Opinion
No. 1-771 / 00-1518.
Filed March 27, 2002.
Appeal from the Iowa District Court for Polk County, GLENN E. PILLE, Judge.
Plaintiff appeals from the district court ruling granting summary judgment in favor of defendants on her medical malpractice claim. AFFIRMED.
John L. Riccolo and David L. Baker of Riccolo Baker, P.C., Cedar Rapids, for appellant.
Michael H. Figenshaw and Matthew J. Haindfield of Bradshaw, Fowler, Proctor Fairgrave, P.C., Des Moines, for appellees.
Heard by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
The plaintiff-appellant, Rachel Phillips, appeals from the district court's grant of summary judgment in favor of the defendants in her medical malpractice suit. Phillips claims the court erred by rejecting her argument the statute of limitations was tolled by the continuous treatment doctrine, and by incorrectly determining the point in time when she knew or should have known of her injury. We affirm.
Background.
On November 2, 1998, plaintiff filed a medical malpractice suit against Dr. Jon Gehrke and Des Moines Orthopaedic Surgeons, P.C., the group in which he is a partner. In May 2000, contending the statute of limitations had run on plaintiff's claim, defendants successfully moved for summary judgment.
The following facts are basically undisputed. Defendant Jon Gehrke, an orthopedic surgeon and member of defendant Des Moines Orthopaedic Surgeons, performed ankle stabilization surgery on plaintiff on June 18, 1996. Dr. Gehrke told plaintiff he would see her once or twice following the surgery, and then Dr. Fellows would provide follow-up care. Plaintiff saw Dr. Fellows on September 10, 1996 before attending a National Outdoor Leadership School. On or about September 25 of the same year plaintiff left to attend the National Outdoor Leadership School. While there, she had difficulty with her ankle. She returned to Des Moines and saw Dr. Fellows on October 10, 1996. During that visit plaintiff said Fellows informed her that her ankle was "more unstable than it had been prior to surgery." Plaintiff said Dr. Fellows told her, "it was so messed up at that point that [she] couldn't do any more damage, so [she] may as well go back (to the National Outdoor Leadership School) and [she] may eventually need another surgery." He also told her "the ankle was worse at that point than it had been before the surgery." There was some discussion about failure of the surgery and that they would have to redo the surgery and that was why the ankle was worse. Plaintiff told Dr. Fellows she was upset and unhappy with what had happened. According to plaintiff's mother and father, by October 10, 1996 confidence had been lost in both Dr. Gehrke and Dr. Fellows. Plaintiff's mother said they thought at this point they needed to seek a second opinion because they had lost confidence in both doctors.
Plaintiff returned to the National Outdoor Leadership School and continued having problems. Because of the "constant ache within the ankle joint" plaintiff saw Dr. Richard Silver of Tucson Orthopaedic and Fracture Surgery Association, Ltd. on October 25, 1996. He diagnosed plaintiff's ankle problem as a "failed Brostrom repair by Dr. Gehrke."
On October 29, 1996 plaintiff and her parents again saw Dr. Fellows. Her parents expressed concern she had been allowed to return to the National Outdoor Leadership School despite her continuing ankle problems. Dr. Fellows told the family, "I wish that you had let me operate on her the first time. I would like to do it. I would like to make it right. This was a terrible failure and it never should have happened." Fellows also said he was distressed about the procedure and if he had done the procedure it would not have happened. The family had decided at that point that if further surgery were required, it would be done by someone other than Dr. Gehrke.
Sometime before the October 29, 1996 visit to Dr. Fellows, plaintiff made an appointment to see Dr. Saltzman in Iowa City. On November 4, 1996 she saw Dr. Saltzman to discuss follow-up surgery. On November 6, 1996 plaintiff saw Dr. Gehrke for the last time. Her father, a medical doctor, and her mother expressed their dissatisfaction to him. On November 7, 1996 Dr. Saltzman operated on plaintiff's ankle. After the operation he told her he had not seen evidence of previous surgery in the area he expected.
