ted-nobles-v-memorial-hospital-of-laramie-county-dba-united-medical , 2013 WY 66 ( 2013 )

IN THE SUPREME COURT, STATE OF WYOMING
2013 WY 66APRIL TERM, A.D. 2013
May 28, 2013
TED NOBLES,
Appellant
(Plaintiff),
v.
MEMORIAL HOSPITAL OF LARAMIE
COUNTY, d/b/a UNITED MEDICAL CENTER
No. S-12-0054
and d/b/a CHEYENNE REGIONAL MEDICAL
CENTER; and THE BOARD OF TRUSTEES OF
MEMORIAL HOSPITAL OF LARAMIE
COUNTY, d/b/a UNITED MEDICAL CENTER
and d/b/a CHEYENNE REGIONAL MEDICAL
CENTER,
Appellees
(Defendants).
Appeal from the District Court of Laramie County
The Honorable Peter G. Arnold, Judge
Representing Appellant:
Donald J. Sullivan, Sullivan Law Offices, PC, Cheyenne, Wyoming.
Representing Appellees:
Matthew C. Miller and Traci L. Van Pelt, McConnell Fleischner Houghtaling,
LLC, Denver, Colorado. Argument by Ms. Van Pelt.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers
are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming
82002, of any typographical or other formal errors so that correction may be made before final publication in
the permanent volume.
BURKE, Justice.
[¶1] In this medical malpractice case, the district court granted summary judgment
against Appellant, Ted Nobles, and in favor of Appellees (Hospital), after determining
that Mr. Nobles did not present his claim within the time specified in the applicable
statute of limitations. Mr. Nobles appealed. We will reverse.
ISSUES
[¶2] The parties present three issues:
1. Whether the district court erred by failing to apply the
continuous treatment rule?
2. Whether the single act exception to the continuous
treatment rule is recognized in Wyoming, and if so, whether it
applies in this case.
3. Whether the district court erred in granting summary
judgment to the Hospital.
FACTS
[¶3] Mr. Nobles, a resident of the State of Washington, was travelling with his
“significant other,” Dr. Janet Arnold,1 when he became ill in Rawlins, Wyoming, on
December 21, 2007. He experienced respiratory difficulty, vomited, and passed out. He
was taken to the emergency room of the Rawlins Hospital where he was intubated to
relieve the respiratory distress, sedated, and stabilized with intravenous medication. He
was then transported by ambulance to Cheyenne.
[¶4] Mr. Nobles was admitted to the intensive care unit of the hospital in Cheyenne,
with a diagnosis of acute respiratory failure with bilateral pulmonary edema resulting
from pneumonia. He remained intubated, and at some point also needed mechanical
ventilation. He eventually received a tracheotomy. While in the intensive care unit, he
also developed renal failure. He was placed on continuous renal replacement therapy,
and later on hemodialysis. He also experienced complications relating to his diabetes.
[¶5] While in the intensive care unit, Mr. Nobles also began complaining of pain in his
1
Some hospital documents indicate that Dr. Arnold and Mr. Nobles are married. Dr. Arnold’s affidavit
suggests otherwise. The exact nature of their relationship is immaterial to this case.
1
right shoulder. On February 10, 2008, he told his hospitalist that the shoulder “may have
been injured while he was being moved.” On February 13, 2008, the hospitalist’s notes
indicate that Mr. Nobles said his “shoulder hurts since a fall in ICU.” On February17,
2008, the doctor noted right shoulder pain and reduced mobility, and said Mr. Nobles
“Relates it to being tugged at in the ICU.” X-rays of the shoulder “showed mild
subluxation without any fracture evident.” An MRI was ordered, but not done
immediately because of Mr. Nobles’ claustrophobia.
[¶6] Mr. Nobles responded favorably to therapy and treatment, and on February 19,
2008, he was transferred to the hospital’s transitional care unit, located in a separate
building from the intensive care unit. However, he continued to complain of pain in his
right shoulder and arm. A consulting physician who reviewed Mr. Nobles’ case on
February 20, 2008 wrote that Mr. Nobles:
reports that while in the ICU someone pulled on his arm and
twisted in order to try and pull him up in the bed and he, at
that time, felt pain in his arm and shortly thereafter noted
dysfunction of the right upper arm. His wife, who is a family
practice physician notes that he does have a history of some
mild osteoarthritis in bilateral shoulders but otherwise had
totally normal arm and shoulder function prior to this
incident. Mr. Nobles notes that at this point at rest he does
not h a v e m u c h p a i n b u t h e h a s p a i n w i t h a t t e m p t e d
movement. He has essentially no flexion of the biceps. He is
unable to forward flex or abduct his arm whatsoever although
he does have triceps extension and wrist flexion and
extension and some limited weak pronation and supination.
Apparently he had x-rays while at [the hospital] and per his
wife, they showed a subluxation but no true dislocation and
no fractures.
The consulting physician questioned whether there might be a “rotator cuff tear versus
brachial plexus injury versus cervical nerve root injury or some combination of the
three.” He recommended an MRI, an electromyogram, and nerve conduction velocity
studies.
[¶7] According to affidavits submitted by Mr. Nobles and Dr. Arnold, as Mr. Nobles
continued experiencing pain and dysfunction in his right shoulder and arm, the doctors
said they thought the problems might be the result of a stroke. An MRI of the brain was
conducted, but apparently did not indicate that Mr. Nobles had suffered a stroke.
Throughout his stay in the transitional care unit, Mr. Nobles was given a program of
physical and occupational therapy to improve the function and condition of his hand,
arm, and shoulder.
