Injury Notice under the Kentucky Statute of Limitations

Chapman v. Murray, 2015 WL 510444 (Ky.App. 2015)

The Kentucky statute of limitations requires that medical negligence suits be filed within one year of accrual of the action. KRS 413.140(1)(e). Accrual is calculated from the time the aggrieved patient discovers or should discover an injury. In the case at bar, the parties disagreed over the meaning of the “discovers” standard.

The patient suspected that a surgeon who removed a neuroma from his foot left a foreign object in that foot. On January 9, 2012, the patient told his second doctor about that suspicion. On January 31, 2012, the second doctor performed a procedure on the patient’s foot and discovered foreign material. After the removal of that material, the patient’s condition improved, but his foot remained permanently damaged. On January 30, 2012, the patient filed a malpractice suit against the surgeon.

Did the limitations period begin on 1/9/2012 – in which case, the plaintiff’s suit will be time-barred – or on 1/31/2012?

Kentucky’s appellate court ruled that on 1/9/2012, the patient only suspected that he was wronged by the surgeon, but this suspicion was a mere speculation rather than discovery. The patient discovered that he was wronged by the surgeon only on 1/31/2012, when his second doctor confirmed the suspicion. In making this ruling, the court relied on the Kentucky Supreme Court’s decision in Wiseman v. Alliant Hospitals, Inc., 37 S.W.3d 709 (Ky. 2000). In that case, Ms. Wiseman underwent gynecological surgery in 1989. She began experiencing pain in her tailbone immediately after the operation. When the pain did not subside in the time frame as expected, Wiseman asked her doctor if the pain could be related to the surgery. After a series of treatments that ended in 1996, a sliver of a metal surgical tool—specifically, a probe like the one used in Wiseman’s surgery in 1989—was removed from her body. The Supreme Court decided that Wiseman’s malpractice suit, which she filed eleven months after the metal fragment was extracted, was still timely. It explained that “Because [Wiseman’s] injury was not readily apparent until the discovery of the piece of uterine probe, she was unaware that she had a viable claim for medical malpractice. A mere suspicion of injury due to medically unexplainable pain following an invasive surgery does not equate to discovery of medical negligence.” Id. at 713 (emphasis added). The Court also clarified that “[o]ne who possesses no medical knowledge should not be held responsible for discovering an injury based on the wrongful act of a physician.” Id. at 712.

Based on this precedent, the appellate court decided that “[The patient] only suspected but did not have confirmation of his harm or its cause until a second physician performed an exploratory procedure. “[The patient] knew that he had debilitating pain. But … he could not identify the source of his pain. He was consistently (albeit erroneously) treated for infection until the foreign matter was discovered.” For these reasons, [the patient] could not and did not discover that he was wronged by his first doctor until 1/31/2012