explaining that a plaintiff has discovered her legal injury when she knew or should have known both of her injury and that it resulted from negligence
How later courts described this case
- explaining that a plaintiff has discovered her legal injury when she knew or should have known both of her injury and that it resulted from negligence
- "This Court has defined discovery of the injury as knowledge of a legal injury; that is, the plaintiff must know of the injury and of the negligence which caused the injury."
Written by the judges who cited it.
The opinion
ZIMMERMAN, Justice:
I agree with Justice Durham’s opinion to the extent that it reverses the trial court’s grant of summary judgment against plaintiff on her malpractice claim arising out of the hysterectomy. Whether plaintiff knew that she had been injured by the hysterectomy prior to her visit to the Kanab hospital in July of 1981 is a fact question.
I disagree, however, to the extent that Justice Durham would reverse the summary judgment with respect to plaintiff’s claim arising out of the puncture wound. Justice Durham’s opinion treats plaintiff’s injury as though it were a unitary one involving both the puncture wound and the hysterectomy. In fact, the pleadings, depositions, and concessions of plaintiff’s counsel at oral argument all indicate that the injuries alleged to arise out of the puncture wound are entirely unrelated to the injuries alleged to arise from the hysterectomy. While it may be that there is a factual question as to when plaintiff knew the hysterectomy had been done improperly and was causing her problems, there is no question on the record that on October 22, 1980, when plaintiff was wheeled out of the recovery room and saw blood spurting from the wound in her leg, she knew that she had received a puncture wound that was not part of her surgical procedure. She inquired about the wound and never received a satisfactory explanation as to how it occurred. This was enough, as a matter of law, to place her on notice that she had received a legal injury. Accordingly, I believe the trial court’s summary judgment on this issue should be affirmed.
HALL, C.J., concurs.
STEWART, Associate C.J., does not participate herein.