Owenby v. Kiesau

THIS OPINION HAS NO PRECEDENTIAL VALUE. 
IT SHOULD NOT BE CITED OR RELIED ON AS

PRECEDENT IN ANY PROCEEDING EXCEPT AS
PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Gloria R. Owenby and John W. Owenby, Appellants,

v.

Kyle F. Kiesau, M.D.; Auburn Woods, III, M.D.; Julian Williams, M.D.;
Claude D. Woollen, M.D.; Robert A. Cochran, Jr., M.D.; David C. Hull,
M.D.; Cole Blease Graham, III, M.D.; Neil H. Parnes, M.D.; Brian
Baghdady,
M.D.; Lawrence Warren, Jr., M.D.; Mark Monson, M.D.; Drs. Kiesau, Barrow
& Davis, P.A.; Hull, Green, Woods, Cochran & Woollen, LLC; Spartanburg
Radiological Associates, P.A.; and the Spartanburg Regional Medical Center,
Defendants,/Of whom Spartanburg Regional Medical Center is, Respondent.

Appeal From Spartanburg County

 Larry R. Patterson, Circuit Court
Judge

Unpublished Opinion No. 2004-UP-610

Submitted November 1, 2004 – Filed December
7, 2004

AFFIRMED

John Kirkman Moorhead, of Anderson, for Appellant.

William B. Darwin, Jr., of Spartanburg, for Respondent.

PER CURIAM:  In this medical negligence
claim, appellants Gloria Owenby and her husband John Owenby, appeal the trial
court’s grant of summary judgment and argue that the two-year statute of limitations
for the claim had not run.  We affirm.
[1]

FACTS

After experiencing
serious discomfort in her abdominal region for several weeks, Gloria Owenby
visited a doctor and less than a week later she had surgery to remove a 24-pound
ovarian tumor, her ovaries, and her gall bladder. Dr. Kyle Kiesau and Dr. Auburn
Woods performed the surgery on July 21, 1999 at Spartanburg Regional Medical
Center.

The chronology of events
in this case is critical.  After her discharge from the hospital on July 27,
Mrs. Owenby continually experienced a series of health problems for which various
physicians treated her.  On August 10, Dr. Julian Williams examined Mrs. Owenby’s
abdominal swelling and referred her again to Dr. Kiesau, an obstetrician/gynecologist. 
Drs. Williams and Kiesau examined Mrs. Owenby August 24 and Dr. Kiesau informed
Mrs. Owenby that he believed a hematoma resulting from the surgery was causing
the continued swelling and subsequently approved her to take a planned vacation
with her husband. Mrs. Owenby described herself as “deathly sick” throughout
the vacation and visited Dr. Kiesau upon her return on September 17 and September
24, where he became concerned with her increased swelling.  Dr. Kiesau referred
Mrs. Owenby to Dr. Woods, a general surgeon, and Dr. Woods performed an ultrasound
on September 27.  Dr. Woods determined Mrs. Owenby’s abdomen was full of fluid,
opining that she was suffering from a seroma as a result of the surgery.
[2]  

Mrs. Owenby visited Dr. Woods’
office with continued abdominal drainage on October 4 and October 6.  Dr. Lawrence
Warren, when performing an ultrasound procedure on October 18, asked the Owenbys
if the fluid had been tested to see if it was urine, indicating that sometimes
during surgery, the ureter is damaged by getting small slits or holes in it,
which creates leakage. [3]   Later that same day, Dr. Woods told Mrs. Owenby
that he had spoken with Dr. Warren and that a test would be scheduled to determine
if the fluid was urine as Dr. Warren suspected.  After abdominal and pelvic
CT scans were performed on October 19, Dr. Woods’ office called Mrs. Owenby
on October 21 and instructed her the tests indicated she should see a urologist
immediately.

