                                                                            F IL E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                       U N IT E D ST A T E S C O U R T O F A PP E A L S
                                                                             June 4, 2007
                              FO R T H E T E N T H C IR C U IT
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court



    D A RLA BR OC K,

                Plaintiff-Appellant,

    v.                                                       No. 06-3181
                                                     (D.C. No. 05-CV-1123-M LB)
    JUANITA GATZ, ARN P;                                       (D . Kan.)
    LADONNA REGIER, M .D.,

                Defendants-Appellees.



                              O R D E R A N D JU D G M E N T *


Before L U C E R O , Circuit Judge, B R O R B Y , Senior Circuit Judge, and
M cC O N N E L L , Circuit Judge.


         Plaintiff-appellant Darla Brock appeals from the order of the district court

granting summary judgment in favor of defendants-appellees on her medical

malpractice claim against them. M s. Brock alleged that Dr. Reiger and Advanced

Registered Nurse Practitioner (A RNP) G atz failed to properly diagnose her w ith


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
skin cancer. The district court held that M s. Brock’s claim was barred by Kansas’

statute of limitations for medical malpractice claims and granted summary

judgment to defendants-appellees. Because we hold that summary judgment was

not proper as a matter of law, we reverse.

                                          I.

             A grant of summary judgment by the district court is reviewed
      de novo. Sim m s v. O klahoma, 165 F.3d 1321, 1326 (10th Cir.1999).
      Summary judgment is appropriate “if the pleadings, depositions,
      answers to interrogatories, and admissions on file, together with the
      affidavits, if any, show that there is no genuine issue as to any
      material fact and that the moving party is entitled to judgment as a
      matter of law.” Fed. R. Civ. P. 56(c). W hen determining whether
      judgment as a matter of law is appropriate, “we view the evidence
      and draw reasonable inferences therefrom in the light most favorable
      to the nonmoving party.” Simms, 165 F.3d at 1326. This court also
      review s district court determinations of state law de novo. Salve
      Regina College v. Russell, 499 U.S. 225, 238 . . . (1991); M ares v.
      ConAgra Poultry Co., 971 F.2d 492, 495 (10th Cir.1992).

Bradley v. Val-M ejias, 379 F.3d 892, 896-97 (10th Cir. 2004).

                                         II.

      M s. Brock was seen by ARNP G atz on July 24, 2001. She had made the

medical appointment after she had noticed some lesions that had appeared on her

body, including a brown irregularly shaped lesion on her thigh. 1 M s. Brock was

moving to Vermont the week of the appointment and wanted to have the lesions




1
      The irregularity is also referred to as a “mole” at various points in the
record. W e shall refer to it as a “lesion” simply for ease of use.

                                         -2-
looked at before she left. ARNP G atz asked M s. Brock if she wanted to have the

lesion treated with cryotherapy or wait to seek treatment in Vermont. M s. Brock

testified that ARNP G atz told her: “we can freeze it off, and then if it comes

back, that is when you should be concerned.” Aplee. Supp. App. at 65.

M s. Brock elected to treat the lesion with cryotherapy. No biopsy of the lesion

was performed. 2

      M s. Brock noticed no change to the site of the previous lesion until either

January or February of 2003 when she had noticed that the lesion had reappeared.

Since ARNP G atz had told her to seek further treatment upon such an occurrence,

she arranged for an appointment with dermatologist Dr. Edward Benjamin on

February 4, 2003. M s. Brock testified that she told Dr. Benjamin that a lesion

that had been previously removed had reappeared, that he examined the area:

“[a]nd he said your doctor in Kansas should never freeze those off without doing

a biopsy, but this one is fine. And [i]f I remove it, your insurance won’t pay for

it.” Aplt. App. at 31. Dr. Benjamin did, however, remove a lesion from

M s. Brock’s back that he found concerning. A subsequent biopsy revealed that

the lesion from her back was not cancerous.




