SHARON JO ANN HARRISON V. GEORGE R.VALENTINI, M.D. MODIFYING OPINION RENDERED DECEMBER 22, 2005 BY SUBSTITUTION OF PAGES 1 AND 2 TO CORRECT FOOTNOTE.
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RENDERED : DECEMBER 22, 2005
AS MODIFIED : MARCH 23, 2006
TO BE PUBLISHED
~uYretne Court of ~~'
2004-SC-000015-DG
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SHARON JO ANN HARRISON
V.
APPELLANT
ON APPEAL FROM THE COURT OF APPEALS
2002-CA-001497
CHRISTIAN CIRCUIT COURT NO. 00-CI-01664
GEORGE R. VALENTINI, M.D.
APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE LAMBERT
REVERSING AND REMANDING
This case arises from medical complications ensuing from breast lift
surgery . The Appellant, Sharon Jo Ann Harrison filed a medical negligence claim
against Dr. George Valentini who performed the lift surgery and administered follow-up
care . The trial court dismissed the action as time-barred and the Court of Appeals
affirmed . We granted discretionary review to consider whether the continuing treatment
Appellant received from Appellee tolled the applicable statute of limitations, rendering
her claim timely. Our close examination of the doctrine and its rationale convinces us to
answer in the affirmative .' We therefore reverse and remand the case to the trial court
for further proceedings .
Ms . Harrison, who had previously received breast implants, underwent
breast lift surgery on October 2, 1997. She began experiencing complications within a
couple of weeks. Specifically, she experienced drainage from her breasts and skin
deterioration, ultimately resulting in the loss of her left nipple and numbness in her right
nipple . Dr. Valentini made several subsequent unsuccessful attempts to replace her
nipple and to correct additional disfigurement resulting from the 1997 surgery .
Appellant remained in Dr. Valentini's care for nearly three years . During this time she
had initial consultations with three other doctors to explore additional treatment options,
but each told her to give the healing process more time or suggested that she remain in
Dr. Valentini's care . She continued primary treatment with Dr. Valentini until April 11,
2000 .
On November 16, 2000, more than three years after the 1997 surgery, but
within one year of Harrison's last appointment with Dr. Valentini, suit was filed . After
preliminary discovery, Dr. Valentini moved for summary judgment on two grounds: 1)
that Ms. Harrison's action should be barred by the applicable statute of limitations and
2) that Ms. Harrison failed to offer adequate expert testimony that Dr. Valentini's
treatment deviated from the requisite standard of care . The trial court granted summary
judgment in Dr. Valentini's favor, holding that Ms. Harrison's cause of action was barred
' See, e.g., Lane v. Lane , 752 S .W .2d 25 (Ark. 19881; Borgia v. City of New York, 187
N .E.2d 777 (N .Y. 1962) ; Horton v. Carolina Medicorp, Inc. , 472 S .E.2d 778 (N .C. 1996) ;
Ishler v. Miller , 384 N .E .2d 296 (Oh. 1978) ; Hotelling v. Walther, 130 P .2d 944 (Or.
1942); Farley v. Goode, 252 S .E .2d 594 (Va . 1979) ; Metzger v. Kalke, 709 P.2d 414
(Wyo.1985).
by the statute of limitations. The Court of Appeals affirmed . Neither court reached the
issue of the sufficiency of the expert testimony on the standard of care issue .
On her appeal to this Court, Ms. Harrison contends that the statute of
limitations should have been tolled because Dr. Valentini obstructed her from filing suit,
and/or that this Court should recognize the continuous course of treatment rule . As
there is little evidence of obstruction, we need not address the issue. Rather, the fact of
Appellant's continuing treatment by Dr. Valentini will be our decisional basis.
Generally, a medical negligence lawsuit must be brought within one year
of the date the cause of action accrues or is discovered. This rule, which is codified in
KRS 413.140(2), establishes the time that the action accrues if an injury is not
immediately discoverable . It establishes the date of accrual as the date that the injury
is or, with reasonable care, should have been discovered .
Applying the rule in medical malpractice cases can be confusing because
"injury" is a term of art in the law. 5 Undesirable results of medical treatment do not
constitute compensable injury . 6 Rather, such injury is defined as "the invasion of any
legally protected interest of another."' Thus, "[legal] injury in the medical malpractice
context refers to the actual wrongdoing, or the malpractice itself . ,,8
Accordingly, under the discovery rule, actual or constructive knowledge of
the medical negligence triggers the commencement of the statute of limitations . 9 This
KRS 413 .140(1)(e) .
s Wiseman v. Alliant Hospitals, Inc .,
37 S.W.3d 709 (Ky. 2000).
5 Hackworth v. Hart, 474 S.W .2d 377 (Ky. 1971) .
Wiseman, 37 S.W .3d 709 .
s
_Id .
