DEBORAH WISEMAN v. MARIO V. ULFE, M.D.; GUARI & ULFE, P.S.C.; and, ALLIANT HOSPITALS, INC., D/B/A NORTON HOSPITAL
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RENDERED: September 24, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-003200-MR
DEBORAH WISEMAN
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS B. WINE, JUDGE
ACTION NO. 96-CI-007283
v.
MARIO V. ULFE, M.D.; GUARI & ULFE,
P.S.C.; and, ALLIANT HOSPITALS, INC.,
D/B/A NORTON HOSPITAL
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, HUDDLESTON, AND KNOX, JUDGES.
KNOX, JUDGE:
Appellant, Deborah Wiseman, appeals from a summary
judgment issued by the Jefferson Circuit Court dismissing
appellant’s complaint on the basis that, as a matter of law and
pursuant to the discovery rule, appellant failed to file this
medical malpractice action within the applicable limitations
period.
We affirm.
The record, consisting of the parties’ pleadings and
several depositions, reveals these facts.
In 1989, appellee, Dr.
Mario Ulfe, appellant’s gynecologist for nearly fifteen (15)
years, diagnosed appellant with cervical dysplasia, a pre-
cancerous condition.
On August 30, 1989, Dr. Ulfe excised a
portion of appellant’s cervical tissue for analysis through a
procedure called “cold knife conization,” and afterward, as a
matter of course, performed a dilatation and curettage (D&C).
Immediately following the surgery, appellant complained
of pain in the area of the coccyx (the tailbone).
Dr. Ulfe
advised appellant that the type of surgery she had should not
cause such pain, noting that the pain might disappear once the
packing was removed from the cervical area.
Two (2) weeks later,
however, during a post-operative check-up, appellant continued to
complain of the pain.
Dr. Ulfe performed a pelvic examination,
which, while it established that appellant’s post-operative
condition was good, did not indicate the source of appellant’s
pain.
Apparently, at this point in time, appellant voiced her
concern whether hospital staff might have dropped her during
surgery, breaking her tailbone.
In mid-September 1989, appellant consulted with her
family doctor, Dr. Hilgeford, who diagnosed her with a broken
tailbone.
He repositioned the bone and prescribed muscle
relaxers and pain pills to ease appellant’s discomfort.
Appellant then notified Dr. Ulfe of the diagnosis.
In 1990, appellant moved to Georgia.
Over the next
four (4) to five (5) years, she apparently continued to have pain
in her lower back, which, by mid-1994, had radiated into the back
of her left leg and had become quite severe.
Her new
gynecologist consistently attributed the pain to appellant’s
previously broken tailbone, explaining that the surrounding area
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evidently had a tendency to become inflamed.
A cyst, or boil,
eventually developed on the back of appellant’s left leg.
In
November 1995, appellant sought medical treatment from her
husband’s doctor, Dr. Krauss, who lanced the area and packed it.
Six (6) weeks later, however, the area had not healed and was
still draining.
Appellant’s gynecologist suggested that
appellant seek the advice of a reputable surgeon, Dr. Richard
Cummings.
Dr. Cummings examined appellant on January 16, 1996,
and diagnosed her with what he called “a lesion on her bottom and
a chronic draining [] in her gluteal area,” about the size of a
nickel.
He determined the area to be acutely inflamed and
proceeded to explore it under local anesthesia.
Dr. Cummings
testified during his deposition that when he opened the area, he
discovered a piece of metal therein, approximately three (3) to
four (4) centimeters in length and one-half inch to threequarters inch from the surface of the skin:
A.
I delivered a small piece of metal in
the base of it. It was - - and there
was some chronic granulation tissue. I
think I noted that here on my note, that
within the cavity there was a 3- to 4centimeter piece of metal. It appeared
to be a probe that had broken off. And
as I said here, I asked her at length
whether or not she had had any traumatic
injuries to this area, and she didn’t
recall any.
Q.
Could you define “chronic granulation”
for the ladies and gentlemen of the
jury?
A.
Chronic granulation tissue is when you
look at a wound that’s been present for
more than just, say, a few days, there
is an area of blood vessels around it
-3-
that look very pebbly and irregular. It
bleeds easily. It usually implies that
something has been going on more than,
say, a couple of weeks.
Q.
Okay. Could you describe the foreign
object that you removed from the
patient?
A.