2
[¶8] Mr. Nobles was discharged from the hospital on March 15, 2008. His attending
physician wrote:
When he arrived here he was hardly able to move at all, even
his extremities. . . . Within the first week, however, he had
started moving his extremities. He was sitting up. He was
transferring. Unfortunately he was not able to move his right
shoulder at all. He was able to move his right hand a little bit.
We did obtain an MRI that showed complete denervation of
the right shoulder. We did have neurology consultation and
they concurred with this diagnosis and this was going to be an
ongoing difficulty over the next several months that will need
close follow up with a neurologist in his home town.
Mr. Nobles did follow up with further medical treatment when he got home. There, his
doctors diagnosed a brachial plexus2 injury to his right shoulder and arm.
[¶9] On March 11, 2010, Mr. Nobles presented his claim to the Hospital as required by
the Wyoming Governmental Claims Act, Wyo. Stat. Ann. § 1-39-113(a). The same day,
he filed a notice of claim against the Hospital with the Wyoming Medical Review Panel.3
The Hospital waived review and the Panel entered an order authorizing Mr. Nobles to file
suit against the Hospital. Mr. Nobles filed his complaint on June 11, 2010, alleging that
he had “sustained serious injury and damage to his right (dominant) arm, shoulder and
brachial plexus.” He further alleged that this injury was the result of the Hospital’s
negligence in allowing a single staff member to move or attempt to move him in the
hospital bed, in failing to provide adequate staff and personnel to move him in the
hospital bed safely, and in “[m]oving and/or attempting to move the patient in the
hospital bed by pulling and yanking on the patient’s arm.”
[¶10] The Hospital responded with a motion to dismiss, or, in the alternative, a motion
for summary judgment, claiming that Mr. Nobles had not filed his suit within the time
period specified in the applicable statute of limitations. Because the Hospital had
supported its motion with portions of Mr. Nobles’ medical records, the district court
treated the motion as one for summary judgment, and provided Mr. Nobles an
2
The word brachial refers to the arm. Stedman’s Medical Dictionary 231 (27th ed. 2000). A plexus is a
“network or interjoining of nerves and blood vessels.” Id. at 1400. In his brief, Mr. Nobles describes the
injury as “essentially, the nerves in his shoulder had been torn apart, resulting in a brachial plexus injury.”
3
Pursuant to Wyo. Stat. Ann. §§ 9-2-1518 and -1519, such a claim is a prerequisite to initiating medical
malpractice litigation under most circumstances.
3
opportunity to respond with evidence in opposition to the motion. Mr. Nobles filed
affidavits from Dr. Arnold and himself. After hearing arguments and considering the
motion, the district court granted summary judgment in favor of the Hospital.
Mr. Nobles challenges that decision in this appeal.
STANDARD OF REVIEW
[¶11] We review a district court’s decision to grant or deny summary judgment using the
following standard of review:
Summary judgment is appropriate when there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law. W.R.C.P. 56(c); Metz Beverage
Co. v. Wyoming Beverages, Inc., 2002 WY 21, ¶ 9, 39 P.3d
1051, 1055 (Wyo. 2002). “A genuine issue of material fact
exists when a disputed fact, if it were proven, would establish
or refute an essential element of a cause of action or a defense
that the parties have asserted.” Id. Because summary
judgment involves a purely legal determination, we undertake
de novo review of a trial court’s summary judgment decision.
Glenn v. Union Pacific R.R. Co., 2008 WY 16, ¶ 6, 176 P.3d
640, 642 (Wyo. 2008).
Jacobs Ranch Coal Co. v. Thunder Basin Coal Co., LLC, 2008 WY 101, ¶ 8, 191 P.3d
125, 128-29 (Wyo. 2008). In performing our de novo review, we “view the record in the
light most favorable to the party opposing summary judgment, giving that party the
benefit of all favorable inferences reasonably drawn from the record. Any doubts about
the existence of a genuine issue of material fact must be resolved against the party
seeking summary judgment.” Elk Ridge Lodge, Inc. v. Sonnett, 2011 WY 106, ¶ 9, 254
P.3d 957, 960 (Wyo. 2011).
DISCUSSION
I. Applicable Statute of Limitations
[¶12] There are two statutes of limitations at issue in this case. The statute of limitations
for professional negligence is set forth in Wyo. Stat. Ann. § 1-3-107(a)(i) (LexisNexis
2007). In pertinent part, it provides that “(a) A cause of action arising from an act, error
or omission in the rendering of licensed or certified professional or health care services
shall be brought . . . (i) Within two (2) years of the date of the alleged act, error or
omission.” The period for submitting a claim to a governmental entity is set forth in
Wyo. Stat. Ann. § 1-39-113(a), and it provides in relevant part: “(a) No action shall be
brought under this act against a governmental entity unless the claim upon which the
4
action is based is presented to the entity as an itemized statement in writing within two
(2) years of the date of the alleged act, error or omission.” The operative language of the
two statutes is identical. Both provide that the claim or action must be filed within “two
(2) years of the date of the alleged act, error or omission.”
[¶13] Mr. Nobles presented his claim to the Hospital, as required by the Wyoming
Governmental Claims Act, on March 11.4 On the same day, he filed his claim with the
Wyoming Medical Review Panel.5 That date, March 11, 2010, is the pertinent date under
both statutes.
[¶14] Mr. Nobles’ malpractice claim is based on allegations that a hospital employee
attempted to move him in bed by pulling, tugging, or twisting on his right arm. It is
undisputed that, if this occurred, it was while Mr. Nobles was in the intensive care unit.
