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JONES v. NEUROSCIENCE ASSOCS.2/28/1992
The opinion of the court was delivered by
This is a medical malpractice action. Ruby Jones was injured in an automobile accident in November 1985. She underwent a cervical laminectomy on January 17, 1986. During this surgery, the radial nerve in her left arm was damaged. Jones filed this lawsuit on January 16, 1990, more than two years after the surgery. The trial court granted the defendants' motions for summary judgment, finding (1) the action was barred by the K.S.A. 60-513(a) two-year limitation for bringing the action, and (2) Anesthesiology Chartered could not be vicariously liable for the acts of its agents under K.S.A. 40-3403(h). Plaintiff appealed, claiming (1) her action was filed within the period of limitations; (2) the statute of limitations was tolled because of the continuous treatment or blameless ignorance doctrines, fraudulent concealment, or equitable estoppel; (3) she had a separate cause of action against Dr. Robert Beatty that did not relate to the initial surgery; (4) the trial court erred by granting summary judgment on the statute of limitations issue because genuine issues of fact existed; and (5) the trial court erred by granting Anesthesiology Chartered summary judgment.
Ruby Jones sustained injuries to her neck or back in the accident. One of the symptoms of the injury was pain in her right arm. Her physician, Dr. A.P. Taliaferro, referred Jones to Dr. Robert Beatty for treatment of the injuries.
Dr. Beatty hospitalized Jones in January 1986, and performed a cervical laminectomy. The anesthesiologist was Dr. Steven G. Cohn, an employee of Anesthesiology Chartered. The day after the surgery, Jones could not move her left hand and all the fingers on her left hand were curled into a fist. Jones now estimates she has lost 90% of the use of her left hand.
Jones' deposition indicates that on January 18, Dr. Beatty informed Jones that there had been a problem and they were going to continue to observe the situation. Dr. Beatty told Jones that her condition would be resolved in 2 months. He later informed Jones it would be resolved in 6 months; then 9 months; then 18 months; and finally 2-4 years. During 1987, Jones' condition did improve such that three fingers on her left hand had uncurled.
Jones' deposition also indicates that the day after her surgery Dr. Cohn visited Jones in her hospital room. Dr. Cohn told Jones there had been a little problem during the surgery. When asked by Jones what the problem was, Dr. Cohn did not go into any detail but told Jones she was with the right people and the problem would clear up. Jones saw Dr. Cohn two or three times after January 18, 1986. She last talked to Dr. Cohn sometime in 1986, during outpatient physical therapy treatment. Dr. Cohn did not inform Jones her injuries were permanent.
In a deposition, Dr. Beatty indicated Jones' problem with her left hand and arm was possibly related to the anesthesiologist, Dr. Cohn, positioning the patient during surgery. Dr. Beatty stated that Jones was positioned normally but it was his opinion that a metal strut which held the patient in a sitting position had rested against Jones' arm, creating pressure against the radial nerve. Dr. Beatty testified that although care was taken, there was sufficient pressure to cause Jones' injury. Dr. Beatty said he had diagnosed plaintiff's problem with her left hand and arm as a compressive radial nerve neuropathy which usually improves and it was improving in plaintiff's case.
Jones last saw Dr. Beatty in 1987 or 1988. In December 1989, Jones discovered the medical records at Providence-St. Margaret Health Center indicate that Dr. Beatty positioned her during
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