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Hardi v. Mezzanotte


the trial court erred in granting appellee's motion for partial summary judgment and striking their statute of limitations defense. They contend that the three-year statute of limitations bars the claim because more than three years before appellee filed her complaint: (1) she knew or could have known the doctor's failure to diagnose and treat her for diverticulitis, and (2) she had her last treatment with him. In response, appellee argues that the trial court, applying the discovery rule, properly concluded that the statute of limitations did not bar the claim. She contends that it was not until March 8, 1994, when it was determined surgically that her illness was a result of diverticulitis and a ruptured diverticular abscess, that she knew or could have known that Dr. Hardi failed to diagnose her condition and treat it as required.

In this jurisdiction, an action for medical negligence must be filed within three years from the time the right to maintain the action accrues. See D.C. Code § 12-301 (8) (2002). "Where the fact of an injury can be readily determined, a claim accrues at the time that the plaintiff suffers the alleged injury." Hendel v. World Plan Executive Council, 705 A.2d 656, 660 (D.C. 1997) (citing Colbert v. Georgetown Univ., 641 A.2d 469, 473 (D.C. 1994) (en banc)). However, where the fact of the alleged tortious conduct and resulting injury are not readily apparent, we apply the discovery rule to determine the date on which the statute of limitations commences to run. Id. (citing Bussineau v. President & Dirs. of Georgetown College, 518 A.2d 423, 425 (D.C. 1986)). Under the discovery rule, "a medical malpractice claim does not accrue until the patient has 'discovered or reasonably should have discovered all of the essential elements of her possible cause of action, i.e., duty, breach, causation and damages.'" Colbert, 641 A.2d at 473 (citing Bussineau, 518 A.2d at 434) (quoting Ohler v. Tacoma Gen. Hosp., 598 P.2d 1358, 1360 (Wash. 1979) (en banc) (other citation omitted)). This means that, under the discovery rule, a cause of action accrues for limitation purposes once the plaintiff: (1) has some knowledge of the injury, (2) its cause in fact, and (3) some evidence of wrongdoing on the part of the person responsible. Morton v. National Med. Enterprises, Inc., 725 A.2d 462, 468 (D.C. 1999) (citing Bussineau, 518 A.2d at 435).

Appellants argue that appellee had actual knowledge of her injury, its cause and evidence of Dr. Hardi's negligence on her first visit to him on February 3, 1994, more than three years before she filed the complaint in this case. The basis for this argument is that appellee went to see Dr. Hardi because she suspected that she was having a recurrence of diverticulitis, informed him of her suspicion and prior history, and knew that he did not treat her that for that condition. It is undisputed that having found a pelvic mass in appellee, Dr. Hardi diagnosed a gynecological condition and referred appellee for treatment to a gynecologist, Dr. Match.

A major flaw in appellants' argument is that they seek to charge appellee with knowledge and an understanding of her medical condition that Dr. Hardi, a specialist in gastrointestinal disorders, did not diagnose even after examining her and the medical records she gave him. Following Dr. Hardi's advice, appellee saw Dr. Match, who in turn informed her that there was a 98% chance that she had ovarian cancer, and after receiving the results of a sonogram, advised her to have a complete hysterectomy. She consulted a third physician, Dr. Meilhauser, who also advised her that her problems were gynecological. Apparently relying on these physicians' opinions, appellee agreed to have a complete hysterectomy

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