                           IN THE SUPREME COURT OF MISSISSIPPI

                                    NO. 2005-IA-01130-SCT


TOMAS FLORES, M.D.

v.

MARLA ELMER, INDIVIDUALLY,
AND AS PARENT AND NEXT FRIEND OF
GIGI ELMER, A MINOR

DATE OF JUDGMENT:                            05/25/2005
TRIAL JUDGE:                                 HON. JERRY O. TERRY, SR.
COURT FROM WHICH APPEALED:                   HANCOCK COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                     STEPHEN G. PERESICH
                                             MELINDA O. JOHNSON
ATTORNEY FOR APPELLEE:                       DAVID R. DANIELS
NATURE OF THE CASE:                          CIVIL - MEDICAL MALPRACTICE
DISPOSITION:                                 AFFIRMED AND REMANDED - 09/07/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


        BEFORE WALLER, P.J., EASLEY AND GRAVES, JJ.

        WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1.     This interlocutory appeal involves issues pertaining to the discovery rule as it relates

to medical malpractice.      Finding that there are genuine issues of fact that remain after

reviewing the evidence, we affirm the circuit court’s denial of summary judgment and remand

for further proceedings.

¶2.     Marla Elmer, individually, and as a parent and next friend of Gigi Elmer, a minor, filed

a complaint against Tomas R. Flores, M. D., alleging medical malpractice.     Dr. Flores filed a

motion for summary judgment asking the Hancock County Circuit Court to dismiss the action
based on the two-year statute of limitations.            The circuit court, denying the motion for

summary judgment, found that genuine factual issues existed which precluded a grant of

summary judgment.        Dr. Flores filed a motion petitioning the circuit court to reconsider its

denial of summary judgment based on a newly issued Court of Appeals case, Simpson v.

Lovelace, 892 So. 2d 284 (Miss. Ct. App. 2004). Dr. Flores’s motion was denied, and we then

granted him permission to bring this interlocutory appeal. See M.R.A.P. 5.

                                                FACTS

¶3.     Dr. Flores performed surgery on Gigi Elmer to treat her broken arm.         After that initial

surgery, Gigi was able to move her thumb and fingers and had normal hand function.

Subsequent x-rays showed that Gigi’s bones appeared to be touching at an angle, so Dr. Flores

operated again on August 22, 1992, one week following the first surgery.        The second surgery

was designed to plate the bones together and make certain Gigi’s bones would heal properly.

After the second surgery, Gigi was in pain and could barely move her fingers. When she left

the hospital, her “thumb and fingers didn’t work.”

¶4.     Gigi continued to visit Dr. Flores for follow-up visits,1 during which she regularly

expressed concern over the problems she was having with her thumbs and fingers. Dr. Flores

continuously assured her that everything was fine and that “these things take time to heal.”

Marla Elmer was concerned that Gigi’s arm failed to progress and tried to get Dr. Flores to

refer Gigi to a specialist. When Dr. Flores would not help her, Marla secured an appointment

with Jefferson Kaye, M.D., at Ochsner Orthopaedic Clinic.



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       According to appellant’s written briefs, Gigi saw Dr. Flores as late as April 22, 1994,
21 months after surgery.

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¶5.    Dr. Kaye performed surgery on Gigi on October 18, 1994. 2             During that surgery, Dr.

Kaye discovered that Gigi’s posterior interosseous nerve (PIN) was wrapped around one of the

screws that was pinning the plate to the bone.        The Elmers filed a medical malpractice lawsuit

against Dr. Flores on September 27, 1996, alleging that Dr. Flores negligently implanted the

plate. Dr. Flores filed a motion for summary judgment alleging that the Elmers’ complaint was

time barred because it was filed after the two-year medical malpractice statute of limitations

had expired. The Elmers assert that the discovery rule applies because they were not aware that

Dr. Flores was negligent until Dr. Kaye’s surgery and that they acted diligently based on Dr.

Flores’s repeated assertions that the recovery process was on track.

¶6.        The circuit court held that it was unable to say as a matter of law that the malpractice

was due to Dr. Flores’s negligence until Dr. Kaye discovered the reason for Gigi’s pain and

denied Dr. Flores’s motion for summary judgment. From this ruling, Dr. Flores appeals.