It was a piece of metal. It almost
looked like a piece of coat hanger,
except for the end of it had a little
bulbous tip to it, and it appeared to
have a marking or two on it that had
been made by - - had been made
purposely, almost like a gauge of depth.
And that’s why I thought when I first
saw it that it was a piece of medical
equipment.
. . . .
Q.
Now, could you tell us exactly where it
was that this piece of metal was
removed?
A.
It was actually in the crease that
separates the bottom from the legs. . .
. There was no obvious site where it had
entered other than the inflamed area on
her skin. So I was looking to see if it
- - if there had been a puncture site
anyplace else where this had come into
her leg.
Dr. Cummings removed the piece of metal and gave it to
appellant.
He described the wound as a “very superficial” one
which would heal in a week to ten (10) days.
He considered the
event “inconsequential,” noting that when he discovered the small
metal wire, he assumed the doctor who had previously lanced the
area had left the wire inside:
Apparently, she had had some drainage of it
before. Someone had actually tried to drain
it before. And I didn’t really get into that
with her. I had gotten the impression that
it had been several months earlier. And my
initial thought when I opened it was, that’s
where the metal came from, that someone had
-4-
left something in it when they were trying to
drain it the first time. But I didn’t know
that for sure.
Like I said, I didn’t get into it with her.
It was such an, I thought, inconsequential
thing that I just fixed it and sent her home.
Dr. Cummings testified that he has no knowledge of how the metal
came to be in appellant’s body at that location, nor did he
conduct any investigation to ascertain the manner in which it
entered appellant’s body.
On December 16, 1996, eleven months after Dr. Cummings
discovered the piece of metal in appellant’s leg, appellant filed
this medical malpractice action against Dr. Ulfe and Norton
Hospital.
In her complaint, appellant alleged that during the
cervical conization and D&C procedure performed on her in 1989,
Dr. Ulfe left a surgical instrument (specifically, a uterine
probe) inside her uterus, which eventually migrated out of her
body by way of her left leg.
Following discovery in the matter,
Dr. Ulfe moved the court for summary judgment in his favor, as a
matter of law, on the basis that appellant had failed to file the
action within the one-year limitations period set out in KRS
413.140(1)(e).
Pursuant to his motion for summary judgment, Dr. Ulfe
noted that he had performed appellant’s surgery nearly eight (8)
years earlier.
Appellant countered that pursuant to the
“discovery rule” set out in KRS 413.140(2), stating that her
cause of action under these facts “shall be deemed to accrue at
the time the injury is first discovered or in the exercise of
reasonable care should have been discovered,” she did not
-5-
discover the injury until January 16, 1996, eleven (11) months
after which she timely filed suit.
Dr. Ulfe argued, however,
that appellant’s own testimony in this case reveals that she had
knowledge of some kind of an injury within weeks of, if not
immediately after, the conization procedure and, further,
strongly suspected the origin of the injury to have been the
procedure itself.
Thus, he maintained, appellant’s lawsuit was
filed several years too late.
On October 14, 1998, the circuit court granted Dr.
Ulfe’s motion, finding that appellant’s cause of action had
accrued “as early as August 30, 1989[,] and as late as June
1994.”1
Appellant then filed a CR 59 motion, which was denied by
the court on December 11, 1998.
On appeal, appellant argues that she had no reason to
know, or suspect, that Dr. Ulfe had left a foreign object in her
body until Dr. Cummings discovered the object in January 1996.2
She concedes that shortly after the conization procedure in 1989,
she suspected her discomfort was related to that procedure since
she began having pain immediately thereafter, but that her many
doctors throughout the years attributed her pain to what
appellant now refers to as her “misdiagnosed” tailbone fracture.
1
This date is based upon appellant’s testimony that she
began experiencing increasingly sharp pains in mid-1994.
2
We note here that we do not review the merits of
appellant’s allegation that the metal wire discovered by Dr.
Cummings migrated from inside appellant’s uterus into her left
leg. The sole issue before us is the timeliness of appellant’s
lawsuit.
-6-
3
Thus, upon their treatment and advice, appellant maintains, she
could not have known that Dr. Ulfe had left a piece of medical
equipment in her body.
Dr. Ulfe counters that appellant had
sufficient knowledge in 1989 to trigger the discovery rule under
KRS 413.140(2) and, consequently, the running of the one-year
statute of limitations.
