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Remark discovered in unrelated med-mal depo
Missouri Lawyers Weekly
March 27, 2000
A doctor could sue another physician for slander three years after the defamatory statements were made where the doctor discovered the statements only after he read a patient's deposition in a med-mal case, the Missouri Court of Appeals' Eastern District has ruled.
The physician argued that the two-year defamation statute of limitations applied to bar the claim.
But the court disagreed. "[The doctor] was not aware he had suffered any legal wrong until he received a copy of [the] patient's deposition in which she revealed [the physician's] statements," wrote Judge Mary Rhodes Russell for the court. "Therefore, the statute was tolled until that time."
The judgment was reversed in Kennedy, et al. v. Bailey, et al., MLW No. 26168, issued on March 22.
Middle Ground
"This decision is good news for lawyers who represent plaintiffs in defamation suits," said Al W. Johnson of St. Louis, who represented the plaintiff.
"For a while it was looking like the courts were eroding libel and slander actions in Missouri," Johnson remarked. "Hopefully this signals that the courts are moving to a middle ground."
Johnson explained that the plaintiff and defendant had at one time practiced together but eventually split. "My client didn't find out about the statements until the deposition, which is not uncommon in a defamation case. The person who has been defamed often doesn't find out what someone else said until after quite some time has elapsed."
Robert B. Hoemeke, a St. Louis lawyer and co-author of the Defamation chapter in the MoBar Tort Deskbook, said that tolling a statute because of "factors outside the control of the plaintiff" was a "principle that requires further refinement.
"If an individual lives an isolated life and chooses to remain unaware of a publication about him, it should not be concluded that he was not capable of ascertaining the publication," Hoemeke said, giving as an example a person in prison.
He suggested that the test should be whether "the publisher made any effort to keep the plaintiff from learning of the libel or slander. This was the situation in the Jones case discussed in the opinion, but apparently not in this case.
Unnecessary Surgery
Dr. David Kennedy performed surgery on George Conway in March 1995 and continued treating him until April 1996. Conway's wife told Dr. Kennedy in June 1996 that her husband was seeing another doctor because his insurance company would no longer pay for Dr. Kennedy's services.
In October 1997, the patient filed a medical malpractice claim against Dr. Kennedy alleging that the surgery was unnecessary. In September 1998, the patient's wife was deposed. In her deposition, she testified that Dr. Gregory J. Bailey had informed them that between May 1 and Sept. 15, 1996, Dr. Kennedy had performed "‘unnecessary' surgery on [the] patient... [and] had done so solely for ‘monetary' purposes.
In October 1998, Dr. Kennedy sued Dr. Bailey for slander and injurious falsehood. The suit was filed six weeks after Dr. Kennedy learned of the statements.
Dr. Bailey filed a motion to dismiss on the grounds that the claim was barred by the two-year statute of limitations. The trial court agreed and dismissed the case. Dr. Kennedy appealed.
Right To Sue
Judge Russell acknowledged that there "is no dispute that the two-year statute of limitation provided in section 516.140 applies to Dr. Kennedy's claim for slander.
"The issue is when that statute began to run," Russell said.
"In Missouri, a statute of limitations is generally triggered not by the discovery of damage, but by the commencement of the right to sue," she said. "Theses two events do not necessarily coincide.
"The triggering of the commencement of the right to sue is when the damage is sustained and becomes capable of ascertainment. Damages are ascertained when the fact of damage appears, not when the extent or amount of damage is determined."
Dr. Kennedy argued that because the patient and his wife misled him as to the reason why they switched doctors, "his damages were not ascertainable until September 1998 when he received a copy of [the] patient's wife's deposition," and therefore his claim was not time-barred.
"Dr. Bailey counters that the statute of limitations for slander and libel claims begins to run at the time of publication, as that is when the damages are capable of ascertainment," and therefore the claim was barred.
Both parties cited Jones v. Pinkerton's Inc., 700 S.W.2d 456 (Mo.App. 1985), in which a worker was fired by his employer in November 1974 after the employer received an investigative report from Pinkerton's. The employer told the worker he was fired because his employment application, was incomplete. On Jan. 9, 1975, the worker received a service letter which revealed the Pinkerton report. The worker sued Pinkerton for libel on Jan. 6, 1977.
The Jones court "acknowledged that a plaintiff's reputation interest is invaded at the time of publication of the allegedly defamatory statements and arguably that is the time when damage is sustained."
However, the court in Jones went on to say that the "analysis does not end there. Section 5 16.100 states that a cause of action shall be deemed to accrue ‘when the damage resulting there from is sustained and is capable of ascertainment.'"
Russell said, "The Jones court concluded that the existence of the libel and any damage to his reputation were not ascertainable" by the worker because the "actions of his employer and Pinkerton's prevented him from becoming aware of the report."
‘Intervening Screen'
"Therefore, these actions erected an ‘intervening screen' hiding any wrong to [the worker]," Russell said.
"Until he received the service letter... [the worker] had no notice of his cause of action, and the statute of limitations was tolled until that notification.
"The court emphasized it was not equating ‘capable of ascertainment' with a discovery test. Rather, it was developing the principle that a statute is tolled when factors outside the plaintiff's control prevent his knowing either that he has suffered a legal wrong or that he has been damaged because of a legal wrong.
"We believe the principle enunciated in Jones is applicable to the instant case," Russell said.
She noted that although Dr. Bailey's statements were made between May 1 and September 15, 1996, "[t]he actions of patient and his wife in telling Dr. Kennedy they had switched doctors because of insurance problems erected an ‘intervening screens hiding any wrong against Dr. Kennedy.
"Dr. Kennedy was not aware he had suffered any legal wrong until he received a copy of patient's wife's deposition in which she revealed Dr. Bailey's statements," she said.
"Therefore, the statute was tolled until that time," Russell ruled, reversing the trial court and remanding the case.