F I L E D

United States Court of Appeals

Tenth Circuit

JUL 23 2004

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RICK L. BRADLEY,

Plaintiff-Appellant,

v.

J.E. VAL-MEJIAS, M.D., THE

GALICHIA MEDICAL GROUP, P.A.,

Defendants-Appellees.

No. 02-3421

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. No. 00-2395-GTV)

Timothy Buxton, (Anthony Viorst and James E. Puga on the briefs) Denver, Colorado, for

Plaintiff-Appellant.

Stephen M. Kerwick, (Amy S. Lemley with him on the brief) Foulston Siefkin LLP,

Wichita, Kansas, for Defendants-Appellees.

Before MURPHY, HOLLOWAY and McCONNELL, Circuit Judges.

HOLLOWAY, Circuit Judge.

This is an appeal from a summary judgment for the Defendants based upon the

statute of limitations in a medical malpractice diversity case arising under Kansas state

law. Plaintiff was diagnosed in July 1997 with vertigo and shingles by the Defendant Dr.
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Val-Mejias. In September 1998, it was discovered that the cause of Plaintiff’s symptoms

was a fractured ventricular pacemaker lead. Plaintiff alleges the Defendant Val-Mejias’s 

July 1997 diagnosis was both malpractice and an intentional falsehood intended to

coverup Defendant’s earlier malpractice in implanting the pacemaker. By May 1998,

however, while Plaintiff did not know he had a fractured ventricular lead, he had some

evidence that his symptoms were not due to either shingles or vertigo and instead were

pacemaker related. Plaintiff brought this suit on September 1, 2000, alleging malpractice

against Dr. Val-Mejias and the Galichia Medical Group.

The district judge was persuaded that the 2 year Kansas statute of limitations had

run and granted summary judgment on limitations grounds. Memorandum and Order,

238 F. Supp. 2d 1242 (2002). We agree.

I

Background

On September 3, 1998, Plaintiff Rick Bradley was diagnosed with a fractured

ventricular lead to his pacemaker after being admitted to a hospital emergency room with

chest pain. This ventricular lead was implanted seventeen years earlier in 1981 as part of

a pacemaker Bradley received to treat a cardiac rhythm disturbance known as sick sinus

syndrome. In 1988, Bradley experienced a problem with his pacemaker and consulted

with Defendant Dr. J.E. Val-Mejias who was a member of the Galichia Medical Group

(GMED), the other defendant in this case. Bradley complained that his left arm was
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shaking and that his pacemaker “jumped.” As treatment, Dr. Val-Mejias reprogrammed

Bradley’s pacemaker.

Four years later, in September of 1992, Dr. Val-Mejias, assisted by Dr.

Demosthenes Klonis, another GMED physician, replaced Bradley’s pacemaker but reused

the ventricular leads from the old pacemaker. In August of 1993, Bradley again

experienced problems with his pacemaker after being involved in a car accident. As

treatment, Dr. Klonis replaced the generator of Bradley’s pacemaker but left the

ventricular leads untouched.

In February of 1997, Bradley was admitted to a hospital emergency room

complaining of heart palpitations, lightheadedness, and left arm numbness. No heart or

pacemaker problem was diagnosed at that time. While Bradley was soon released from

the hospital, his symptoms continued. Soon thereafter, in March of 1997 Bradley

consulted about his health problems with Dr. Val-Mejias who diagnosed him as having 

an inner ear problem. This diagnosis was repeated by Dr. Val-Mejias during visits with

Bradley in May and June of 1997. Following the June consultation, Dr. Val-Mejias wrote

that Bradley’s pacemaker was “perfectly adjusted” and Bradley’s symptoms of vertigo

and partial paralysis were due to an inner ear problem and shingles.

On April 29, 1998, Bradley testified before an administrative law judge in order to

receive Social Security disability benefits. At that hearing, Bradley testified that he

suffered dizziness, numbness, and had been feeling generally poor. Bradley also testified
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that in his opinion, his symptoms were caused by his pacemaker. One week later, Bradley

consulted with a cardiologist, Dr. Candice Morgan, who traced his symptoms potentially

to his pacemaker and performed more programming adjustments. The next day, Bradley

reported to Dr. Morgan that his symptoms abated and was told to return in six months for

a pacemaker evaluation.

Four months later, on September 3, 1998, Bradley was admitted to the emergency

room where it was determined that the ultimate cause of his illness was a fractured

ventricular lead. On September 1, 2000, Bradley filed suit against Dr. Val-Mejias and

GMED for medical malpractice and fraudulent concealment in the United States District

Court for the District of Kansas, asserting diversity jurisdiction.