On October 26, 1999, Mrs. Owenby
saw an urologist, Dr. Clifton Williams, who told her she had an injured left
ureter that was leaking and causing urine to drain into her abdomen and that
it needed to be repaired. On November 2, Dr. Williams attempted to repair Mrs.
Owenby’s ureter but was unsuccessful, because, as he discovered during surgery,
Mrs. Owenby’s ureter was completely severed, about which he informed Mrs. Owenby
after the procedure. [4]  

Mrs. Owenby was asked under oath
if October 26, 1999 was the first time she recalled being told she “had a ureter
that apparently had some sort of leak and was causing this excess drainage?”
She responded: “Other than what I believe the radiologist, Dr. Warren, told
me that day, that was the only time I heard that mentioned that I recall.” 

The Owenbys filed this action
for medical negligence on October 31, 2001 based on a ureter injury and served
Dr. Kiesau on November 1, 2001.  Spartanburg Regional, a governmental entity,
was substituted as a defendant for Dr. Kiesau and moved for summary judgment.
[5]  At the summary judgment hearing, the trial court ruled that the statute
of limitations had run. This appeal follows.         

LAW/ANALYSIS

In arguing that the trial
court erred in granting summary judgment based on the running of the statute
of limitations, Mrs. Owenby submits that she did not discover her injury until
November 2, 1999 and she filed her claim in a timely fashion.  We disagree.

In an action against a governmental
entity, the two-year statute of limitations of the South Carolina Tort Claims
Act applies.  S.C. Code Ann.  §§15-78-100(a)—110 (Supp. 2003).  In examining
when the statute of limitations began to run, the discovery rule applies. 
Young v. South Carolina Dept. of Corrections, 333 S.C. 714, 718, 511
S.E.2d 413, 415 (Ct. App. 1999) (holding that the discovery rule applies to
actions brought under the South Carolina Tort Claims Act). 

According to the discovery
rule, the statute of limitations begins to run when a cause of action reasonably
ought to have been discovered.  The statute runs from the date the injured
party knows or should have known by the exercise of reasonable diligence that
a cause of action arises from the wrongful conduct.

. . . .

[T]he injured party must act with some promptness where the
facts and circumstances of an injury place a reasonable person of common knowledge
and experience on notice that a claim against another party might exist.
 Moreover, the fact that the injured party may not comprehend the full extent
of the damage is immaterial.

Id. at 719, 511 S.E.2d at 416 (quoting Dean v. Ruscon Corp.,
321 S.C. 360, 364, 468 S.E.2d 645, 647 (1996) (citations omitted) (emphasis
in original)).  See also, Joubert v. Dep’t of Soc. Servs., 341
S.C. 176, 190, 534 S.E.2d 1, 8 (Ct. App. 2000) (finding that the statute of
limitations under the South Carolina Tort Claims Act begins to run “when the
plaintiff should know that he might have a potential claim against another,
not when he develops a full-blown theory of recovery”).  The date when the
discovery should have been made is an objective question.  Young, 333
S.C. at 719, 511 S.E.2d at 416.

“[W]hether the particular
plaintiff actually knew he had a claim is not the test.  Rather, courts must
decide whether the circumstances of the case would put a person of common
knowledge and experience on notice that some right of his had been invaded
or that some claim against another party might exist.”

Id.

The crux of Mrs. Owenby’s argument
is that her injury was not discoverable to a person of common knowledge. 
She cites Pederson v. Gould, 288 S.C. 141, 341 S.E.2d 633, 634 (1986)
for her argument that expert testimony is often needed in medical malpractice
actions, because the subject matter is outside the scope of common knowledge. 
The Pederson court does find that damage to the ureter that occurs
during a hysterectomy does not fall under common knowledge exception.  Id.
at 143, 341 S.E.2d at 634.  However, the common knowledge exception rule applies
to the use of expert testimony in medical malpractice cases to determine the
appropriate standard of care.  Id. at 142-43, 341 S.E.2d at 634-35
(finding that the trial court did not err in failing to charge the jury as
to the common knowledge exception).  The support is misplaced.  The present
case is about the discovery of an injury.

