Opinion
Civil No. 4-83-645.
June 1, 1987
Gary W. Goldsmith, ROEHRDANZ, BIGELOW, CHAMBERLAIN GOLDSMITH, 212 Ridgewood Avenue, Minneapolis, Minnesota 55403, for plaintiff.
Thomas Tinkham and Steven Wells, DORSEY WHITNEY, 2200 First Bank Place East, Minneapolis, Minnesota 55402, for defendants.
Robert M. Moore, Jr., Legal Department, Mayo Clinic, Rochester, Minnesota 55901, for defendants.
ORDER
This is a wrongful death action predicated on allegations of medical malpractice arising out of a surgical procedure performed to replace plaintiff's decedent's artificial heart valve. The Court has before it cross motions for summary judgment: defendants Mayo Clinic (or the doctors) and St. Mary's Hospital of Rochester (or St. Mary's) have moved to dismiss the action under Rule 12(b)(6) of the Federal Rules of Civil Procedure (Fed.R.Civ.P.) or in the alternative for summary judgment pursuant to Rule 56(c), Fed.R.Civ.P., contending that the action is barred by the two year statute of limitation, Minn. Stat. § 541.07(1) (1984); plaintiff Frank DeRogatis has moved for partial summary judgment or to reopen discovery on the limited question of when treatment ended. Based on the files, records, and proceedings herein, and for the reasons set forth below, both motions for summary judgment are denied.
Frank DeRogatis is suing individually and as trustee for the next of kin of Patricia DeRogatis, deceased.
Facts/Procedural History
Decedent Patricia DeRogatis was born with a congenital heart defect. At age nine she underwent surgery for implantation of an artificial heart conduit and valve. Five years later, clogging in the heart conduit and valve required her to undergo replacement surgery. The operation was performed by the doctors at St. Mary's in Rochester on July 15, 1981. Within hours after the surgery, it was obvious that Patricia was in a coma. She remained in the coma and under the care of the doctors until August 21, 1981, when she was discharged from defendant St. Mary's Hospital. At that time, still comatose, she was transferred to a Miami, Florida, hospital near her parents' residence. She died on September 18, 1982.
On July 15, 1983, Frank DeRogatis, as trustee for the decedent's next of kin and individually, filed a complaint in the United States District Court in Minnesota alleging wrongful death resulting from the medical malpractice of the defendants Mayo Clinic and St. Mary's. The summons and complaint were delivered to the Sheriff of olmsted County, Minnesota, on July 29, 1983. Defendant Mayo Clinic was served on July 29, 1983, and defendant St. Mary's Hospital was served on August 1, 1983. Plaintiff's suit was commenced for statute of limitation purposes on July 29, 1983. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332.
Plaintiff also brought claims against the manufacturers of the artificial heart conduit and valve. These claims were dismissed with prejudice by stipulation on December 18, 1984.
The parties do not dispute that this suit commenced on July 29, 1983. In federal court under diversity jurisdiction, the determination of the commencement of a suit for statute of limitation purposes is made under state law. See Clark v. Mayo Foundation, Civil File No. 3-84-877, slip op. (D.Minn. October 12, 1984) (Magnuson, J.); Fischer v. Iowa Mold Tolling Co., 690 F.2d 155, 157 (8th Cir. 1982). Minnesota's Rule of Civil Procedure, Rule 3.01 provides:
A civil action is commenced against each defendant when the summons is served upon him or is delivered to the proper officer for such service; but such delivery shall be ineffectual unless within 60 days thereafter the summons be actually served on him or the first publication thereof be made.
The sheriff in the county where the defendant resides is a "proper officer." See McBride v. Bitner, 310 N.W.2d 558 (Minn. 1981). This action commenced when the summons and complaint were delivered to the sheriff of Olmsted County on July 29, 1983. It should be noted that Rule 3.01 was amended in 1985 to clarify that the sheriff is the "proper officer" for service.
In August, 1985, the defendants brought a motion before this Court for dismissal of plaintiff's suit under Rule 12(b)(6), Fed.R.Civ.P., or in the alternative for summary judgment pursuant to Rule 56(c), Fed.R.Civ.P., contending that the two year statute of limitation prescribed by Minnesota Statutes, § 541.07(1) (1984), barred the action. Counsel made oral arguments to the Court on August 22, 1985. At an evidentiary hearing requested by the Court, on September 9, 1985, testimony was heard from Frank DeRogatis on the limited question of his knowledge, on or before July 29, 1983, of any negligence by defendants. The Court found that "under applicable Minnesota law, the plaintiff, Frank DeRogatis, did not have the requisite knowledge — upon which his claim is based — as of July 29, 1981." (Transcript at p. 2, hearing before the Honorable James M. Rosenbaum, September 9, 1985.) The Court took defendants' summary judgment motion under advisement.
On September 30, 1985, the Court determined that the case presented a question appropriate for certification to the Minnesota Supreme Court pursuant to Minnesota Statutes, § 480.061, and certified the following question to the Minnesota Supreme Court:
Upon what event or events does a cause of action for wrongful death accrue?
