Too often the apparent shortcut to decision by way of an inviting motion for summary judgment turns out to be a difficult and time wasting detour. Allured by the defendant's invitation, the trial judge in this case dismissed summarily a medical malpractice suit on the basis that the claim had prescribed. We conclude that he turned off the main road too soon.

Relying on diversity of citizenship, and, therefore, making our decision subject to Louisiana law, Mrs. Higgenbotham filed a suit for personal injury as a result of alleged negligence on the part of the staff of a hospital. She had entered Ochsner Foundation Hospital for the purpose of brain surgery.1 The operation was performed on February 7, 1972. In order to help her breathe, the surgeon also performed a tracheotomy, opening a passage to her windpipe and inserting a tube. Mrs. Higgenbotham began to recover normally. It is, however, necessary for a patient who has undergone a tracheotomy to resume normal breathing. In order for her to accomplish this, she must undergo a process called weaning. An obstruction, usually a cork, is placed in the tube inserted in the windpipe, forcing the patient to breathe through her nose. If breathing becomes too difficult, the obstruction is removed. After an interval, the obstruction is again inserted for what will likely be a longer interval. This continues until the patient can function without the use of a trachea tube.

While there is considerable dispute about what happened after Mrs. Higgenbotham's tube was first blocked, and particularly about when it happened, matters we shall shortly discuss, the defendant hospital contends that on February 13, 1972 its employees began the attempt to wean the patient from the tube. The patient contends that on February 15 the hospital staff corked the trachea tube but negligently failed to remove an inner tube obstructing her air passage, thus depriving her of a supply of oxygen to her lungs. She further contends that the cork was not removed until February 16, and that, as a result of the insertion of the cork without removal of the inner air block, she suffered serious injury.

Mrs. Higgenbotham filed suit on February 15, 1973. Relying on medical records, the defendants contend that, because the obstruction was inserted on February 13, the prescriptive period began then, and, therefore, when suit was filed on February 15 of the next year, it was too late. There are two difficulties with this proposition: first, the date when the cork was inserted is disputed, and the mere fact that the medical records say it was done on a certain date does not render the date indisputable; and, second, on that date the patient asserts, with some plausibility and support from depositions in the record, that she could not have been aware that she had been injured.

Excerpts from the hospital records are set forth in the margin.2 They do not establish beyond question whether, if the patient suffered any injury from the cause she contends, it occurred on February 13 or on some day thereafter. They do contain indications that her trachea tube was corked on February 13, but they also show that the obstruction was removed on February 14 and the tube was again corked later. However, the plaintiff's complaint and her memorandum in opposition to the motion for summary judgment both state that the trachea tube was corked improperly on February 15. Moreover, the plaintiff's deposition, which was filed in the record, asserts that the trachea was corked on February 15: "That was the day after Valentine's, I remember, because my husband gave me a present and all." She also stated that the cork was not removed until the morning of the 16th. This contention was enough to create a genuine dispute about a material fact: when was the injury sustained?

The Louisiana prescriptive period for torts is one year. La.Civ.Code Ann. art. 3536 (West 1953). That period begins on the day when damage was sustained. Id. art. 3537. We start then with a genuine dispute about what that date was. It is bootless to contend, as defendants did on oral argument, that, although the deposition was filed in the record, it could properly be ignored by the judge in ruling on the motion for summary judgment because plaintiff's counsel did not in some manner bring it directly to the judge's attention. Fed.R.Civ.P. 56(c) provides in part:

The judgment sought shall be rendered forthwith 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 that the moving party is entitled to a judgment as a matter of law.

The rule does not distinguish between depositions merely filed and those singled out by counsel for special attention.3 Nor is this a case where the deposition that created the dispute was a needle in a paper haystack; the docket sheet shows that only five depositions were filed.

This factual dispute about the date prescription began would alone warrant denial of the motion for summary judgment. Rule 56 permits a summary judgment only when there are no disputed questions of material fact. A claim barred by the applicable statute of limitations may properly be disposed of by summary judgment. Ayers v. Davidson, 5 Cir. 1960, 285 F.2d 137. However, if there is a disputed factual issue about whether the suit was timely brought, the plaintiff must be allowed to present evidence on this issue. Sheets v. Burman, 5 Cir. 1963, 322 F.2d 277; R. J. Reynolds Tobacco Co. v. Hudson, 5 Cir. 1963, 314 F.2d 776.