2
      Dr. Reiger did not examine M s. Brock but she was ARNP G atz’s supervisor
and signed M s. Brock’s medical chart.

                                         -3-
      In February 2004, M s. Brock decided to have the lesion removed even if

insurance would not pay for it. She saw Dr. Sharon Christie, another

dermatologist, to have the lesion removed. Dr. Christie asked M s. Brock why she

waited so long to have the lesion examined. Dr. Christie performed a biopsy on

the lesion and M s. Brock was notified on April 6, 2004, that she had melanoma.

M s. Brock filed her complaint against ARNP G atz and Dr. Reiger on April 28,

2005. The district court subsequently granted defendants-appellees summary

judgment. The parties agreed that M s. Brock was required by Kansas law to bring

her action within two years of the date that the action accrued. But they disagreed

on the date the action accrued under K ansas Statutes Annotated § 60-513(c).

Under that statute:

      A cause of action arising out of the rendering of or the failure to
      render professional services by a health care provider shall be
      deemed to have accrued at the time of the occurrence of the act
      giving rise to the cause of action, unless the fact of injury is not
      reasonably ascertainable until some time after the initial act, then the
      period of limitation shall not commence until the fact of injury
      becomes reasonably ascertainable to the injured party, but in no event
      shall such an action be commenced more than four years beyond the
      time of the act giving rise to the cause of action.

The district court ruled that M s. Brock’s action accrued at the time of her

appointment with Dr. Benjamin because “the fact of injury” in her case was

“reasonably ascertainable” following that appointment.




                                          -4-
                                          III.

      M s. Brock argues that the district court erred in granting summary

judgment because, viewing the evidence in the light most favorable to her, “the

fact of injury” in her case was not “reasonably ascertainable” until her

appointment with Dr. Christie. “Here [M s. Brock] is asserting state law claims

and it is undisputed that the Kansas law of the forum controls.” Bradley,

379 F.3d at 897.

      The Kansas Supreme Court has held that “the term ‘reasonably

ascertainable’ as applied in K.S.A. 60-513 . . . (c), suggests an objective standard

based upon an examination of the surrounding circumstances” and that “the

objective knowledge of the injury, not the extent of the injury, triggers the statute

both in medical and nonmedical malpractice cases.” P.W.P. v. L.S., 969 P.2d 896,

901-02 (K an. 1998).

      In Davidson v. Denning, a Kansas wrongful death case, the Kansas

Supreme Court held that “‘[r]easonably ascertainable’ does not mean ‘actual

knowledge.’” 914 P.2d 936, 948 (Kan. 1996). The court held that “[i]nherent in

‘to ascertain’ is ‘to investigate,’” id. at 946, and that “[t]he phrase ‘reasonably

ascertainable’ means that a plaintiff has the obligation to reasonably investigate

available sources that contain the facts of the death and its wrongful causation,”




                                          -5-
id. at 948. The Kansas Supreme Court held in P.W.P. that this language from

Davidson “is applicable to medical malpractice actions.” 969 P.2d at 901.

      In Roe v. Diefendorf, the Kansas Supreme Court considered when a “fact of

injury becomes reasonably ascertainable to the injured party” under § 60-513 in a

tort action. 689 P.2d 855, 858 (Kan. 1984). The court held: “The statute of

limitations starts to run in a tort action at the time a negligent act causes injury if

both the [negligent] act and the resulting injury are reasonably ascertainable by

the injured person.” Id. at 859. Similarly, this court has previously held that

“Kansas’ ‘fact of injury’ standard postpones the running of the limitations period

until the time the plaintiff is able to determine that her injury may be caused by

some act of the defendant.” Bradley, 379 F.3d at 898 (internal quotation marks

omitted).

      In Roe, the Kansas Supreme Court distinguished its ruling in the case of

Hecht v. First National Bank & Trust Co., 490 P.2d 649 (Kan. 1971), from

previous cases ruling that it was knowledge of the fact of injury and not the extent

of injury that was important to a statute of limitations determination. In Hecht,

the plaintiff was diagnosed with Hodgkin’s disease and was treated by defendant

doctors with radiation. Following radiation treatment in January and February of

1966 the skin on plaintiff’s legs turned red and she complained of pain in her




                                           -6-
ankles. The plaintiff was told by the defendants on M arch 2, 1966, that her skin

reaction was subsiding and was told on M arch 11 that it was slowly healing.

