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DR. THOMAS L. KILGORE, JR.; DR. MARTIN H. McMULLAN; THE SURGICAL CLINIC, P.A.; AND THE MISSISSIPPI BAPTIST MEDICAL CENTER v. WOODROW WILSON BARNES

APRIL 08, 1987

DR. THOMAS L. KILGORE, JR.; DR. MARTIN H. McMULLAN; THE SURGICAL CLINIC, P.A.; AND THE MISSISSIPPI BAPTIST MEDICAL CENTER
v.
WOODROW WILSON BARNES



BEFORE WALKER, C.J.; ROBERTSON AND GRIFFIN, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

This case presents a nice question regarding application of our 1976 medical malpractice statute of limitations to a claim arising from acts or omissions occurring in 1974. Important to the context is that the claim presented was not barred at the time of enactment of the 1976 limitations

statute. Within the meaning of the new statute, the claim did not accrue until discovery in 1982, with suit thereon being brought within two years thereafter. The Circuit Court held the claim viable and denied the physicians' motion for summary judgment.

 Because of the importance and nature of the questions presented, we brought the matter here on interlocutory appeal. Kilgore v. Barnes, 490 So. 2d 894 (Miss. 1986). We now affirm.

 II.

 In the present posture of the case - all Defendants having moved for summary judgment - we proceed upon the assumption of the following facts.

 Woodrow Wilson Barnes, Plaintiff below and Appellee here, is an adult resident citizen of Columbia, Mississippi. On June 28, 1974, Barnes was a patient in the Mississippi Baptist Hospital (currently known as the Mississippi Baptist Medical Center) (hereinafter" Hospital "). On that occasion, Dr. Thomas L. Kilgore, Jr., assisted by Dr. Martin H. McMullan, performed coronary artery bypass surgery upon Barnes. Barnes given a general anesthetic, was asleep during the operation and has no direct knowledge of what actually occurred during the operation. During the course of the surgery, a foreign object, apparently a metallic surgical needle, was left in the lining of Barnes' heart, a matter which he did not discover until June 21, 1982, and which, of course, forms the basis for his present claim.

 On the day of his surgery in 1974 and in days following, several chest x-rays were taken of Barnes. On July 5, 1974, he was released from the hospital to the care of his personal physician and on August 8, 1974, Barnes returned to Dr. Kilgore for a post-operative check-up. During this period Barnes had no knowledge of the foreign object in his chest nor any reason to know of such.

 During the ensuing years Barnes often complained of weakness and pain similar to the angina pains he had experienced prior to surgery. Several chest x-rays were taken during office visits to Barnes' personal physician, Dr. Charles Thompson, and also while he was hospitalized for treatment of other ailments. He was never advised of or even given a clue to what the problem might be. In addition, Barnes was examined by other physicians, including Dr. H. Davis Dear, Dr. Thomas Whitehead and Dr. Manning Hudson, in the months and years ensuing between his 1974 heart surgery in the summer of 1982. No one detected or advised him of the

 presence of any foreign object within his chest.

 On June 21, 1982, Barnes was admitted to the Methodist Hospital in Hattiesburg, Mississippi, for the purpose of having prostate surgery. Chest x-rays were taken in the hospital prior to surgery. Barnes was informed by one of the attending physicians, Dr. Thomas S. Messer, that the radiologist who had examined these x-rays, Dr. James M. Martin, had discovered the presence of a foreign object in the lining of his heart which was suggestive of and appeared to be a metallic surgical needle. This was the first occasion upon which Barnes knew or had reason to know of such foreign object. It is suggested in the briefs that, due to risk factors, including Barnes' age and heart condition, the object has not been removed.

 On June 14, 1984 - one year and 359 days after he learned of the existence of the foreign object in his chest - Barnes commenced this civil action by filing his complaint in the Circuit Court of the First Judicial District of Hinds County, Mississippi. Named as Defendants were Dr. Thomas L. Kilgore, Jr., Dr. Martin H. McMullan, The Surgical Clinic, P.A., and The Mississippi Baptist Medical Center.

 All Defendants moved for summary judgment, arguing that the claim was barred under the general six year statute of limitations, Miss. Code Ann. 15-1-49 (1972). They argued that the claim accrued on June 28, 1974 - the date of the alleged negligent act - and was not filed within six years thereafter. The Circuit Court, however, held that the July 1, 1976, medical malpractice statute of limitations, Miss. Code Ann. 15-1-36 (1) (3) (Supp.1986), while shortening the limitations period liberalized the definition of" accrued "and in consequence held that the Barnes' claim had ...


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