_Id. at 712.
Id. at 712.
9Id .
8
is problematic because often the patient cannot know whether the undesirable outcome
is simply an unfortunate result of proficient medical care or whether it is the
consequence of substandard treatment . Thus, a patient is left to speculate about the
cause of the problem.
Moreover, neither the discovery rule nor KRS 413 .190 affords the
physician and patient an opportunity to significantly cooperate with each other to
improve the initial results or mitigate the damages caused by the poor treatment .
Rather the patient is required to file suit immediately to avoid the risk of his suit being
time-barred .' ° Such a requirement operates to undermine rather than bolster the
relationship of trust and confidence that a patient should be able to have with his or her
physician ."
Ms . Harrison suggests that the continuous course of treatment doctrine
can eliminate these concerns . Under this doctrine, the statute of limitations is tolled as
long as the patient is under the continuing care of the physician for the injury caused by
the negligent act or omission . 12
This court has previously held that the continuous representation rule in
legal malpractice cases coalesces with the legislative intent inherent in the enactment
of the discovery rule . In Alagia, Day, Trautwein & Smith v . Broadbent, 13 this Court
elaborated on the underlying principles for the continuous representation rule:
We believe it [the continuous representation rule] reflects
the intent of the general assembly with its enactment of the
discovery rule . Moreover, we perceive a practical advantage
in the continuous representation rule . In a proper case, a
negligent attorney may be able to correct or mitigate the
' ° Watkins v. Fromm , 488 N.Y.S . 2d 768 (1985).
" See Ison , 249 S .W. 2d 791 .
' 2 Langner v. Simpson , 533 N .W .2d 511 (Iowa 1995) .
13
882 S .W . 2d 121 (Ky.1994) .
4
harm if there is time and opportunity and if the parties
choose such a course . Without it, the client has no
alternative but to terminate the relationship, perhaps
prematurely, and institute litigation .
These sound principles are equally persuasive in the context of medical malpractice .
The rationale for the continuous treatment exception rests
on a number of doctrinal assumptions . Thus it is posited that
the trust and confidence that marks the physician-patient
relationship puts the patient at a disadvantage to question
the doctor's techniques, and gives the patient the right to
rely upon the doctor's professional skill without the necessity
of interrupting a continuing course of treatment by instituting
suit. This exception not only provides the patient with the
opportunity to seek corrective treatment from the doctor, but
also gives the physician a reasonable chance to identify and
correct errors made at an earlier stage of treatment . 14
Though this Court has never squarely addressed the continuous course of
treatment doctrine, we have implicitly expressed our approval of the doctrine's rationale
through discourse concerning the discovery rule in the medical malpractice arena .
Specifically, in Wiseman v. Alliant Hospitals, Inc ., 15 we stated :
One who possesses no medical knowledge should not be
held responsible for discovering an injury based on the
wrongful act of a physician . The nature of the tort and the
character of the injury usually require reliance on what the
patient is told by the physician or surgeon. The fiduciary
relationship between the parties grants a patient the right to
rely on the physician's knowledge and skill .
It is entirely logical that the patient's right of reliance extends throughout his treatment
with the physician . While treatment continues, the patient's ability to make an informed
judgment as to negligent treatment is impaired . Under such circumstances, it can
scarcely be said that discovery has occurred . Accordingly, a continuing course of
14 Watkins v. Fromme , 488 N .Y.S .2d 768, 772 (1985) .
15
37 S .W.3d 709, 712-13 (Ky. 2000) (quoting Black v. Littleiohn , 312 N.C. 626, 325
S. E.2d 469 (1985)) .
5
treatment has the effect of preventing discovery of a character necessary to commence
the running of the statute of limitations . '6
This rule should be limited, however, by a requirement of patient good
faith . Inherent in the doctrine is the expectation that the patient and physician harbor a
genuine desire to improve the patient's condition. No benefits will inure to a patient who
feigns a desire to continue treatment for the purpose of obtaining more time to "shop
around" for another physician to corroborate the malpractice or for a lawyer to file suit.
