Sharon Jo Ann HARRISON Appellant, v. George R. VALENTINI, M.D. Appellee.
No. 2004-SC-000015-DG.
Supreme Court of Kentucky.
Dec. 22, 2005.
As Modified on Denial of Rehearing March 23, 2006.
184 S.W.3d 521
Although the deputies were given the tip by a passing driver, for all practical purposes he was an anonymous tipster. His identity is unknown, any means of locating him is unknown, as are his motives for disclosing the information. He might have pointed out the Firebird bеcause he was angered by its driver, or been the recipient of an obscene gesture, or for any reason other than the one he gave deputies. The deputies had no way to corroborate the information, and agreed at the hearing that they had not themselves seen anything that would have given them reason to stop the Firebird other than the tip.
Id. at 864. See also Rivera v. State, 771 So.2d 1246, 1247 (Fla.Dist.Ct.App.2000). As these cases hold, the mere fact that an anonymous tipster imparts his information to the police face-to-face is insufficient, standing alone, to justify a Terry stop. Unfortunately, that is all that was proven in this case.
Accordingly, I dissent.
LAMBERT, C.J., joins this dissenting opinion.
Craig L. Johnson, Whonsetler & Johnson, PLLC, Louisville, KY, Counsel for Appellee.
LAMBERT, Chief Justice.
This case arises from medical complications ensuing from breast lift surgery. The Appellant, Sharon Jo Ann Harrison filed a medical negligence claim against Dr. George Valentini who performed the lift surgery and administered follow-up care. The trial court dismissed the action
Ms. Harrison, who had previously received breast implants, underwent breast lift surgery on October 2, 1997. She began experiencing complications within a couple of weeks. Specifically, she experienced drainage from her breasts and skin deterioration, ultimately resulting in the loss of her left nipple and numbness in her right nipple. Dr. Valentini made several subsequent unsuccessful attempts to replace her nipple and to correct additional disfigurement resulting from the 1997 surgery. Appellant remained in Dr. Valentini‘s care for nearly three years. During this time she had initial consultations with three other doctors to explore additional treatment options, but each told her to give the healing process more time or suggested that she remain in Dr. Valentini‘s сare. She continued primary treatment with Dr. Valentini until April 11, 2000.
On November 16, 2000, more than three years after the 1997 surgery, but within one year of Harrison‘s last appointment with Dr. Valentini, suit was filed. After preliminary discovery, Dr. Valentini moved for summary judgment on two grounds: 1) that Ms. Harrison‘s action should be barred by the applicable statute of limitations and 2) that Ms. Harrison failed to offer adequate expert testimony that Dr. Valentini‘s treatment deviated from the requisite standard of care. The trial court granted summary judgment in Dr. Valentini‘s favor, holding that Ms. Harrison‘s cause of action was barred by the statute of limitations. The Court of Appeals affirmed. Neither court reached the issue of the sufficiency of the expert testimony on the standard of care issue.
On her appeal to this Court, Ms. Harrison contends that the statute of limitations should have been tolled because Dr. Valentini obstructed her from filing suit, and/or that this Court should recognize the continuous course of treatment rule. As there is little evidence of obstruction, we need not address the issue. Rather, the fact of Apрellant‘s continuing treatment by Dr. Valentini will be our decisional basis.
Generally, a medical negligence lawsuit must be brought within one year of the date the cause of action accrues or is discovered.2 This rule, which is codified in
Applying the rule in medical malpractice cases can be confusing because
Accordingly, under the discovery rule, actual or constructive knowledge of the medical negligence triggers the commencement of the statute of limitations.9 This is problematic because often the patient cаnnot know whether the undesirable outcome is simply an unfortunate result of proficient medical care or whether it is the consequence of substandard treatment. Thus, a patient is left to speculate about the cause of the problem.
Moreover, neither the discovery rule nor
Ms. Harrison suggests that the continuous course of treatment doctrine can eliminate these concerns. Under this doctrine, the statute of limitations is tolled as long as the patient is under the continuing care of the physician for the injury caused by the negligent act or omission.12
This court has previously held that the continuous representation rule in legal malpractice cases coalesces with the legislative intent inherent in the enactment of the discovery rule. In Alagia, Day, Trautwein & Smith v. Broadbent, 882 S.W.2d 121 (Ky.1994), this Court elaborated on the underlying principles for the continuous representation rule:
[W]e believe it [the continuous representation rule] reflects the intent of the general assembly with its enactment of the discovery rule. Moreover, we perceive a practical advantage in the continuous representation rule. In a proper case, a negligent attorney may be able to correct or mitigate the harm if there is time and opportunity and if the parties choose such a course. Without it, the client hаs no alternative but to terminate the relationship, perhaps prematurely, and institute litigation.
These sound principles are equally persuasive in the context of medical malpractice. The rationale for the continuous treatment exception rests on a number of doctrinal assumptions. Thus it is posited that the trust and confidence that marks the physician-patient relationship puts the patient at a disadvantage to question the doctor‘s techniques, and gives the patient the right to rely upon the doctor‘s professional skill without the necessity of interrupting a continuing course of treatment by instituting suit. This exception not only provides the patient with the opportunity to seek
Though this Court has never squarely addressed the continuous course of treatment doctrine, we have implicitly expressed our approval of the doctrine‘s rationale through discourse concerning the discovery rule in the medical malpractice arena. Specifically, in Wiseman v. Alliant Hospitals, Inc.,15 we stated:
One who possesses no medical knowledge should not be held responsible for discovering an injury based on the wrongful act of a physician. The nature of the tort and the character оf the injury usually require reliance on what the patient is told by the physician or surgeon. The fiduciary relationship between the parties grants a patient the right to rely on the physician‘s knowledge and skill.