Because the parties have also briefed the legal issue concerning whether the prescriptive period began on the date of injury or at some later time when the patient discovered that she had suffered harm, and because consideration of that question is essential to further proceedings, we turn to it.

There is a separate dispute about when Mrs. Higgenbotham first became conscious of an injury apart from the difficulty in breathing deliberately caused by weaning (which was to be expected as part of her recovery). Her position is that several days or more elapsed between the time the cork was inserted and the time when she became aware that she was not experiencing merely those problems incident to normal recovery. Buttress for this contention is found both in her serious condition, as reflected by the hospital records, and her own testimony.

Many tort victims know that they have suffered injury on the day the tort occurs. However, a person who sustains an injury during a medical procedure may have no knowledge that she has suffered any injury beyond that normally incident to such a procedure properly conducted; that is, she may be completely unaware that she has sustained any harm as a result of possible negligence.

Louisiana courts have long and consistently held that prescription for torts commences on the day the plaintiff actually knows or should know that she has sustained some damage. See Dean v. Hercules, Inc., La.1976, 328 So. 2d 69, 73 (prescriptive period runs from the date the damage becomes apparent); Lucas v. Commercial Union Insurance Co., La.App.1967, 198 So. 2d 560, 564 (prescription does not run until plaintiff has knowledge of both the tort and the damage); Cf. Butler v. Fidelity & Casualty Co., La.App.1968,207 So.2d 805, 806 (when there is a delay between the commission of the tort and the occurrence of damage, prescription does not begin to run until the latter date). This means that prescription of a malpractice claim does not commence when the patient is aware that the doctor was negligent; the period begins when she knows or should know of some injury not likely to be the result of a properly conducted procedure.

Whatever doubt there might have been about the Louisiana rule was composed by the Louisiana Supreme Court decision in Henson v. St. Paul Fire and Marine Insurance Co., La.1978, 363 So. 2d 711, rendered after the district court's ruling but almost a year before we heard this appeal, and inexplicably not referred to by counsel despite our request that they call to our attention pertinent intervening decisions.4 In that case the court said:Basically, prescription does not run against one who is ignorant of the existence of facts that would entitle him to bring suit, as long as such ignorance is not willful and does not result from his neglect.

363 So.2d at 713.

In applying this rule to the facts of the malpractice case before it, the Henson court emphasized that the "plaintiff did not have knowledge of the existence of facts that would entitle him to bring suit until eight months elapsed without abatement of the symptoms following his visit to Dr. Cox." Id.

We do not intimate that there is any evidence that the plaintiff was misled in any way by the defendant or any of its employees. For present purposes we assume that they acted in complete good faith. But, however bona fide their advice, however sincere their subjective belief in the professional quality of their treatment, however ill-founded they might honestly consider any suggestion of lack of skill, their state of mind does not control the time when prescription begins. The knowledge we look to is the patient's: what she knew or reasonably should have known. We set to one side as irrelevant (on the facts now known from the depositions and pleadings) the cases that turn on representations by the treating doctor that might create an estoppel.5 Even though a physician be of the utmost probity, manifest the greatest devotion to his patients and demonstrate complete candor in his discussions with and his disclosures to a patient, the time period within which a suit for the physician's negligence may be filed in Louisiana does not begin until the patient is at least aware of some bodily injury that might have resulted from improper treatment.6

Thus, under settled principles of Louisiana jurisprudence, prescription did not begin until the day when Mrs. Higgenbotham knew or should have known that something was amiss with her breathing. The hospital records and the depositions of a doctor and a nurse make it clear that Mrs. Higgenbotham would have suffered discomfort and difficulty when the weaning process began. When a cork was first inserted in her trachea tube she could not know from the mere fact of difficulty in breathing that anything out of the normal course was happening, for the very nature of the weaning process makes it difficult for the patient to breathe. When Mrs. Higgenbotham first knew or should have known of injury is, of course, to be resolved by the court below based on the Louisiana jurisprudence summarized in this opinion.

For these reasons, the summary judgment is REVERSED and the case is REMANDED for further proceedings consistent herewith.