Claims of patient bad faith shall be heard and determined by the trial court and subject
to appellate review for abuse of discretion . However, where a patient relies, in good
faith, on his physician's advice and treatment or, knowing that the physician has
rendered poor treatment, but continues treatment in an effort to allow the physician to
correct any consequences of the poor treatment, the continuous course of treatment
doctrine operates to toll the statute of limitations until the treatment terminates at which
time running of the statute begins.
Applying the foregoing rule in the instant case, we hold that Ms . Harrison's
suit against Dr. Valentini was timely filed . She filed suit on November 16, 2000, well
within one year of her discontinuance of treatment with Dr. Valentini .
As the trial court and Court of Appeals did not address whether an issue
of fact was presented by the testimony of Ms. Harrison's expert witness, we will not
review that issue here . Rather, the case will be remanded to the trial court for further
consistent proceedings .
Johnstone, Scott, and Wintersheimer, JJ ., concur. Roach, J ., dissents by
separate opinion in which Cooper and Graves, JJ ., join .
16
Watkins, 488 N .Y.S.2d 768 .
COUNSEL FOR APPELLANT :
Freeda M. Clark
2833 Avenue of the Woods
Louisville, KY 40241
COUNSEL FOR APPELLEE:
Craig L. Johnson
WHONSETLER & JOHNSON, PLLC
6011 Brownsboro Park Blvd ., Suite E
Louisville, KY 40207
RENDERED : DECEMBER 22, 2005
TO BE PUBLISHED
Auyrmt Courf of ~mfurkv
2004-SC-00015-DG
SHARON JO ANN HARRISON
V.
APPELLANT
ON APPEAL FROM COURT OF APPEALS
2002-CA-001497
CHRISTIAN CIRCUIT COURT NO . 00-CI-01664
GEORGE R. VALENTINI, M.D .
APPELLEE
DISSENTING OPINION BY JUSTICE ROACH
The majority opinion advances persuasive policy arguments for the adoption of
the continuous course of treatment doctrine . If I were serving as a legislator and these
arguments were made on the floor of the General Assembly, I would probably support
the adoption of the continuous course of treatment doctrine . However, we do not sit as
legislators, and, therefore, I must dissent .
Our predecessor court made clear that "[t]he legislature's power to enact statutes
of limitation governing the time in which a cause of action must be asserted by suit is, of
course, unquestioned ." Savlor v. Hall, 497 S .W .2d 218, 224 (Ky. 1973) (emphasis
added) ; see also Gilbert v. Barkes, 987 S.W.2d 772, 776 (Ky. 1999) (citing to Savlor
and stating that "[i]t is well established that the legislature has the power to limit the time
in which a common law action can be brought"). In medical malpractice cases, the
General Assembly has unequivocally answered this policy question . KRS 413 .140(1)(e)
states that a negligence action against a physician "shall be commenced within one (1)
year after the cause of action accrued ." KRS 413.140(2) then states that for actions
subject to KRS 413.140(1)(e), "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 ."
By requiring that actions be brought within one year of the time the "injury is first
discovered or in the exercise of reasonable care should have been discovered," the
General Assembly has adopted the discovery rule for tolling the medical malpractice
statute of limitation . And, quite simply, the phrases "injury is first discovered" and
"should have been discovered" means precisely what they say: that the statute of
limitation begins to run when the injury is first discovered or should have been
discovered . Discovery occurs when a patient knows that he or she has been wronged
and by whom the wrong has been committed. Wiseman v. Alliant Hospitals, Inc. , 37
S .W .3d 709, 712 (Ky. 2000).
The evidence clearly established that Ms. Harrison had discovered or at least
should have discovered her injury by 1998. Her post-operative difficulties from her 1997
surgery were easily observable . As the Court of Appeals noted, the 1997 surgery
resulted in "[d]isfiguring complications . . ., including nipple loss." As a result, she
sought "second opinions" from a second doctor, then a third doctor, and then a fourth
doctor . She was concerned enough that in 1998 she even consulted with an attorney
(on whose advice she consulted the third doctor) . There is simply no way that Ms.
Harrison had no knowledge of her injury . Thus, her suit against Dr. Valentini in
November 2000 was clearly time-barred under KRS 413.140 .
