Sheets v. Burman

• Decision Date: 05 September 1963
• Docket Number: No. 19922.,19922.
• Parties: Mary SHEETS, Appellant, v. Richard G. BURMAN, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

322 F.2d 277 (1963)

Mary SHEETS, Appellant, v. Richard G. BURMAN, Appellee.

No. 19922.

United States Court of Appeals Fifth Circuit.

September 5, 1963.

John Ready O'Connor, Madison, Ind., Joseph H. Benvenutti, Bay St. Louis, Miss., for appellant.

Webb M. Mize, Hollis C. Thompson, Jr., R. W. Thompson, Jr., Gulfport, Miss., for appellee.

Before PHILLIPS,^* CAMERON and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

The question for decision is whether the district court properly dismissed the plaintiff's malpractice action on the defendant's motion for a summary judgment based on the Mississippi Statute of Limitations.

On November 12, 1959, the plaintiff, Mrs. Mary Sheets, brought an action for malpractice and negligence against her former doctor, Richard Burman. She alleged that he left a curvilinear surgical needle in her abdomen in February, 1947 while performing a Caesarian section operation, and that she did not discover that this was the cause of her continuing pains until October, 1957. She also alleged that "by means of artifice * * * defendant hindered plaintiff from acquiring information regarding the existence of said needle in plaintiff's abdomen," and that "defendant fraudulently and deceitfully concealed from the plaintiff his careless and negligent acts in performing said operation, and her right to demand reparation from him; that defendant's actions as aforesaid were made with intent that plaintiff, by relying on such artifices, would not make any demands on defendant for reparation and that defendant would be protected by the statute of limitations."

The operation took place in Indiana, where both parties then resided. Dr. Burman, however, moved from Indiana to Louisiana in 1950 and then back to Indiana in 1953. Early in 1954 he examined the plaintiff on one or two occasions. Later in that year, he moved to Mississippi, where plaintiff brought suit. The defendant moved for summary judgment on the ground that the action was barred by the Mississippi, Indiana, and Louisiana statutes of limitations. The district court granted the motion. The plaintiff appeals. We reverse and remand on the ground that since a material factual issue was in dispute, the district court erred in granting the summary judgment.

I.

In order for the court to issue a summary judgment under Rule 56, there must be no disputed questions of fact or conflicting inferences to be drawn from undisputed facts which, if settled against the moving party, would allow the plaintiff to recover. Stanley v. Guy Scroggins Construction Co., 5 Cir., 1961, 297 F.2d 374; Braniff v. Jackson Ave.-Gretna Ferry, Inc., 5 Cir., 1960, 280 F.2d 523. A claim barred by the applicable statute of limitations may be properly disposed of by summary judgment procedure. Ayers v. Davidson, 5 Cir., 1960, 285 F.2d 137. If, however, there is a disputed factual issue as to whether the suit was timely brought the plaintiff must be allowed to present evidence on this point. R. J. Reynolds Tobacco Co. v. Hudson, 5 Cir., 1963, 314 F.2d 776.

II.

We must first determine the applicable statute of limitations. Section 741 of the Mississippi Code of 1942 provides that

"When a cause of action has accrued in some other state or in a foreign country, and by the law of such state or country, or of some other state and country where the defendant has resided before he resided in this state, an action thereon cannot be maintained by reason of lapse of time, then no action thereon shall be maintained in this state."

Mississippi courts interpret this provision to apply only in favor of non-residents who have moved into Mississippi after a cause of action against them is barred in their former state of residence. Louisiana & Mississippi R. Transfer Co. v. Long, 1930, 159 Miss. 654, 131 So. 84; Fisher v. Burk, 1920, 123 Miss. 781, 86 So. 300; New Orleans Great Northern R. R. Co. v. Fortinberry, 1914, 107 Miss. 79, 64 So. 966; Louisville & N. R. Co. v. Pool, 1895, 72 Miss. 487, 16 So. 753. The statute does not breathe life into a cause of action which is dead in Mississippi, regardless of the viability of the claim in another state. "Its sole purpose and effect are to give to one sued in Mississippi the benefit of a bar completed elsewhere." Wright v. Mordaunt, 1900, 77 Miss. 537, 27 So. 640; Montgomery v. Yarbrough, 192 Miss. 656, 6 So.2d 305, suggestion of error overruled, 1952, 192 Miss. 656, 6 So.2d 925. Unless, therefore, Mrs. Sheets' cause of action against Dr. Burman was barred by the limitations statute of Indiana or of Louisiana before he moved into Mississippi, this provision is not relevant, and Mississippi's own statute of limitations applies.

Indiana is one of the few states which has enacted a statute fixing a special limitation period for malpractice suits. Section 2-627 of the Indiana Statutes Annotated provides:

"No action of any kind for damages, whether brought in contract or tort, based upon professional services rendered or which should have been rendered, shall be brought, commenced or maintained, in any of the courts of this state against physicians, dentists, surgeons, hospitals, sanitariums, or others, unless said action is filed within two (2) years from the date of the act, omission or neglect complained of."

The Indiana courts, however, have read an exception into the statute for cases in which there has been fraudulent concealment of malpractice acts. Thus, where there is a fiduciary relationship between the parties, as between a doctor and patient, the failure by the doctor to disclose acts of malpractice constitutes a fraudulent concealment tolling the statute of limitations. In Guy v. Schuldt, 236 Ind. 101, 138 N.E.2d 891 (1956), the Indiana Supreme Court held:

"Usually, there must be some active effort on the part of one to be guilty of concealment but where a fiduciary or confidential relationship exists, such as physician-patient, there exists a duty to disclose material information between the parties and a failure to do so results in concealment. * * * Where the duty to inform exists by reason of a confidental relationship, when that relationship is terminated the duty to inform is also terminated; concealment then ceases to exist. After the relationship of physician and patient is terminated the patient has full opportunity for discovery and no longer is there a reliance by the patient nor a corresponding duty of the physician to advise or inform. The statute of limitations is no longer tolled by any fraudulent concealment and begins to run."

A very similar rule prevails in Louisiana. In Perrin v. Rodriguez, La.App. 1934, 153 So. 555, the complaint alleged that the defendant, a dentist, failed to remove the roots of two of plaintiff's teeth which he had extracted. The dentist continued to treat the plaintiff for fourteen months. The Louisiana Court of Appeals refused to dismiss the malpractice action. The Court pointed out that although Article 3537 of the LSA-Civil Code bars a claim for damage after the lapse of one year from the day on which the injury was sustained, "there is an exception where there was no knowledge of the fact that there was damage or where, through some act of the party who caused the damage, the injured person is kept in ignorance of the fact that there has been damage or of the cause thereof." The defendant had tried for several months to alleviate the plaintiff's discomfort. Thus,

"under such circumstances, the prescriptive period did not commence to run until plaintiff discovered that he had sustained injury and that it had resulted from the negligence of defendant. So long as he continued to rely upon the professional advice of defendant, and so long as defendant continued to assure him that the pain was being caused by the denture of false teeth, there was no obligation on his

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