Plaintiff contends the two-year statute began to run on either November 6, 1996, when she left defendant's care, or on November 7, 1996, when she learned from Saltzman she suffered harm. The district court found on the undisputed facts that plaintiff had enough information by October 10, 1996, to trigger her duty to investigate the problem and to start the two-year statute of limitations running. See Iowa Code § 614.1(9)(a) (1999). The court also found nothing in the case that would compel the application of the continuous treatment doctrine to toll the statute. Consequently, the district court granted the motion for summary judgment and dismissed the case. Plaintiff appeals.
Plaintiff argues the statute of limitations did not begin to run until November 7, 1996, the date Dr. Saltzman told her what he observed while redoing the ankle surgery. Her argument in part is that prior to that time she was only of the opinion that the procedure was properly done but had failed, a risk the doctor advised her of before surgery. In the alternative, she argues under the continuous treatment doctrine, the statute did not begin to run until after she saw Dr. Gehrke for the last time on November 6, 1996.
We review a district court's grant of summary judgment for errors at law. Pekin Ins. Co. v. Auto Owners Ins. Co., 630 N.W.2d 614, 616 (Iowa Ct.App. 2001). Summary judgment under Iowa Rule of Civil Procedure 1.981 is appropriate only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show" there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981; see Schoff v. Combined Ins. Co. of America, 604 N.W.2d 43, 45 (Iowa 1999). We examine the record before the district court to determine whether any genuine issue of material fact exists and whether the court correctly applied the law. Id. We consider the facts in the light most favorable to the party opposing the motion. Phipps v. IASD Health Servs. Corp., 558 N.W.2d 198, 201 (Iowa 1997).
Formerly, Iowa Rule of Civil Procedure 237.
Iowa Code section 614.1(9) provides that medical malpractice claims must be filed "within two years after the date on which the claimant knew, or through the use of reasonable diligence should have known" of the injury. Iowa Code § 614.1(9)(a) (1999).
[T]he statute begins to run when a person gains knowledge sufficient to put the person on inquiry. On that date, the person is charged with knowledge of facts that would have been disclosed by a reasonably diligent investigation. Moreover, once a person is aware that a problem exists, the person has a duty to investigate even though the person may not have knowledge of the nature of the problem that caused the injury.
Langner v. Simpson, 533 N.W.2d 511, 518 (Iowa 1995). Plaintiff argues she did not have the requisite knowledge until Dr. Saltzman described his observations during the second surgery on November 7. The district court found plaintiff had enough knowledge by October 10 when she was told the surgery "had failed" and "clearly by October 29, 1996, when told `this never should have happened.'" Based on our examination of the record, including the pleadings, depositions, and affidavits, and considering the facts in the light most favorable to plaintiff, we find no genuine issue of material fact exists. We then consider whether the district court correctly applied the law to the facts.
Plaintiff, recognizing the Iowa Supreme Court has declined to adopt the continuous treatment doctrine, contends it applies here and dicta in McClendon v. Beck, 569 N.W.2d 382, 385 (Iowa 1997) (citing Langner, 533 N.W.2d at 519), support its adoption here. She argues application of the doctrine should toll the statute of limitations until she no longer was under Dr. Gehrke's care. Her last visit with him was November 6. The district court rejected this argument.
The Iowa Supreme Court in Langneranalyzed the two rationales supporting the doctrine and said: "it is not reasonable to expect a patient under continuing care of a doctor to discover that the doctor's acts may be the cause of the injury" and "it is absurd to expect a patient who is being treated by a doctor or hospital to interrupt corrective treatment by instituting suit against either while under their continuing care." Id. at 519-20 (citing Ulrich v. Veterans Admin. Hosp., 853 F.2d 1078, 1080 (2d Cir. 1988)). The court also considered the four interrelated concerns that underlie the first rationale:
First, a negligent doctor may conceal important information from a patient during treatment. Second, a confidential relationship between doctor and patient might inhibit the patient from questioning the care given during the existence of the relationship. Third, the chance that investigating the cause of an injury will interrupt care weighs against requiring a patient to discover an injury during the course of continuous treatment. Last, the need for flexibility in determining the cause of a latent injury supports the rationale.
