Vacura v. Plott
| Decision Date | 16 December 1981 |
| Docket Number | No. 81-1179,81-1179 |
| Parties | Elizabeth A. VACURA and Raymond Vacura, Appellants, v. Carol L. PLOTT, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Robert L. Sikma (argued), Lorna A. Gilbert of Sikma & Gilbert, Sioux City, Iowa, for appellants.
Francis Fitzgibbons (argued), Harold W. White of Fitzgibbons Brothers, Estherville, Iowa, for appellee.
Before STEPHENSON and McMILLIAN, Circuit Judges, and LARSON, * Senior District Judge.
Appellant Elizabeth Vacura 1 brought this medical malpractice action under our diversity jurisdiction against appellee physician, Dr. Carol L. Plott. The district court 2 granted Dr. Plott's motion for summary judgment on the grounds that the statute of limitations barred the suit. Vacura appeals. We reverse and remand for trial.
On February 3, 1976, Dr. Plott, a surgeon, performed a thyroidectomy on appellant Vacura with the assistance of Dr. K. L. Clayton, osteopathic physician and surgeon, at the Dickinson County Memorial Hospital, Spirit Lake, Iowa. 4 Upon awakening from surgery, Vacura was unable to speak in a normal voice. Dr. Plott told her on February 6 that it might take a little time to get her voice back. Vacura, in her deposition, indicated that she was skeptical because of her prior experience as a nurse's aide in a hospital.
On February 9, 1976, a few days after surgery, Dr. Clayton removed the stitches from Vacura's throat. Vacura still complained of soreness in her throat and a loss of voice but Dr. Clayton remarked that Vacura's voice problems "would be improving."
Vacura continued to experience problems with her voice. These problems were described as "hoarseness," "laryngitis," a "high-pitched squeaky voice," or "half a whisper, half squeak." On February 23, 1976, she returned to Dr. Clayton for an examination. She complained that she had a sore throat and hoarseness. Upon Vacura's question whether her voice would return to its pre-operation character, Dr. Clayton told her, "give it time."
On March 20, 1976, Vacura went to Dr. Plott. Dr. Plott observed "some hoarseness" in Vacura's voice and that it was "high pitched." Dr. Plott advised Vacura to "try to speak in a normal voice" and that she should give her voice "some time" to recover.
Vacura's voice problems continued. Upon re-examination on March 31, 1976, Dr. Plott arranged to have Vacura see Dr. J. E. Dvorak, an eye, ear, nose, and throat specialist in Spirit Lake. Dr. Dvorak examined Vacura on April 13, 1976, and he advised Dr. Plott and Vacura that she had paralysis of her left vocal cord. He stated that such a condition "frequently happen(ed) in thyroid surgery" and that "(h)er voice will improve when the right cord will go over the midline and compensate for the loss of motion in the left cord." Dr. Dvorak advised Vacura her voice would probably improve and to give her voice approximately six months for it to do so.
Subsequently, Vacura decided to seek further medical attention at the Mayo Clinic in Rochester, Minnesota. At her request, Dr. Clayton made an appointment for Vacura with Dr. H. B. Neel for May 12, 1976. Dr. Neel, a specialist in otorhinolaryngology, examined Vacura and told her he believed the nerve which activates the left vocal cord had been damaged during her thyroid surgery. He told her the damage was a "recognized complication" of thyroid surgery and that her voice "might very well improve and it almost always does." Neel advised Vacura to return if she did not notice improvement over the next six to nine months. Dr. Neel further testified that "with one vocal cord paralyzed there is no reason at all why she (Vacura) shouldn't speak normally again." He also stated that at no time did he ever advise plaintiff that either Dr. Plott or Dr. Clayton had mismanaged her medical treatment in any way.
Vacura called Dr. Clayton on May 14, 1976, and told him that Dr. Neel had said that her left nerve in her voice box had been severed during surgery.
On approximately May 1, 1976, the Spirit Lake Medical Center mailed Vacura a bill for her surgery. She returned the bill on July 7, 1976, stating that she would "let the bill ride for a while" depending upon what Dr. Clayton and Dr. Plott "are going to do about the nerve they cut to (her) voice box." She remarked that she was told at the Mayo Clinic that the layrngeal nerve controlling the left side of her voice box had been severed during surgery. She closed,
On July 20, 1976, Vacura sent a letter to Dr. Neel, inquiring whether a neurosurgeon could do anything to improve her damaged voice.