Mr. Nobles was transferred from the intensive care unit on February 19, 2008. He filed
his claim on March 11, 2010, two years and twenty-one days after he left the intensive
care unit. The Hospital maintains that this filing was more than two years after the latest
possible date of any pulling on his arm, and accordingly, that Mr. Nobles failed to
commence his lawsuit within the time period specified in the statutes of limitations.
[¶15] Mr. Nobles responds that Wyoming has adopted the “continuous treatment rule,”
under which “the act, error or omission which starts the running of the statute of
limitations against medical malpractice actions is the termination of the course of
treatment for the same or related illnesses or injuries.” Metzger v. Kalke, 709 P.2d 414,
417 (Wyo. 1985). Mr. Nobles asserts that the Hospital continued treating him for the
alleged injuries to his arm and shoulder until his discharge from the hospital on March
15, 2008. Applying the continuous treatment rule, Mr. Nobles contends that his claim is
not barred because it was commenced within two years after the termination of his course
of treatment by the Hospital.
4
The Wyoming Governmental Claims Act requires an action to be filed in court within one year after
presenting a claim. Wyo. Stat. Ann. § 1-39-114. It is undisputed that Mr. Nobles filed his action within
this time limit.
5
Mr. Nobles did not file his action in district court until June 11, 2010. However, Wyo. Stat. Ann. § 9-2-
1518 states that “[t]he running of the applicable limitation period in a malpractice action is tolled upon
receipt by the director [of the Wyoming Medical Review Panel] of the claim and does not begin again
until thirty (30) days after the panel’s final decision, or seventy-five (75) days after the panel’s last
hearing, whichever occurs earlier.” Mr. Nobles filed a notice of claim with the Panel on March 11, 2010
which began tolling the running of the limitation period. The Panel entered its order on May 17, 2010,
and Mr. Nobles filed his complaint in the district court within thirty days of the Panel’s decision. Thus,
the effective date for purposes of this case is the date he filed his claim with the Panel, or March 11, 2010.
5
[¶16] The Hospital asserts that the continuous treatment rule should not apply in
Mr. Nobles’ case. It also contends that, even if the continuous treatment rule applies,
there is a “single act exception” to the rule. According to the Hospital, if there was
malpractice in Mr. Nobles’ case, it was a single, identifiable act, and the statute of
limitations began to run when that act occurred. Again, it is undisputed that the tugging,
pulling, and twisting of Mr. Nobles’ arm occurred, if at all, prior to his transfer from the
intensive care unit on February 19, 2008. If the single act exception applies here,
Mr. Nobles’ commencement of the lawsuit on March 11, 2010, was too late.
II. Continuous Treatment Rule
[¶17] We adopted the continuous treatment rule in Metzger, 709 P.2d at 417. In that
case, Ms. Metzger had been a patient of Dr. Hussain at the Medical Center for Women
from December, 1979, until May 12, 1981, when the doctor moved to another state.
Ms. Metzger remained a patient of the Medical Center for Women and her care was
transferred to Dr. Kalke. She remained under the care of Dr. Kalke until September 28,
1981. In December, 1981, another doctor diagnosed Ms. Metzger with a pituitary tumor
requiring surgical removal. On September 13, 1983, Ms. Metzger filed suit against
Drs. Hussain and Kalke and the Medical Center for Women, claiming damages suffered
as a result of the undiagnosed tumor. The doctors asserted that the misdiagnosis, if any,
occurred prior to September 13, 1981, and that the claim was barred by the two-year
statute of limitations set forth in Wyo. Stat. Ann. § 1-3-107(a). The district court agreed,
and ruled against the Metzgers. Id. at 415-16.
[¶18] The Metzgers appealed, asking the Court “to determine whether the trial court
erred in its application of § 1-3-107.” Id. at 416. We held with regard to Dr. Kalke and
the Medical Center for Women that the Metzgers “timely brought suit on September 13,
1983, to recover for conduct occurring prior to September 13, 1981, since the cessation of
treatment on September 28, 1981 completed the act which started the running of the two-
year statute of limitations.” Id.6 We explained:
Courts which have addressed the issue uniformly hold that
where the defendant physician has provided a continuing
course of care for the same or related complaints, the
cessation of treatment completes the “act” which starts the
running of the statutory period for filing suit. The courts
6
We also ruled that the Metzgers “timely filed their actions against appellee [Dr.] Hussain within the two-
and-one-half-year limitation period set out in [Wyo. Stat. Ann.] § 1-3-107(a)(iv) for wrongdoing
discovered during the second year following its occurrence.” Id. at 416. That statutory provision is not at
issue in the case now before us.
6
reason that the medical treatment and employment should be
considered as a whole and if malpractice occurred during its
course, the statute of limitations begins to run when the
treatment terminates. The Supreme Court of Nebraska set out
the rationale for this “continuous treatment” rule in Williams
v. Elias, [140 Neb. 656, 662,] 1 N.W.2d [121,] 124 [(1941)]:
“* * * In the treatment of a patient the diagnosis might
change from time to time, and it is commonly accepted
in the medical profession that the diagnosis, in the first
instance, is not binding on the physician. He should
have the right, during the course of treatment, to
change the diagnosis. * * *
“* * * The diagnosis referred to was a continuing
biweekly one, and each time an incorrect diagnosis
w a s m a d e a n d a n i n c o r r ect treatment applied,
plaintiff’s injuries were extended. It was not the error
in the diagnosis originally made by defendant but its
adherence thereto and course of treatment that brought
about the injuries.”
We hold with the foregoing authorities that the act, error or
omission which starts the running of the statute of limitations
against medical malpractice actions is the termination of the
course of treatment for the same or related illnesses or
injuries. Accordingly, the limitation period established by
§ 1-3-107(a) began to run with respect to appellants’ claims
against Dr. Kalke on September 28, 1981, the date he last
treated Carolyn Metzger. Appellants timely filed their
complaints against Kalke and the Medical Center for Women
on September 13, 1983, within the two years allowed by
subsection (a)(i).
