*1 COMPTON, Bеfore RABINOWITZ and Justice,* JJ., DIMOND, CARPENE- Senior * Dimond, Justice, sitting by assignment Senior of Alaska and Alaska R.Admin.P. Constitution IV, pursuant 23(a). made to article section 11 of the *2 lidocaine had istered an overdose of which
TI,
Judge,** and AN
Court
Superior
arrest.
caused her cardiac
Judge.**
DREWS, District Court
stopped seeing
Mrs.
Archer after
Sharrow
OPINION
from the
on Au-
suspended
he was
gust
In November
DIMOND,
Justice.
Senior
sought
George
medical adviсe
judg-
a
appeal
summary
from
This is an
Al-
Rhyneer,
Anchorage cardiologist.
an
Archer,
of Gary
in favor
ment entered
though
had received conflict-
Mrs. Sharrow
Anschuetz, M.D., the Alaska
M.D., Richard
ing reports
her overdose from the
about
Center, Inc., and the
and Medical
Hospital
Rhyneer
informed Dr.
that she
hospital, she
superior
Local 959. The
Teamsters Union
in an
“ultimately
had
received lidocaine
Margaret and William
court
ruled
had a cardiac arrest
from
and
pursuing
Sharrow were barred
that.”
malpractice and fraud
claims of medical
early
December
November
late
affirm.
of limitation. We
statute
newspaper
read various
Mrs. Sharrow
suspension
Dr. Archer’s
concerning
articles
I.
ap-
articles
hospital.
from the
Several
Sharrow,
experience
who had
Margaret
newspapers,
Anchorage
peared in the
nurse,
the Alaska
as a
entered
registered
law-
Dr. Archer
filed a
indicated that
Center,
(the hos-
Medical
Inc.
Hospital and
that he
against
hospital claiming
suit
17, 1977,
undergo
pitаl)
to
on
discharged by them.
wrongfully
had been
later,
days
Three
on Feb-
surgery.
elective
further indicated that the hos-
articles
mistakenly
she was
administered
ruary
pital
discharged
had been
claimed Archer
hospi-
aby
a
overdose of lidocaine
massive
manipulation
patient’s
“the
suffered a cardiac
tal
Mrs.
nursing
nurse.
Sharrow
cover-uр
medical
to
a serious
record
supervis-
arrest,
was resuscitated
but
“to
error”
because Archer
failed
An-
ing doctors,
Archer and Richard
Gary
inform
that her cardiac arrest
patient
schuetz.
a result of medication
probably
most
event.”
spontaneous
error
rather
than
incident,
expressed
this
Following
specific
Another
made
reference to
article
to whether the arrest was
some doubt as
Despite
publicized
“the
case.”
Sharrow
drug-induced,
and told the nurses
were
took no
ac-
controversy, the Sharrows
either to
drug
mention the
overdose
against
hospital at that time.
tion
chart.
rec-
Hospital
or in the
patient
Mrs.
During
spring
delete
subsequently
ords
altered to
were
superior
court
a witness
called as
of the overdose. When
mention
against
Dr. Archer
case initiated
ques-
Archer with the
Sharrows confronted
While
testifying
administrators.1
tion
an overdose had caused
of whether
during
Mrs.
occurring
as to the
events
Archer al-
Sharrow’s
she had ever
was asked whether
one
knew what
really
“no
legedly responded
a lawsuit
Archer.
filing
considered
problem.”
heart
caused [Sharrow’s]
as follows:
responded
on Febru-
Despite
attempted cover-up,
Well,
things
ary 21, 1977,
days after
the cardiac
after —after
Dr. Archer’s dismissal
Mayer,
another
about
paper
arrest had
forth,
and so
we did
hospital,
hospital physician, advised
it,
from what
learned
consider
but
fact been admin-
Mrs. Sharrow
**
son,
Webb,
M.D.,
Union
Superior
Judge,
and Teamsters
Carpeneti,
An-
Ernest
Court
suspen-
following
drews,
Judge, sitting by assign-
Local
District Court
No. 959
hospi-
R.App.P.
privileges
pursuant
at the
staff
ment made
sion of his medical
106(a).
tal.
Eidelson
(Alaska 1982).
superior
filed an action in the
Dr. Archer
M.D.,
Ivy,
Eidel-
William
Stewart
court
you
sue
an act of medical negligence
that time —it seemed like
had to
has occurred
injured
much,
it
but the
does
for so horrible
and was —I didn’t
not learn of it
Annot.,
until some time later. See
hide,
just
43 A.L.
anybody’s
want
I wanted
com-
(1972).
majority
R.3d
of courts
pensation
didn’t seem to be feasible
—that
have held
a concealment
or nondisclo-
time,
long
as he
on
at that
was not
sure of
tolls
statute until the
anyone
and able to affect
else
the staff
*3
injured party
negli-
has actual notice of the
adversely, I felt
was
that
sufficient.
or,
gence
care,
in the exercise of ordinary
1, 1980,
It
not until
the
July
was
that
the negligence.
should have known of
did file
their complaint
Sharrows
suit.