Vacura stated in her deposition that she continued to experience problems with her voice but she did not return to the Mayo Clinic until May 12, 1978. At that time she said she had been suffering from choking spells and her voice had improved little. Dr. Thomas MacDonald examined her and advised her that, in light of the fact that her voice had not improved over the two years since her surgery, her condition was permanent.
Vacura filed suit on August 22, 1978, against Dr. Plott alleging that he had negligently performed the thyroidectomy on February 3, 1976, and had thereby caused the damage to Vacura's voice. Following the filing of various motions and cross-motions for summary judgment, Judge O'Brien granted defendant's motion for summary judgment based on Iowa Code § 614.1(9). This provision places, on malpractice actions, a statute of limitations of two years "after the date on which the claimant knew, or through the use of reasonable diligence should have known * * * the injury or death for which damages are sought in the action." Id. Judge O'Brien found, as a matter of law, that plaintiffs knew of Mrs. Vacura's injury, whether interpreted as physical, or her right to sue, at least by July 20, 1976. This was the date when Vacura wrote Dr. Neel inquiring whether a neurosurgeon could help her damaged voice.
The dispositive issue presented on appeal is whether the application of the statute of limitations involved resolution of fact issues which should have been left to the jury and thus was not properly decided by the court on a motion for summary judgment.
Appellants argue that the district court erred in granting Dr. Plott's motion for summary judgment because the above issue was a factual issue inappropriate for summary judgment. That issue was whether the plaintiffs knew or, through the use of reasonable diligence, should have known of the existence of their cause of action within the relevant statutory period set out in Iowa Code § 614.1(9). Appellants argue that summary judgment is a harsh remedy and should be granted only in cases where "movant has established its right to a judgment with such clarity as to leave no room for controversy." Vette Co. v. Aetna Casualty & Surety Co., 612 F.2d 1076, 1077 (8th Cir. 1980). Appellants conclude that when they discovered or should have discovered the existence of their cause of action is a fact question most properly left for the jury, especially in light of the assurances of doctors that Mrs. Vacura's infirmity would be temporary.
Dr. Plott responds that there is no dispute of material fact establishing that Vacura knew of the injury on or before May 12, 1976. Dr. Plott claims that Vacuras' testimony in their depositions and the testimony of the physicians they consulted unquestionably shows that on or before May 12, 1976, (and certainly on or before July 20, 1976) they knew or should have known of the acts of negligence claimed in this lawsuit.
On a motion for summary judgment, "the inferences to be drawn from the underlying facts contained in (the moving party's) materials must be viewed in the light most favorable to the party opposing the motion (citation omitted)." Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970); see Vette Co. v. Aetna Casualty & Surety Co., supra, 612 F.2d at 1077. Furthermore, summary judgment is a harsh remedy and should be used only in special cases where there is no dispute of material fact. Vette Co. v. Aetna Casualty & Surety Co., supra, 612 F.2d at 1077; Fed.R.Civ.P. 56(c).
In Baines v. Blenderman, 223 N.W.2d 199 (Iowa 1974), the Iowa Supreme Court held that in a medical malpractice action against a surgeon and a hospital for the loss of sight in the plaintiff's eye during back surgery, summary judgment in favor of defendants based on the running of the statute of limitations was improper. The court held that there was genuine issue of material fact whether plaintiff knew or had reason to know the eye injury was caused by defendants' negligence and, therefore, whether the statute of limitations had run. 5
Following the Baines decision, the Iowa legislature changed the statute of limitations for malpractice actions from a general two-year statute applying to tortious and contractual injuries to the person 6 to a specific two-year statute applying to medical malpractice. 7
The Iowa Supreme Court has yet to redefine the word "injury" since the passage of Iowa Code § 614.1(9). Appellants assert that the new statute does not change the holding in Baines v. Blenderman, supra, 223 N.W.2d at 201-03 which states that "injury" means discovery of one's cause of action for negligence. Appellee Dr. Plott disagrees, asserting "injury" relates to the discovery of one's physical injury...
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