II

The District Court order

Bradley asserted a medical malpractice and fraudulent concealment claim against

Dr. J.E. Val-Mejias, M.D. and The Galichia Medical Group, P.A. on September 1, 2000

in his federal court suit. Interpreting state law, the district court granted Dr. Val-Mejias

summary judgment on both of these claims based upon the two year statute of limitations

on such claims. K.S.A. § 60-513. Memorandum and Order, 238 F. Supp. 2d 1242

(2002). In granting summary judgment on the medical malpractice claims, the district

judge first noted that any cause of action Bradley could assert against Dr. Val-Mejias for
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acts occurring before September 1, 1996 was seemingly barred by Kansas’ four year

statute of repose. K.S.A. § 60-513(c). The district court, however, declined to grant

summary judgment on that ground because of the possibility that Dr. Val-Mejias had

engaged in fraudulent concealment from 1992 to after September 1996 which would

equitably estop Dr. Val-Mejias from asserting the statute of repose.

The district court, however, found that the possibility of fraudulent concealment

did not bar application of the statute of limitations because by May of 1998, based upon

information he received from Dr. Morgan, Bradley knew that his physical problems were

due to his pacemaker and, therefore, that Dr. Val-Mejias had misdiagnosed him. This

knowledge, reasoned the district court, also served to render inoperative any concealment

by Dr. Val-Mejias. And, since the statute of limitations is triggered when the fact of

injury becomes reasonably ascertainable, the district court held that the statute of

limitations was triggered in May of 1998. Accordingly, as Bradley did not file suit until

September 1, 2000, more then two years after May of 1998, his medical malpractice

claims were barred.

The district court granted summary judgment on the fraudulent concealment claims

on virtually identical grounds as the medical malpractice claims. The district court first

noted that fraudulent concealment claims are governed by a statute of limitations identical

to that for medical malpractice–a two year statute of limitations that is triggered when the

fact of injury becomes reasonably ascertainable. The district court then reasoned that
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since Bradley became aware of his misdiagnosis by Dr. Val-Mejias in May of 1998, he

also became aware of any attempt by Dr. Val-Mejias to conceal this fact. Accordingly,

the district court held that the statute of limitations was triggered in May of 1998 and

Bradley’s fraudulent concealment claims were barred.

In addition to granting summary judgment for Dr. Val-Mejias, the district court

denied Bradley’s motion to amend his complaint to add a direct negligence claim against

GMED in the creation and management of Bradley’s records. The district court so ruled

because the claims which Bradley sought to bring against GMED resulted in the same

injuries as those from the medical malpractice claims brought against Dr. Val-Mejias and,

therefore, would be barred by the statute of limitations for the same reasons. Bradley now

appeals.

III

Discussion

A

The Kansas statute of limitations

A grant of summary judgment by the district court is reviewed de novo. Simms v.

Oklahoma, 165 F.3d 1321, 1326 (10th Cir. 1999). Summary judgment is appropriate “if

the pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any material fact and
1The difference between a statute of repose and a statute of limitations is that the former

serves as an absolute time bar to suit whereas the latter can be tolled.

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that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). 

When determining whether judgment as a matter of law is appropriate, “we view the

evidence and draw reasonable inferences therefrom in the light most favorable to the

nonmoving party.” Simms, 165 F.3d at 1326. This court also reviews district court

determinations of state law de novo. Salve Regina College v. Russell, 499 U.S. 225, 238

(1991); Mares v. ConAgra Poultry Co., 971 F.2d 492, 495 (10th Cir. 1992).

1

The medical malpractice claims

Here Bradley is asserting state law claims and it is undisputed that the Kansas law

of the forum controls. See Walker v. Armco Steel Corp., 592 F.2d 1133, 1135 (10th Cir.

1979) (noting that a federal court sitting in diversity and administering state law must

apply the state law statute of limitations). Accordingly Bradley’s claims of medical

malpractice are limited by a two year statute of limitations and a four year statute of

repose.1

 K.S.A. § 60-513(a)(7). Kansas law also provides when this limitations period

commences:

A cause of action arising out of the rendering of or the failure

to render professional services by a health care provider shall

be deemed to have accrued at the time of the occurrence of

the act giving rise to the cause of action, unless the fact of

injury is not reasonably ascertainable until some time after the
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initial act, then the period of limitation shall not commence

until the fact of injury becomes reasonably ascertainable to

the injured party, but in no event shall such an action be

commenced more than four years beyond the time of the act

giving rise to the cause of action.

K.S.A. § 60-513(c) (emphasis added). 

