inserted into the abdomen, all in connection with her desire for "permanent sterilization." Clearly, the plaintiff endured trauma, pain, and inconvenience at that time when, due to the defendants' alleged wrongful conduct, she was subjected to a wholly inadequate procedure and denied the adequate and complete sterilization which she requested.

Plaintiff's contentions that she was not injured because the left fallopian tube never was touched or hurt and that the 1980 procedure was not wrongful because she consented to it are without merit. As we have said, she sought complete neutralization of her reproductive system. Her left fallopian tube was an integral part of that system; treatment of that part was neglected, a tortious act of omission. Furthermore, the plaintiff had consented to an adequate, effective sterilization procedure, not to an inadequate and ineffective one.

Therefore, immediately upon completion of the negligently performed 1980 surgery, the plaintiff had a cause of action and a right of action to...