Sutherland v. Estate of Ritter


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Docket Number: 2006-CA-00082-SCT
Linked Case(s): 2006-CA-00082-SCT

Supreme Court: Opinion Link
Opinion Date: 04-19-2007
Opinion Author: CARLSON, J.
Holding: Affirmed

Additional Case Information: Topic: Medical malpractice - Discovery rule - Latent injury
Judge(s) Concurring: SMITH, C.J., WALLER, P.J., DICKINSON AND RANDOLPH, JJ.
Non Participating Judge(s): COBB, P.J.
Dissenting Author : DIAZ, J.
Dissent Joined By : EASLEY AND GRAVES, JJ.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - MEDICAL MALPRACTICE

Trial Court: Date of Trial Judgment: 12-13-2005
Appealed from: Hinds County Circuit Court
Judge: W. Swan Yerger
Disposition: Grant of summary judgment in favor of Appellee
Case Number: 251-04-271-CIV

  Party Name: Attorney Name:  
Appellant: ROBERT SUTHERLAND




RICK D. PATT SHANE F. LANGSTON



 

Appellee: ESTATE OF ROBERT M. RITTER, M.D. WHITMAN B. JOHNSON, III SHELLY G. BURNS  

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Topic: Medical malpractice - Discovery rule - Latent injury

Summary of the Facts: Robert Sutherland filed suit against the Estate of Dr. Robert Ritter, a psychiatrist. The trial court granted summary judgment in favor of Dr. Ritter’s estate. Sutherland appeals.

Summary of Opinion Analysis: Sutherland argues that his injury was latent and, thus, the discovery rule applies. He argues that the statute of limitations did not begin to run until January 31, 2002, which is the date Sutherland learned that the condition from which he suffered was called TDS. Dr. Ritter’s estate argues that the judge correctly held that the statute of limitations began to run, at the latest, in April, 2001, when Sutherland, by his own admission, knew that Zyprexa was the cause of his symptoms. A latent injury is one where the plaintiff will be precluded from discovering harm or injury because of the secretive or inherently undiscoverable nature of the wrongdoing in question or when it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act. The discovery rule for medical negligence cases, however, is different. The inquiry does not center on a latent injury, but rather on the date the alleged act, omission or neglect shall or with reasonable diligence might have been first known or discovered. In applying the unambiguous language of section 15-1-36(2), although a hidden or unseen injury might very well serve to trigger the discovery rule and toll the statute of limitations, it is not because the injury itself is hidden or unknown, but rather because the negligence which caused the injury is unknown. Furthermore, in the medical malpractice context, the discovery rule may apply in cases where the injury is not latent at all, but where the negligence which caused the known injury is unknown. According to the facts of today’s case, Sutherland’s own suspicions and actions thereon, together with the passage of time from when Sutherland first recognized the adverse effects from the Zyprexa until Sutherland checked himself into the hospital in April, 2001, were enough to satisfy the statutory requirement of discovery of the alleged medical negligence on the part of Dr. Ritter. Sutherland originally knew or suspected that Dr. Ritter’s prescription of Zyprexa caused his undesirable side effects no later than the date of his discharge from St. Dominic on April 19, 2001, because he stated that “[t]he Zyprexa was destroying my life” and that “[i]t was not a belief, it was a knowing.” Considering Sutherland’s actions, Sutherland knew that Dr. Ritter’s prescribing him Zyprexa had caused him to suffer an injury. Therefore, Sutherland unquestionably knew, at least by April 2001, that Zyprexa was causing his troubles and that Dr. Ritter had prescribed the drug. By reasonable inquiry, Sutherland should, or with reasonable diligence might have discovered the alleged negligence. Thus, the discovery rule would not toll the statute of limitations beyond the date of April 19, 2001, when Sutherland was discharged from the hospital. Therefore, the statute of limitations had long since expired by the time Sutherland submitted his statutory notice of claim to Dr. Ritter’s estate on January 30, 2004.


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