Here Bradley’s claims of malpractice against Dr. Val-Mejias stem from three

incidents: reusing the existing ventricular lead when Dr. Val-Mejias replaced Bradley’s

pacemaker in 1992; failure to replace the ventricular leads when Dr. Klonis replaced

Bradley’s pacemaker in 1993; and failure to diagnose a defective ventricular lead through

June 1997 when the last meeting Bradley had with Dr. Val-Mejias occurred. App. Vol. II

at 403-05. These claims were brought in the suit filed September 1, 2000.

As noted above, medical malpractice claims brought under Kansas law are

governed by a four year statute of repose. K.S.A. § 60-513(c). This statute of repose is

applicable against the malpractice claim, even where the defendant fraudulently conceals

the fact of malpractice from the victim. Robinson v. Shah, 936 P.2d 784, 790 (Kan.

1997). In such cases of fraudulent concealment, the putative plaintiff “can maintain an

action for deceit against the wrongdoer under some circumstances, not on account of the

original negligence but on account of the subsequent wrongdoing–the misrepresentation

of fact which deceived the injured party–with the consequence that the time bar ran

against the original action.” Id.

Accordingly, since Bradley filed his suit on September 1, 2000, Bradley’s claims
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of malpractice by Dr. Val-Mejias in reusing the ventricular lead in 1992 and failing to

replace that lead in 1993 are barred by the four year statute of repose. While Bradley’s

remaining claim, arising from an alleged misdiagnosis through June of 1997, is not barred

by the four year statute of repose, it is barred by the two year statute of limitations.

This remaining medical malpractice claim of Bradley arises from an alleged

misdiagnosis in June of 1997 when Dr. Val-Mejias diagnosed Bradley with vertigo and

shingles. App. Vol. II at 397. As noted above, the statute of limitations on this claim

attaches when the “fact of injury becomes reasonably ascertainable.” K.S.A. § 60-513(c).

The fact of injury is reasonably ascertainable when “objective knowledge of the injury,

not the extent of the injury,” is known. P.W.P. v. Johnson County Mental Health Center,

969 P.2d 896, 902 (Kan. 1998). “The phrase “reasonably ascertainable” means that a

plaintiff has the obligation to reasonably investigate available sources that contain the

facts of the [injury] and its wrongful causation.” Davidson v. Denning, 914 P.2d 936, 948

(Kan. 1996). In other words, “Kansas’ “fact of injury” standard postpones the running of

the limitations period until the time the plaintiff is able to determine that her injury may

be caused by some act of the defendant.” Benne v. Int’l Bus. Mach. Corp., 87 F.3d 419,

427 (10th Cir. 1996).

This inquiry is undertaken using “an objective standard based upon an examination

of the surrounding circumstances.” Id. “Where there is conflicting evidence as to when a

cause of action for medical malpractice is deemed to have accrued under K.S.A.
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60-513(c), the matter becomes an issue for determination by the trier of fact.” Jones v.

Neuroscience Assoc., Inc., 827 P.2d 51, 59 (Kan. 1992). Here, as we explain below, there

is no conflicting evidence on this issue of when the cause of action for medical

malpractice was deemed to have accrued.

In analyzing misdiagnosis claims, Kansas state courts do not adhere to a bright line

rule, used in some states, see, e.g., 61 Am. Jur. 2d Physicians, Surgeons, and Other

Healers § 288 (2002) (citing a Pennsylvania case that held in a case of misdiagnosis, the

statute of limitations begins to run at the time of the misdiagnosis rather then at the time

of a proper diagnosis), in determining when the statute of limitations begins to run. See

Seymour v. Lofgreen, 495 P.2d 969, 973-74 (Kan. 1972) (recognizing that, in a

misdiagnosis case, the statute of limitations can begin to run when the fact of injury

becomes reasonably ascertainable). Instead, the Kansas courts look to the specific facts

of each case to determine when the medical malpractice injury claimed was reasonably

ascertainable and submitting cases where there is conflicting evidence to the jury. Jones,

827 P.2d at 59; Seymour, 495 P.2d at 973-74; Hall v. Miller, 36 P.3d 328, 334 (Kan. Ct.

App. 2001). 

Here the district court concluded that as a matter of law, Bradley became aware of

this injury in May of 1998 when he consulted with Dr. Morgan who diagnosed him with

problems with his pacemaker’s “programming and functions.” We agree. There are two

pieces of substantial and uncontroverted evidence in the record that Bradley knew Dr.
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Val-Mejias’ diagnosis of shingles and vertigo was wrong prior to his admission to the

hospital in September of 1998.

