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Smith v. Boyett12/11/1995
EN BANC
We granted certiorari to clarify the elements of knowing concealment under the Medical Malpractice Statute of Limitations, and to determine whether the plaintiffs' claim in this case should have survived imposition of summary judgment. We affirm the court of appeals, both in its holding that a plaintiff need not confront a doctor with discovered negligence and then be misled by that doctor in order to qualify for the knowing concealment exception to the statute of limitations; and in its determination that the plaintiffs have raised material issues of disputed fact that preclude imposition of summary judgment, and remand with directions.
I.
We derive the following facts from the parties' pleadings and briefs to the trial court. The facts are presented in the light most favorable to the plaintiffs, as is required at this juncture in the proceedings.
This appeal arises from a medical malpractice action that plaintiffs Patricia Boyett and Gary Boyett filed against Dr. Stuart L. Smith, Dr. Robert Weiss, and Lutheran Medical Center. On December 23, 1985, Dr. Smith operated on Ms. Boyett to remove her gallbladder. During surgery, Dr. Smith probed Ms. Boyett's common duct and perforated it. The perforation allowed bile to leak into Ms. Boyett's abdominal cavity causing extensive damage to her pancreas.
Five X-ray dye studies, called cholangiograms, were performed on Ms. Boyett during surgery. They established that Dr. Smith's probe of the common duct caused the perforation. The first film was used as a baseline to establish anatomy before surgery. The second and third cholangiograms were taken at approximately 6:00 p.m. after the gallbladder had been removed, but before Dr. Smith explored the common duct with a probe. They showed no leakage of dye into the abdominal cavity. The last two cholangiograms, taken during the latter portions of the surgery at approximately 7:15 p.m. after the probe of the duct, showed that dye was leaking into the abdominal cavity instead of flowing into the duodenum. One or two days after surgery, the official radiological interpretation of the operating room cholangiograms was typed and placed in Ms. Boyett's hospital chart. The report indicated that there probably was a leak from Ms. Boyett's common duct and that the leak had developed during surgery.
Ms. Boyett was discharged on January 7, 1986, from Lutheran Medical Center. Her condition worsened and she was readmitted to the hospital on January 10, 1986. On January 17, 1986, Dr. Smith met with Ms. Boyett and told her that she had a hole in her common duct caused by a gallstone. On January 18, 1986, Ms. Boyett was transferred to another hospital for ongoing treatments and additional surgery to repair the puncture. Ms. Boyett had no further contact with Dr. Smith after the transfer. Not until January of 1989 did Ms. Boyett learn that the hole in her common duct was caused by the gallbladder surgery.
On December 28, 1990, the Boyetts filed a medical malpractice suit against Dr. Smith. In their complaint, they alleged that Dr. Smith had negligently treated Ms. Boyett's condition, thereby causing her injury. Specifically, the Boyetts alleged that Dr. Smith should have discovered and treated the hole in the common duct during surgery and that he failed to do so. The Boyetts admitted that they were told about the hole in the common duct in January of 1986, but assert that they were unaware that Dr. Smith's failure to diagnose the hole and treat it earlier constituted negligence until February of 1989. In his answer, Dr. Smith denied the allegations and raised the affirmative defense of the statute of limitations pursuant to section 13-80
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