      The plaintiff got a second opinion of her condition from a different

physician, Dr. Lilly, on M arch 12, 1966. The plaintiff testified that at that time

“the top was off the treatment area, it was open, raw and draining.” Id. at 652

(internal quotation marks omitted). Dr. Lilly “testified [at trial] that his

impression was ‘that there had been a radiation reaction with breakdown’” and he

“confirmed the opinion given by defendants after their examination [the previous

day] that the area was healing.” Id.

      The plaintiff in Hecht continued to see the defendant doctors following her

M arch 12, 1966, appointment with Dr. Lilly and they continued to tell her that the

area of the reaction was healing. It appeared from the record that the first time

the defendant physicians suspected any permanent damage was July 22, 1966, and

that plaintiff was not told until December of 1966 that the ulcer in her groin area

would require surgical repair.

      As in this case, a two-year statute of limitation was at issue in Hecht. But a

previous version of § 60-513 provided that:

      The cause of action in this section shall not be deemed to have
      accrued until the act giving rise to the cause of action first causes
      substantial injury, or, if the fact of injury is not reasonably
      ascertainable until some time after the initial act, then the period of
      limitation shall not commence until the fact of injury becomes
      reasonably ascertainable to the injured party, but in no event shall the

                                          -7-
      period be extended more than ten (10) years beyond the time of the
      act giving rise to the cause of action.

Id. at 654 (quoting Kan. Stat. Ann. § 60-513 (1970 Supp.)). The defendants

argued that the plaintiff had actual knowledge of “a substantial or real burn

injury” in February of 1966, but that in any event “she either was or should have

been made so aware by her consultation with Dr. Lilly on M arch 12, 1966, one

day more than two years preceding the filing of her petition.” Id. at 653.

      The K ansas Supreme Court overturned the trial court’s grant of summary

judgment to defendants. It stated: “It is true that plaintiff knew she had an

unhealed sore on M arch 12, when she saw Dr. Lilly, but both Dr. Lilly and [the

defendant doctor who saw the plaintiff on M arch 11] described the condition then

as slowly healing and [determined] that the conservative treatment which plaintiff

was then undergoing would likely result in a complete healing.” Id. at 654-55.

The Kansas Supreme Court therefore held:

      W e do not believe that plaintiff’s knowledge of her condition from
      her own observation, and that acquired from her physicians, is
      sufficient to justify a determination, as a matter of law, that she knew
      or could have reasonably ascertained on M arch 13, 1966, that she had
      suffered substantial injury caused by the alleged negligent treatment
      of defendants.

Id. at 655 (emphasis added).

      The Kansas Supreme Court also recognized that–other than the ten-year

statute of repose incorporated in the previous version of § 60-513(b)–the statute



                                         -8-
codified what “essentially what has been identified as the ‘discovery rule.’” Id. at

657. The court then quoted with approval the following definition of the

“discovery rule” from a M ichigan Supreme Court case:

      Simply and clearly stated the discovery rule is: The limitation statute
      or statutes in malpractice cases do not start to run until the date of
      discovery, or the date when, by the exercise of reasonable care,
      plaintiff should have discovered the wrongful act.

Id. at 657 (quoting Johnson v. Caldwell, 123 N.W .2d 785, 791 (M ich. 1963),

superseded by statute).

      In Cleveland v. Wong, the plaintiff underwent a surgical procedure know n

as a “transurethral resection prostate (TUR).” 701 P.2d 1301, 1304 (K an. 1985).

The plaintiff was informed by the doctor that he w ould experience temporary

incontinence and impotence following surgery. The surgery was completed on

M ay 19, 1978, and, in the fall of 1979 after continued incontinence and

impotence, the plaintiff contacted a urological surgeon for a second opinion. That

surgeon told the plaintiff that his incontinence and impotence was permanent.

The plaintiff then sued the doctor who performed the surgery.

