Present: All the Justices
LINDA M. ST. GEORGE
v. Record No. 960876 OPINION BY JUSTICE ELIZABETH B. LACY
April 18, 1997
ROBERT J. PARISER, M.D., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Marc Jacobson, Judge
The primary issue in this medical malpractice case is
whether the defendants, who filed a plea of the statute of
limitations, carried their burden of producing evidence to show
that the patient's injury occurred more than two years before
the date the motion for judgment was filed.
This case involves the misdiagnosis of a cancerous mole.
On June 13, 1991, Linda M. St. George went to the offices of
Pariser Dermatology Specialists, Ltd., for an evaluation of a
mole on her lower left leg. A punch biopsy was performed on
the mole. Robert J. Pariser, M.D., an owner and employee of
Pariser Dermatology Specialists, Ltd., performed a pathological
examination of the biopsied tissue. He diagnosed the tissue as
acanthoma, a benign condition. This diagnosis was placed in
St. George's medical record and relayed to her.
In March 1993, St. George consulted a plastic surgeon, Dr.
Tad E. Grenga, about removal of the mole. At Dr. Grenga's
suggestion, St. George requested a copy of her medical record
from Pariser Dermatology Specialists, Ltd. Prior to delivering
the record, Dr. Pariser reviewed the 1991 tissue slides and
determined that the biopsied tissue showed atypical melanocytic
hyperplasia, a cancerous condition. He put an addendum report
in St. George's medical record reflecting this second
diagnosis.
After reviewing the medical record, including Dr.
Pariser's addendum report, Dr. Grenga determined that the
condition described in the addendum report required that the
entire mole be removed, which he did by an excisional biopsy.
The pathology report described the biopsied tissue as "invasive
superficial spreading malignant melanoma." Based on this
report, Dr. Grenga performed a second surgery in which he
removed additional tissue around the site of the mole and
closed the wound with a skin graft. St. George underwent
subsequent procedures including implantation of a tissue
expander. The tissue expander was ultimately removed at St.
George's request because of the pain and nerve numbness
associated with it. St. George continues to have periodic
examinations and tests by an oncologist to insure that the
cancer has not recurred.
On October 21, 1993, St. George filed a motion for
judgment against Dr. Pariser and Tidewater Dermapathology
Service, Inc., alleging negligence and fraud. Pariser
Dermatology Specialists, Ltd., was later added as a defendant. 1
Dr. Pariser and Pariser Dermatology Specialists, Ltd.,
(collectively "Pariser") filed a demurrer to the fraud count
1
Tidewater Dermapathology Service, Inc., and Dr. David M.
Pariser, another defendant, were nonsuited prior to trial.
2
which was sustained. Pariser also filed a plea of the statute
of limitations, asserting that St. George's cause of action
arose at the time of the June 1991 diagnosis and, therefore,
her motion for judgment was filed beyond the two year statute
of limitations period. Code § 8.01-243(A). St. George sought
a determination by the trial court that her motion for judgment
was timely filed as a matter of law. The trial court took this
matter under advisement. Following the presentation of the
evidence in a three day trial, the trial court granted St.
George's motion to strike Pariser's evidence on the issue of
negligence. The case was submitted to the jury on the issues
of proximate cause, damages, and the statute of limitations.
The jury returned a verdict in favor of Pariser. St. George
filed this appeal asserting that the trial court erred in
failing to strike Pariser's plea of the statute of limitations
as a matter of law.
The law governing the accrual of a cause of action
involving a claim for personal injury is well established. The
cause of action accrues on "the date the injury is sustained in
the case of injury to the person," § 8.01-230, and we have
construed "injury" to mean "a positive, physical or mental
hurt." Locke v. Johns-Manville Corp., 221 Va. 951, 957, 275
S.E.2d 900, 904 (1981). The injury need not occur
contemporaneously with the negligent act, but may arise at some
later point. Id. at 957-59, 275 S.E.2d at 904-05. Finally, an
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injury is deemed to occur, and the statute of limitations
period begins to run, whenever any injury, however slight, is
caused by the negligent act, even though additional or more
severe injury or damage may be subsequently sustained as a
result of the negligent act. Scarpa v. Melzig, 237 Va. 509,
512, 379 S.E.2d 307, 309 (1989). The party asserting the
limitations bar bears the burden of proving the date on which
the injury was sustained with a reasonable degree of medical
certainty. Lo v. Burke, 249 Va. 311, 316, 455 S.E.2d 9, 12
(1995).
We turn then to the record to determine whether Pariser
produced evidence to show when, based on the expert testimony,
the injury St. George suffered as a result of the misdiagnosis
occurred, and whether that date was more than two years prior
to the date she filed her motion for judgment. There was
virtually no disagreement among the physicians who qualified as
expert witnesses at trial about the pathology of St. George's
mole. The experts agreed that the 1991 biopsy slides show
atypical melanocyte cells in the epidermis. These cells,
according to the experts, are cancerous and can be called a
2
melanoma or a malignant melanoma. The experts also testified
that these cells are capable of multiplying, but as long as the
2
St. George's expert, Dr. Philip H. Cooper, declined to
describe the condition as cancerous, defining "cancer" as
including a condition which has the ability to "locally invade
tissue beyond where it starts" and "the potential to
metastasize."
