Commonwealth Of Kentucky. Court of Appeals

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1 RENDERED: DECEMBER 5, 2003; 2:00 p.m. NOT TO BE PUBLISHED Commonwealth Of Kentucky Court of Appeals NO CA MR SHARON JO ANN HARRISON APPELLANT APPEAL FROM CHRISTIAN CIRCUIT COURT v. HONORABLE JOHN L. ATKINS, JUDGE ACTION NO. 00-CI GEORGE R. VALENTINI, M.D. APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: BARBER, McANULTY, AND TACKETT, JUDGES. BARBER, JUDGE: Appellant, Sharon Harrison (Harrison), appeals from the entry of summary judgment in favor of Appellee, George Valentini, M.D.(Valentini). Harrison filed suit against Valentini claiming damages from breast implant surgery. The circuit court granted Valentini summary judgment on the defense of expiration of the statute of limitations. We affirm the circuit court s determination. Harrison originally underwent surgery performed by Valentini in When she had difficulty with her implants, she had a second surgery by Valentini in late Disfiguring

2 complications resulted from the second surgery, including nipple loss. Valentini allegedly assured Harrison that the drainage and disfigurement resulting from the second surgery were only temporary, and could be rectified. Harrison asserts that Dr. Fisher, a second physician consulted by Harrison in 1997, informed her that her condition would improve with additional medical care. Harrison continued to be treated by Valentini, who replaced her implants in Several months later, in October, 1998, Harrison saw Dr. Patikas, a plastic surgeon, seeking recommendations on healing. The plastic surgeon allegedly advised her to continue to treat with Valentini, and stated that Valentini had done nothing wrong, and that her condition was a foreseeable complication of the surgery. Harrison saw a third physician, Dr. Creekmore, in July, At that time she was still under Valentini s care. Dr. Creekmore allegedly informed her that after more time for healing, she would need additional reconstructive surgery. Harrison did not become a patient of Dr. Creekmore, but returned to Valentini for additional treatment. Harrison continued to be treated by Valentini, and claims that he assured her that he would be able to repair all damage and get her back to normal. Harrison asserts that Valentini agreed to perform the reconstructive work at no charge since her treatment with him was not covered by health insurance. -2-

3 Harrison underwent additional surgeries with Valentini from 1997 through the end of April, Her breasts were not properly reconstructed and her appearance continued to be abnormal. Harrison went to a third consulting physician, Dr. Weeter, who informed her that health insurance would cover reconstruction by a physician other than Valentini. At that point, Harrison left Valentini s care and sought treatment from a different physician. Harrison filed suit against Valentini in November, The trial court entered summary judgment in favor of Valentini, finding that the statute of limitations for the medical negligence claims had expired prior to filing of the suit. Harrison appealed that ruling. The trial court stated that because Harrison s injury was obvious, she should have been aware as early as 1998 that she had been negligently treated. The trial court found that Harrison s worries, and the fact that she sought a second opinion at that time, show that she had discovered the injury. Harrison asserts that a genuine issue of material fact existed as to the date on which she discovered her injury. Harrison argues that a medical negligence action is discovered when the patient finds the loss of health following medical treatment, and the actual wrongdoing or the malpractice itself. Wiseman v. Alliant Hospitals, Inc., Ky., 37 S.W.3d -3-

4 709, 711 (2000). She argues that her request for evaluations by several physicians over the years shows a concern that did not rise to the level of knowledge of the injury. Harrison relies on Conway v. Huff, Ky., 644 S.W.2d 333 (1982) to assert that a mere dissatisfaction with the professional service does not constitute actual knowledge of injury. Valentini claims that Harrison was aware of problems with her breasts shortly after the 1997 surgery and that the limitations period should run from that date. He argues that a claim for medical negligence must be filed within a year after the injury was discovered or in the exercise of reasonable care, should have been discovered. Hackworth v. Hart, Ky., 474 S.W.2d 377 (1971). Harrison s post-operative difficulties were easily observable and clearly put her on notice that something was wrong. A person who has knowledge that something is wrong is put on notice to discover the nature of the injury and the identity of the tortfeasor. McCollum v. Sisters of Nazareth Health Corp., Ky., 799 S.W.2d 15, 19 (1990). Harrison had a duty to assert any claim for medical negligence within the period allowed by law. Failure to do so entitled Valentini to entry of summary judgment in his favor. Harrison argues that this court should apply a continuous treatment rule discussed in Wilshire v. Richey, 951 F.2d 351 (6 th Cir. 1991), and find that the limitations period -4-

5 could not expire as long as she continued to treat with Valentini. Harrison ceased to treat with Valentini in April, 2000, and asserts that the limitations period could not expire during this course of treatment, but rather began to run when she ceased to employ Valentini as her physician. Under Kentucky law, limitations periods are creatures of statute intended by the legislature to bring finality to legal process. Barker v. Miller, Ky. App., 918 S.W.2d 749 (1996). We find no authority permitting the trial court to use a continuous treatment standard to enlarge the applicable limitations period. We affirm the trial court s determination that the action was untimely. Harrison further contends that Valentini concealed her injury from her, and obstructed her discovery of the medical negligence by claiming that he was still working on her breasts, and that her condition could be repaired. She argues that the bad faith actions of Valentini should toll any applicable limitations period. Harrison asserts that Valentini had a duty of honesty and good faith towards her, and his failure to inform her of his professional negligence should toll any limitations period. She argues that Kentucky law does not require a patient to question her doctor s care or advice while she remains in his treatment. See Adams v. Ison, Ky., 249 S.W.2d 791 (1952). -5-

6 Under KRS (2), a limitations period is tolled if the defendant conceals himself or the injury from the plaintiff. The limitations period is not tolled where the injured party has notice of the defect. Old Mason s Home v. Mitchell, Ky. App., 892 S.W.2d 304, 308 (1995). While the record indicates that Valentini did continue to put a positive spin on the injury, and did encourage Harrison to continue to treat with him, his conduct did not rise to the level of concealment of the injury. According to testimony in the record, the failure to heal and tissue death resulting from that failure were plain and obvious. Valentini and the other physicians examining Harrison were unanimous in agreeing that there was a failure to heal, although several different reasons for this failure were given. Where the diagnosis is clear, even if the nature of the disease or defect is not correctly given, the limitations period is not tolled under the discovery rule. Farmers Bank & Trust Co. v. Rice, Ky., 674 S.W.2d 510, 511 (1984). Harrison was aware of the defects and the fact that her surgeries were not healing well. This knowledge put her on notice of Valentini s medical negligence, if any. Lastly, Harrison points to Dr. Weeter s affidavit as stating that Valentini had not met the applicable standard of care. She asserts that this affidavit provided sufficient evidence to defeat a motion for summary judgment. The trial -6-

7 court held that the affidavit did not affirmatively state that Valentini had breached the applicable standard of care. We do not reach this argument on review, as the record is clear in showing that summary judgment was properly rendered on limitations grounds. We affirm the circuit court s determination. ALL CONCUR. BRIEFS FOR APPELLANT: Freeda M. Clark Louisville, Kentucky BRIEF FOR APPELLEE: Craig L. Johnson Louisville, Kentucky -7-

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