On August 8, 1986, the Minnesota Supreme Court, in response to the certified question, decided that under Minnesota Statutes, § 573.02, subdivision 1 (1984), the two year limitation period for a wrongful death action based on alleged medical malpractice begins to run, not on the date of death, but when the limitation period for the decedent's claim for medical malpractice begins.Frank DeRogatis v. Mayo clinic, No. C7-85-1861, slip op. at 6 (Minn. August 8, 1986) (Coyne, J.).
In August, 1986, the defendants renewed their motion to dismiss pursuant to Rule 12(b)(6), Fed.R.Civ.P., or in the alternative, for summary judgment pursuant to Rule 56(c), Fed.R.Civ.P. Defendants claim that this action is barred by Minnesota Statutes, § 541.07(1), because it was commenced more than two years after the accrual of the cause of action. Defendants base their contentions on two alternative theories: 1) that the decedent's claim accrued on July 15, 1981, under the "single act exception;" or 2) that the claim accrued under the end of treatment rule no later than July 21, 1981, when no further curative treatment was being administered.
Plaintiff responded with his own motion for partial summary judgment, requesting a ruling that the treatment continued until sometime after July 29, 1981, or alternatively, an order reopening discovery for a period of 180 days on the limited issue of the termination of treatment of Patricia DeRogatis. Plaintiff asserts that this action is timely because treatment extended beyond July 29, 1981. A hearing was held on October 17, 1986.
Discussion
When did the limitation period begin to run in decedent's medical malpractice claim? If it began prior to July 29, 1981, this action was commenced more than two years after the cause of action accrued and is barred by the two year statute of limitation; if the limitation period began on or after July 29, 1981, this action was timely commenced.
As a preliminary matter, defendants claim plaintiff's motion for partial summary judgment was itself late-filed. They claim the late filing imposed an unreasonably short response period, preventing them from obtaining responsive affidavits. The Court, at the hearing on October 17, 1986, ordered the parties to submit to the Court additional affidavits from medical experts on the "end of treatment" issue. In light of the fact that defendants were given an opportunity to submit additional affidavits and in the interest of justice and efficiency, the Court will consider plaintiff's motion. See Rule 1, Fed.R.Civ.P.
According to the Federal Rules of Civil Procedure, if matters outside the pleadings are presented, the Court may treat the motion as one for summary judgment and dispose of it as provided in Rule 56. See Rule 12(b)(6), Fed.R.Civ.P. As the Court here has considered matters outside the pleadings, defendants' motion will be treated as one for summary judgment. At the same time, in considering motions for summary judgment, the Court is required to view the facts and inferences in the light most favorable to the non-moving party and the movant must establish that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir. 1983). Since the action is based on diversity jurisdiction and the claim arose in Minnesota, Minnesota law applies. See Mayo Clinic v. Kaiser, 383 F.2d 653, 656 (8th Cir. 1967).
Under Minnesota law an action for medical malpractice is barred if not commenced within two years of the date on which the cause of action accrued. Minnesota Statutes, §§ 541.01, 541.07(1) (1984). Medical malpractice actions ordinarily accrue upon the termination of treatment by the physician for the particular condition for which the physician's assistance was sought. Grondahl v. Bulluck, 318 N.W.2d 240 (Minn. 1982);Johnson v. Winthrop Laboratories Division of Sterling Drug, Inc., 190 N.W.2d 77 (Minn. 1971); Schmit v. Esser, 236 N.W. 622, 624 (Minn. 1931). This "end of treatment" rule recognizes two policy considerations: first, the desire to allow physicians "all reasonable time" to cure the patient's ailment, including "the ordinary and usual mistakes incident to even skilled surgery;" and, second, the recognition that the mutual confidence essential in the doctor-patient relationship inhibits the patient's ability to discover acts of omission or commission constituting malpractice. Schmitt v. Esser, 226 N.W. 196, 197 (Minn. 1929); Swang v. Hauser, 180 N.W.2d 187, 190 (Minn. 1970).
Section 541.01 provides that actions can only be commenced within the limitation periods after the cause of action accrues. Section 541.07 provides in pertinent part:
Except where the uniform commercial code . . . otherwise prescribes, the following actions shall be commenced within two years: (1) For libel, slander, assault, battery, false imprisonment, or other tort, resulting in personal injury, and all actions against physicians, surgeons, dentists, other health care professionals as defined in section 145.61, . . . hospitals, sanatoriums, for malpractice, error, mistake, or failure to cure, whether based on contract or tort; . . .
Defendants, in the first of two alternate theories for dismissal, raise the "single act exception" to the general rule as a basis for their contention that the limitation period of decedent's cause of action started on July 15, 1981, the date of surgery. Under the single act exception, a medical malpractice claim begins to run at the time of the negligent act 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 plaintiff is actually aware of the facts upon which the claim is based.See Murray v. Fox, 220 N.W.2d 356, 358 (Minn. 1974); Swang v. Hauser, 180 N.W.2d at 190; Crenshaw v. St. Paul Ramsey Medical Center, 379 N.W.2d 720 (Minn.App. 1986). Here, the fourth element has not been satisfied. The Court reaffirms and maintains as the law of the case, its previous finding that plaintiff did not know of the facts on which he bases his malpractice claims until a time subsequent to July 29, 1981. In light of that finding, the Court holds that the "single act exception" to the general end of treatment rule is inapposite to the facts of this case. See e.g. Murray, 220 N.W.2d at 358; Swang, 180 N.W.2d at 190.
