Shedd v. Guerra, No. S0863-01 CnC (Katz, J., Oct. 18, 2004)

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STATE OF VERMONT                                     SUPERIOR COURT
Chittenden County, ss.:                          Docket No. S0863-01 CnC



SHEDD

v.

GUERRA




                                  ENTRY

        Podiatrist Guerra, has renewed his motion for summary judgment
arguing that plaintiff Joan Shedd’s complaint of medical malpractice was
filed too late under the statute of limitations as a matter of law. Shedd
opposes this motion claiming: 1) that our previous entry on this issue
controls; and 2) that she could not have reasonably discovered her injuries
until March 2001.
        Shedd’s toe problems began around September 1993. She started
treating with Guerra who treated her until September 29, 1997 when he
referred her to a dermatologist. The dermatologist diagnosed Shedd’s
problem as Bowen’s Disease, a rare form of toe cancer. In March 1998
Shedd went to Dartmouth Hitchcock Medical Center for further tests. The
Center determined that her toe cancer was a “very advanced form” and
required a partial amputation. On April 21, 1998, a plastic surgeon
performed the surgery removing the diseased section of Shedd’s toe.
Shortly thereafter, in the summer of 1998, Shedd contacted counsel to
investigate her legal options. In March 2001, she received an expert
opinion from a podiatrist that linked Guerra’s failure to diagnose with the
loss of her toe. On July 13, 2001, Shedd commenced this action against
Guerra.

        The statute of limitations for medical malpractice bars claims filed
more than two years after the date that the injury should have been
discovered. 12 V.S.A. § 521. In this case, the question is should Shedd
have discovered her injuries at any time before July 13, 1999—two years
prior to commencing this action. We note that injury in this sense means
“legal injury,” which is knowledge not only of the physical injury but the
possibility of negligence. Lillicrap v. Martin, 156 Vt. 165, 175–76 (1989).
While the question of when an injury should have been discovered is
usually a question of fact for the jury, id. at 172, it is a proper for summary
judgment if a reasonable factfinder must come to only one conclusion
Ware v. Gifford Med. Ctr., 664 F. Supp. 169, 171 (D. Vt. 1987), cited with
approval, Lillicrap, 156 Vt. at 173–75.

       In this case the undisputed facts show that Shedd was aware of her
toe cancer in the fall of 1997. By March 1998, she was also aware that this
was an advanced case and that amputation was necessary. Coupled with the
fact that Guerra had treated this toe for the previous four years, this
knowledge demonstrates that Shedd was aware of her injury and aware that
her podiatrist had not diagnosed it. This put Shedd on notice of both her
injuries and Guerra’s liability. Cf. Ware, 664 F. Supp. at 171 (statute
triggered when plaintiff was aware of injury and fact that alternative steps
had not been taken). A conclusion supported by Shedd’s consultation with
legal counsel shortly after surgery. To say that Shedd still needed to trace
the causative elements of her claim, whether earlier treatment would have
saved her toe, belies the fact that Shedd was not required to perfect her
legal theories or create an “airtight” case prior to filing. Rodrigue v.
VALCO Entrs., Inc., 169 Vt. 539, 541 (1999) (mem.). As of 1998, Shedd
had and was aware of all the evidence she has now of Guerra’s liability.
The sole addition of an expert’s opinion does nothing more than strengthen
those already known facts. To extend the running of § 521 merely because
Shedd delayed her contact with an expert would allow her to circumvent
the purpose of § 521, which puts a time limit on causes of action when
plaintiffs have constructive knowledge. By the summer of 1998, Shedd
should have been aware of her legal injury, and § 521 began running. By
delaying until July 13, 2001, Shedd filed after her cause of action had
expired.

       Shedd’s second argument against summary judgment goes to this
court’s earlier denial of Guerra’s prior motion. On September 3, 2002,
Judge Teachout denied Guerra’s first motion for summary judgment based
on § 521. This essentially was the same motion that Guerra presently
urges. Judge Teachout wrote a brief explanation of her decision on the
bottom of a motion reaction form: “The date on which the claimed injury
was or ‘reasonably should have been discovered’ cannot be established as
an undisputed fact based on the affidavits filed by the parties. Further facts
are needed to determine whether date referred to in 12 VSA § 521 means
‘physical injury’ or ‘legal injury.’” Shedd argues that the “law of the case”
requires that we not revisit this earlier ruling.

        The “law of the case’ doctrine has never been a hindrance to courts
seeking to revisit or revise earlier decisions in a case before final judgment.
Morrisseau v. Fayette, 164 Vt. 358, 364 (1995). Where proper, judges are
authorized to revisit previous rulings to allow for “efficient adjudication.”
Id. Shedd’s argument goes more properly to whether a court can revisit a
decision by a previous judge when none of the facts have changed and the
essential issue of law is the same. Morrisseau suggests that a judge can
revisit a prior decision if there is not a final judgment and that a judge
should not be bound by a prior decision if circumstances require a different
result. Id. at 362–63. The scope of this power was further clarified:
“There is no language in Morrisseau that purports to limit the successor
judge’s reconsideration authority to prior denials of summary judgment as
opposed to prior grants thereof.” Myers v. LaCasse, 2003 VT 86, ¶ 12.

       The major concern with succeeding judges revisiting earlier
decisions is the possibility that parties, frustrated by an outcome, will delay
cases so that they can re-file in front of more sympathetic judges. This
concern must be balanced with respect to the stronger concern that judges
be free to make proper adjudications and not be bound by prior decisions of
law that may be in error. Morrisseau, 164 Vt. at 363–64. Guerra’s first
motion for summary judgment came within a year after the case was filed
and discovery had only begun. Judge Teachout’s denial of summary
judgment is far from final and put parties on notice that the facts were in
question and more discovery would be permitted.

        Two years later, discovery is completed. Both sides argue the same
facts, but unlike before, this case is now on the verge of trial. Unlike before,
where there was substantial room for discretion to permit discovery to
progress, we are now confronted with plaintiff’s upcoming burden of proof.
Under these circumstances, Shedd’s lack of additional evidence explaining
her delay in filing and Guerra’s further briefing on the standards of “legal
injury” tip the scale toward summary judgment. As we have noted, the
facts as they stand today, in respect to the parties’ burdens, make clear that
Shedd was on notice of her injury and Guerra’s potential malpractice.
Without further facts, there is nothing for a jury to decide. The logic of
denying summary judgment merely because of the earlier entry would
require us to defer ruling until time to direct a verdict for defendant at trial.
Indeed, plaintiff’s logic would suggest that even such a different procedural
posture does not permit a different substantive decision. This would be
exactly the kind of “roundabout way” of coming to a decision because of a
prior entry that Morrisseau warned against. Id. at 363.

        Finally, Shedd offers no evidence that Guerra has delayed the case in
order to get a favorable re-hearing of his earlier motion or that there is any
practical reason not to revisit the issue. We do not make this decision
lightly, nor do we question the prior ruling, which appears to have been the
proper one for the time and disposition of the case. At the same time, we
are not bound to this decision where time and the lack of later-discovered
facts have given us reason to reconsider the facts and burdens involved in
defendant’s argument.

     Therefore, based on the foregoing, defendant Guerra’s motion for
summary judgment is granted. Case is dismissed.

       Dated at Burlington, Vermont________________, 2004.
________________________
                   Judge
