St. George v. Pariser

• Decision Date: 18 April 1997
• Docket Number: No. 960876,960876
• Citation: 484 S.E.2d 888,253 Va. 329
• Court: Virginia Supreme Court
• Parties: Linda M. ST. GEORGE, v. Robert J. PARISER, M.D., et al. Record

Page 888

484 S.E.2d 888

253 Va. 329

Linda M. ST. GEORGE, v. Robert J. PARISER, M.D., et al.

Record No. 960876.

Supreme Court of Virginia.

April 18, 1997.

James P. St. Clair (Arthur V. Shaheen; Norris & St. Clair; Shaheen & Shaheen, on brief), Richmond, for appellant.

Teresa R. Warner (Deborah S. Prince; Heilig, McKenry, Fraim & Lollar, on brief), Norfolk, for appellees.

Present: All the Justices

LACY, Justice.

The primary issue in this medical malpractice case is whether the defendants, who filed a plea of the statute of limitations, carried their burden of producing evidence to show that the patient's injury occurred more than two years before the date the motion for judgment was filed.

This case involves the misdiagnosis of a cancerous mole. On June 13, 1991, Linda M. St. George went to the offices of Pariser Dermatology Specialists, Ltd., for an evaluation of a mole on her lower left leg. A punch biopsy was performed on the mole. Robert J. Pariser, M.D., an owner and employee of Pariser Dermatology Specialists, Ltd., performed a pathological examination of the biopsied tissue. He diagnosed the tissue as acanthoma, a benign condition. This diagnosis was placed in St. George's medical record and relayed to her.

In March 1993, St. George consulted a plastic surgeon, Dr. Tad E. Grenga, about removal of the mole. At Dr. Grenga's suggestion, St. George requested a copy of her medical record from Pariser Dermatology Specialists, Ltd. Prior to delivering the record, Dr. Pariser reviewed the 1991 tissue slides and determined that the biopsied tissue showed atypical melanocytic hyperplasia, a cancerous condition. He put an addendum report in St. George's medical record reflecting this second diagnosis.

After reviewing the medical record, including Dr. Pariser's addendum report, Dr. Grenga determined that the condition described in the addendum report required that the entire mole be removed, which he did by an excisional biopsy. The pathology report described the biopsied tissue as "invasive superficial spreading malignant melanoma." Based on this report, Dr. Grenga performed a second surgery in which he removed additional tissue around the site of the mole and closed the wound with a skin graft. St. George underwent subsequent procedures including implantation of a tissue expander. The tissue expander was ultimately removed at St. George's request because of the pain and nerve numbness associated with it. St. George continues to have periodic examinations and tests by an oncologist to insure that the cancer has not recurred.

On October 21, 1993, St. George filed a motion for judgment against Dr. Pariser and Tidewater Dermapathology Service, Inc., alleging negligence and fraud. Pariser Dermatology Specialists, Ltd., was later added as a defendant. ¹ Dr. Pariser and Pariser Dermatology Specialists, Ltd., (collectively "Pariser") filed a demurrer to the fraud count which was sustained. Pariser also filed a plea of the statute of limitations, asserting that St. George's cause of action arose at the time of the June 1991 diagnosis and, therefore, her motion for judgment was filed beyond the two year statute of limitations period. Code § 8.01-243(A). St. George sought a determination by the trial court that her motion for judgment was timely filed as a matter of law. The trial court took this matter under advisement. Following the presentation of the evidence in a three day trial, the trial court granted St. George's motion to strike Pariser's evidence on the issue of negligence. The case was submitted to the jury on the issues of proximate cause, damages, and the statute of limitations. The jury returned a verdict in favor of Pariser. St. George filed this appeal asserting that the trial court erred in failing to strike Pariser's plea of the statute of limitations as a matter of law.

The law governing the accrual of a cause of action involving a claim for personal injury is well established. The cause of action accrues on "the date the injury is sustained in the case of injury to the person," § 8.01-230, and we have construed "injury" to mean "a positive, physical or mental hurt." Locke v. Johns-Manville Corp., 221 Va. 951, 957, 275 S.E.2d 900, 904 (1981). The injury need not occur contemporaneously with the negligent act, but may arise at some later point. Id. at 957-59, 275 S.E.2d at 904-05. Finally, an injury is deemed to occur, and the statute of limitations period begins to run, whenever any injury, however slight, is caused by the negligent act, even though additional or more severe injury or damage may be subsequently sustained as a result of the negligent act. Scarpa v. Melzig, 237 Va. 509, 512, 379 S.E.2d 307, 309 (1989). The party asserting the limitations bar bears the burden of proving the date on which the injury was sustained with a reasonable degree of medical certainty. Lo v. Burke, 249 Va. 311, 316, 455 S.E.2d 9, 12 (1995).

We turn then to the record to determine whether Pariser produced evidence to show when, based on the expert testimony, the injury St. George suffered as a result of the misdiagnosis occurred, and whether that date was more than two years prior to the date she filed her motion for judgment. There was virtually no disagreement among the physicians who qualified as expert witnesses at trial about the pathology of St. George's mole. The experts agreed that the 1991 biopsy slides show atypical melanocyte cells in the epidermis. These cells, according to the experts, are cancerous and can be called a melanoma or a malignant melanoma. ² The experts also testified that these cells are capable of multiplying, but as long as the growth is confined to the epidermis, they cannot metastasize or move into other areas of the body. Pariser's experts referred to St. George's condition in 1991 as "melanoma in situ." The experts also agreed that complete removal of these cells or melanoma at this point would have eliminated any possibility of a recurrence of the cancerous condition because of this melanoma, either at the removal site or at any other part of the body. Dr. Albert Ackerman, one of Pariser's experts, described the "melanoma in situ" as "biologically benign."

The experts further agreed that the 1993 biopsy showed that St. George's condition had altered from its 1991 status. Specifically, the melanoma had enlarged and moved into the dermis. The experts...