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Hardi v. Mezzanotte

3/20/2003

. However, her colon ruptured, and she had to undergo an emergency operation during which it was determined that she had diverticulitis. On these facts, it cannot be said that appellee knew or should have known after her first visit to Dr. Hardi that she had a condition which he failed to diagnose and treat and that she sustained harm as a result of his failure and medical advice.


" he disparity in knowledge between professionals and their clientele generally precludes recipients of professional services from knowing whether the professional's conduct is in fact negligent." Morrison v. MacNamara, 407 A.2d 555, 567 (D.C. 1979) (citations omitted). The nature of the physician-patient relationship requires the patient to rely on the knowledge and skill of the doctor. At the stage where the physician is providing a diagnosis and advice for the patient's medical care, the patient can not be expected to know that the doctor's actions might be negligent and result in harm or to question them. See Anderson v. George, 717 A.2d 876, 878 (D.C. 1998) (citation omitted). " t is only when


he is acquainted with the problem that in fact exists, by [the physician] or by untoward developments that alert any diligent patient, that his cause of action accrues." Jones v. Rogers Mem'l Hosp., 143 U.S. App. D.C. 51, 442 F.2d 773, 775 (D.C. Cir. 1971) (citing Burke v. Washington Hosp. Ctr., 293 F. Supp. 1328 (D.D.C. 1968)). In another context involving the applicability of the assumption of the risk defense in a medical malpractice case, we have said that


the superior knowledge of the doctor with his expertise in medical matters and the generally limited ability of the patient to ascertain the existence of certain risks and dangers that inhere in certain medical treatments, negates the critical elements of the defense, i.e. knowledge and appreciation of the risk. Morrison, 407 A.2d at 567-68 (emphasis added).


Similarly, proof of the injured party's knowledge of some wrongdoing on the part of the physician is required before it can be said that the period of limitations commenced on his or her cause of action for medical malpractice. See Morton, supra, 725 A.2d at 468 (citing Colbert, supra, 641 A.2d at 473).


Here, appellee could not be expected to know on her initial visit to Dr. Hardi her actual condition or that he failed to diagnose and treat it. Patients who seek medical care are not responsible for diagnosing their own condition, but must rely on the physician's expertise to determine the cause of the problem and provide treatment. Morrison, supra, 407 A.2d at 568 (quoting O'Neal v. State, 66 Misc.2d 936, 323 N.Y.S. 2d 56, 61 (1971)). There is no evidence in the record that appellee had expertise that might cause her to question her physician's medical opinion. Even considered in the light most favorable to appellants, the record shows that appellee was not placed on notice as to her right of action as of the date of her initial visit to Dr. Hardi. Appellants have shown no genuine issue of material fact which would preclude summary judgment on this issue. See Anderson v. Ford Motor Co., 682 A.2d 651, 652 (D.C. 1996) (citations omitted) (Summary judgment is appropriate if the record on file shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law).


Dr. Hardi argues that any alleged misdiagnosis could have occurred only up to March 2, 1994, the date of appellee's last pre-surgical treatment with him. Therefore, he contends, the suit is time barred because this date is also more than three years before the suit was filed on March 6, 1997. However, the record is devoid of evidence that appellee knew

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