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Handy v. Reed12/24/2003
Affirmed.
In this medical malpractice case, Roger Handy appeals from the trial court's grant of summary judgment in favor of William O. Reed, Jr., M.D., based upon the bar of the statute of limitations, K.S.A. 60-513(a)(7), and the 4-year statute of repose, K.S.A. 60-513(c).
Because the facts, dates, and reasons for actions taken by Handy are critical to the decision we reach, they will be set forth in considerable detail.
Factual and Procedural Background
In September 1994, Handy, while working as a certified nurse assistant and home health aide, suffered a rotator cuff injury which ultimately required surgery. Following rehabilitation treatment, Handy returned to his former employment. Shortly thereafter, Handy was injured again and a second rotator cuff surgery was performed. Rehabilitation treatment again was performed, and Handy again returned to work. In 1996, Handy suffered a third work-related shoulder injury. Handy's medical care was covered by his employer's workers compensation carrier during this period.
The third shoulder injury resulted in Handy first being sent to Occupational Health Service, which referred Handy to Dr. Reed in July 1996. Dr. Reed initially recommended only physical therapy but ultimately performed a third rotator cuff surgery on Handy on October 16, 1996. After this surgery, Handy was treated with physical therapy and then underwent a work-hardening program.
Handy's progress was followed by Dr. Reed until January 20, 1997, when he released Handy to return to work without any restrictions. Prior to his release, Handy had told his physical therapist he felt something unusual in his shoulder during the work-hardening exercises. He attempted to further contact Dr. Reed, but a break in communications existed and no further contact between the two resulted.
Handy felt there was still something wrong with his shoulder which would not allow a return to work without restriction. Handy applied for social security disability in January 1997 and was subsequently examined by several physicians who felt it was possible he still had a rotator cuff tear. Handy's attempt to obtain a second opinion was apparently hampered by a workers compensation controversy over coverage. It was not until May 1998 that the administrative law judge authorized further treatment by Dr. Larry Frevert.
In February 1998, Dr. Reed rendered an opinion in the ongoing workers compensation case based on a recent arthrogram and MRI but without seeing Handy. It was his opinion Handy might have a pinhole or suture tract communication in the rotator but did not have a significant tear and did not need or require further surgery.
It appears that Handy had seen Dr. Frevert on December 10, 1997, for a follow-up after an arthrogram of his shoulder. Dr. Frevert's letter of that date states the arthrogram revealed a "full thickness rotator cuff tear." Dr. Frevert noted he had discussed Handy's condition with him and informed him of the need and risks for surgery to repair his injury.
Subsequent to the approval for additional medical treatment ordered by the administrative law judge, Handy again saw Dr. Frevert on July 23, 1998. A report of this consultation reiterates the existence of the rotator cuff tear and indication of Handy's understanding of his condition. The report further indicated that it was unrealistic to expect Handy to return to work in his previous occupation regardless of the outcome of his subsequent surgery.
Dr. Frevert did a fourth surgery on Handy on September 4, 1998. A significant rotator cuff tear was repaired. On November 20, 1998, Dr. Frevert informed Handy he
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