Sartin v. St. Paul Fire & Marine Insurance
neg-
that a
they alleged
drug overdose was
Co.,
(La.Ct.App.1978);
justified arrest, Mrs. her cardiac time, any, such rеliance cause of if point what way only realized that unreasonable. became conflicting accounts of her reconcile the relationship its treatment and III. Dr. Archer and the arrest was that that the Sharrows We conclude Moreover, the true facts. concealed knowledge of or should herself testified on or question as of December the events August 1977 she and her husband about they had a cause to realize forego any legal action decided re Any and fraud. action defendants, they believed because of Dr. Archer after liance statements that no negli- statement Although that time unreasonable. felt gence had malpractiсe and details of specific Archer from his dismissal *4 may not re cover-up fraudulent have been hospital enough the because position at until of the trial vealed Sharrows longer to affect others he would no be able Eidelson, undisputed v. the facts Archer adversely. were that show Sharrows addition, Mrs. knew that she In facts supporting bеen aware of the have case” alluded to news- the “Sharrow for before time. their claim relief well that Archer, as paper regarding Dr. well articles White, P.2d Horn Inc. v. 627 Lodge, Van hospital dismissal from the of his 641, (Alaska 1981); Krings, Brueck v. 644 knew litigation. also surrounding She 466, (Kan.1982). Kan. 230 been allegedly had tam- records were informed of Although Sharrows with were hers. This infоrmation pered only days Mayer the overdose Dr. by person reasonable was sufficient alert a recog- superior it court after cause that he or she of physi- nized that due to the nature Dr. and the action relationship, cian-patient Sharrows negligence and fraud. justifiably still have relied on could that the had not been The fact- Sharrows point. statements Dr. Archer “wrong” by “wrong- of the informed Ison, 791, 249 793-94 Adams S.W.2d were not convinced that there was doer” or superior court (Ky.Ct.App.1952). wrong “proof” of the or aware of “sworn ruled that the statute of limita- therefore evidence” testimony documentary sub- tion was tolled from it does establish that rea- stantiating not Decеmber 1977. The court deter- would be unaware sonable any by the mined that that time reliance wrongdoing.5 wrong or Arch- upon the statements of Dr. Sharrows clearly er was unreasonable. IV. 1977, Mrs.
By December conclusion, genu no we find that May- her overdose In been informed of ine of material fact has been raised Rhy- stated to Dr. issue specifiсally er and judgment.6 preclude summary given that she had been an overdose. would neer Stocks, inquiry protect put Inc. v. Trans- would reasonable men on In Tobacco & Allied (3d Cir.1957), rights.” Corp., Id. at 904. america 902 244 F.2d rejected by plaintiffs that laches court a claim submitted the Sharrows in 6. The affidavits in a should not attach until the district court prior summary judg- opрosition to the motion for opinion finding fraud: case had issued its directly do not address the admissions ment begin fraud “To have such as will being Sharrow made while examined in laches, however, adju operation They do of Archer v. Eidelson. the case hardly question of the of fraud is nec dication essary. the Sharrows were unaware of the assеrt that plain is if facts It come to or that overdose December 1977 inferenc tiffs attention that would warrant the no to believe that the records reason draw, would es reasonable men case, manipulated. In
1335 Although might persons summary judgment reasonable and against the mov as to whether Bottcher, differed Mrs. Sharrow actual- ant. Clabaugh v. that the she knew
ly gave (Alaska 1976); understood facts 175 n. Rent-A-Car, 5 action, to a cause of there could be Co., rise Inc. v. Ford 526 Motor P.2d opinion (Alaska difference should have 1974); G.V.E.A., Nizinski v. known that she had a of action by cause (Alaska 1973). P.2d two-year December 1977. The statute of The court holds that concealment or non- negligence limitation for and fraud there- disclosure of medical tolls the expired fore in December nine months statute of “until injured limitations par- before their action. filed ty negligence or, has actual notice of the superior of the court ordinary care, the exercise of AFFIRMED. known negligence.”1 of the
