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24671 - Arant v. Kressler, et al.

Davis Adv. Sh. No. 24
S.E. 2d

THE STATE OF SOUTH CAROLINA

In the Supreme Court

Trudy Arant, Appellant,

v.

Carolyn Kressler, M.D., Christina

Y. Parr, M.D., and Kressler &

Parr, a Partnership, Respondents.

Appeal From Richland County

L. Casey Manning, Judge

Opinion No.24671

Heard June 3, 1997 - Filed August 11, 1997

AFFIRMED

James A. Merritt, Jr., and Deborah R.J. Shupe, both of

Berry, Adams, Quackenbush & Dunbar, P.A., of Columbia,

for appellant.

Julius J. McKay, of McKay, McKay, Henry & Foster, P.A.,

of Columbia, for respondents.

MOORE, A.J.: This is a medical malpractice case. Appellant contends

the trial judge erred in refusing to allow her to amend her pleadings under Rule 15(b),

SCRCP, on the ground the amended claim was time-barred. We affirm.

FACTS

Appellant brought this action against respondents Drs. Kressler and Parr,

partners in a gynecology/obstetrics practice, for infertility allegedly resulting from a

negligently performed surgical procedure known as a dilation and curettage (D&C), a

scraping of the uterine cavity. The facts adduced at trial were as follows.

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TRUDY ARANT, v. KRESSLER & PARR, et al.

Appellant gave birth on December 30, 1989, attended by Dr. Parr. The

delivery was normal except the placenta was not spontaneously delivered and had to be

removed manually. About two weeks after delivery, appellant called the doctors' office

complaining of heavy vaginal bleeding. Normally vaginal bleeding stops within ten to

twelve days of birth. Appellant was told to rest in bed. She continued to call the

doctors' office with the same complaint. Finally, on January 19, she had an

appointment with Dr. Kressler who prescribed an antibiotic and medication to contract

the uterus.

On January 24, appellant again saw Dr. Kressler. Because appellant's

uterus was somewhat enlarged and the bleeding had continued unabated by medication,

Dr. Kressler recommended a D&C. Based on her review of Dr. Parr's records of the

birth and appellant's symptoms, Dr. Kressler suspected remnants of the placenta had

been left behind after delivery. The next day, January 25, Dr. Kressler performed a

D&C.

On March 27, appellant was diagnosed with Asherman's syndrome, a

known complication of a postpartum D&C, in which adhesions develop in the uterine

cavity and the walls of the uterus grow together. Expert testimony indicated appellant

had at best a sixty percent chance of reversing her resulting infertility. The jury

returned a verdict in favor of Drs. Parr and Kressler.

DISCUSSION

During her case-in-chief, appellant called Dr. Parr as a witness and

examined her about the delivery. Dr. Parr testified the standard of care at delivery

requires manual exploration of the uterus to ensure there is no regaining matter after a

manual delivery of the placenta. She testified she did not perform a manual

exploration because appellant would not permit it. Dr. Parr further testified she did not

warn appellant about the risk incurred by failing to manually explore the uterus. There

was no objection to Dr. Parr's testimony.

Since appellant's complaint alleged only a cause of action for injuries

arising from the D&C, she moved to conform her pleadings to the proof that Dr. Parr,

by her own testimony, was negligent at the delivery in failing to explore the uterus

after manual delivery of the placenta. Appellant argued the issue was tried by implied

consent and, under Rule 15(b), SCRCP, the amendment should be allowed. The trial

judge disallowed the amendment on the ground the claim against Dr. Parr was barred

by the statute of limitations.

Rule 15(b) provides in pertinent part:

When issues not raised by the pleadings are tried by express

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TRUDY ARANT, v. KRESSLER PARR, et al.

or implied consent of the parties, they shall be treated in all

respects as if they had been raised in the pleadings.

Any amendment under this rule relates back to the original pleadings. The issue then

becomes whether the amended claim was time-barred at the time the action was

commenced on February 2, 1993. See Scott v. McCain, 272 S.C. 198, 250 S.E.2d 118

(1978) (a defective complaint cannot be amended to state a new or different cause of

action after the statute of limitations has run). We conclude it was.1

Under S.C. Code Ann. § 15-3-545 (Supp. 1996), an action for medical

malpractice must be commenced within three years from the date the claim arose or

the date of discovery or the date it reasonably ought to have been discovered. Under

this section, the statute begins to run where facts and circumstances of the injury

would put a person of common knowledge and experience on notice that some right of

hers has been invaded or that some claim against a party might exist. Johnston v.

Bowen, 313 S.C. 61, 437 S.E.2d 45 (1993). The date on which discovery should have

been made is an objective, not subjective, question. Kreutner v. David, 320 S.C. 283,

465 S.E.2d 88 (1995). When there is conflicting testimony regarding the time of

discovery, it becomes an issue for the jury to decide. Brown v. Finger, 240 S.C. 102,

124 S.E.2d 781 (1962).

Here, there is no conflicting, testimony. By appellant's own admission,

Dr. Kressler told her on January 24, 1990, that the reason she was bleeding and needed

a D&C was because Dr. Parr had not removed all of the placenta. This information

was sufficient to put appellant on notice of a claim against Dr. Parr.

Appellant asserts the time of discovery is the time when the treating

physician's actual negligence becomes known. To the contrary, in Strong v. Univ. of

South Carolina School of Medicine, 316 S.C. 189, 447 S.E.2d 850 (1994), we rejected

this same contention and held the plaintiff's injury was readily discoverable when she

was told by another physician that her injury was caused by the treating physician's

follow-up care. Similarly, in this case, appellant was informed by another physician on

January 24 that her postpartum bleeding was caused by Dr. Parr's failure to deliver all

of the placenta. This information was sufficient to put a person of common knowledge

on notice that some claim against Dr. Parr might exist. __________________________

1Generally, the statute of limitations must be pled as an affirmative defense. Rule

8(c), SCRCP. A statute of limitations defense to a new claim amended at trial,

however, is properly raised at the time the amendment is sought. See Wagner v.

Wagner, 286 S.C. 489, 335 S.E.2d 246 (Ct. App. 1985) (affirmative defense of

collateral estoppel timely raised for first time on motion for summary judgment where

defense was not available at time action was commenced).

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TRUDY ARANT, v. KRESSLER-& PARR, et al.

Because the claim against Dr. Parr arising from the delivery was time-

barred at the time the action was commenced, the trial judge properly denied

appellant's motion to amend her pleadings to allow such a claim.

AFFIRMED.

FINNEY, C.J., TOAL, WALLER and BURNETT, JJ., concur.

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