Metzger, 709 P.2d at 417 (some internal citations omitted). Since Metzger, we have
applied the continuous treatment rule in at least three other decisions. Echols v. Keeler,
735 P.2d 730, 731-32 (Wyo. 1987); Sharsmith v. Hill, 764 P.2d 667, 669-71 (Wyo.
1988); and Jauregui v. Memorial Hospital, 2005 WY 59, ¶¶ 9-15, 111 P.3d 914, 917-19
(Wyo. 2005).
[¶19] In response to the Hospital’s motion for summary judgment, Mr. Nobles presented
evidence that would bring his case within the continuous treatment rule. Because he is
opposing summary judgment, we must view this evidence in the light most favorable to
7
Mr. Nobles. In their affidavits, Mr. Nobles and Dr. Arnold state that Mr. Nobles was a
patient of the Hospital from December 21, 2007, until March 15, 2008. There is evidence
that he was given continuing care for the pain and dysfunction in his right shoulder and
arm until he was discharged from the hospital. In particular, the Hospital attempted to
diagnose the problems with Mr. Nobles’ shoulder and arm, and provided physical and
occupational therapy in order to treat the problems. He left the care of the Hospital on
March 15, 2008. At that time, Mr. Nobles’ arm and shoulder problems had not resolved.
He was advised to seek continued treatment for those problems. There is sufficient
evidence in the record to establish a question of fact as to whether his discharge was the
termination of his course of treatment, and therefore the completion of the act, error, or
omission that is the basis of his claim against the Hospital.
[¶20] The Hospital presents several theories which would render the continuous
treatment rule inapplicable in this case. It first asserts that “the record is replete” with
evidence that Mr. Nobles had “knowledge of his cause of action prior to February 19,
2008, and certainly prior to March 11, 2008.” According to the Hospital, we recently
established that “[i]t appears from a plain reading of Wyo. Stat. Ann. § 1-3-107 that the
time for filing suit is governed by the date when the ‘act, error or omission’ occurs, rather
than the date when the cause of action accrues.” Adelizzi v. Stratton, 2010 WY 148, ¶ 12,
243 P.3d 563, 566 (Wyo. 2010), quoting Lucky Gate Ranch, L.L.C. v. Baker &
Associates, 2009 WY 69, ¶ 19, 208 P.3d 57, 65 (Wyo. 2009). According to the Hospital,
the tugging, pulling, and twisting on Mr. Nobles’ arm is the act, error, or omission at
issue, and Mr. Nobles was aware of that activity when it occurred. The Hospital argues
that “whether [Mr.] Nobles had sustained any injury on the date of the ‘twisting’ or
‘pulling’ or whether he knew of any injury or its cause is of no consequence when
interpreting whether the professional negligence statute commences to run.”
[¶21] The Hospital is correct about our holding in Adelizzi. We stated that the
professional or health care services statute of limitations is triggered by the act, error, or
omission. This is in contrast to statutes of limitations for other causes of action in which
“the concept of ‘when the cause of action accrues,’” defines the start of the period of
limitation. Adelizzi, ¶ 13, 243 P.3d at 566. However, the Hospital has failed to grasp the
significance of the last sentence in that same paragraph: “The statute of limitations began
to run in this case on June 1, 2006, the last day that McGill performed professional
services for the Adelizzis under their agreement.” Id. (emphasis added).7 That
conclusion is entirely consistent with our previous statements in medical malpractice
cases that the statute of limitations begins to run at the “cessation of treatment.” Metzger,
7
Adelizzi involved professional services provided by a real estate agent and broker. Whether a rule
analogous to the continuous treatment rule applies to these services is not at issue in this case, and we do
not decide that question here.
8
709 P.2d at 417. See also Echols, 735 P.2d at 731 (“‘Termination’ of treatment” starts
the statute of limitations.); Jauregui, ¶ 9, 111 P.3d at 917 (In Metzger, we “defined the
‘act, error or omission which starts the running of the statute of limitations against
malpractice actions’ as ‘the termination of the course of treatment for the same or related
illnesses or injuries.’”).
[¶22] The Hospital focuses solely on the pulling and twisting of Mr. Nobles’ right arm,
and contends that the pulling and twisting was the act triggering the running of the statute
of limitations. Under the continuous treatment rule, however, the act was not completed
the moment the Hospital employee stopped the pulling and twisting. As we said in
Metzger, 709 P.2d at 417, “the cessation of treatment completes the ‘act’ which starts the
running of the statutory period for filing suit.” The act was not completed until the
termination of the Hospital’s treatment of the shoulder and arm. There is evidence in the
record supporting Mr. Nobles’ contention that such treatment did not end until the day of
his discharge.
[¶23] Next, the Hospital argues that the district court properly found that the continuous
course of treatment rule did not apply in this case. In its order granting summary
judgment, the district court wrote:
Plaintiff claims that summary judgment is not
appropriate because of the application of the continuous
course of treatment doctrine. The continuous course of
treatment doctrine provides that “where the defendant
physician has provided a continuing course of care for the
same or related complaints, the cessation of treatment
completes the ‘act’ which starts the running of the statutory
period for filing suit.” Metzger v. Kalke, 709 P.2d 414, 417
(Wyo. 1985). The Plaintiff claims that the statute of
limitations runs from the time that . . . he was released from
the TCU, which would be on March 15, 2008. However,
Plaintiff does not allege that any instances of tugging on his
arm occurred after he was moved to the TCU. Rather, in
Plaintiff’s affidavit, he states that “While I was in the ICU,
there were several occasions when a male aide came in,
alone, to move me or reposition me in the ICU bed. On each
occasion, this person pulled on my arm, it was very painful.”
