Sweeney v. Preston

• Decision Date: 07 April 1994
• Docket Number: No. 90-CA-01336,90-CA-01336
• Parties: Brenda Joyce SWEENEY, Kevin Sweeney, Brendi Lashawn Sweeney, a Minor, by her Adult Next Friends, and Bronzie Shannon Sweeney, a Minor, by her Adult Next Friends v. W.H. PRESTON, M.D.
• Court: Mississippi Supreme Court

Page 332

642 So.2d 332

Brenda Joyce SWEENEY, Kevin Sweeney, Brendi Lashawn Sweeney,

a Minor, by her Adult Next Friends, and Bronzie

Shannon Sweeney, a Minor, by her Adult Next Friends v. W.H. PRESTON, M.D.

No. 90-CA-01336.

Supreme Court of Mississippi.

April 7, 1994.

Rehearing Denied Sept. 29, 1994.

Roy O. Parker, Roy O. Parker, Jr., Roy O. Parker & Associates, Tupelo, for appellants.

Robert G. Krohn, Price Krohn & McLemore, Corinth, for appellee.

En Banc.

McRAE, Justice, for the Court:

This appeal arises from a December 10, 1990, order of the Prentiss County Circuit Court granting a motion for summary judgment in favor of Dr. W.H. Preston, M.D., on grounds that the statutes of limitations had run in medical negligence actions brought against him by the heirs of Jonathan Kevin

and Brandon Allen Sweeney as well as in an individual claim for personal injuries by Brenda Sweeney, the mother of the infants. Their claims stemmed from the deaths of two infant boys who succumbed to Rh factor complications attributed to Dr. Preston's alleged failure to properly type their mother's blood and administer drugs to desensitize her to the Rh antibodies. Finding that the wrongful death actions were not time-barred pursuant to our decision in Gentry v. Wallace, 606 So.2d 1117 (Miss.1992), and that questions of fact remain to be resolved in Brenda Sweeney's personal injury action in order to determine whether the statute of limitations had run, we reverse and remand for trial.

I.

Jonathan Kevin Sweeney was born on June 26, 1984. He was delivered by Caesarean section after it was discovered in the eighth month of gestation that he suffered from Rh factor complications. Despite two complete blood transfusions, he died two days later. In the spring of 1985, his mother obtained her medical records from Dr. Preston. Those records indicated that Brenda Sweeney's blood had been mistyped during her first pregnancy in 1973, which ended with a stillbirth. Brenda stated in her affidavit that Dr. Preston then told her had he known her blood had been mistyped and that she had Rh positive blood, he would have administered the drug, Rhogram, after her first child was stillborn and the 1984 death would have been prevented. A second male child, Brandon Allen Sweeney, likewise died from Rh factor complications on April 15, 1986, two days after his birth.

Kevin and Brenda Sweeney and their daughters, Brendi LaShawn and Bronzie Shannon, filed wrongful death actions against Dr. Preston on March 23, 1987. Brenda Sweeney further alleged that Dr. Preston's negligent mistyping of her blood in 1973, and his failure to administer Rhogram after the delivery of the stillborn infant in July 1974, caused her to develop a permanent Rh iso-immunization sensitivity. The circuit court ruled that these actions were barred by both Miss.Code Ann. Sec. 15-1-36 (Supp.1976) and Miss.Code Ann. Sec. 15-1-49 (1972), as amended, and granted Dr. Preston's motion for summary judgment.

II.

Miss.Code Ann. Sec. 15-1-36, the two-year statute of limitations applicable to medical negligence actions, does not begin to run until the injured party discovers or should have discovered the negligent act and its relationship to the injury sustained. Williams v. Kilgore, 618 So.2d 51 (Miss.1992). In contrast, Miss.Code Ann. Sec. 15-1-49 (1972), the general statute of limitations which governed medical malpractice actions prior to 1976, then provided that "all actions for which no other period of limitations is prescribed shall be commenced within six years after the cause of action accrued, and not after." While the statute contained no definition of "accrual," it was interpreted at that time to mean that the cause of action "accrue[d] and the statute be[gan] to run on the day of the wrongful act or omission of the wrongful act or omission which constitutes the malpractice, not from the time of discovery thereof." Smith v. McComb Infirmary Association, 196 So.2d 91 (Miss.1967), citing Wilder v. St. Joseph Hospital, 225 Miss. 42, 82 So.2d 651 (1955). After July 1, 1976, Miss.Code Ann. Sec. 15-1-49 was no longer applicable to medical malpractice actions, having been supplanted by the legislature's enactment of Miss.Code Ann. Sec. 15-1-36 (Supp.1976), which created a two-year statute of limitations for medical malpractice claims which "accrued on or after July 1, 1976." While the statute shortened the limitation period, it provided a definition of "accrual" which imparted a "discovery" standard in medical malpractice cases, providing that the statute begins to run "from the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered." Sec. 15-1-36(1). We explained the discovery rule in Smith v. Sanders, 485 So.2d 1051 (Miss.1986), as follows:

The focus is upon the time that the plaintiff discovers, or should have discovered, by the exercise of reasonable diligence, that he probably had an actionable injury. The operative time is when the plaintiff Id. at 1052 (emphasis added).

can reasonably be held to have knowledge of the injury itself, the cause of the injury, and the causal relationship of the injury and the conduct of the medical practitioner.