The Court holds that the determination of when the limitation period began to run on decedent's malpractice claim must be decided pursuant to the general end of treatment rule. Under that rule, the limitation period begins to run when treatment has ended.
When does the treatment cease? So long as the relation of physician and patient continues as to the particular injury or malady which he is employed to cure, and the physician continues to attend and examine the patient in relation thereto, and there is something more to be done by the physician in order to effect a cure, it cannot be said that the treatment has ceased. That does not mean that there must be a formal termination of his employment. If there is nothing more to be done by the physician as to the particular injury or malady which he was employed to treat, or if he ceases to attend the patient therefor, the treatment ordinarily ceases without any formality.Jewson v. Mayo Clinic, 691 F.2d 405, 409 (8th Cir. 1982) (citing Schmit v. Esser, 236 N.W. at 625).
This rule was enunciated in Schmit v. Esser, 236 N.W. 622, and has been reconsidered and reaffirmed by the Minnesota Supreme Court in Grondahl.
The Court in Schmit articulated three factors to consider in determining when treatment ceased. The first two factors — a continuing relationship between physician and patient, and whether the physician has been examining and attending the patient — are related and present in this case. The doctors maintained a doctor-patient relationship with Patricia DeRogatis while she remained at St. Mary's Hospital. In specific, Dr. Francisco J. Puga from the Mayo Clinic was Patricia's primary physician for the cardiac surgery and he remained her primary physician throughout her stay at St. Mary's Hospital. It is clear from the medical records and affidavits submitted that Dr. Puga, his associate, Dr. Nagarian, as well as other doctors from the Mayo Clinic, continued to attend and examine Patricia after the surgery on a daily or more frequent basis until well after July 29, 1981. This, however, is not dispositive. It is noted that:
Termination of treatment does not necessarily depend on the termination of the relation of physician and patient. Treatment of a particular ailment or injury might readily terminate and the relation of physician and patient continue.Schmit v. Esser, 236 N.W. at 625.
The disposition of this case turns on the third factor — "something more to be done." Defendants argue that treatment for Patricia DeRogatis ended on July 21, 1981, claiming that thereafter her care was restricted to maintenance of her comatose condition. Defendants assert that "something more to be done" involves treatment intended to cure rather than mere custodial care and maintenance. Plaintiffs respond that while there may be some distinction between treatment and custodial care, the change from active treatment to custodial care did not occur, if at all, until sometime near the middle of August, just prior to the discharge of Patricia DeRogatis from defendants' care.
The Court holds that under Minnesota law, treatment must be care "to effect a cure." Schmit v. Esser, 236 N.W. at 625;see Grondahl, 318 N.W.2d at 243.
Treatment consists not only in treating the original ailment, but also those subsequent problems which arise as a result of treatment of the original ailment. See Schmitt v. Esser, 226 N.W. at 197; Schmit v. Esser, 236 N.W. at 624. "Where the physician is employed generally to treat and heal an injury, he owes the duty of giving continued care and treatment." Schmit v. Esser, 236 N.W. at 624. Here, the doctors were employed, in the first instance, to surgically replace Patricia's artificial heart conduit and valve. The neurological deterioration evident in decedent the morning after surgery was a subsequent result of the original treatment which the doctors had a duty to treat. Id.
However, at some point during Patricia DeRogatis' stay at St. Mary's Hospital, the medical care she received changed from treatment "to effect a cure" to long term non-convalescent patient maintenance. The point at which the doctors discontinued curative treatment, i.e., when there was nothing more they could do to effect a cure, is when the limitation period began on decedent's medical malpractice claim. Expert medical testimony at trial is required to determine the date of the end of curative treatment. Grondahl, 318 N.W.2d at 243. The effect of this date is to trigger the operation of law, but placing the date on which this event occurred is a matter of fact which must be left to the jury.
The Court, in construing the evidence produced thus far in a light most favorable to the non-moving party as it must on summary judgment motions, finds that issues of material fact remain as to when curative treatment ceased. Under the circumstances, summary judgment is inappropriate. Accordingly, the Court denies defendants' motion for summary judgment and plaintiff's motion for partial summary judgment.
Plaintiff's motion to reopen discovery is granted. The parties will have a period of 45 days from the date of this order to take discovery on the limited issue of when curative treatment for Patricia DeRogatis was terminated.
For the reasons set forth above, IT IS ORDERED that:
1. Defendants' motion to dismiss or in the alternative for summary judgment is denied.
2. Plaintiff's motion for partial summary judgment is denied.
3. Plaintiff's motion to reopen discovery is granted in part. The parties will have 45 days from the date of this order to take discovery on the limited question of when curative treatment ceased.