It is entirely logical that the patient‘s right of reliance extends throughout his treatment with the physician. While treatment continues, the patient‘s ability to make an informed judgment as to negligent treatment is impaired. Under such circumstances, it can scarcely be said that discovery has occurred. Accordingly, a continuing course of treatment has the effect of preventing discovery of a character necessary to commence the running of the statute of limitations.16
This rule should be limitеd, however, by a requirement of patient good faith. Inherent in the doctrine is the expectation that the patient and physician harbor a genuine desire to improve the patient‘s condition. No benefits will inure to a patient who feigns a desire to continue treatment for the purpose of obtaining more time to “shop around” fоr another physician to corroborate the malpractice or for a lawyer to file suit. Claims of patient bad faith shall be heard and determined by the trial court and subject to appellate review for abuse of discretion. However, where a patient relies, in good faith, on his physician‘s advice and treatment or, knowing thаt the physician has rendered poor treatment, but continues treatment in an effort to allow the physician to correct any consequences of the poor treatment, the continuous course of treatment doctrine operates to toll the statute of limitations until the treatment terminates at which time running of the statute begins.
Applying the foregoing rule in the instant case, we hold that Ms. Harrison‘s suit against Dr. Valentini was timely filed. She filed suit on November 16, 2000, well within one year of her discontinuance of treatment with Dr. Valentini.
As the trial court and Court of Appeals did not address whether an issue of fact was presented by the testimony of Ms. Harrison‘s expert witness, we will not review that issue here. Rathеr, the case will be remanded to the trial court for further consistent proceedings.
JOHNSTONE, SCOTT, and WINTERSHEIMER, JJ., concur.
ROACH, J., dissents by separate opinion in which COOPER and GRAVES, JJ., join.
ROACH, Justice, dissenting.
The majority opinion advances persuasive policy arguments for the adoption of
Our predecessor court made clear that “[t]he legislature‘s power to enact statutes of limitation governing the time in which a cause of action must be asserted by suit is, of course, unquestioned.” Saylor v. Hall, 497 S.W.2d 218, 224 (Ky.1973) (emphasis added); see also Gilbert v. Barkes, 987 S.W.2d 772, 776 (Ky.1999) (citing to Saylor and stating that “[i]t is well established that the legislature has the power to limit the time in which a common law action can be brought“). In medical malpractice cases, the General Assembly has unequivocally answered this policy question.
By requiring that actions be brought within one year of the time the “injury is first discovered or in the exercise of reasonable care should have been discovered,” the General Assembly has adopted the discovery rule for tolling the medical malpractice statute of limitation. And, quite simply, the phrases “injury is first discovered” and “should have been discovered” means precisely what they say: that the statute of limitation begins to run when the injury is first discovered or should have been discovered. Discovery occurs when a patient knows that he or she has been wronged and by whom the wrong has been committed. Wiseman v. Alliant Hospitals, Inc., 37 S.W.3d 709, 712 (Ky.2000).
The evidence clearly established that Ms. Harrison had discovered or at least should have discovered her injury by 1998. Her post-operative difficulties from her 1997 surgеry were easily observable. As the Court of Appeals noted, the 1997 surgery resulted in “[d]isfiguring complications ..., including nipple loss.” As a result, she sought “second opinions” from a second doctor, then a third doctor, and then a fourth doctor. She was concerned enough that in 1998 she even consulted with an attorney (on whose advice she consulted the third doctor). There is simply no way that Ms. Harrison had no knowledge of her injury. Thus, her suit against Dr. Valentini in November 2000 was clearly time-barred under
The majority, however, has, through pure judicial fiat, supplanted the statutorily prescribed discovery rule with the continuous course of treatment rule. The majority opinion admits that “neither the discovery rule nor
In an attempt to find any legal authority in Kentuсky for its enactment of this new policy, the majority relies upon Alagia, Day, Trautwein & Smith v. Broadbent, 882 S.W.2d 121 (Ky.1994). Although the Court discussed the legal malpractice analog of the continuous course of treatment rule, namely the continuous representation rule, in Alagia, it did so only in dicta. Ultimately, the Court did not adopt the continuous representation rule, noting that the rule “is not controlling here” and that the case “must be decided on the occurrence rule.” Id. at 125.2
The majority also claims support for adoption of the rule in the following language from Wiseman v. Alliant Hospitals, Inc., 37 S.W.3d 709 (Ky.2000):
One who possesses no medical knowledge should not be held responsible for discovering an injury based on the wrongful act of a physician. The nature of the tort and the charаcter of the injury usually require reliance on what the patient is told by the physician or surgeon. The fiduciary relationship between the parties grants a patient the right to rely on the physician‘s knowledge and skill.
Id. at 712-13. What this language means, however, is that the continuous course of treatment doctrine (as opposed to “rule“) might, at most, be a usеful tool for tolling a statute of limitation based on the discovery rule—in an appropriate case. This is why the dicta in Alagia noted that “the continuous representation rule is a branch of the discovery rule,” rather than a replacement. 882 S.W.2d at 125. As a court of law, however, we simply are not at liberty to adopt a wholly new rule to replaсe the one that the General Assembly has enacted. Furthermore, it is unnecessary in this case to consider the application of the continuous course of treatment doctrine as a tolling method given that Ms. Harrison‘s injury was so very obvious. Yet, this is exactly what the majority has done.
The General Assembly has determined that a medical negligence claim must be brought within one year after the “injury is first discovered” and since the judiciary has no power to re-write the statute to
COOPER and GRAVES, JJ., join this dissenting opinion.