                                           DISCUSSION

¶7.    The court applies a de novo standard of review when examining a trial court’s grant or

denial of summary judgment. All that is needed for a nonmoving party to survive a motion for

summary judgment is to demonstrate that a genuine issue of material fact exists.               PPG

Architectural Finishes, Inc. v. Lowery, 909 So. 2d 47 (Miss. 2005); Lowery v. Guar. Bank &




       2
         Dr. Kaye saw Gigi on September 14, 1994. He could not diagnose Gigi based on her
symptoms alone, so he ordered a nerve conduction velocity test. His notes disclose that the
cause of injury was unclear. He noted “possible muscle adherence, possible tendon adherence,
possible muscle or tendon rupture, possible posterior interosseous nerve dysfunction” and
“possible surgery for exploration and removal of hardware, possible nerve exploration.” The
nerve conduction test revealed evidence of nerve palsy. Dr. Kaye decided surgery was the best
option to determine the cause of the palsy.

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Trust Co., 592 So. 2d 79, 81 (Miss. 1991); Galloway v. Travelers Ins. Co., 515 So. 2d 678,

682 (Miss. 1987). The evidence is viewed in the light most favorable to the nonmoving party.

McKinley v. Lamar Bank, 919 So. 2d 918, 926 (Miss. 2005).

         I.        GENUINE ISSUES OF MATERIAL FACT

¶8.      Section 15-1-36 of the Mississippi Code provides a two-year statute of limitations for

medical malpractice claims.        Miss. Code Ann. § 15-1-36 (Rev. 2003).                 That statute of

limitations is, however, subject to a discovery rule. Wright v. Quesnel, 876 So. 2d 362, 366

(Miss. 2004). The two- year statute does not begin to run until the patient discovers or should

have discovered that he has a cause of action. Smith v. Sanders, 485 So. 2d 1051, 1052 (Miss.

1986).        In other words, “the operative time [for the running of the statute of limitations] is

when the patient can reasonably be held to have knowledge of the injury itself, the cause of the

injury, and the causative relationship between the injury and the conduct of the medical

practitioner.” Sarris v. Smith, 782 So. 2d 721, 725 (Miss. 2001). The focus is on the time

that the patient discovers, or should have discovered through reasonable diligence, that he or

she probably has an actionable injury. Wright, 876 So. 2d at 366 (citing Wayne Gen. Hosp. v.

Hayes, 868 So. 2d 997, 1001 (Miss. 2004)). The discovery rule tolls the statute of limitations

until the plaintiff knew or should have known of some negligent conduct, regardless of whether

the plaintiff knows with absolute certainty that the conduct was legally negligent. Id.

¶9.      The discovery rule protects plaintiffs with latent injuries.    Wright, 876 So. 2d at 366.

A latent injury precludes the plaintiff from discovering harm or injury because of the secretive

or inherently undiscoverable nature of the wrongdoing in question . . . [or] when it is unrealistic



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to expect a layman to perceive the injury at the time of the wrongful act.” Lowery, 909 So. 2d

at 50 (quoting Donald v. Amoco Prod. Co., 735 So. 2d 161, 168 (Miss. 1999)).

¶10.    A layperson undergoing a surgical procedure trusts in and relies on the instructions,

professional expertise and guidance of their physician.        Dr. Flores examined Gigi’s hand on

eight separate occasions following the surgery.        He told her “everything was all right and

normal” and “these things don’t happen overnight.”         Based on these statements, it is hard to

conclude as a matter of law that Gigi did not act diligently by trusting her surgeon’s opinion

and waiting over two years before consulting a specialist.        It is reasonable to assume that a

person in Gigi’s circumstances might rely on the advice of the surgeon and think that the

recovery was on-track rather than discovering the source of the alleged malpractice.

¶11.    Two cases from other states show that it is reasonable for a patient to rely upon his or

her physician’s advice: First, in Burns v. Bell, 409 A.2d 614 (D.C. 1979), after she underwent

a facelift, Burns became concerned that the scars did not disappear and that she experienced

numbness and a pins-and-needles sensation around the surgical area.             When she stated her

concerns on numerous occasions to Dr. Bell, he assured her that these symptoms would

improve with time.    Incredibly, even though her symptoms did not disappear, Burns underwent

another plastic surgery performed by Dr. Bell and referred a friend to Dr. Bell.       Burns stated,

“Throughout this period of time, I had complete trust in Dr. Bell and that if I would only be

patient, everything would turn out to be all right. My response in each instance to Dr. Bell’s

assurances was an acquiescence in [his] judgment.” Id. at 614. After suit was filed against him,

Dr. Bell moved for summary judgment based on the running of the statute of limitations.