Id. (citations omitted). For the reasons set forth below, we conclude the district court correctly applied Iowa law concerning the continuous treatment doctrine to the facts of this case in concluding there is "nothing in this case which would compel its application here."
The first rationale supporting the continuous treatment doctrine is that it is unreasonable to expect a patient to discover her doctor's ongoing care is the cause of her injury. After the initial postoperative follow-up, plaintiff did not see Dr. Gehrke for treatment of her ankle. Although she did see Dr. Fellows for examination of her continuing ankle pain and instability, he intimated there was a problem with the surgery Dr. Gehrke performed and he wanted to make it right. Plaintiff consulted Dr. Silver while in Arizona, and he too told plaintiff there were problems with the surgery. We conclude the first rationale for the continuous treatment doctrine does not apply in this case.
At least the first three of the four interrelated concerns that underlie the first rationale also are not applicable under the circumstances of this case. Although a negligent doctor may conceal important information from a patient during treatment, plaintiff was not seeing Dr. Gehrke, so he was not concealing any information. When plaintiff saw Dr. Fellows, he did not conceal important information, but suggested there was a problem with the earlier surgery that needed to be fixed. Any confidential relationship between plaintiff and Dr. Gehrke did not prevent her from seeking opinions from other doctors or questioning his care. It is clear that as of October 10, plaintiff would not return to Dr. Gehrke for further treatment. By October 29, she had consulted another doctor, who was not a member of the defendant Des Moines Orthopaedic Surgeons, P.C. The chance that investigating the injury would interrupt care did not deter plaintiff from seeking care from other physicians.
The second rationale for the continuous treatment doctrine is it is absurd to expect a patient who is still being treated by a doctor to interrupt corrective treatment by instituting suit. Plaintiff was not receiving corrective treatment from Dr. Gehrke or Dr. Fellows, although Dr. Fellows offered it. Therefore, there was no corrective treatment to interrupt by filing suit. By October 10, plaintiff had lost confidence in Dr. Gehrke and Dr. Fellows. She would not have chosen either doctor to provide corrective treatment. This rationale is not supported by the circumstances of this case.
We need not accept plaintiff's invitation to adopt the continuous treatment doctrine in Iowa. For even if we did, it would not apply in this case. The statute of limitations began to run on October 10, 1996, more than two years before plaintiff filed suit on November 2, 1998.
Plaintiff's second contention is that she did not know she was injured until November 7, 1996 after Dr. Saltzman operated on her ankle. Plaintiff reasons that while she knew prior to that time the surgery could fail, it was not until Saltzman told her after the second surgery there was no evidence of Dr. Gehrke's surgery in the areas where he expected, that she knew of her injury.
Iowa Code section 614.1(9) (1999) provides that medical malpractice actions must be brought:
within two years after the date on which the claimant knew, or through the use of reasonable diligence should have know, [of] . . . the injury or death for which damages are sought in the action. . . .
The relevant fact is knowledge of an injury rather than knowledge of physician negligence. Langner, 533 N.W.2d at 517. Knowledge of an injury is imputed when there are sufficient facts to alert a reasonable person of the need to investigate. Id. at 518. Resolution of this issue by summary judgment is appropriate if the only controversy concerns the legal consequences flowing from undisputed facts. See McClendon v. Beck, 569 N.W.2d 382, 384 (Iowa 1997).
We conclude the circumstances before us do not require a different result than the result reached in Langner, 533 N.W.2d at 519. We need not decide whether the continuous treatment doctrine would ever apply in Iowa, because even if it did, it does not apply in this case. Consequently, the statute of limitations began to run on October 10, 1996, more than two years before Phillips filed suit on November 2, 1998. The district court correctly applied the law to the facts before it, and we affirm on its grant of summary judgment.
AFFIRMED.