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ST. GEORGE v. PARISER


ST. GEORGE v. PARISER


April 18, 1997
Record No. 960876

LINDA M. ST. GEORGE

v.

ROBERT J. PARISER, M.D., ET AL.

Present: All the Justices
Marc Jacobson, Judge
OPINION BY JUSTICE ELIZABETH B. LACY
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK


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 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 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 melanoma or a
malignant melanoma.[2] The experts also testified that these cells are
capable of multiplying, but as long as the 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 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 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 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 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.

FOOTNOTES:

[1] Tidewater
Dermapathology Service, Inc., and Dr. David M. Pariser, another
defendant, were nonsuited prior to trial.

[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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