(Nobles Aff. ¶ 4) (emphasis added).
The continuous course of treatment doctrine originated
in Metzger v. Kalke, 709 P.2d 414 (Wyo. 1985). In Metzger,
the Court identified the rationale behind the rule was that a
medical professional should be allowed to change the
9
diagnosis of the patient over time. Metzger, 709 P.2d at 417
(quoting Williams v. Elias, 1 N.W.2d 121, 124 (Neb. 1941).
This was done because the plaintiff in Metzger could not
identify the exact point in time he was injured by the
physician. When applying the rule in a later case, the
Wyoming Supreme Court stated that the “policies behind the
continuous treatment rule would not be served” by applying it
in a situation where the “plaintiff . . . is not prejudiced by an
inability to identify the treatment which might have caused
his harm. . . .” Echols v. Keeler, 735 P.2d 730, 732 (Wyo.
1987). The Eighth Circuit Court of Appeals stated that
“where . . . a patient is able to identify the specific negligent
treatment that caused his/her injury, the continuous treatment
doctrine does not toll the statute of limitations.” Roberts v.
Francis, 128 F.3d 647, 651 (8th Cir. 1997). In addition, this
Court recognizes that any negligence that occurred in the
instant case was not regarding diagnosis, but an injury to the
Plaintiff caused by an aide. Therefore, the continuous course
of treatment doctrine does not apply to the case at bar.
[¶24] The continuous treatment rule is, in at least three respects, not as limited as the
district court ruled. First, while Metzger discussed reasons the rule should apply in cases
where a patient is misdiagnosed, it contained no indication that it applies only in
misdiagnosis cases. In Echols, 735 P.2d at 731, we discussed reasons the rule should also
apply in a case involving treatment:
These policy considerations are also discussed in 1 D.
Louisell and H. Williams, Medical Malpractice, ¶ 13.08
(1986):
The so-called continuous treatment rule has been
defended on the grounds of fairness as well as on the
basis of logic. Certainly it would not be equitable to
bar a plaintiff who, for example, has been subjected to
a series of radiation treatments in which the radiologist
negligently and repeatedly administered an
overdosage, simply because the plaintiff is unable to
identify the one treatment that produced his injury.
Indeed, in such a situation no single treatment did
cause the harm; rather it was the result of several
treatments, a cumulative effect.
(Quotation marks omitted.) In Jauregui, we applied the continuous treatment rule in a
10
case involving treatment:
The continuous treatment doctrine directly applies to the
instant case. Dr. Oliver’s treatment to repair Mr. Jauregui’s
torn rotator cuff tendon did not end with the first surgery.
Dr. Oliver continued to treat Mr. Jauregui specifically with
regard to his rotator cuff tendon surgery. Dr. Oliver treated
the immediately ensuing infection, and Dr. Oliver performed
the second surgery wherein the surgical sponge was removed.
Each treatment up to the second surgery on February 26 was
directly connected to the initial surgery. Thus, the act
constituting the final act in the course of treatment for the
surgical repair of Mr. Jauregui’s torn rotator cuff was the
second surgery. The statute of limitation thus began to run as
of the date of the second surgery.
Id., ¶ 10, 111 P.3d at 917. The continuous treatment rule is not limited to cases involving
misdiagnosis.
[¶25] Second, the district court was correct that, in Echols, 735 P.2d at 732, we stated
that the “policies behind the continuous treatment rule would not be served” by applying
it in a situation where the plaintiff “is not prejudiced by an inability to identify the
treatment which might have caused his harm.” However, that statement should be
considered in context. In Echols, the appellant was treated for several months for a back
injury by a chiropractor, Dr. Keeler. Then, “[a]fter October 6, 1981, appellant had no
further contact with Dr. Keeler.” Id. at 730. Shortly thereafter, the appellant was
hospitalized for bladder problems. He was examined by Dr. Cole, who referred him to
Dr. Gordy, who performed surgery on his back. “Tissue samples obtained during the
surgery revealed a bacterial infection in appellant’s spine. After the surgery, appellant
was treated by Dr. Landon and two other specialists, Dr. Bailey and Dr. Lyford, for the
damage caused by the infection.” Id. at 730-31. The appellant eventually filed a
malpractice claim against the chiropractor, Dr. Keeler, claiming negligence in the
diagnosis and treatment of his back injury. Although suit was filed approximately three
and a half years after he had last been seen by Dr. Keeler, the appellant contended “that
he is receiving a continuous course of treatment from Drs. Keeler, Landon, Cole, Lyford,
and Bailey for the same injury which is the subject of this action and that, therefore, the
two-year statute of limitations had not run at the time of filing his complaint.” Id. at 731.
[¶26] We rejected this interpretation of the continuous treatment rule. Quoting Metzger,
we said that “the act, error or omission which starts the running of the statute of
limitations against medical malpractice actions is the termination of the course of
treatment for the same or related illnesses or injuries.” Echols, 735 P.2d at 731.
“‘Termination’ of treatment,” we explained, “has reference to the practitioner against
11
whom claim is made.” Id. After quoting the applicable policy considerations, we said:
The policies behind the continuous treatment rule would not
be served by applying it in the manner suggested by appellant
in this case. Plaintiff here is not prejudiced by an inability to
identify the treatment which might have caused his harm, nor
is there anything in the record to suggest that Dr. Keeler had
any desire to retain appellant as a patient and correct any error
he might have made.
