Williams v. Kilgore

Decision Date17 December 1992
Docket NumberNo. 89-CA-0231,89-CA-0231
Citation618 So.2d 51
PartiesGracie WILLIAMS v. Thomas R. KILGORE, M.D. and Lloyd Berrong, M.D.
CourtMississippi Supreme Court

James W. Craig, Jackson, for appellant.

Jimmie B. Reynolds, Jr., Michael F. Myers, Steen Reynolds Dalehite & Currie, Robert A. Crawford, Lee B. Agnew Sr., Agnew Agnew & Crawford, Jackson, for appellee.

En Banc.

McRAE, Justice, for the Court:

This appeal arises from an October 25, 1988, order of the Circuit Court for the Second Judicial District of Hinds County, granting the Appellees' motion for summary judgment in a medical malpractice action. Finding that the discovery rule applies in medical malpractice cases involving latent injuries and diseases, we find that Mrs. Williams' cause of action is not time barred by either Miss.Code Ann. Sec. 15-1-36 or Sec. 15-1-49 (1972). Accordingly, we reverse and remand for a trial on the merits.


Gracie Williams was admitted to the University Medical Center in Jackson, Mississippi, on March 31, 1964, for treatment of a metastic malignant melanoma on her left groin. On April 6, 1964, a bone marrow biopsy was performed by an unknown hematology resident. During the course of that procedure, a biopsy needle broke, leaving a two centimeter fragment lodged in Williams' left iliac wing, an area of the lower back which the medical records indicate is cushioned by the soft tissue of the left buttock.

Williams was told that the needle would be removed the next day when the melanoma on her groin was removed. Surgery was performed on April 7, 1964, by a team which included Appellee, Dr. Kilgore, then a surgical resident and a never-located Dr. Peede. The hematology resident's report, dated April 6, 1964, indicated that he advised Dr. Kilgore and Dr. Peede of the problem and that they would remove the needle. A notation by Dr. Peede states that the needle was removed. Williams further stated that after the operation, she was reassured by one of her doctors that it had been removed. However, the needle was never removed but remained asymptomatic for many years.

Although Dr. Kilgore was a member of the surgical team that removed the cancerous growth from Mrs. Williams' groin area, he indicated that he had no contact with her after the operation, and she stated in her deposition that she did not know if he was one of the doctors she spoke with after surgery. Dr. Berrong, at the time of the operation, was a radiology resident at the University Medical Center, who was assigned on April 10, 1964, "to specifically study the results of the surgery by performing a lymphogram involving the lymph nodes and vessels of the operative area of the groin affected by the metastic malignant melanoma."

Mrs. Williams asserts on appeal, as she did in her complaint, that she only became aware that the needle was still there when she was hospitalized for back pain in September, 1985, although a physician who had treated her earlier that year found no connection between them and so advised her. The needle was surgically removed on October 7, 1985, with the physician's discharge report suggesting a probable linkage between the needle fragment and Williams' recurrent strep infections. However, the surgeons' report stated that "the needle was found to be free floating in the iliac fossa without any inflammatory process. There was absolutely no evidence of an ongoing infection."

Radiology and physicians' reports included in the record demonstrate that Mrs. Williams' various doctors were aware as early as 1972 that the needle had not been removed. There is no evidence, however, to indicate that this information was communicated to her by any of her physicians, despite her regular chemotherapy treatments. A January 16, 1980, the physician's report states "there is noted to be a metallic density needle projecting over the left ilian [sic] crest which, upon questioning the patient, seems to have been left after some form of abdominal surgery was performed in 1966." The physician's notation of Mrs. Williams' response clearly indicates her ignorance of the fact that the biopsy needle had not been removed in 1964, contrary to her doctors' reassurances.

On October 1, 1987, Mrs. Williams filed a complaint against Dr. Kilgore and Dr. Berrong, as well as Dr. R.L. Peede and an unknown hematologist. She alleged that the various defendants, then physicians at the University Medical Center, had been negligent in causing a biopsy needle to break and remain lodged in her incident to treatment for metastic malignant melanoma in early April, 1964.