The discovery rule, a means by which to identify the
“accrual” of a cause of action when an injury is not readily
ascertainable or discoverable, was first enunciated in Tomlinson
v. Siehl, Ky., 459 S.W.2d 166 (1970), and later refined in
Hackworth v. Hart, Ky., 474 S.W.2d 377 (1971): “[T]he statute
begins to run on the date of the discovery of the injury, or from
the date it should, in the exercise of ordinary care and
diligence, have been discovered.”
omitted).
Id. at 379.
(Emphasis
For the past twenty-plus years, the rule has been
analyzed, interpreted, expounded upon, and eventually extended to
litigation other than medical malpractice, e.g. personal injury,
products liability, and legal malpractice.
A brief evolution of
the case law proves helpful to our analysis.
In 1979, our highest Court held that the statute of
limitations is not necessarily tolled simply because the
plaintiff does not know the full extent of his injury.
See
Louisville Trust Co. v. Johns-Manville Prod. Corp., Ky., 580
S.W.2d 497, 500 (1979) (“Plaintiff’s lack of knowledge of the
3
While there is no evidence in the record contradicting Dr.
Hilgeford’s diagnosis in 1989 of a fractured tailbone, appellant
evidently now theorizes that she was not, in fact, suffering from
a fractured tailbone over the past several years but, rather,
from the migration of a metal wire within her body.
-7-
extent of his injury does not toll a statute of limitations to
which the discovery rule is applied.”).
The knowledge necessary
to trigger the statute is two-pronged, i.e. one must know: (1) he
has been wronged; and, (2) by whom the wrong has been committed:
In Conway [v. Huff, Ky., 644 S.W.2d 333
(1982)], the court held that the date with
which the statute begins to run “obviously
. . . must be with the discovery that a wrong
has been committed and not that the party may
sue for the wrong.” Conway, 644 S.W.2d at
334. Moreover, in Graham v. Harlin, Parker &
Rudloff, 664 S.W.2d 945 (Ky. App. 1983), the
Kentucky Court of Appeals stated:
Perhaps it’s true that appellant
did not know she had a cause of
action at that time, but that is
immaterial. The knowledge that one
has been wronged and by whom starts
the running of the statute of
limitations . . . not the knowledge
that the wrong is actionable.
664 S.W.2d at 947.
Drake v. B.F. Goodrich Co., 782 F.2d 638, 641 (6th Cir. 1986).
See also Hazel v. General Motors Corp., 863 F.Supp. 435, 438
(W.D. Ky. 1994) (“Under the ‘discovery rule,’ a cause of action
will not accrue until the plaintiff discovers, or in the exercise
of reasonable diligence should have discovered, not only that he
has been injured but also that his injury may have been caused by
the defendant’s conduct.”) (citations omitted).
Finally, as
stated by the Sixth Circuit, “we think it clear that the Court of
Appeals of Kentucky intended the discovery rule to extend the
commencement of the statute of limitations only up to the time
that the harmful effect of the complained of negligence first
manifests itself.”
Hall v. Musgrave, 517 F.2d 1163, 1167 (6th
Cir. 1975).
-8-
Appellant’s deposition in this matter reveals that just
two (2) weeks after her surgery in 1989, appellant suspected she
had been harmed as a result of the surgery.
In fact, appellant
testified that not only did she suspect, but she knew, her
problems throughout the past several years were caused by the
surgery of 1989.
She consistently told her doctors in Georgia,
beginning in 1990, that she believed her pain stemmed from the
1989 surgery performed by Dr. Ulfe.
Further, contrary to her
argument on appeal that she had no reason to suspect that Dr.
Ulfe had left a foreign object in her body, she testified that
she realized two (2) to four (4) years prior to Dr. Cummings’
discovery of the wire in her leg that there was, indeed, a
“foreign object” in her body.
Finally, she testified that when
she saw the piece of metal which Dr. Cummings extracted from her
leg, she immediately knew that its origin was the 1989 procedure
performed by Dr. Ulfe.
The following excerpts are illustrative:
A.
My husband was in the waiting room. I
showed [the metal] to him. And I told
him right then and there where it came
from.
Q.
Which was what?
A.
When I had my surgery.
Q.
Was it an I-told-you-so kind of
conversation?
A.
Yes, it was.
. . . .
Q.
After showing this piece of wire to your
husband, you take it back and show it to
[nurse] Diane and [gynecologist] Dr.
Barnes?
-9-
A.
Yes. The next day. It was either the
next day or the day after . . . .
Q.
Can you just describe for me what that
conversation was like?
A.
I showed [Diane] the metal. And she
said, was that what was in your leg?
