BRAYBOY v. MCLEAN
3/15/1993
This is an appeal from a motion granting summary judgment based on the Statute of Limitations. Patty Ann Brayboy
(Brayboy), as personal representative of the Estate of her daughter, Tameka Brayboy (Tameka), filed
FACTS
The record reflects that Tameka was born July 30, 1983, and died on November 14, 1986, from seizures. Ewing delivered Tameka at McLeod Regional Medical Center. McLean first attended Tameka on his rounds the day after she was born, and subsequently, became her pediatrician. Tameka began having seizures within six months of birth. Brayboy's doctor, Dr. Tony Graham (Graham) saw the child on several occasions from 1984 until her death. Tameka was also seen by a neurologist at which time a CT scan was run with no conclusive results as to the cause of her seizures. In 1985 Brayboy requested McLean's records on Tameka which did not indicate any one cause which may have been responsible for the seizures. This action was filed in 1990, four years after Tameka's death.
DISCUSSION
Brayboy contends that McLean is equitably estopped from claiming that the
In Johns v. Johns this Court stated:
The elements of estoppel as to the party
estopped are (1) conduct by the party estopped
which amounts to a false representation or
concealment of material facts; (2) the intention
that such conduct shall be acted upon by the
other party; and (3) knowledge, actual or
constructive, of the true facts. As to the party
claiming estoppel, the elements are (1) lack of
knowledge and of the means of knowledge of the
truth as to the facts in question; and (2)
reliance upon the conduct of the party estopped.
___ S.C. ___, ___, 420 S.E.2d 856, 859 (1992) citing Southern Dev. Land & Golf , Co., Ltd. v. South Carolina Pub. Serv. Auth., 305 S.C. 507, 409 S.E.2d 428 (Ct.App. 1991).
Brayboy claims that she was lulled into a false sense of security by McLean's conduct which prevented her from filing suit within the Statute of Limitations. She asserts that he told her Tameka's delivery was normal and that McLean either ignored or chose not to disclose the express findings of the CT Scan. The CT scan report is of record and reflects the following, "Diagnosis: Diffuse atrophy probably from neonatal hypoxia with no focal lesions demonstrated."
It is disputed as to whether records of the CT scan were given to Brayboy in 1985 when she requested Tameka's records from McLean. McLean argues that this issue was not raised below and is, therefore, not properly before this Court. We hold that it is not necessary to address the issue of the CT scan because there is other evidence of record which shows that Brayboy had notice that Tameka's seizures could have been caused by problems during birth.
The record reflects that the documents requested by Brayboy in 1985 included a 1984 discharge summary in which Dr. Paul Brazis wrote, "Ct scan showed diffuse atrophy. It was my impression at that time that the patient had motor delay, mental retardation and seizures with diffuse cerebral atrophy. Possibilities included prenatal, perinatal, and postnatal insults, for example, hypoxia, infection, et cetera." (emphasis added).
In her affidavit Brayboy states that sometime in 1984, "Dr. Graham had previously told me that [Tameka's] condition could have resulted from a lack of oxygen during delivery. He did not tell me that this would indicate wrongdoing on the part of any physician, but always suggested that I go back to Dr. McLean for information and treatment, since he was Tameka's regular doctor." (emphasis added). Graham confirmed this conversation. Additiona
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