Summons for the defendants were issued on October 1, 1987. The return of service indicated that personal service had been made on Drs. Kilgore and Berrong and that the whereabouts of Dr. Peede were unknown. When Drs. Kilgore and Berrong failed to respond, an entry of default pursuant to MRCP Rule 55(a) was made on December 18, 1987.

Dr. Kilgore filed a motion to set aside the entry of default on January 8, 1988, asserting that service was made on his office manager, who was not authorized to accept service of process for him and that Williams' complaint was barred by the statute of limitations. On the same day, the circuit court filed an order granting Dr. Kilgore's motion for additional time to respond to the complaint.

A Judgment upon Writ of Inquiry was filed against Dr. Berrong on January 6, 1988. He filed a motion to set aside the entry of default and judgment on January 12, 1988.

A hearing on the defendants' motions to set aside the entries of default was held on April 15, 1988. The Circuit Court, finding that proper service of process was not made on either defendant pursuant to MRCP Rule 4, granted the motions.

Drs. Kilgore and Berrong then filed answers to Williams' original complaint in May, 1988, raising the affirmative defense that the action was barred by the statute of limitations. They separately filed motions for summary judgment in August, 1988. Finding that Williams' action was time-barred by Miss.Code Ann. Sec. 15-1-49 (1972), the Circuit Court granted the motions on October 25, 1988.


Our inquiry today focuses on whether Miss.Code Ann. Sec. 15-1-36 or Sec. 15-1-49 (1972) governs a cause of action for medical malpractice when the negligent act or omission occurred in 1964, but was not discovered until 1985. Applying our liberal analysis of the discovery rule to Sec. 15-1-36, we find that Mrs. Williams' claim is not barred by the statute of limitations.

Miss.Code Ann. Sec. 15-1-49 (1972), the general statute of limitations which governed medical malpractice actions prior to 1976, provided that "all actions for which no other period of limitation is prescribed shall be commenced within six years after the cause of such action accrued, and not after." Under that statute, the cause of action "accrue[d] and the statute beg[an] to run on the day of the wrongful act or omission which constitutes the malpractice, not from the time of the 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). The statute, however, contained no definition of "accrual," which we defined as follows in Owens Illinois v. Edwards, 573 So.2d 704 (Miss.1990):

[A] discovery rule exists in conjunction with Sec. 15-1-49 (1972) in the case of a negligence or products liability cause of action involving latent disease. To alleviate any possible confusion, we find that the discovery rule adopted is identical to the rule provided in Miss.Code Ann. Sec. 15-1-49(2) (Supp.1990). The cause of action accrues and the limitations period begins to run when the plaintiff can reasonably be held to have knowledge of the injury or disease.

Id. at 709. Thus, while Smith and Wilder may have been good law then, today, they are no longer.

On July 1, 1976, the applicability of Miss.Code Ann. Sec. 15-1-49 (1972) to medical malpractice actions was supplanted by the enactment of Miss.Code Ann. Sec. 15-1-36 (1972) (as amended), which created a two year statute of limitations specifically for medical malpractice actions. Although the new statute shortened the limitation period, it liberalized and memorialized the definition of "accrual," providing that the statute begins to run "from the date the alleged act, omission or neglect shall or with reasonable diligence might have first been known or discovered." Sec. 15-1-36(1). Sec. 15-1-36(3) further provided that the new statute applied to claims which "accrued on or after July 1, 1976." In Smith v. Sanders, 485 So.2d 1051 (Miss.1986), we explained the discovery rule 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 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.

485 So.2d at 1052 (emphasis added).

In other contexts, particularly asbestosis cases, where it may be decades before symptoms of the disease become apparent, we have read the word "accrue" to import a discovery rule into Sec. 15-1-49. The case sub judice is analogous to those involving latent injuries and diseases, which are governed by Miss.Code Ann. Sec. 15-1-49, the general three year statute of limitations, which now also employs the discovery standard. An individual may know that a wrongful act such as exposing employees to asbestos or other dangerous chemicals has occurred at some time in the past, but be unaware that he has suffered any injury therefrom. As in the latent disease cases, the effects of Mrs. Williams' injury did not manifest themselves until many years after the negligent act or omission. In Owens-Illinois, 573 So.2d at 706-707, we laid to rest the old notion that the statute of limitations...

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