      The defendant doctor argued that because “plaintiff was both incontinent

and impotent immediately following th[e] surgery, the fact of injury was

reasonably ascertainable to him [at that time].” Id. at 1306. The Kansas Supreme

Court held that “while plaintiff knew that he was both incontinent and impotent

immediately after the surgery, he had no reason to suspect that those conditions

                                         -9-
were permanent or that those conditions were the result of any negligence or

malpractice on the part of the defendant.” Id. (emphasis added). It therefore held

that “[t]he symptoms of the injury were known to the plaintiff, but the fact of

injury was not reasonably or immediately ascertainable.” Id.

      Hecht and Cleveland, therefore, stand for the proposition that under Kansas

law it is not enough to start the statute of limitations running that it is reasonably

ascertainable to a party that he or she has sustained an injury. Instead it must be

reasonably ascertainable that an injury has been sustained that may have been

caused by some negligent act or omission of the defendant such that legal

recovery is possible. But the full extent of that legally recoverable injury need

not be known.

                                          IV.

      Here, the grant of summary judgment was improper. The legal injury

alleged by M s. Brock was the improper treatment of a possibly cancerous lesion

that resulted in a delayed diagnosis of skin cancer. The “fact of injury” was not

reasonably ascertainable to her at the time the lesion reappeared. ARNP G atz and

M s. Brock had specifically discussed the possibility that the lesion might return

and further treatment might be needed. Consequently, while the reappearance of

the lesion was cause for concern that M s. Brock might have skin cancer, it would

not have put M s. Brock on notice that the defendants’ previous act of freezing off



                                          -10-
a suspicious lesion and waiting to see if it returned might have constituted

negligent medical treatment. In other words, at the time the lesion reappeared

“[t]he symptoms of the injury were known to [M s. Brock], but the fact of injury

was not reasonably or immediately ascertainable.” Cleveland, 701 P.2d at 1306.

      At the appointment with D r. Benjamin, M s. Brock w as alerted for the first

time to A RNP Gatz and Dr. Reiger’s allegedly negligent treatment for the first

time (when Dr. Benjamin stated “your doctor in Kansas should never freeze

[lesions] off without doing a biopsy,” A plt. App. at 31), but was simultaneously

informed that she had not been harmed by that negligent treatment (when

Dr. Benjamin stated: “but this [lesion] is fine,” id.). Consequently, under the

evidence presented to the court in the summary judgment motion, the first time

that M s. Brock could have reasonably ascertained both that she had skin cancer

and that the diagnosis of that skin cancer might have been delayed by

defendants-appellees’ negligence was after meeting both Dr. Benjamin and

Dr. C hristie. See Bradley, 379 F.3d at 898 (“K ansas’ ‘fact of injury’ standard

postpones the running of the limitations period until the time the plaintiff is able

to determine that her injury may be caused by some act of the defendant.”)

(internal quotation marks omitted).

      Defendants-appellees argue that it was unreasonable for M s. Brock to have

relied on Dr. Benjamin’s assertion that the lesion was not cancerous. Their



                                         -11-
argument rests on a misstatement of fact in the district court’s summary judgment

order. The district court made the following findings regarding M s. Brock’s

treatment by Dr. Benjamin.

(1)   Importantly, Dr. Benjamin stated that a lesion should always be
      biopsied and not “burned off.” Plaintiff generally understood the
      purpose and significance of a biopsy. However, and apparently in
      violation of his own rule, Dr. Benjamin did not biopsy the lesion but
      instead examined it visually, told plaintiff it looked “fine,” and that
      the “lesion was probably benign and there was nothing to worry
      about.”

Aplt. App. at 19-20 (quoting R., doc. 43 at 14, reproduced in Aplee. Supp. App.

at 103).

(2) The district court found that M s. Brock should have recognized the

inconsistency of Dr. Benjamin’s assertions, finding: “Dr. Benjamin was critical

of G atz for not biopsing the lesion in 2001 (‘a lesion should always be biopsied’)

but he did not biopsy the lesion in 2003.” Id. at 20.

