MILDRED KELLER, EXECUTRIX OF THE ESTATE OF JAMES REFFETT; LINDA REFFETT v. ASHLAND HOSPITAL CORPORATION, d/b/a KING'S DAUGHTERS' MEDICAL CENTER AND ASHLAND DIAGNOSTIC, INC., d/b/a KING'S DAUGHTERS' DIAGNOSTIC CENTER
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RENDERED:
NOVEMBER 9, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO.
2005-CA-001791-MR
MILDRED KELLER,
EXECUTRIX OF THE ESTATE OF JAMES
REFFETT; LINDA REFFETT
v.
APPELLANTS
APPEAL FROM BOYD CIRCUIT COURT
HONORABLE MARC I. ROSEN, JUDGE
ACTION NO. 03-CI-00610
ASHLAND HOSPITAL CORPORATION,
d/b/a KING’S DAUGHTERS’ MEDICAL
CENTER AND ASHLAND DIAGNOSTIC,
INC., d/b/a KING’S DAUGHTERS’
DIAGNOSTIC CENTER
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER AND VANMETER, JUDGES; EMBERTON,1 SENIOR JUDGE.
EMBERTON, SENIOR JUDGE:
Mildred Keller, Executrix of the Estate
of James Reffett and Linda Reffett, appeal from an order
dismissing their medical malpractice claim.
1
The issues
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
presented concern the application of the discovery rule and the
doctrine of estoppel to the statute of limitations defense.
James was admitted to King’s Daughters’ Medical Center
on May 31, 2002, for the treatment of intractable back and
shoulder pain, and, on June 6, 2002, he underwent an MRI.2
According to James’s deposition, during the procedure he felt
his arm touch the machine and then a burning sensation.
When
asked if it was a big wound, he replied: “Yes, it was a big
wound.
It burnt the hell out of it.”
Following the MRI, James
continued his stay at King’s Daughters during which time he
received treatment for his burn injury.
He was discharged on
June 14, 2002.
After his release, James sought further treatment for
the burn injury at the King’s Daughters’ Wound Center.
On his
initial visit, he saw Dr. Timothy A. Jones, giving him a verbal
history of the burn.
He inaccurately reported, however, that
the wound occurred during an MRI procedure completed on June 13,
2002, not June 6, 2002, the actual date.
Apparently, the wound
center did not confirm the date of the MRI with the records from
James’s hospital stay, and James did not correct his initial
recollection.
The Reffetts filed their complaint on June 13, 2003.
Again, the date of the MRI was erroneously stated as June 13,
2
James had various medical conditions including diabetes and he weighed
approximately 300 pounds.
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2002.
In response, the appellees asserted that the statute of
limitations barred the claim, and following discovery, the
appellees filed a motion for summary judgment.
In support of
the motion, the appellees recited James’s testimony that he
knew, both during and immediately after the MRI performed on
June 6, 2002, that he had been burned.
The Reffetts responded
that the discovery rule applicable to medical malpractice cases
should be applied and the action permitted to proceed.
The discovery rule, codified in KRS 413.140(2),
provides that the action accrues on the date of the injury, or
if it is not immediately discoverable, the date on which it is
discovered, or should have been discovered.
In Wiseman v.
Alliant Hospitals, Inc.,3 the court explained that the discovery
rule is a means to identify the “accrual” of the action when the
injury is not readily ascertainable or discoverable.4
The
accrual date, the court held, depends on the actual or
constructive knowledge of the plaintiff and is two-pronged; “one
must know: (1) he has been wronged; and (2) by whom the wrong
has been committed.”5
The test set forth in Wiseman emphasizes that the
plaintiff know that he has been harmed and that he know, or
3
37 S.W.3d 709 (Ky. 2000).
4
Id. at 712.
5
Id. (citations omitted).
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should know, its negligent cause and deleterious effect.
When
both knowledge requirements are satisfied, the plaintiff has
been injured and the statute will begin to run.
Central to the
court’s analysis is the distinction between “harm” and “injury”.
Harm in the context of medical malpractice
might be the loss of health following
medical treatment. “Injury,” on the other
hand, is defined as the “invasion of any
legally protected interest of another.”
Thus, injury in the medical malpractice
context refers to the actual wrongdoing, or
the malpractice itself. Harm could result
from a successful operation where a
communicated, calculated risk simply turns
out poorly for the patient, although the
medical treatment met the highest medical
standards. In such case, there would be no
“injury”, despite the existence of “harm.”
Under the discovery rule, it is the date of
the actual or constructive knowledge of the
injury which triggers the running of the
statute of limitations.6
Following Wiseman, the argument was made and rejected
in Vannoy v. Milum7 that the action does not accrue until the
plaintiff knows he has an actionable legal claim.
The plaintiff
in Vannoy argued that although he knew his dizziness was caused
by his medical treatment, he did not know it was the result of
the physician’s failure to monitor his medication until he was
told by his attorney that he had an actionable claim.8
Relying
on prior holdings by this court, as well as the Kentucky Supreme
6
Id. (citations omitted).
7
171 S.W.3d 745 (Ky.App. 2005).
8
Id. at 749.
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Court, the court held that the statute accrues when the
plaintiff discovers that a wrong has been committed, not when he
discovers that he may sue for the wrong.9
The Reffetts make a contention analogous to that made
in Vannoy.
They contend that the statute did not begin to run
until sometime after June 14, 2002, when they were allegedly
told by a King’s Daughters’ employee that inadequate precautions
were taken during the MRI.
It is undisputed that James knew he
suffered a burn so severe that he was given medical treatment
immediately after the MRI procedure on June 6, 2002, and that it
was caused by the MRI.
This is a case where the harm was
readily ascertainable and its cause easily discernable.
James
knew the harm and the cause of that harm; he, therefore, knew,
or should have known, of the relationship of King’s Daughters’
actions to that harm, and that he had sustained an injury.10
The
injury being readily ascertainable on June 6, 2002, the
complaint was not filed within one year of the date the action
accrued.
The Reffetts contend that even if the complaint was
untimely, King’s Daughters should be estopped from its reliance
on the statute of limitations because its records from the wound
center state that the burn occurred on June 13, 2002.
9
10
Id.
Id. at 750.
-5-
An
equitable rule codified in KRS 413.190(2), provides that a
person who acts to mislead or deceive the injured party thereby
causing delay in bringing the action can not take advantage of
his deceit by successfully asserting the statute of limitations;
here, however, no action was taken by King’s Daughters to
mislead or deceive the Reffetts.11
James, upon his initial visit to the wound center,
gave an inaccurate history concerning his burn.
Neither the
wound center nor King’s Daughters altered any records or led
James to believe the date of the MRI was other than June 6,
2002.
It was simply an erroneous recollection by James that
persisted until after the complaint was filed, and King’s
Daughters’ records revealed that it occurred a week earlier than
James recalled.
The records were at all times available to
James and a verification of the date presumably would have
prevented the untimely filing of the complaint.
Although the
result is harsh, the mistake in the wound center’s records is
attributable to James; KRS 413.190(2), therefore, does not
apply.
Finding no error, we affirm the judgment of the
circuit court.
11
Adams v. Ison, 249 S.W.2d 791 (Ky. 1952).
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Elizabeth R. Seif
William, Gallion and
Associates, P.L.L.C
Lexington, Kentucky
Sean M. Whitt
Ashland, Kentucky
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