For purposes of appellant’s malpractice action against
Dr. Keeler, the only relevant course of treatment began on
September 11, 1981, when appellant first visited Dr. Keeler
and ended, at the latest, on October 6, 1981, when appellant
last saw Dr. Keeler. After referral, Dr. Keeler did not
continue as appellant’s doctor nor was he associated with or
engaged in assisting the doctors thereafter treating appellant.
Id. at 732.
[¶27] The policies behind the continuous treatment rule were not served in Echols
because the appellant had not been continuously treated by Dr. Keeler. Significantly, we
did not rule that the statute of limitations began to run as soon as the appellant was able
“to identify the treatment which might have caused his harm.” Id. Rather, we noted that
appellant last saw Dr. Keeler on October 6, 1981, and applied the continuous treatment
rule to conclude that “the statute began to run, at the very latest, on October 6, 1981.” Id.
The limitation we observed in Echols – limiting the continuous treatment rule by
“reference to the practitioner against whom claim is made” – does not apply in
Mr. Nobles’ case.
[¶28] Third, the district court’s reliance on the decision in Roberts, 128 F.3d 647 is
misplaced. That decision is incompatible with Wyoming precedent. In Roberts, 128
F.3d at 648-49, the patient “had surgery for severe urological problems” in May, 1990.
“For reasons not explained in the record,” Dr. Francis also removed Ms. Roberts’ only
remaining ovary. Ms. Roberts “remained under the care of Dr. Francis until February
1996.” However, Dr. Francis did not inform Ms. Roberts that her ovary had been
removed. She did not learn of the removal until September, 1994, when she was treated
by a different doctor. Ms. Roberts filed a medical malpractice claim against Dr. Francis
and the medical center in June, 1996. She “advanced two theories under which the [two-
year] statute [of limitations] should be tolled : continuous treatment and fraudulent
concealment.” The district court granted summary judgment to Dr. Francis and the
medical center “as to both theories.” The appeals court “reverse[d] and remand[ed] for
trial on the fraudulent concealment claim,” but affirmed the district court’s ruling that the
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continuous treatment rule did not toll the statute of limitations for Ms. Roberts’ claim.
[¶29] The appeals court recognized that continuous treatment operated to toll the
Arkansas statute of limitations, but also stated that, “[w]here, however, a patient is able to
identify the specific negligent treatment that caused his/her injury, the continuous
treatment does not toll the statute of limitations.” Id. at 651. The appeals court quoted
and agreed with the district court’s ruling:
It is well settled that where a single, isolated act constitutes
the alleged act of medical malpractice, the “continuous
treatment” doctrine does not apply. A careful reading of
Arkansas law indicates that the recognized exception is
limited to those situations wherein a plaintiff cannot identify
one treatment that produced his injury but where his injury
was the result of several treatments – a “cumulative effect.”
The evidence here shows that plaintiff was aware of the
negligent act – the surgery – which caused her injury. . . .
The “continuous treatment” doctrine is inapplicable and does
not extend the limitations period.
Id. at 651-52.
[¶30] That result is directly contrary to our decision in Jauregui. In that case, Dr. Oliver
performed rotator cuff surgery on Mr. Jauregui on January 11, 1999, and apparently due
to infection, Mr. Jauregui had a second shoulder operation on February 26, 1999.
Jauregui, ¶ 3, 111 P.3d at 915. “During this [second] operation, a surgical sponge was
found that had been left inside Mr. Jauregui’s shoulder during the first operation.” Id.
He filed a complaint against Dr. Oliver and the hospital on February 26, 2001.
[¶31] If we had applied the reasoning of the Roberts case, we would have said that
Mr. Jauregui was not injured as the cumulative result of several treatments, but that he
could identify the single negligent act – the initial surgery – that caused his injury. We
would have held that the continuous treatment rule was inapplicable, and that
Mr. Jauregui was required to file suit within two years of January 11, 1999, the date of
the first surgery that caused the injury.
[¶32] We did not apply the reasoning of the Roberts case. Instead, we ruled that:
The continuous treatment doctrine directly applies to the
instant case. Dr. Oliver’s treatment to repair Mr. Jauregui’s
torn rotator cuff tendon did not end with the first surgery.
Dr. Oliver continued to treat Mr. Jauregui specifically with
regard to his rotator cuff tendon surgery. Dr. Oliver treated
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the immediately ensuing infection, and Dr. Oliver performed
the second surgery wherein the surgical sponge was removed.
Each treatment up to the second surgery on February 26 was
directly connected to the initial surgery. Thus, the act
constituting the final act in the course of treatment for the
surgical repair of Mr. Jauregui’s torn rotator cuff was the
second surgery. The statute of limitation thus began to run as
of the date of the second surgery. The underlying malpractice
action, brought within two years of that date, is not time
barred.
Jauregui, ¶ 10, 111 P.3d at 917.
[¶33] As we observed in Jauregui, ¶ 9, 111 P.3d at 917:
Almost twenty years ago, this Court, in Metzger v. Kalke, 709
P.2d 414 (Wyo. 1985), in construing § 1-3-107, defined the
“act, error or omission which starts the running of the statute
of limitations against malpractice actions” as “the termination
of the course of treatment for the same or related illnesses or
injuries.” Id. at 417. This is commonly referred to as the
“continuous treatment” doctrine. The legislature has not
changed the statute since Metzger was decided. The
continuous treatment doctrine remains applicable in
Wyoming.
The continuous treatment rule also applies in this case. The evidence indicates that
Mr. Nobles continued to be treated for “the same or related” condition until his discharge
from the hospital on March 15, 2008. His claim filed on March 11, 2010, was within the
two-year period of the applicable statute of limitations.