As to the discovery of her injury,
Mrs. Owenby attempts to distinguish her situation from that in Bayle v.
South Carolina Dep’t of Transp., 344 S.C. 115, 542 S.E.2d 736 (Ct. App.
2001). [6]   Further she argues
that the injury to the party in Bayle was easier to link to the car
accident that caused it.  The Bayle court held that the plaintiff’s
loss, which triggered the statute of limitations, was the death of his wife,
not the date he learned of a possible latent defect in the road.  Id.
at 122, 739 S.E.2d at 739.  The trial court simply cited the discovery rule
in Bayle, which cites Dean, Young, and Joubert
all mentioned above.  She further argues that this “‘simplified’ understanding
of the discovery rule” is countered by Strong v. Univ. of South Carolina
School of Medicine, 316 S.C. 189, 447 S.E.2d 850 (1994).  She interprets
Strong as holding injury only is not enough to start the statute of
limitations, that circumstances sufficient to put the injured party on notice
are needed. [7]   Mrs.
Owenby argues the trial court relied on her knowledge of the injury only,
rather than her knowledge that a claim might exist, citing the facts of Strong
where the plaintiff knew of his blindness in May 1989 but did not know the
cause until June 1989, when a doctor noted it in the plaintiff’s medical file. 
Id. at 191, 447 S.E.2d at 852.  In the instant case, the trial court
did not determine that the statute of limitations started with Mrs. Owenby’s
first knowledge of any injury.  Rather, the court determined that she was
told on October 18, 1999 of the possibility of an injury to her ureter and
that such an injury could have been caused during surgery.  Thereafter,
she was told that she did indeed have such an injury.  At the latest, Mrs.
Owenby discovered her injury on October 26, 1999.

Mrs. Owenby says that the circumstances did not
put her on notice until November 2, 1999.
[8]   To find that she needed to know that her ureter was completely severed,
as she was told on November 2, does not have foundation in the law, which
is that understanding the full extent of the injury is immaterial.  See
Young,  333 S.C. at 719, 511 S.E.2d at 416.  By October
26, 1999, she knew that she had an injury to her ureter and that it was an
injury that could have been caused during surgery.  This was sufficient information
to put a person of common knowledge on notice that a claim existed. 

Viewed in a light
most favorable to Mrs. Owenby, the facts of this case make clear that she
discovered her injury no later than October 26, 1999.  Because Mrs. Owenby
did not file her claim within the applicable statute of limitations, the trial
court was correct to have granted Spartanburg Regional’s motion for summary
judgment.  Therefore, the decision of the trial court is

AFFIRMED.

ANDERSON, STILWELL, and SHORT, JJ., concur.

[1] We decide this case without oral argument pursuant
to Rule 215, SCACR.

[2] From September 30 to October 1, Mrs. Owenby was admitted to Spartanburg
Regional to drain some 5,500 milliliters of fluid after the initial procedure.
Additional fluid was drained while she was hospitalized and after her
discharge from the hospital.

[3] The Owenbys both indicated the fluid looked to be urine and drained
from at a rate of 1,200 to 1,500 milliliters per day October 6 through October
13.

[4] Dr. Williams reattached Mrs. Owenby’s ureter in a procedure on March
20, 2000.

[5] By the date of the hearing, all other defendants had been dismissed.

[6] She also attempts to distinguish Wiggins v. Edwards, 314 S.C.
126, 442 S.E.2d 169 (1994) for the same reason. 

[7] Strong reiterates the discovery rule: that the statute of
limitations begins to run when a person of common knowledge is put on notice
that some right has been invaded or a claim may exist, not when legal advice
has been obtained or a full blown theory of recovery has been established. 
316 S.C. at 191, 447 S.E.2d at 852 (citation omitted). 

[8] The length of time it took doctors with expert knowledge to determine
her injury, as Mrs. Owenby argues, does not bolster the notion that a person
of common knowledge would have known a claim existed once that person was
told of the injury.