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JOHNSTON v. BOWEN8/23/1993
This is a medical malpractice action which was dismissed on a summary judgment motion of the defendant based on the health care provider statute of limitations. We affirm.
FACTS
Ms. Johnston injured her right knee on June 5, 1982 in a car accident. On September 2, 1982, Ms. Johnston was referred to Dr. Bowen. Although an arthrogram showed no evidence of any tear of the medial meniscus of her right knee, Dr. Bowen performed surgery on Ms. Johnston's knee on October 4, 1983. Ms. Johnston later injured her left knee. Dr. Bowen performed surgery on the left knee on November 30, 1984. Dr. Bowen testified by deposition for Ms. Johnston in her action against the other driver in her 1982 accident. In his deposition, Dr. Bowen explained why he felt surgery was necessary in light of the negative arthrogram. Ms. Johnston relied on this testimony to obtain a settlement from the at-fault driver.
Ms. Johnston stopped seeing Dr. Bowen in 1987 but continued to see other physicians for her persistent knee pain. Ms. Johnston was informed by her subsequent treating physicians that she suffered from degenerative arthritis. In the spring of 1987, Ms. Johnston sought advice of an attorney regarding a possible malpractice suit against Dr. Bowen. Her attorney informed her that she would need an expert witness to testify that the surgery was unnecessary. Ms. Johnston did nothing until the spring of 1990, when she returned to her attorney and asked him to contact her current physician, Dr. Kimbrough, regarding the possible malpractice of Dr. Bowen. In response to her attorney's requests, Dr. Kimbrough informed Ms. Johnston that in his opinion, the surgeries performed by Dr. Bowen were unnecessary.
This action was brought on January 7, 1991. Dr. Bowen filed a motion for summary judgment based on the statute of limitations. The motion was denied; however, on a motion to reconsider, the trial court amended the order to provide that the motion for summary judgment was denied pending further discovery with leave to refile. Dr. Bowen subsequently renewed his motion for summary judgment, which was granted. Ms. Johnston appeals.
LAW/ANALYSIS
First, Ms. Johnston argues the trial court erred in amending the first order denying a motion for summary judgment in response to Bowen's motion to reconsider. The trial court interlocutory orders are amendable.
PPG Industries, Inc. v. Orangeburg Paint & Decorating Center, Inc., 297 S.C. 176, 375 S.E.2d 331 (Ct.App. 1988). We find no error.
Second, Ms. Johnston argues the trial court erred in granting Dr. Bowen's summary judgment motion based on the statute of limitations. The applicable statute of limitations provides:
Any action to recover damages for injury
to the person arising out of any medical,
surgical or dental treatment, omission or
operation by any licensed health care provider
as defined in Article 2 of Chapter 59 of Title
38 shall be commenced within three years from
the date of the treatment, omission or
operation giving rise to the cause of action
or three years from date of discovery or when
it reasonably ought to have been discovered,
not to exceed six years from date of
occurrence.
S.C. Code ยง 15-3-545 (Supp. 1992).
The trial court found Ms. Johnston knew or should have known she had a claim no later than 1987. Whether a claimant knew or should have known that they had a cause of action is question for the jury. Santee Portland Cement Co. v. Daniel Intern. Corp., 299 S.C. 269, 384 S.E.2d 693 (1989). In ruling on motions for summary judgment, the court must construe all ambiguities, conclusion
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