(3) The district court held that:

      what Dr. Benjamin did, and failed to do, bears directly on plaintiff’s
      duty to reasonably investigate. . . . W hen Dr. Benjamin told her that a
      lesion “always” should be biopsied, but then did not do so, it was not
      reasonable for plaintiff to accept Dr. Benjamin’s statement that the
      lesion was “fine.” Plaintiff had an obligation to conduct a
      “reasonable investigation” in light of Dr. Benjamin’s inconsistent
      medical treatment and advice.

Id.




                                         -12-
      The district court’s ruling, therefore, rested squarely on its factual finding

that Dr. Benjamin advised M s. Brock that “a lesion should always be biopsied”

but then failed to follow his own advice. Even if we agreed for the sake of

argument that the reappearance of a lesion, followed by a statement that “a lesion

should always be biopsied,” w ould have been enough to alert M s. Brock to both

possible negligence and the fact that any reasonable investigation of whether she

had skin cancer needed to include a biopsy, there was no evidence that

Dr. Benjamin actually told M s. Brock that “a lesion should always be biopsied.”

Aplt. A pp. at 19.

      In the factual section of their amended memorandum in support of their

motion for summary judgment, ARNP Gatz and Dr. Reiger alleged that:

“Dr. Benjamin examined the lesion on plaintiff’s thigh and notified plaintiff that

M s. Gatz should not have treated the lesion with cryotherapy back in 2001.

Dr. Benjamin also notified plaintiff that the lesion should have been biopsied in

2001.” A plee. Supp. A pp. at 48. As support for these factual assertions, ARN P

Gatz and Dr. Reiger cite to portions of M s. Brock’s deposition. The first citation

is the one quoted above: “And he said your doctor in Kansas should never freeze

those off without doing a biopsy, but this one is fine. And if I remove it, your

insurance won’t pay for it.” Id. at 70. The second citation is from later in the

deposition when M s. Brock again testified that “[Dr. Benjamin] said, well, your



                                         -13-
doctor in Kansas should never freeze those off without a biopsy.” Id. at 72.

In the third citation, M s. Brock merely agrees that the lesion was examined by

Dr. Benjamin and he concluded that it was probably benign and that there was

nothing to worry about. Id. at 76. In the final citation, M s. Brock again agrees

that Dr. Benjamin said that the lesion should not have been frozen off without

having a biopsy done. Id. at 76. These statements do not justify characterizing

M s. Brock’s testimony as asserting that Dr. Benjamin told her that a lesion should

always be biopsied.

       The defendants-appellees also stated in the argument section of their

amended memorandum that M s. Brock saw a number of physicians between

1986 and 1992 and that the office notes from those visits revealed “that plaintiff

was counseled about: . . . c. The need to have all [unusual] lesions biopsied to

rule out malignancy, even if it is suspected that they are benign; . . .” Aplee.

Supp. App. at 53-54. The two office notes appended to the memorandum do not

support this assertion. 3




3
      There is a 1992 record from a Dr. Charles Ruggles which reflects that the
doctor excised a “nevus” that he suspected was benign and it appears that a
biopsy was done at that time. Aplee. Supp. App. at 81. But it cannot be
discerned from the record that Dr. Ruggles even informed M s. Brock that he
suspected the nevus was benign; and it certainly cannot be said that the record
shows he counseled M s. Brock that all unusual lesions should be biopsied.

                                         -14-
                                          V.

      In short, when read in the light most favorable to M s. Brock, the record

simply shows that Dr. Benjamin told M s. Brock that suspicious lesions should not

be burned off without first being biopsied, not that it was impossible to tell from

a visual examination that a lesion was not cancerous. Consequently, the evidence

was not sufficient to support the district court’s ruling that as a matter of law the

“fact of injury” was reasonably ascertainable to M s. Brock after her appointment

with Dr. Benjamin. The district court’s April 19, 2006, order granting summary

judgment to ARNP G atz and Dr. Reiger is therefore REVERSED and its judgment

of the same date in favor of A RNP Gatz and Dr. Reiger is VACATED. The case

is REM ANDED to the district court for further proceedings consistent with this

order and judgment.

                                                      Entered for the Court


                                                      W ade Brorby
                                                      Senior Circuit Judge




                                          -15-