Drawing inferences from the facts in this RABINOWITZ, Justice, dissenting. record in favor of the Sharrows Archer, question I think that the of the I holding dissent court’s that no reasonableness of the Sharrows’ reliance af issue of material fact has been ter December 1977 on statements of Dr. preclude summary judg- raised would hospital records, as well as the More particularly, disagree ment. with one thаt should be a jury submitted to majority’s holding that on this record view, resolution. all of the critical “... the Sharrows had or should have had *5 upon opinion facts relied in court’s are in ques- of the events subject interpretations. to differing For tion of December realize instance, Margaret averred, in a cause of action for negli- “[tjhat it part, was not the recent trial gence and fraud. Any upon reliance state- in the case of Archer v. Gary Steward Ei ments of Dr. Archer time was 77-6264, delson, al., et that I became aware unreasonable.” of sworn testimony documentary evi 56(c) provides part Civil Rule in that sum- dence which the facts established set out in judgment mary “... shall be rendered plaintiff’s complaint.” Additionally, Mar if pleadings, depositions, forthwith an- garet in her Sharrow stated affidavit: to interrogatories, swers and admissions on That after the events previously de- file, together affidavits, with the show affidavit, scribed in this I was convinced genuine there no issue toas material “proof” there fact and that any party entitled to a addition, my received an overdose. In judgment as a matter of law.” Case law treating physician during period ruling upon establishes that in a motions alleged had con- inferences of fact tinuously my led me believe “heart presented materials are drawn in attack” pre-exist- had been the result of a party favor opposing motion for “discovery determining ed the the es. rule” for when determining the standard for when the statute applicable statute limitationscommenc- objective one, begins of limitation is an to run specifically stated that: dependent on when a knows or We should giving known of the facts rise to the cause According best formulation of that to the action, subjective allegations of the Shar- rule, the statute of limitations for mal- do not raise issues rows of fact. practice begin to run does not until the client discovers, reasonably discover, or Bookman, Area, Alaska, In Greater Inc. v. existence of all the elements of his cause action, (1982), involving a case [footnote omitted] attorney alleged malpractice, adopt- this court known that she had a claim for relief condition and never disclosed true mg Dr. Archer. cover-up.2 facts of the overdose and record that Mrs. It is clear from this Shar- her medical records
row was unaware that with, tampered she considerable reliance these fal-
placed whether determining records in
sified grounds to institute suit The record does show that
Dr. Archer. extensive ex- undertook an
amination of her own file and also same records to Califor-
took these falsified
nia in December of 1977 to be reviewed niece, in registered her nurse a critical SHOPE, W. and Loren Harold C. care unit. Hite, Appellants, short, join majority’s I cannot in the conclusion that once Mrs. Sharrow “knew her the overdose was the cause of SIMS, Sims, Sims, Harold Bruce and Joel cardiac Mining Co., partner d/b/a Little Girl only way realized that the to reconcile the ship, Eugene Darity per- all other conflicting parties claiming accounts of her treatment and unknown sons or title, estate, lien, relationship right, its arrest was or interest in the complaint that Dr. Archer and the had con- real estate described action, Appellees. this the true facts.” this is- cealed Given sue arose the context of a motion for No. summary judgment, it is view that the genu- record demonstrates existence Supreme Court of Alaska. ine issues of material fact which should *6 Feb. jury have been submitted to a for determi- Thus, nation. I would reverse and remand proceedings, including
for further the de-
termination of when Mrs. ei-
ther actual knowledge, or Additionally, also that in November The court states court states that Mrs. Shar- Rhyneer newspaper appear- Mrs. Sharrow “informed” Dr. that she row “read various articles” lidocaine, ing had received an overdose of in November and December of 1977 con- “ her cardiac arrest had cerning resulted over- Dr. Archer’s misconduct in the ‘Shar- ambiguous respect dose. The record is with specific support row case’ ”. There is no what conclusions he reached based infor- actually record for the fact that she read these mation he had received before Mrs. Sharrоw’s articles, or which she did read and which she visit, point, from other sources. At one Further, did not. of the two articles in the that, doctor stated when Mrs. Sharrow told him court, only record before the one mentions the recognized she’d had story “I name, provides “Sharrow case” no in- Rhyneer that I’d heard.” Dr. went on to concerning formation at all what that case in- explain that he was “advised to the circum- volved. The other article does indicate that a stances of her cardiac arrest.” He never stated patient went into cardiac arrest due to a “medi- that Mrs. Sharrow herself told him about these sort, error” of some but does not identi- cation fy fact, circumstanсes. his recollection was patient jury or the nature of the error. A hazy concerning Mrs. Sharrow’s command of find, reasonably might if it even concluded that history of her overdose: question, Mrs. Sharrow had seen the articles exactly I don’t recall that me how she told attempt did not advance her to recon- received, much Lidocaine that she struct the circumstances of her cardiac arrest. understanding thought was that she she had received an excessive amount of it.