Williams v. KilgoreWilliams v. Kilgore
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
I.
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
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
II.
Our inquiry today focuses on whether
[A] discovery rule exists in conjunction with
§ 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 inMiss. Code Ann. § 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
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
A cause of action accrues only when it comes into existence as an enforceable claim; that is, when the right to use becomes vested. Rankin v. Mark, 238 Miss. 858, 120 So. 2d 435 (1960); Aultman v. Kelly, 236 Miss. 1, 109 So. 2d 344 (1959); Walley v. Hunt, 212 Miss. 294, 54 So. 2d 393 (1951); and Forman v. Mississippi Publishers Corp., 195 Miss. 90, 14 So. 2d 344 (1943). A cause of action must exist and be complete before an action can be commenced, and, when a suit is begun before the cause of action accrues, it will generally be dismissed if proper objection is made. Euclid-Miss. v. Western Cas. & Sur. Co., 249 Miss. 547, 163 So. 2d 676 (1964); Boydstun v. Pearson, 239 Miss. 479, 123 So. 2d 621 (1960); and Miller v. Fowler, 200 Miss. 776, 28 So. 2d 837 (1947).
Estate of Kidd v. Kidd, 435 So. 2d 632, 635 (Miss. 1983). To the same effect is Smith v. Temco, Inc., 252 So. 2d 212, 216 (Miss. 1971), which states that “[t]he tort is not complete until the injury occurs....”
Although the Court viewed an asbestosis injury as “inherently undiscoverable,” as distinguished from Mrs. Williams’ injury, it refused to hold that the cause of action accrues on the date that the plaintiff discovers the wrongful act. Rather, it begins to accrue on the date the plaintiff discovers his or her injury or disease. In this instance, Mrs. Williams began to experience infections and back pain in 1985. Moreover, this is the date she discovered that the needle was causing her problems, never having been informed previously that the needle from the 1964 biopsy procedure remained lodged within her.
We have applied the discovery rule even to certain “inherently undiscoverable” intentional torts. Staheli v. Smith, 548 So. 2d 1299 (Miss. 1989), a defamation case, arose when the plaintiff, a university professor, discovered the existence of derogatory letters in his tenure file some two
that limited class of libel cases in which, because of the secretive or inherently undiscoverable nature of the publication the plaintiff did not know, or with reasonable diligence could not have discovered, that he had been defamed. In such rare instances, we do not believe a plaintiff can be accused of sleeping on his rights.
We therefore reject the Appellees’ contention that Mrs. Williams’ claim was extinguished in April of 1970 under
We find therefore that Mrs. Williams properly filed her complaint in this case within two years of that time, thus conforming with the statute of limitations for medical malpractice prescribed in
III.
Mrs. Williams further contends that the circuit court erred in setting aside the entry of default against Dr. Kilgore and the default judgment against Dr. Berrong. We make no express finding as to the propriety of the Circuit Court‘s decision, except to note that the decision to grant or set aside a default judgment is “addressed to the sound discretion of the trial court.” Pointer v. Huffman, 509 So. 2d 870, 875 (1987). This discretion must be exercised in accordance with the rules set forth in
In order to enter a default, “the court must have jurisdiction over the party against whom judgment is sought, which also means that he must have been effectively served with process.” Comment to
Dr. Berrong asserts that the summons and complaint returned as personally served upon him at his residence in Raymond was never received. He further contends that it was not received by his wife, despite the correction to that effect made by Sheriff Kilpatrick. Even if service was made upon Mrs. Berrong, mere delivery of the summons and complaint does not render service complete.
Accordingly, we reverse and remand for a trial on the merits.
REVERSED AND REMANDED FOR A NEW TRIAL.
DAN M. LEE, P.J., and PRATHER and SULLIVAN, JJ., concur.
BANKS, J., concurs in result with separate written opinion joined by PITTMAN, J.
HAWKINS, P.J., dissents with separate written opinion joined by ROY NOBLE LEE, C.J.
ROBERTS, J., not participating according to Supreme Court Internal Rules.
BANKS, Justice, concurring:
I agree with the majority that the judgment of the trial court must be reversed. I would do so on more narrow grounds, however, and, I question the determination by this Court that the statute of limitations did not begin to run until 1985. In my view, the majority confuses the manifestation of injury with the onset of injury. While the former may be significant to the question of discovery, it is not necessarily dispositive and, in the instant case, the onset of injury was when the foreign object was left in Mrs. Williams’ body.
Assuming, as we must for present purposes, that this issue is resolved in favor of Williams, the question of limitations then must be determined with reference to when she should have known that the needle was there. Whether Mrs. Williams knew or should have known in 1972 or 1980, when physicians’ reports indicated the presence of the needle, is an issue of fact to be determined by a jury. For that reason, I would reverse and remand for further proceedings during which the issue of the statute of limitations would be alive for determination based on the proper resolution of the factual issues here indicated.
The majority seems to suggest that no cause arose until the needle caused an infection regardless of whether Williams became aware or should have become aware of its presence at an earlier time. I disagree. While the infection may have led to discovery and, therefore, marked the date of accrual under a discovery rule, a patient with a foreign object negligently left in her body has suffered injury sufficient for a cause of action which accrues on discovery regardless of whether it has caused further disease or injury at that time. See, e.g., Shillady v. Elliot, 114 N.H. 321, 323, 320 A. 2d 637, 638 (1974); Parker v. Vaughn, 124 Ga. App. 300, 301, 183 S.E. 2d 605, 606 (1971); Billings v. Sister of Mercy, 86 Idaho 485, ___, 389 P. 2d 224, 232 (1964); and Gaddis v. Smith, 417 S.W. 2d 577, 580 (Tex. 1967). The inhalation of toxic substances may cause injury which is not discoverable until the onset of a resulting disease, the deposit of a detectible and removable foreign object is a different matter.
PITTMAN, J., joins this opinion.
HAWKINS, Presiding Justice, dissenting:
There was no specific statute of limitations addressing malpractice actions, and we have held this six-year section applied. Ross v. Hodges, 234 So. 2d 905 (1970). We likewise have interpreted this statute as having begun to run from date of injury, not from date of discovery of the injury. Kilgore v. Barnes, 508 So. 2d 1042, 1044 (Miss. 1987); Smith v. McComb Infirmary Assoc., 196 So. 2d 91, 92-93 (Miss. 1967); M.T. Reed Construction Co. v. Jackson Plating Co., 222 So. 2d 838, 840 (Miss. 1969); Wilder v. St. Joseph Hospital, 225 Miss. 42, 45-46, 82 So. 2d 651, 652 (1955).
By Chapter 311, Laws 1989, the Legislature amended
§ 15-1-49. Limitations applicable to actions not otherwise specifically provided for.
(1) All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.
(2) In actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.
(3) The provisions of subsection (2) of this section shall apply to all pending and subsequently filed actions.
In the amendment the Legislature gave some bad and some good news. It shortened the statutory period to three years, but also provided that the statute did not begin to run until the injury was discovered by the plaintiff, or by reasonable diligence he could have discovered it. In amending the statute, the Legislature clearly recognized that our interpretation of the original
As noted, the recent case of Kilgore v. Barnes recognized that under the original
Owens-Illinois, Inc. v. Edwards, 573 So. 2d 704 (Miss. 1990), cited by the majority, involved a products liability case in which we held that in this type of case we would apply
Today‘s holding overrules established precedent and I respectfully dissent.
ROY NOBLE LE