III. The Single Act Exception to the Continuous Treatment Rule
[¶34] The Hospital contends that, if the continuous treatment rule applies, Mr. Nobles’
case qualifies for the single act exception to that rule. Mr. Nobles asserts that the single
act exception has not been adopted in Wyoming. He further contends that the exception
does not apply to his case.
[¶35] We discussed the single act exception in Jauregui. After explaining the
continuous treatment rule, we noted an exception to that rule, stating as follows:
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Dr. Oliver argues that the “single-act” exception to the
continuous treatment doctrine applies to the facts of this case.
Dr. Oliver argues that the continuous treatment doctrine
applies only when there is no single identifiable act of
malpractice from which the statute of limitation can be said to
run. Dr. Oliver contends that, in the instant case, any alleged
malpractice was a single act that, if it occurred at all, occurred
during the January 11, 1999, surgery. Thus, according to
Dr. Oliver, the continuous treatment doctrine does not apply
and the statute of limitation began to run on January 11, 1999.
While it is true that the continuous treatment doctrine
applies to cases involving a continuous course of treatment
where no single act can be pointed to as the act of
malpractice, see Sharsmith v. Hill, 764 P.2d 667 (Wyo. 1988)
(negligent misdiagnosis); Metzger v. Kalke, 709 P.2d 414(Wyo. 1985) (negligent misdiagnosis), the doctrine is not so
strictly limited. Minnesota courts have offered a very
complete definition of the “single-act” exception:
At the time Doyle filed her May 6, 1999, claim, the
medical malpractice statute of limitations required that
claims be commenced within two years of the accrual
of the cause of action. See Minn. Stat. § 541.07(1)
(1998). Generally, the “cause of action accrues when
the physician’s treatment for a particular condition
ceases.” Grondahl v. Bulluck, 318 N.W.2d 240, 243
(Minn. 1982) (citation omitted). This is the general
termination of treatment rule.
But where there is a single act of allegedly negligent
conduct, the statute of limitations begins to run at the
time the plaintiff sustains damage from the act.
Offerdahl v. University of Minn. Hosps. & Clinics, 426
N.W.2d 425, 428-29 (Minn. 1988). More precisely,
the cause of action begins to run at the time of the
negligent act (and not at the end of the course of
treatment) when the alleged tort consists of (1) a single
act; (2) which is complete at a precise time; (3) which
no continued course of treatment can either cure or
relieve; and (4) where the plaintiff is actually aware of
the facts upon which the claim is based; that is, the
plaintiff is aware of the malpractice prior to the end of
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treatment. Swang v. Hauser, 288 Minn. 306, 309, 180
N.W.2d 187, 189-90 (1970). We refer to this rule as
the “single-act” exception.
Doyle v. Kuch, 611 N.W.2d 28, 31 (Minn. App. 2000).
Jauregui, ¶¶ 11-12, 111 P.3d at 917-18. We went on to explain that factors three and
four were not supported by the underlying facts, and concluded that the single act
exception did not apply. Id., ¶ 13, 111 P.3d at 918. We did not specifically adopt the
exception in that case.
[¶36] We also referenced the single act exception in our decision in Ballinger v.
Thompson, 2005 WY 101, ¶ 29, 118 P.3d 429, 438 (Wyo. 2005). Ballinger involved a
legal malpractice claim. We concluded that the continuous representation doctrine
should not be adopted “in these circumstances.” Id., ¶ 27, 118 P.3d at 437. We did not
specifically adopt the single act exception in that case.
[¶37] For several reasons, we conclude that the single act exception should not be
adopted in Wyoming. From our review, it appears that the rule has not been widely
applied in other jurisdictions. More significantly, application of the exception as set forth
in Doyle, leads to results that are at odds with our precedent. From a practical
perspective, the rule is difficult to apply and leads to confusion rather than predictability.
[¶38] We have found little application of the single act exception outside of Minnesota.
There is no question that it is widely applied in that state. In Jauregui, we introduced the
single act exception and the four factors that must be satisfied for the exception to apply
by quoting Doyle v. Kuch, a decision of the Minnesota Court of Appeals. In Doyle, the
court provided insight regarding application of the single act exception in Minnesota.
The court states:
In so holding, we are mindful that the Minnesota Supreme
Court has expressly rejected the notion that a physician’s
continuing “non-treatment” is sufficient to toll the statute of
limitations. See Fabio v. Bellomo, 504 N.W.2d 758, 762
(Minn. 1993) (holding that the single act exception applied
where the physician misdiagnosed the plaintiff’s illness and
overlooked her breast cancer during later visits). We also
recognize that, ordinarily, subsequent remedial treatment does
not toll the statute. See, e.g., Haberle v. Buchwald, 480
N.W.2d 351, 356 (Minn. App. 1992), review denied (Minn.
Aug. 4, 1992); Crenshaw v. St. Paul Ramsey Med. Ctr., 379
N.W.2d 720, 721 (Minn. App. 1986), review denied (Minn.
Mar. 27, 1986).
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611 N.W.2d at 32. The decision of the Minnesota Supreme Court in Fabio is
irreconcilable with the decision we reached in Sharsmith, 764 P.2d 667.
[¶39] Fabio involved a medical malpractice suit brought by Ms. Fabio against
Dr. Bellomo who was Ms. Fabio’s primary care physician from 1977 to 1986. Id., 504
N.W.2d at 760. Ms. Fabio claimed, among other things, that Dr. Bellomo had
misdiagnosed her breast cancer as a “fibrous mass” at some time between 1982 and 1984.
