Sutherland v. Estate of Ritter

• Decision Date: 19 April 2007
• Docket Number: No. 2006-CA-00082-SCT.,2006-CA-00082-SCT.
• Citation: 959 So.2d 1004
• Parties: Robert SUTHERLAND v. ESTATE OF Robert M. RITTER, M.D.
• Court: Mississippi Supreme Court

959 So.2d 1004

Robert SUTHERLAND v. ESTATE OF Robert M. RITTER, M.D.

No. 2006-CA-00082-SCT.

Supreme Court of Mississippi.

April 19, 2007.

Rehearing Denied July 26, 2007.

Rick D. Patt, Shane F. Langston, Jackson, attorneys for appellant.

Whitman B. Johnson, III, Shelly G. Burns, Jackson, attorneys for appellee.

EN BANC.

CARLSON, Justice, for the Court.

¶ 1. Aggrieved by the Hinds County Circuit Court's grant of summary judgment in favor the Estate of Robert M. Ritter, M.D., Robert Sutherland, a former patient of Dr. Ritter, appeals to us. Finding no error in the trial court's grant of summary judgment and dismissal of this case, we affirm.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. In June, 1999, Dr. Robert M. Ritter, a psychiatrist, prescribed for Robert Sutherland Zyprexa, a drug manufactured by Eli Lilly.¹ Soon after, Sutherland developed side effects, including abnormal, involuntary movements by way of lip-licking and facial twitching. Sutherland subsequently stated under oath that Zyprexa caused the maladies for which he sought damages. Without consulting Dr. Ritter, Sutherland stopped taking Zyprexa for a short period of time but eventually resumed taking the drug. On April 16, 2001, Sutherland checked himself into St. Dominic-Jackson Memorial Hospital's Chemical Dependency Unit (St. Dominic). In his deposition,² Sutherland stated the following:

Q. Okay. Now, did you check yourself into Dr. Cronin or were you checked in by someone?

A. I checked myself.

Q. Okay. And why did you check yourself in?

A. The Zyprexa was destroying my life.

Q. Okay. So you believed when you checked yourself in it was the Zyprexa?

A. It was not a belief, it was a knowing.

Q. Okay.

A. It was knowledge of it.

....

Q. And while you were in the hospital at St. Dominic's under Dr. Cronin's care, was that the last time you took Zyprexa?

A. Yes, sir.

....

Q. All right. Did—but my understanding is you felt like the Zyprexa was causing you problems almost from the get-go.

A. Yes.

Q. And that you stopped it in (sic) at least by April 2001?

A. Stopped under the direction of Dr. Kenneth Cronin.

¶ 3. Sutherland was discharged from St. Dominic on April 19, 2001. Sutherland's discharge summary stated, "the Zyprexa has been discontinued and the patient reports that he feels less flat and `zombie' like."

¶ 4. On January 31, 2002, Sutherland sought follow-up treatment from Dr. Lee Voulters. The report of Dr. Voulters states that Sutherland had taken "Zyprexa which caused a lot of bad side effects," and Dr. Voulters described the condition Sutherland complained of as Tardive Dyskinesia Syndrome (TDS).³

¶ 5. On January 30, 2004, two years and nine months after he was discharged from St. Dominic, Sutherland sent Dr. Ritter's estate⁴ a Notice of Claim.⁵ On March 30, 2004, Sutherland filed suit in the Circuit Court for the First Judicial District of Hinds County, and in due course, the trial court granted summary judgment in favor of Dr. Ritter's estate. Judge Swan Yerger's Order of Summary Judgment stated, inter alia:

The Plaintiff, Robert Sutherland, alleges medical negligence on the part of the late Dr. Ritter. Specifically, Mr. Sutherland claims that Dr. Ritter was negligent in prescribing the medication Zyprexa which, in turn, caused a medical condition called tardive dyskinesia syndrome exemplified by various symptoms. However, Mr. Sutherland last took Zyprexa during April 2001, and yet he took no steps to initiate legal action until January 2004. This is problematic since Mississippi Code Annotated § 15-1-36, which governs medical malpractice claims reads in pertinent part as follows:

[N]o claim in tort may be brought against a licensed physician . . . 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 . . .

See § 15-1-36(2) Miss.Code Ann. (Rev. 2003).

¶ 6. After Judge Yerger entered a final judgment of dismissal consistent with the order granting summary judgment, Sutherland perfected his appeal to this Court.

