The opinion of the court was delivered by: Waller, Justice
DATE OF JUDGMENT: 02/26/97
TRIAL JUDGE: HON. JAMES W. BACKSTROM
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: AFFIRMED - 2/4/1999
¶1. Wilmer Robinson appeals from a judgment of the Circuit Court of Jackson County, Mississippi, granting Singing River Hospital's and David Cissel's Motion for Summary Judgment on the basis that the action was time barred pursuant to the one-year statute of limitations of Miss. Code Ann. § 11-46-11, contained in what is commonly referred to as the Mississippi Tort Claims Act . Miss. Code Ann. §§ 11-46-1 et seq. (Supp. 1998). Robinson sustained burns on the backs of his legs from hot packs while he was undergoing physical therapy at Singing River Hospital ("Singing River").
¶2. Robinson appealed to this court, raising the following issues for consideration:
I. WHETHER THE TRIAL COURT ERRONEOUSLY GRANTED SUMMARY JUDGMENT.
II. WHETHER THE STATUTE OF LIMITATIONS SHOULD BE TOLLED BECAUSE SINGING RIVER FRAUDULENTLY CONCEALED ROBINSON'S MEDICAL RECORDS.
¶3. The Court finds these issues to be without merit.
¶4. Wilmer Robinson ("Robinson") is an incomplete quadriplegic who walks with the assistance of a cane and who sought medical treatment for pain in his lower extremities and back. Physical therapy was prescribed at Singing River Hospital in Pascagoula, Mississippi, by Dr. Barrett, a local physician. On August 30, 1993, Dr. Michael Winkelmann, a specialist in physical medicine from Jackson, Mississippi, who was also treating Robinson, faxed a prescription for physical therapy to the hospital. The treatment prescribed by Dr. Winkelmann focused on Robinson's heels and hamstrings and specified the use of ultrasound. An ultrasound device is a machine that produces ultrasonic waves that create vibrations in the muscle tissues to create heat. For Robinson, they would be used in a streaking motion on the hamstring musculature prior to stretching.
¶5. David Cissel ("Cissel"), a physical therapist employed at Singing River, administered approximately 17 physical therapy treatments from September 1, 1993, until November 21, 1993, when the subject injuries occurred. During the November 21 physical therapy session, Robinson sustained severe burns to the backs of his legs. The burns were caused by the application of hot packs to the back of Robinson's legs. Although the physical therapy orders from Dr. Barrett were non-specific, hot packs were not prescribed by Dr. Winkelmann because they were contraindicated for patients, such as Robinson, with impaired feeling in their lower extremities. However, hot packs were used on many occasions without incident prior to Robinson's being burned. At Singing River, hot packs were containers of silicon gel heated in a hot water tank and used with pads and/or towels to warm tissues as a part of physical therapy. Apparently, hot packs and ultrasound are used for the same therapeutic benefit.
¶6. Dr. Winkelmann followed Robinson's treatment for burns beginning in December, 1993, when on evaluation, he found a 10 x 10 cm. burn area on the right calf which was classed as a second degree burn and a 2 x 2 cm. "defect" on the left leg which appeared to be healing. On November 15, 1994, following treatment that included debridement and plastic surgery, Dr. Winkelmann noted ...