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growth is confined to the epidermis, they cannot metastasize or
move into other areas of the body. Pariser's experts referred
to St. George's condition in 1991 as "melanoma in situ." The
experts also agreed that complete removal of these cells or
melanoma at this point would have eliminated any possibility of
a recurrence of the cancerous condition because of this
melanoma, either at the removal site or at any other part of
the body. Dr. Albert Ackerman, one of Pariser's experts,
described the "melanoma in situ" as "biologically benign."
The experts further agreed that the 1993 biopsy showed
that St. George's condition had altered from its 1991 status.
Specifically, the melanoma had enlarged and moved into the
dermis. The experts explained that once the melanoma invaded
the dermis, it was capable of metastasizing. In this status,
according to the experts, even complete removal of the melanoma
from the dermis at this point could not insure that the
cancerous condition would not recur in another part of the body
as a result of the movement of some of the cells from the
melanoma. The experts all stated that St. George has some
likelihood of recurrence of the cancer from the melanoma, even
though they differed as to the exact percentage. Furthermore,
both Dr. Ackerman and Dr. Cooper testified that if cancer were
to recur from this melanoma, the chances that the recurrent
cancer would be fatal would increase.
Pariser contends that, although the expert testimony did
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not establish the date of the onset of cancer in St. George, it
did establish with reasonable medical certainty that St. George
had a cancerous condition in 1991 when she presented herself
for the initial diagnosis. Thus, because St. George's motion
for judgment was not filed within two years after her initial
diagnosis, the trial court was correct in denying St. George's
motion to strike Pariser's plea of the statute of limitations.
St. George replies that her injury was not the onset of
cancer. She claims her injury occurred when the cancer or
melanoma moved from the epidermis into the dermis. She
contends she was injured at that point as a result of the
misdiagnosis because, deprived of the opportunity to have the
mole removed in 1991 when the cancer was confined to the
epidermis, she became subject to the risk of recurrence of the
cancer from the melanoma, and treatment for the melanoma
required more extensive surgery and periodic testing. We agree
with St. George.
Before addressing when an injury arises for statute of
limitations purposes, we must first identify the actionable
injury. This is a misdiagnosis case, not a malpractice action
based on negligently performed surgery. Compare Scarpa v.
Melzig, 237 Va. 509, 379 S.E.2d 307 (1989). In every
misdiagnosis case, the patient has some type of medical problem
at the time the physician is consulted. But the injury upon
which the cause of action is based is not the original
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detrimental condition; it is the injury which later occurs
because of the misdiagnosis and failure to treat. For example,
in Lo v. Burke, the actionable injury was not the cyst the
plaintiff had when she went to the doctor, although this was a
medical problem which should have been treated. The injury at
issue was the cancer which developed from the cyst. 249 Va. at
315-17, 455 S.E.2d at 12-13. Similarly, in Jenkins v. Payne,
251 Va. 122, 465 S.E.2d 795 (1996), the injury was the wrongful
death of a patient who presented to the physician with a
cancerous condition which was not diagnosed or treated before
the condition became terminal. See also Renner v. Stafford,
245 Va. 351, 429 S.E.2d 218 (1993)(actionable injury was
condition caused by improper treatment rendered because of
misdiagnosis). "Where a medical malpractice claim is based on
a misdiagnosis or failure to diagnose a condition, the 'injury'
. . . is the development of the problem into a more serious
condition which poses greater danger to the patient or which
requires more extensive treatment." DeBoer v. Brown, 673 P.2d
912, 914 (Ariz. 1983).
In this case, St. George's actionable injury was not the
generic disease of cancer or the cancer "in situ" which she had
when she sought evaluation of the mole in 1991. Pariser's
negligence could not have been the cause of that medical
condition. St. George's injury was the change in her cancerous
condition which occurred when the melanoma altered its status
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as "melanoma in situ," a biologically benign condition, to
"invasive superficial spreading malignant melanoma" in the
dermis which allowed the melanoma cells to metastasize to other
parts of the body. At this point, St. George's cancer,
according to the expert testimony, was no longer 100 percent
curable because the cancer could metastasize and recur.
Additionally, the treatment then required to remove the
melanoma was more extensive and included post-surgical
monitoring to insure that the cancer had not recurred.
To carry his burden on the limitations plea, therefore,
Pariser was required to show, with reasonable medical
certainty, that this injury, the movement of the cancer from
the epidermis to the dermis, occurred prior to October 21,
1991. The only evidence in the record on the issue of when the
injurious change occurred is Dr. Cooper's testimony that he
believed the change happened after January 1992. There is
nothing in the record which would place the date of the injury
more than two years prior to the filing of the motion for
judgment in this case. Thus, Pariser wholly failed to meet his
burden of proof to sustain his statute of limitations plea, and
the trial court erred in denying St. George's motion to strike
the plea as a matter of law.
St. George also asserts that she adequately pled a cause
of action for constructive fraud, and the trial court erred in
sustaining Pariser's demurrer to her fraud count. This
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assignment of error is without merit. The facts alleged in St.
George's pleadings describe only the negligent performance of
the initial biopsy, not negligent misrepresentation.
Accordingly, for the reasons stated, we will reverse the
judgment of the trial court in part, and remand the case for
entry of an order denying Pariser's plea of the statute of
limitations as a matter of law and for further proceedings on
the issues of proximate cause and damages based on St. George's
negligence count.
Affirmed in part,
reversed in part,
and remanded.
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