The majority, however, has, through pure judicial fiat, supplanted the statutorily
prescribed discovery rule with the continuous course of treatment rule. The majority
opinion admits that "neither the discovery rule nor KRS 413 .140 affords the physician
and patient an opportunity to significantly cooperate with each other to improve the
initial results or mitigate the damages caused by the poor treatment ." Ante at - (slip
op. at 4) .' This is, in effect, an admission that the continuous course of treatment rule is
different than the discovery rule that is clearly set forth in KRS 413 .140 . This is where
the inquiry as to what rule to apply should end . However, the majority has succumbed
to the siren's call to make "good" policy and, preferring a rule that facilitates physicianpatient cooperation, chooses to ignore both the clear language of the statute and our
settled precedent concerning statutes of limitation . The result of this reasoning is the
blanket application of a new bright-line rule that has not been enacted by the General
Assembly. I am awestruck by the Court's willingness to make such a raw policymaking
pronouncement, especially in the face of decades of controlling precedent and, more
importantly, statutory enactment .
In an attempt to find any legal authority in Kentucky for its enactment of this new
policy, the majority relies upon Alagia, Day, Trautwein & Smith v. Broadbent , 882
S .W.2d 121 (Ky. 1994) . Although the Court discussed the legal malpractice analog of
the continuous course of treatment rule, namely the continuous representation rule, in
Alagia, Day , it did so only in dicta . Ultimately, the Court did not adopt the continuous
representation rule, noting that the rule "is not controlling here" and that the case "must
be decided on the occurrence rule." Id. at 125. 2
The majority also describes the requirements of the discovery rule as
"problematic." Ante at
(slip op. at 3) . While noting the various deficiencies in the
discovery rule may very well be a good policy argument against the discovery rule, the
simple fact is that the discovery rule is what the General Assembly has chosen to enact .
2 The "occurrence" rule is unique to the legal malpractice statute of limitation and
is not a part of the medical malpractice statute of limitation, which uses only the
discovery rule. Compare KRS 413.245 (legal malpractice statute of limitation), with KRS
413 .140(1)(e) & (2) (medical malpractice statute of limitation). The occurrence rule
-3-
The majority also claims support for adoption of the rule in the following language
from Wiseman v. Alliant Hospitals, Inc. , 37 S.W.3d 709 (Ky . 2000) :
One who possesses no medical knowledge should not be
held responsible for discovering an injury based on the
wrongful act of a physician . The nature of the tort and the
character of the injury usually require reliance on what the
patient is told by the physician or surgeon . The fiduciary
relationship between the parties grants a patient the right to
rely on the physician's knowledge and skill .
Id . at 712-13 . What this language means, however, is that the continuous course of
treatment doctrine (as opposed to "rule") might, at most, be a useful tool for tolling a
statute of limitation based on the discovery rule-in an appropriate case . This is why
the dicta in Alagia, Day noted that "the continuous representation rule is a branch of the
discovery rule," rather than a replacement . 882 S.W.2d at 125 . As a court of law,
however, we simply are not at liberty to adopt a wholly new rule to replace the one that
the General Assembly has enacted . Furthermore, it is unnecessary in this case to
consider the application of the continuous course of treatment doctrine as a tolling
method given that Ms. Harrison's injury was so very obvious . Yet, this is exactly what
the majority has done .
The General Assembly has determined that a medical negligence claim must be
brought within one year after the "injury is first discovered" and since the judiciary has
basically establishes a second limitation period, separate and in addition to that
stemming from the discovery rule, for legal malpractice cases . See Alagia, Day, 882
S .W .2d at 125 ("[T]here are actually two periods of limitation, the first being one year
from the date of the occurrence and the second being one year from the date of
discovery if it is later in time ." (citing Michels v. Sklavos , 869 S.W .2d 728 (1994)) .
no power to re-write the statute to conform to our own notions of right and wrong, I
respectfully dissent.
Cooper and Graves, JJ., join this dissenting opinion .
6*uPremr Courf of ~irufurhv
2004-SC-0015-DG
SHARON JO ANN HARRISON
APPELLANT
ON REVIEW FROM COURT OF APPEALS
2002-CA-1497-MR
CHRISTIAN CIRCUIT COURT NO. 2000-CI-1664
V.
GEORGE R. VALENTINI, M .D .
APPELLEE
ORDER DENYING PETITION FOR REHEARING
AND MODIFYING OPINION
The petition for rehearing filed by the Appellee, George R. Valentini, M .D., is
hereby denied .
The Opinion of the Court rendered herein on December 22, 2005, is modified by
the substitution of pages 1 and 2, attached hereto, in lieu of pages 1 and 2 as originally
rendered . Said modification is to correct footnote 1 and does not affect the holding of
the Opinion or Dissenting Opinion as originally rendered .
Lambert, C.J . ; Cooper, Graves, Johnstone, Scott, and Wintersheimer, JJ.,
concur. Roach, J ., would grant rehearing .
Entered : March 23, 2006.
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