Sloan v. Canadian Valley Animal Clinic, Inc. , 1985 Okla. Civ. App. LEXIS 87 ( 1985 )

719 P.2d 474 (1985)

Sandra K. SLOAN and David Sloan, Appellants,
v.
CANADIAN VALLEY ANIMAL CLINIC, INC.; Marvin L. Denny, DVM; Cathy Carnmore, DVM; John Lockamy, DVM; Charles Eisenhour, DVM; Tony Epperson, DVM; and Bernard L. Wiedemann, DVM, Appellees.

No. 62661.

Court of Appeals of Oklahoma, Division No. 1.

November 19, 1985. Rehearing Denied January 7, 1986. Certiorari Denied May 14, 1986.

Steven E. Clark and Glen Mullins, Oklahoma City, for appellants.

Curtis L. Smith, Oklahoma City, for appellees.

Released for Publication by Order of the Court of Appeals of Oklahoma, Division No. 1.

ROBINSON, Presiding Judge:

Sandra Sloan (Appellant) worked as a volunteer in an animal clinic for several veterinarians (Appellees) and soon thereafter Appellant began feeling ill. Appellant was eventually diagnosed as having Brucellosis, a disease which attacks the lymphatic system and is carried by cattle. Appellees filed a motion for summary judgment alleging that the claim was barred by the two year Statute of Limitations. The trial court found that the action was barred by the Statute of Limitations and sustained Appellee's Motion for Summary Judgment. Appellant appeals arguing that the claim was not barred as it did not accrue until Appellant knew or should have known of her injury and the cause thereof.

Appellant first sought medical attention in late May of 1981 and was admitted to a hospital for the first time on June 9, 1981. She was diagnosed as having acute lymphangitis and was discharged from the hospital seven days later. On July 22, 1981, she was once again admitted to a hospital for an excisional biopsy of a cervical lymph node and was discharged four days later with a final diagnosis of of cervical lymphadenopathy. On August 26, 1981, Appellant was again hospitalized, this time the diagnosis being Brucellosis. This was the first time that she had ever been advised or diagnosed by any physician as having Brucellosis. On August 5, 1983, Appellant filed a personal injury action against the Appellees alleging negligence. Appellees contend that because Appellant first began feeling ill in April of 1981, the cause of action should begin to accrue on this date. Appellants argue that the "discovery rule" should be applied and that the cause of action should begin to accrue from the time the plaintiff actually discovers the injury or the time when discovery was reasonably possible. Under the facts of this case, we agree with Appellant's argument.

Brucellosis does not occur with regularity or to the extent that it is a usual and expected result of working with cattle; in fact, fewer than 200 cases of Brucellosis are diagnosed each year in the United States. Wilson Foods Corp. v. Porter, 612 P.2d 261, 264 (Okl.1980). Appellant was not aware of her disease until approximately 4 months after her original contact with the infected cattle. In fact, Appellant's illness was not even correctly diagnosed until her third visit to the hospital in August, 1981. We are aware of the general rule that "mere ignorance of the existence of a cause of action or facts constituting such on the part of a person in whom a cause of action lies will not toll the running of the statute of limitations" Moore v. Delivery Services, Inc., 618 P.2d 408, 409 (Okl.App.1980). This general rule applies unless the statutes specifically provide that the limitations do not begin to run until the plaintiff has actual knowledge of it. The Oklahoma Legislature has not recognized a specific exception to the Statute of Limitations in negligence actions. However, Oklahoma case law has recognized in malpractice actions,^[1] in actions involving pollution of a stream,^[2] and in actions involving flood damage by oil producers,^[3] that the limitation period does not begin until the damage or injury becomes apparent to the injured party.

In Williams v. Borden, 637 F.2d 731 (10th Cir.1980), plaintiff contracted "meat wrapper's syndrome", a chronic pulmonary disease of an asthmatic nature, as a result of inhaling toxic fumes produced by a clear plastic film used in meat wrapping. As in the case at bar, the Plaintiff in Williams was originally misdiagnosed. In reversing the trial court's granting of defendant's summary judgment, the Federal Court held that "the statute of limitation for such a claim does not begin to run until the plaintiff knows, or as a reasonably prudent person should know, that he has the condition for which his action is brought and that the defendant caused it." Although the federal decision is not binding on this court, we find the reasoning persuasive and agree that a similar rule should be adopted by this court.

In conclusion, given the uncertainty of Appellant's diagnosis and the lapse of time that occurred before Appellant even knew the cause of her illness, we hold that the Statute of Limitations did not begin to run until Appellant was aware of her injury. Thus, the trial court did err in sustaining Appellee's motion for summary judgment in that there is a factual issue as to whether Appellant knew or should have known that she had a condition for which her action was brought and that the Appellees had caused this condition. Accordingly, the summary judgment must be set aside and the cause remanded for further proceedings.

REVERSED AND REMANDED.

REYNOLDS and GRAY, JJ., concur.

NOTES

[1] Seitz v. Jones, 370 P.2d 300 (Okl.1962).

[2] Continental Oil Co. v. Williams, 207 Okl. 501, 250 P.2d 439 (1952).

[3] Gouin v. Continental Oil Co., 590 P.2d 704 (Okl.App.1978).