And I said, yes. I said, do you know
what it is? And she said, yes. She
told me and she said, how did it get
there? And I said, I have been trying
to tell you all that when I had my cone
biopsy I started getting this pain and
no one listened to me and took me
serious. Never in my mind did I ever
have a doubt where it came from.
. . . .
Q.
[I]s it fair to say that from 1989 to
1996, when the piece of metal is found,
that you knew that your discomfort and
pain was in some way triggered by, or
caused by, or began back during, that
August 1989 procedure performed by Dr.
Ulfe?
A.
I knew that it was -- I knew it was the
result of an outcome of this surgery.
. . . No, I didn’t think it was a two
and a half inch piece of anything. I
knew there was something wrong that
happened in this surgery, something
broke off, a bone was floating around.
I thought at one time it was my
tailbone, a section of my tailbone had
split and it was moving around or
something, because of the pain, how it
started in that area and moved to the
left of my cheek and then it moved to
the top of my leg.
Q.
So, that belief began back in 1989, that
day of the surgery, in fact, when you
first winced in pain, would that be
true?
A.
That night. Well, I thought maybe this
was because of the surgery and that it
would get better, but when it didn’t get
better . . . .
. . . .
-10-
Q.
Did you represent to Diane or other
nurse practitioners and/or the
physicians in that group that you had
this pain and that it correlated with a
procedure that occurred in 1989?
A.
Yes.
Q.
What was your explanation or description
of your pain and its correlation to the
procedure in 1989 with Dr. [Ulfe]?
A.
I told her that I had this cone biopsy,
and as a result of the cone biopsy that
I was having pain. And that about two
or three weeks later, my family doctor
examined me and I had a broken tailbone
at that time, but I still continued to
have the pain throughout the year. That
was the conversation with her.
Dr. Sharon Smith.
. . . .
Q.
Is it fair to say that in 1994, when you
began to have exacerbated sharp pain,
there was no doubt in your mind at that
time, in 1994, that that sharp pain was
caused somehow by what Dr. Ulfe had done
in 1989?
A.
Right.
Never a doubt.
. . . .
Q.
You even asked Dr. Ulfe, is it possible
somebody dropped me on my rear end --
A.
On the table. Cause I remember my
rectum going into this hole. And his
reply was, no, I am sure they didn’t
drop you.
Q.
But you knew something had gone wrong at
that point?
A.
I told you that something went wrong
from the surgery, from that day when
they put me on that table and I came to.
. . . .
Q.
Did you have any concept that there was
this piece of metal in your body?
-11-
A.
Did I have any concept?
Q.
Yeah.
A.
Yes.
Q.
Did you ever think it was a piece of
metal in your body?
A.
Did I think it was a piece of metal, no.
I knew it was a foreign [object], okay.
Q.
At what point in time did you believe
there was a foreign object in there?
A.
Four years before they took it out.
don’t know, two to four years.
When I had sharp pains.
I
From the foregoing testimony, it appears that, while
she may not have known the full extent of her injury, appellant
knew as early as two (2) weeks after her surgery in 1989 that she
was suffering the harmful effects of some wrong committed against
her by Dr. Ulfe.
Further, as early as 1992 and as late as 1994,
appellant believed she had a “foreign object” in her body, the
origin of which she believed to have been the 1989 procedure
performed by Dr. Ulfe.
Appellant even testified that she was
skeptical about Dr. Hilgeford’s 1989 diagnosis of a broken
tailbone, evidently believing throughout the years the root of
her problem was the conization and D&C performed by Dr. Ulfe in
1989.
Thus, it appears that appellant had the requisite
knowledge, i.e. that she had been wronged and by whom, and thus
her cause of action accrued, as early as September 1989, over
seven (7) years prior to filing suit, and as late as mid-1994,
two and a half years prior to filing suit.
We agree with the
circuit court that appellant failed to file this medical
malpractice action within one year after her cause of action
-12-
accrued.
As such, we believe that as a matter of law, Dr. Ulfe
was entitled to summary judgment in his favor.
For the foregoing reasons, the judgment of the
Jefferson Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR MARIO V. ULFE, M.D.:
Lee E. Sitlinger
Louisville, Kentucky
Donald W. Darby
David B. Gazak
Louisville, Kentucky
BRIEF FOR ALLIANT HOSPITALS,
INC., d/b/a/ NORTON HOSPITAL:
Frank P. Hilliard
Ed Monarch
Louisville, Kentucky
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