Smith v. Sanders
| Decision Date | 12 March 1986 |
| Docket Number | No. 56169,56169 |
| Parties | Grady SMITH v. Dr. Harvey C. SANDERS. |
| Court | Mississippi Supreme Court |
Gary L. Bates, Jackson, for appellant.
Jimmie D. Reynolds, Jr., Steen, Reynolds, Dalehite & Currie, Jackson, for appellee.
Before ROY NOBLE LEE, P.J., and SULLIVAN and ANDERSON, JJ.
The Circuit Court of Hinds County, Mississippi, Charles T. Barber, circuit judge, granted a summary judgment on the ground that this medical malpractice action was barred by the two-year statute of limitations.
Smith sued Sanders on April 5, 1983, alleging that some time in July, 1978, the doctor had examined and treated him but either failed to properly diagnose his problem or failed to render the proper treatment after the diagnosis.
On April 28, Sanders filed his answer and his second affirmative defense was that this cause was barred by Mississippi Code Annotated Sec. 15-1-36 (Supp.1985), the two-year statute of limitations applicable to medical malpractice. Under this defense, Sanders moved to dismiss the case with prejudice.
The court entered an order sustaining the statute of limitations defense, but granted Smith leave to amend and on May 13, 1983, Smith's amended declaration was filed. A new claim alleged that Smith with reasonable diligence could not have discovered his injuries within two years of Sanders' treatment and that he did file his action within two years after discovering the injuries.
Sanders again raised the statute of limitations and moved for summary judgment pursuant to Rule 56(b) Mississippi Rules of Civil Procedure. On November 13, 1984, a motion for summary judgment was granted and the case was dismissed with prejudice.
WHEN DID THE CAUSE OF ACTION ACCRUE, THEREBY TRIGGERING THE
The relevant portion of Sec. 15-1-36 is as follows:
No claim in tort may be brought against a licensed physician, osteopath, dentist, hospital, nurse, pharmacist, podiatrist, optometrist or chiropractor for injuries or wrongful death arising out of the course of medical, surgical or other professional services unless it is filed within two (2) years from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered.
The two-year statute of limitations does not commence running until the patient discovers or should have discovered that he has a cause of action. Pittman v. Hodges, 462 So.2d 330 (Miss.1984). The focus is upon the time that the patient discovers, or should have discovered by the exercise of reasonable diligence, that he probably has an actionable injury. The operative time is when the patient can reasonably be held to have knowledge of the injury itself, the cause of the injury, and the causative relationship between the injury and the conduct of the medical practitioner.
There may be rare cases where the patient is aware of his injury prior to the two years immediately preceding the filing of his claim, but does not discover and could not have discovered with reasonable diligence the act or omission which caused the injury. In such cases, the action does not accrue until the latter discovery is made. See United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (); Waits v. United States, 611 F.2d 550, 552 (5th Cir.1980) ().
Such is not the case here, since Smith clearly knew of the act or omission which he alleged caused his injury. The question before us is, When did he discover, or should have discovered through the exercise of reasonable care and diligence, the injury itself? At that time, whenever it was, the statute of limitations began to run.
The plea of statute of limitations is an affirmative defense and, as such, the party asserting it has the burden of proving it. Rule 8(c), Miss.R.Civ.P.; Graham v. Pugh, 417 So.2d 536, 540-41 (Miss.1982); Gulfport Fertilizer v. McMurphy, 114 Miss. 250, 75 So. 113 (1917). Occasionally the question of whether the suit is barred by the statute of limitations is a question of fact for the jury; however, as with other putative fact questions, the question may be taken away from the jury if reasonable minds could not differ as to the conclusion. See Gulfport Fertilizer Co., 114 Miss. at 258-59, 75 So. at 113-14. Consistent with the Mississippi Rules of Civil Procedure, we are of the opinion that the question of the running of the statute of limitations to bar an action may also be the subject of a summary judgment if there exists no genuine issues of material fact concerning the question.
WAS THERE A GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER THE
We have determined what is required to start the two-year statute of limitations running, and we have further determined that in the absence of a genuine issue of material fact the question is subject to summary judgment. We now face the issue of the propriety of the summary judgment under the facts of this case.
When the doctor moved for summary judgment in this case, he supported his motion by claiming that he would show that the patient had a tumorous growth of his right arm, and that this condition was first diagnosed by a Dr. Truly some time prior to the patient's last visit to the doctor in 1978. To substantiate this, the doctor attached an excerpt from the patient's deposition. In this excerpt, the patient stated that prior to seeing the doctor in June of 1978, he had seen another doctor because of a problem with his arm which the first doctor said was a myxoma tumor.
The doctor further alleged that he would show that the patient had been admitted to a hospital in Jackson in June, 1978, and that there the doctor had made a diagnosis of myxoma and that he had performed an operation but did not resect the tumor because of its condition, and that all of this was communicated to the patient. To substantiate this claim, another excerpt from the deposition was attached and the hospital records were also attached.
Finally, the doctor alleged that he would show that the patient was hospitalized at another hospital in Jackson, in the fall of 1982, at which time he gave a history of having been seen by the doctor with a diagnosis of myxoma. To substantiate this, a copy of the hospital records from that hospital was attached. Furthermore, a letter from one of the patient's treating physicians at the second hospital was attached and the letter stated that the patient gave a history of having been seen by the doctor in July of 1978 with a diagnosis of myxoma. The discharge summary from the second hospital and the...
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