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Reversing the trial court’s grant of summary judgment, the District of Columbia Court of

Appeals held as follows:

                         [Dr. Bell] contends that [Burns] knew of her injury soon
                after the operation. It is argued that she could see for herself the
                condition of her face. This approach overlooks the fact that
                [Burns] may have relied upon [Dr. Bell] because she herself had
                no medical expertise and no other accurate way of knowing
                whether the assurances given her were reasonable. To require a
                patient to scrutinize to a fine degree the advice given by a treating
                physician, at the risk of losing his right to legal redress seems
                unwise. Thus the determination of when [Burns] should have
                reasonably discovered her injury under the instant circumstances
                is, in our view, a question of fact and should have been submitted
                to the trier of fact.

Id. at 617.

¶12.    The Burns court relied on a Texas case, Fitzpatrick v. Marlowe, 553 S.W.2d 190 (Tex.

1977), with remarkably similar facts which involved plastic surgery on the patient’s nose.     In

Fitzpatrick the court stated as follows:

                        As to the negligent treatment count, what was necessary
                for plaintiff to discover was not that her nose had a depression in
                it and redness, but that the depression and redness were caused by
                the manner the operation was performed and would not heal. . . .
                Under the evidence, we deem that whether she should have
                discovered [negligence] sooner is a fact issue for the trier of fact
                to determine from the evidence.

Id. at 195.

¶13.    Dr. Flores relies on Simpson v. Lovelace, 892 So. 2d 284 (Miss. Ct. App. 2004), and

Robinson v. Singing River Hospital System, 732 So. 2d 204 (Miss. 1999), to claim that Gigi’s

injury was not latent and the discovery rule should not apply.           However, his reliance is

misguided because the facts in these cases are substantially different from the instant case.


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In Robinson, the injured party received second-degree burns by the application of heating packs

during a physical therapy session. Id. at 206. Robinson was awake and aware of his injury the

day it occurred. Id. at 208. He threatened legal action on the very day the burns occurred. Id.

Therefore, the Court concluded that he was put on notice the day the alleged malpractice

occurred and his cause of action was time-barred. Id.

¶14.   Conversely, Gigi Elmer’s PIN nerve was wrapped around a screw implanted in her arm.

There were no visible marks or other signs.     Though she had pain, she did not know the actual

source of that pain until Dr. Kaye found the nerve-wrapped screw.          Even Dr. Kaye could not

pinpoint the source of Gigi’s problems based on her symptoms alone, he had to surgically

operate on her to locate the entrapped nerve.

¶15.   Simpson is distinguishable because the patient made no attempt to discover the origin

of his pain after leg surgery. Simpson attended two surgical follow-up appointments in the two

weeks following his surgery, but made no other visits with his surgeon to complain about pain.

Simpson, 892 So. 2d at 285. Three years later, after observing ulcers and protruding veins in

his leg, he asserted that he had suffered pain, swelling, tingling, burning and some numbness

in his leg since the surgery. Id. at 286. The Court of Appeals held that because Simpson did

nothing to discover his doctor’s negligence, there was “no issue to be resolved by the jury

regarding the reasonableness of Simpson’s acts or attempts to discover.” Id. at 288.

¶16.   Gigi’s eight visits to Dr. Flores with repeated complaints about pain and loss of function

in her fingers certainly qualifies as doing “something” to discover the origin of her pain.

While the eight visits do not provide a definitive answer as to reasonableness, they do make



                                                  7
the issue of due diligence a fact issue to be resolved by the jury.       Accordingly, the court did

not err in denying summary judgment.

        II.      FRAUDULENT CONCEALMENT

¶17.    The Elmers allege that Dr. Flores “concealed or obscured” the actionable injury caused

by his own malpractice.           “Fraudulent concealment of a cause of action tolls its statute of

limitations.” Robinson v. Cobb, 763 So. 2d 883, 887 (Miss. 2000) (quoting Myers v.

Guardian Life Ins. Co. of Am., Inc., 5 F. Supp. 2d 423, 431 (N.D. Miss. 1998)). Given our

disposition of the first issue, there is no need to address this issue.

                                               CONCLUSION

¶18.    The circuit court did not err in denying summary judgment in this case.       Because there

are genuine issues of fact that remain after reviewing the evidence as to when the Elmers

should have reasonably known that they had a cause of action against Dr. Flores due to the

circumstances regarding Gigi’s recovery, the Elmers are entitled to a trial on the merits of

their claim.      We affirm the circuit court’s denial of Dr. Flores’s motion for summary

judgment, and we remand this case to the trial court for further proceedings consistent with

this opinion.

¶19.    AFFIRMED AND REMANDED.

     SMITH, C.J., COBB, P.J., DIAZ, EASLEY, CARLSON, GRAVES, DICKINSON
AND RANDOLPH, JJ., CONCUR.




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