First, Bradley knew that treatment based upon Dr. Val-Mejias’ June 1997

diagnosis was ineffective. At a hearing before a Social Security Administration

Administrative Law Judge on April 30, 1998, Bradley stated:

And I would tell him they [sic] symptoms I’m having and

stuff. Well, come in and then [Dr. Val-Mejias] would do a

little bit of adjustment on [the pacemaker], but it wasn’t

clearing stuff up and I felt it was a waist [sic] of money.

App. Vol. I at 249. Therefore, well before being admitted to the hospital in September of

1998, Bradley was in fact aware of his injury–that Dr. Val-Mejias was not properly

treating his condition.

Second, the record discloses that Bradley received at least two diagnoses contrary

to that proffered by Dr. Val-Mejias in June of 1997. First, Bradley was told by an ear

specialist, Dr. Peeves, prior to his Social Security Administration hearing, that his

symptoms were heart related rather than a result of vertigo. Id. at 243. Second, one week

after the hearing, on May 6, 1998, Bradley was diagnosed by Dr. Morgan with pacemaker

problems stemming from the ventricular lead. Id. at 293. Dr. Morgan also advised

Bradley that replacing the ventricular lead would solve his symptoms but Bradley choose

not to do so. Id. Therefore, by May of 1998, Bradley had at least two separate and

consistent diagnoses that indicated Dr. Val-Mejias mis-diagnosed Bradley in June of

1997.
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Given this information, which was available by May of 1998, Bradley had

substantial reasons to question Dr. Val-Mejias’s diagnosis of vertigo and shingles being

correct. See Appellant’s Opening Brief at 19 (conceding that Bradley was aware in May

of 1998 that pacemaker problems, and not vertigo and shingles, were the source of his

symptoms). In other words, by May of 1998, Bradley was aware that he had been injured

by Dr. Val-Mejias’ misdiagnosis even though he did not know “the exact scientific nature

of [his] injuries,” i.e., an undiagnosed fractured ventricular lead. Benne, 87 F.3d at 427. 

Consequently, Dr. Val-Mejias’s misdiagnosis was “reasonably ascertainable” prior to

September 1998 and, therefore, the two year statute of limitations on Bradley’s claims

arising from the misdiagnosis began to run prior to September 1998 and precludes his

claim filed in September 2000. Accordingly, summary judgment for Dr. Val-Mejias is

appropriate, there being no conflict in the evidence on the commencement of the running

of the statute of limitations.

This conclusion is consistent with the analogous Kansas Supreme Court decision

in Seymour v. Lofgreen, 495 P.2d at 973-74. There the plaintiff sought treatment for

physical ailments, e.g., headaches, swelling of the stomach, nausea, and cramps, from the

defendant-physician who did not find any mental illness. Id. at 971. During the course of

her treatment, the plaintiff’s physical symptoms and mental condition worsened. Id.

Eventually, the plaintiff and her family consulted with a psychiatrist who immediately

administered an alternative treatment. Id. The plaintiff then sued, more than two years
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after her change in physicians, alleging the defendant physician was negligent in failing to

diagnose her mental illness. Id.

The Kansas Supreme Court affirmed the trial court’s dismissal of the action based

upon the Kansas statute of limitations. Id. at 975. In so holding, the court concluded that

as a matter of law, the plaintiff’s injury became reasonably ascertainable when she and

her family changed doctors and her course of treatment. Id. at 973. The only exception to

this rule, the court observed, was if the plaintiff was under “a legal disability by reason of

incapacity.” Id.

In the instant case, in May of 1998 Bradley changed doctors and began a new

course of treatment with Dr. Morgan. App. Vol. I at 291. During his consultation with

Dr. Morgan, Bradley received an alternative diagnosis and course of treatment. 

Specifically, Bradley was advised that his symptoms were due to a pacemaker problem,

not vertigo or shingles, id. at 293, and was told he could either “continue as he is and

replace the ventricular lead when [the] present pacemaker is at end of life . . . [or] replace

the ventricular lead at this time.” Id. Moreover, it is undisputed that Bradley was not

suffering from a legal disability. Accordingly, by May of 1998, Dr. Val-Mejias’s

misdiagnosis was reasonably ascertainable and the statute of limitations began to run at

that time and the instant action is barred.

2
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The fraudulent concealment claims

Under Kansas law, fraud claims, like medical malpractice claims, are governed by

a two year statute of limitations that begins to run when the fraud is discovered. K.S.A. §

60-513(a)(3). Unlike medical malpractice claims, fraud claims are governed by a ten year

statute of repose. K.S.A. § 60-513(b). In this case, Bradley alleges that Dr. Val-Mejias

fraudulently concealed negligence that occurred during his pacemaker surgery in 1993 by

telling him that his problems were due to vertigo and shingles. Appellant’s Opening

Brief at 20-21. The district court concluded that, as a matter of law, Dr. Val-Mejias’s

alleged fraud was discovered by May of 1998 when Bradley became aware that his health

problems were due to his pacemaker rather than to vertigo and shingles. We agree.

