LINDA BLANTON v. GALEN OF KENTUCKY, INC.
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RENDERED: May 28, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001122-MR
LINDA BLANTON
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE ERNEST A. JASMIN, JUDGE
ACTION NO. 97-CI-01007
GALEN OF KENTUCKY, INC.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, EMBERTON, AND SCHRODER, JUDGES.
SCHRODER, JUDGE:
Appellant appeals from the order of the
Jefferson Circuit Court granting a motion for summary judgment in
favor of the appellee.
After reviewing the record and applicable
authorities, we affirm.
On January 31, 1996, appellant, Linda Blanton, was
admitted to Suburban Hospital for treatment.
On the following
day, February 1, 1996, appellant received an injection which
became the focus of the medical malpractice claim in this case.
Appellant claims that she did not become aware of the injury and
the possibility of malpractice until she was diagnosed by another
doctor on February 22 or 23, 1996.
Appellant filed suit on
February 21, 1997, and the circuit court dismissed the claim on a
motion for summary judgment by appellee, ruling that appellant’s
cause of action had accrued on February 1, 1996, and that
appellant had not complied with the one (1) year statute of
limitations required by KRS 413.140(1)(e) and KRS 413.140(2).
It is well settled that a motion for summary judgment
is appropriate when the moving party can show that there exists
no genuine issues of material fact and that the moving party is
entitled to judgment as a matter of law.
Steelvest, Inc. v.
Scansteel Service Center, Inc., Ky., 807 S.W.2d 476 (1991).
In
the case at bar, however, we are dealing with a question of
statutory interpretation and KRS 413.140.
The pertinent parts of
KRS 413.140 indicate:
(1)
The following actions shall be commenced
within one year after the cause of action
accrued:
(e)
An action against a physician, surgeon,
dentist or hospital licensed pursuant to KRS
Chapter 16 for negligence or malpractice.
(2)
In respect to the action referred to in
paragraph (e) of subsection (1) of this
section, the cause of action shall be deemed
to accrue at the time the injury is first
discovered or in the exercise of reasonable
care should have been discovered. . .
-2-
This statute is a codification of the so-called “discovery rule”
which was adopted in Tomlinson v. Siehl, Ky., 459 S.W.2d 166
(1970) and its progeny.
The appellant argues that she did not discover the
extent of her injuries and the possibility that she had been the
victim of malpractice until February 22 or 23, 1996, but the
statute clearly indicates that it is the discovery of the injury
(emphasis added) that triggers the running of the statute of
limitations.
The trial court, applying the discovery rule,
concluded that appellant knew or should have known that she had
been injured on February 1, 1996, and this is supported by the
record.
According to the record, appellant was aware that the
nurses were not supposed to give injections into her hip.
The
record also indicates that appellant was informed by the head
nurse that the injection incident “never should have happened.”
Further, it is undisputed that appellant began to experience pain
and numbness, primarily in the lower right extremities, almost as
soon as the injection was given, and the appellant continued to
complain to hospital personnel that she was experiencing pain and
numbness throughout the rest of the hospital stay.
Appellant argues that because there is conflicting
testimony as to the time of discovery of the alleged malpractice,
then the issue becomes a question for the jury under Hackworth v.
Hart, Ky., 474 S.W.2d 377 (1971).
A closer analysis reveals that
Hackworth is very different from the case at bar.
In Hackworth, a botched vasectomy resulted in an
unplanned pregnancy and an action for medical malpractice.
-3-
The
Court held that the cause of action commenced to run at the time
the husband discovered or should have discovered that the
operation was not successful, that a jury question existed as to
when the plaintiffs should have discovered that the wife was
pregnant and that a jury question existed as to whether the
physician was guilty of malpractice in the performance of the
operation.
Id.
Clearly, in Hackworth the injury resulting from the
alleged malpractice was a pregnancy; therefore, plaintiffs could
not have determined that the vasectomy was unsuccessful and there
was an injury until they discovered that the wife had indeed
become pregnant.
The Court in Hackworth indicated that the jury
should determine whether plaintiff husband and wife knew or
should have known of the pregnancy and that a doctor, facing a
malpractice case, is entitled to demand due diligence on the part
of the person claiming to be aggrieved.
Id. at 379, 380.
Obviously, a woman cannot determine at the moment of conception
that she is indeed pregnant, and the Court in Hackworth decided
that a jury should determine when the plaintiffs became aware of
the pregnancy and whether the plaintiffs had exercised due
diligence to discover the pregnancy.
Id.
In the case at bar,
however, it is clear from the record that appellant knew on
February 1, 1996, that hospital personnel had violated
instructions regarding her care and that failure to follow those
instructions had resulted in physical injury and pain.
Based upon these facts, appellant’s cause of action
accrued on February 1, 1996, and the filing of her complaint on
-4-
February 21, 1997, was barred by the one-year statute of
limitations.
Accordingly, we affirm the ruling of the Jefferson
Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Fred R. Radolovich
Louisville, Kentucky
Martin A. Arnett
Louisville, Kentucky
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