In Kilgore v. Barnes, 508 So.2d 1042 (Miss.1987), we considered the applicability of Sec. 15-1-36 to a claim arising from an alleged negligent act or omission occurring in 1974, but undiscovered by the plaintiff until 1982. Finding that the claim was still viable because the plaintiff had no reason to discover that part of a surgical needle had been left in the lining of his heart during a 1974 operation, we affirmed the circuit court's order denying the defendant's motion for summary judgment. Id. at 1045-1046. In so ruling, we stated that:

[w]e may not give retroactive effect to newly enacted statutes of limitations shortening the period within which a claim arising prior to enactment must be brought. [citations omitted] On the other hand, most other jurisdictions recognize the authority of legislatures to enlarge periods of limitation with respect to existing claims, that is, claims not barred at the time of elongation. [citations omitted] This is consistent with our general principle that an act remedial in its character embraces claims existing when the act was passed. [citation omitted]

Id. at 1044-1045.

We reviewed our application of the discovery standard to latent injuries and diseases which do not manifest themselves until many years after the alleged act of medical negligence in Williams v. Kilgore, 618 So.2d 51 (Miss.1992). In that case, a biopsy needle broke in 1964, lodging in the patient's left buttock region. Although Mrs. Williams was reassured by her surgeon that the needle would be removed, and then, that it had been removed, it was not. Despite evidence that some of her many physicians were aware of the needle's continued presence in 1972, and a long history of unexplained lower back pain and infections, Mrs. Williams asserted that she was not aware of the linkage between the needle and her various ailments until she was hospitalized for back problems in 1985. Williams, 618 So.2d at 52. In holding that Williams' 1987 claim was not barred by either Sec. 15-1-36 or Sec. 15-1-49, we analogized her injury other "inherently undiscoverable" injuries. Id. at 53, citing Owens-Illinois v. Edwards, 573 So.2d 704 (Miss.1990) (extending the discovery rule to Miss.Code Ann. Sec. 15-1-49 in cases of products liability or negligence involving a latent injury or disease). See also Schiro v. American Tobacco Co., 611 So.2d 962 (Miss.1992) (applying discovery standard in tobacco litigation); Georgia Pacific Corp. v. Taplin, 586 So.2d 823 (Miss.1991) (applying the discovery rule to latent injuries or diseases in worker's compensation cases); Staheli v. Smith, 548 So.2d 1299 (Miss.1989) (applying discovery rule to intentional tort of defamation). In Williams, we reaffirmed our holding in Owens-Illinois that:

we laid to rest the old notion that the statute of limitations begins to run at the time an act of negligence occurs, and held that a cause of action must be completed before an action can be commenced and a tort is not completed until an injury occurs.

Williams, 618 So.2d at 54 (emphasis added). Thus, where an injury or disease is latent, a determination of when the statute of limitation begins to run focuses not on the time of the negligent act or omission, but on when the plaintiff discovers the injury or disease. Moreover, knowledge that there exists a casual relationship between the negligent act and the injury or disease complained of is essential because "it is well-established that prescription does not run against one who has neither actual nor constructive notice of facts that would entitle him to bring an action." Id. at 55, citing Ayo v. Johns-Mansville Sales Corp., 771 F.2d 902, 907 (5th Cir.1985).

A. The Wrongful Death Actions

The heirs of infants Jonathan Kevin Sweeney, who died on June 26, 1984, and Brandon Allen Sweeney, who died on April 15, 1986, filed wrongful death claims against Dr. Preston in March 1987. It is well established that an action may be maintained under our wrongful death statute, Miss.Code In Gentry, we reaffirmed our recognition that wrongful death and medical negligence are two separate and distinct causes of action. ¹ Id. at 1119. In that case, Mary Gentry was initially diagnosed with cancer in her right breast in 1981, and underwent a radical mastectomy. After experiencing new symptoms, she was treated by Drs. Wallace and Pittman between September, 1984 and March 1, 1985. She was neither diagnosed nor treated for cancer. Id. at 1118. She sought a second opinion and was advised on March 1, 1985, that she suffered from a metastic breast carcinoma, but that the cancer was too advanced for any meaningful treatment. She died of breast and lung cancer two weeks later. Her son filed a wrongful death action on March 16, 1987,...