As the district court correctly observed, the statute of limitations on Bradley’s

fraud claim began to run at the same moment as on his medical malpractice claims. 

Under Kansas law, the statute of limitations governing fraud claims begins to run when

the “fraud is discovered.” K.S.A. § 60-513(b). In his fraud claim, Bradley alleges that

Dr. Val-Mejias did know in September of 1997 that his symptoms were due to pacemaker

problems but intentionally and incorrectly told him that his symptoms were due to vertigo

and shingles. Specifically, Bradley alleges that Dr. Val-Mejias tried to “conceal the true

source” of his symptoms in order to allow the statute of limitations to run, thereby

precluding “any action against himself for the 1992 procedure and for his friend and

mentor, Dr. Klonis, in the 1992 and 1993 procedures.” Appellant’s Reply Br. at 5; App.
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Vol. II at 347. Therefore, Dr. Val-Mejias’s alleged concealment would be discovered

when the “true source” of Bradley’s symptoms was discovered. In other words, the fraud

would have been discovered when pacemaker problems were determined to be the cause

of Bradley’s symptoms and, accordingly, that Dr. Val-Mejias’s June 1997 diagnosis was

incorrect.

For the reasons detailed above, by May of 1998 it became clear that Dr. ValMejias’s June 1997 diagnosis was incorrect and that the source of Bradley’s symptoms

was problems with the ventricular lead of his pacemaker. Accordingly, the two year

statute of limitations on his fraud claims began to run at that time and the instant action is

barred.

B

Leave to file the second amended complaint

The Federal Rules of Civil Procedure allow a party to amend his complaint after

twenty days have elapsed since the opposing party was served “only by leave of court or

by written consent of the adverse party,” with such amendments being “freely given when

justice so requires.” Fed. R. Civ. P. 15(a). “The grant or denial of an opportunity to

amend is within the discretion of the District Court, but outright refusal to grant the leave

without any justifying reason appearing for the denial is not an exercise of discretion; it is

merely abuse of that discretion and inconsistent with the spirit of the Federal Rules.” 
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Foman v. Davis, 371 U.S. 178, 182 (1962). “Although Fed. R. Civ. P. 15(a) provides that

leave to amend shall be given freely, the district court may deny leave to amend where

amendment would be futile. A proposed amendment is futile if the complaint, as

amended, would be subject to dismissal.” Jefferson County Sch. Dist. v. Moody’s

Investor’s Services, 175 F.3d 848, 859 (10th Cir. 1999).

Here Bradley filed a motion to amend his complaint to add direct liability claims

against GMED for negligence in the creation, management, retention, and maintenance of

his medical record. App. Vol. I at 79. The proposed amendment also deletes references

to Dr. Klonis and two vicarious liability claims against GMED and adds two additional

claims against Dr. Val-Mejias. Id. at 78-79.

The district court denied this motion on the ground that the amendment would be

futile as the claims contained therein would be barred by the statute of limitations. As to

the direct negligence claim against GMED, the district court observed that even though

the claim alleges negligent record keeping, the underlying injury Bradley claims to have

suffered stems from his defective pacemaker. Similarly, the district court observed that

additional claims against Dr. Val-Mejias also stem from the misdiagnosis of Bradley’s

pacemaker problems. Accordingly the district court concluded, citing its earlier

reasoning, that the new claims contained in the second amended complaint would be

barred by the statute of limitations.

On appeal, Bradley argues that the district court erred in assessing when injuries
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relating to Bradley’s pacemaker problem were “reasonably ascertainable.” For the

reasons detailed above, we find no error in the district court’s analysis on this point and,

therefore, conclude that the district court did not abuse its discretion in denying Bradley’s

motion to file a second amended complaint.

IV

Conclusion

Accordingly we conclude that, as a matter of law, the misdiagnosis of Bradley by

Dr. Val-Mejias became “reasonably ascertainable” by May of 1998. We also conclude

that any fraudulent concealment by Dr. Val-Mejias was discoverable by that time. We

therefore AFFIRM the district court’s grant of summary judgment on the ground that the

two year statute of limitation bars Bradley’s medical malpractice and fraudulent

concealment claims. We further AFFIRM the district court’s denial of Bradley’s motion

to file a second amended complaint on the ground that the claims contained therein would

be futile due to the bar of the statute of limitations.

IT IS SO ORDERED.