Id. Ms. Fabio brought her claim after she received a diagnosis of cancer from another
doctor in 1987. Applying a two-year statute of limitations, the Minnesota Supreme Court
ruled that her suit was not timely with regard to the misdiagnosis that occurred between
1982 and 1984.
When Dr. Bellomo examined Fabio’s breast between 1982
and 1984, he did not recommend any further treatment. His
treatment of her condition ceased at the time he told her not to
worry about it. We therefore hold that the trial court was
correct to rule that Dr. Bellomo’s examinations of Fabio’s
breast that occurred between 1982 and 1984 are barred by the
statute of limitations, because these examinations were not
part of a continuing course of treatment.
Id. at 762.
[¶40] In Sharsmith, we also were faced with application of a statute of limitations in a
medical malpractice misdiagnosis case. We reached a different result. In that case,
Ms. Sharsmith had a tumor surgically removed from behind her knee on May 19, 1982,
by Dr. Feagin. Id., 764 P.2d at 668. Dr. Fogarty, a pathologist, examined samples of the
tumor and diagnosed it as benign. On December 6, 1982, Ms. Sharsmith returned to
Dr. Feagin because of swelling at the site of the operation. He asked her to return in a
month, and she saw him again on January 18, 1983. This time, Dr. Feagin asked
Dr. Fogarty to re-examine the preserved samples. Dr. Fogarty again said the tumor was
benign. When Ms. Sharsmith returned to Dr. Feagin on February 15, 1983, he found
“two distinct masses at or near the operative site.” Id. at 669. He referred her to
Dr. Coleman for a “second biopsy and pathological diagnosis.” Id. Dr. Coleman
determined that the two new masses, as well as the tumor removed in 1982, were
malignant. Id. Ms. Sharsmith elected to have her left leg amputated above the knee. The
amputation was performed on March 16, 1983. Id.
[¶41] Ms. Sharsmith sued Dr. Fogarty in February, 1985. The district court granted
summary judgment in favor of Dr. Fogarty. Id. We applied the continuous treatment
doctrine and reversed the district court’s decision. We determined that “with respect to
the treating physician, Dr. Feagin, a continuous course of treatment existed at least until
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he referred [Ms. Sharsmith] to Dr. Coleman on February 15, 1983.” Id. Dr. Feagin was
not a party to the lawsuit, but we concluded that his course of treatment should be
imputed to Dr. Fogarty because
it was Dr. Feagin’s adherence to Dr. Fogarty’s diagnosis
which dictated the nature and duration of appellant’s
treatment. . . . Until the alleged misdiagnosis was corrected,
or until Dr. Feagin ceased to rely upon it, Dr. Fogarty’s
constructive involvement in that treatment was sufficient to
constitute the requisite assistance or association and prevent
the running of the statute of limitations.
Id. at 670. Our analysis and decision in Sharsmith cannot be reconciled with the decision
reached by the Minnesota Supreme Court in Fabio.
[¶42] In Doyle, the court recognized that in Minnesota, “ordinarily, subsequent remedial
treatment does not toll the statute.” Id., 611 N.W.2d at 32. That approach is also
inconsistent with application of the continuous treatment doctrine in Wyoming. For
example, in Jauregui, Dr. Oliver provided remedial treatment to the patient by treating
the infection following the first surgery and performing a second surgery. Jauregui, ¶ 3,
111 P.3d at 915. We held that the statute of limitations did not begin to run until the
remedial treatment had concluded. Id., ¶ 17, 111 P.3d at 919. The remedial treatment
was apparently successful in Jauregui, but we are hard pressed to understand why the
success or failure of remedial efforts by the treating physician should impact the start of
the running of the statute of limitations. Evaluation of the success of remedial treatment
also makes the exception difficult to apply.
[¶43] As noted above, the Minnesota Court of Appeals listed four factors that must be
satisfied for the exception to apply. Doyle, 611 N.W.2d at 31. The third factor is the
most problematic. In order for the exception to apply, it must be established that “no
continued course of treatment can either cure or relieve” the damage. But unless a patient
dies immediately as a result of the malpractice, some form of follow-up treatment will
likely be given in every case.
[¶44] In this case, the success of the treatment provided by the Hospital to Mr. Nobles
for injuries caused by the pulling on his arm may be in dispute. Under the third factor of
the Minnesota exception, if the treatment was successful and Mr. Nobles was “cured,” the
single act exception would not apply. If the Hospital’s subsequent treatment failed to
provide any “relief,” the third factor would apparently be satisfied, and the single act
exception would apply. In applying the exception, it is unclear what decision should be
reached if the remedial treatment provided some relief but did not result in a “cure.”
Such a situation is simply unworkable and is at odds with the basic policies at the heart of
the continuous treatment rule. Because the single act exception is inconsistent with our
18
precedent, not widely accepted, and difficult to apply, we decline to adopt the single act
exception to the continuous treatment rule in Wyoming.
IV. Summary Judgment
[¶45] The applicable statute of limitations required Mr. Nobles to present his claim
within two years. Mr. Nobles has presented evidence indicating that the Hospital treated
him for the pain and dysfunction in his shoulder and arm until he was discharged. We
must consider this evidence in the light most favorable to Mr. Nobles. Applying the
continuous treatment rule to this evidence, the statute of limitations began running on the
date of his discharge from the hospital, March 15, 2008. He presented his claim to the
Hospital, along with his claim to the Wyoming Medical Review Panel, on March 11,
2010, just under two years from the date of his discharge. The district court erred in
granting summary judgment in favor of the Hospital and against Mr. Nobles. We decline
to adopt the single act exception to the continuous treatment rule. This case is reversed
and remanded for further proceedings consistent with this opinion.
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