DISCUSSION

¶ 7. The parties in essence couch the issue that this Court must decide as whether Sutherland's injury was latent so that the discovery rule would apply to toll the statute of limitations. Upon reflection as to how this Court has previously dealt with this issue in the medical malpractice context, we recognize our use of the term, "latent injury" in previous cases has led to confusion and misunderstanding of the discovery rule, and we therefore take this opportunity to clarify the law. Thus, we restate the issue for the sake of clarity in discussion.⁶

WHETHER THE DISCOVERY RULE APPLIES TO TOLL THE STATUTE OF LIMITATIONS IN THIS MEDICAL MALPRACTICE CASE.

¶ 8. "The standard of review in considering on appeal a trial court's grant or denial of summary judgment is de novo." Price v. Purdue Pharma Co., 920 So.2d 479, 483 (Miss.2006) (citing Satchfield v. R.R. Morrison & Son, Inc., 872 So.2d 661, 663 (Miss.2004)). "In considering this issue, we must examine all the evidentiary matters before us, including admissions in pleadings, answers to interrogatories, depositions, and affidavits." Id. (citing Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 70 (Miss.1996)). "The evidence must be viewed in the light most favorable to the party against whom the motion has been made." Id. (citing Aetna, 669 So.2d at 70). "Issues of fact sufficient to require a denial of a motion for summary judgment are obviously present where one party swears to one version of the matter in issue and the other party takes the opposite position." Id. (citing American Legion Ladnier Post No. 42 v. Ocean Springs, 562 So.2d 103, 106 (Miss. 1990)). "If no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment should be entered in that party's favor." Id. (citing Monsanto Co. v. Hall, 912 So.2d 134, 136 (Miss.2005)). "The movant carries the burden of demonstrating that no genuine issue of material fact exists, and the non-moving party is given the benefit of the doubt as to the existence of a material fact issue." Id. (citing Monsanto, 912 So.2d at 136). "However, our decisions which discuss this rule are clear that when a motion for summary judgment is made and supported as provided in Miss. R. Civ. P. 56, an adverse party may not rest upon the mere allegations or denials of the pleadings, but instead the response must set forth specific facts showing that there is a genuine issue for trial." Id. at 483-84 (citing Stuckey v. Provident Bank, 912 So.2d 859, 864 (Miss.2005)). "If any triable issues of fact exist, the trial court's decision to grant summary judgment will be reversed. Otherwise, the decision is affirmed." Id. at 484 (citing Miller v. Meeks, 762 So.2d 302, 304 (Miss. 2000)).

¶ 9. Sutherland argues that his injury was latent and, thus, the discovery rule applies. Sutherland further argues that the statute of limitations did not begin to run until January 31, 2002, which is the date Sutherland learned that the condition from which he suffered was called TDS. On the other hand, Dr. Ritter's estate argues that Judge Yerger correctly held that the statute of limitations began to run, at the latest, in April, 2001, when Sutherland, by his own admission, knew that Zyprexa was the cause of his symptoms.

Latent injury — undiscovered negligence

¶ 10. The word "latent" means "[h]idden; concealed; dormant; that which does not appear upon the face of a thing." Black's Law Dictionary 794 (5th ed.1979). "Latent" has also been defined as "present but invisible or inactive; lying hidden and undeveloped within a person or thing." Webster's New Word Dictionary 762 (3rd College ed.1988). This Court has defined a latent injury "as one where the `plaintiff will be precluded from discovering harm or injury because of the secretive or inherently undiscoverable nature of the wrongdoing in question ... [or] when it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act.'" Neglen v. Breazeale, 945 So.2d 988, 991 (Miss.2006) (citing PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47, 50 (Miss.2005); Donald v. Amoco Prod. Co., 735 So.2d 161, 168 (Miss.1999)). Thus, a latent injury is an injury which is hidden or unseen.

¶ 11. The confusion associated with the term "latent injury" apparently results from the difference in the language of Miss.Code Ann. § 15-1-49 (Rev.2003), the general statute of limitations, which provides for tolling of the statute of limitations until a "plaintiff has discovered, or by reasonable diligence should have discovered" a "latent injury or disease."⁷

¶ 12. The discovery rule for medical negligence cases, however, is different. The inquiry does not center on a latent injury, but rather on "the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered...." Miss.Code Ann § 15-1-36(2) (Rev.2003).⁸ Thus, in medical negligence cases, we must focus our inquiry on when a plaintiff, exercising reasonable diligence, should have first discovered the negligence, rather than the injury. In applying the unambiguous language of Miss.Code Ann. § 15-1-36(2), although a hidden or unseen injury might very well serve to trigger the discovery rule and toll the statute of limitations, it is not because the injury itself is hidden or unknown, but rather because the negligence which caused the injury is unknown. Furthermore, in the medical malpractice context, the discovery rule may apply in cases where the injury is not latent at all, but where the negligence which caused the known injury is unknown. For instance, a patient who undergoes a medical procedure may develop serious complications which are clearly known. However, if the patient has no...