Bigay v. Garvey
| Decision Date | 06 May 1997 |
| Docket Number | No. C9-96-1033,C9-96-1033 |
| Citation | 562 N.W.2d 695 |
| Parties | Shari BIGAY, Appellant, v. Timothy A. GARVEY, M.D., Gary Banks, M.D., Respondents, Jeffrey Dick, M.D., Defendant, Regents of the University of Minnesota, d/b/a The University of Minnesota Hospital and Clinic, Respondent. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
I. A patient's negligent nondisclosure claim against doctors is not barred by the statute of limitations when it arises from the same transaction as the patient's timely claim for negligent treatment because the amended claim relates back to the original complaint under Minn. R. Civ. P. 15.03.
II. The district court erred in refusing to permit inquiry on affiliation and possible bias of an expert witness, but other testimony demonstrated the witness's affiliations, and the ruling did not result in prejudice requiring a new trial.
III. The district court properly directed a verdict for the University of Minnesota Hospital and Clinic on the patient's negligent supervision claim because the patient failed to establish the nature of the relationship Theodore G. Gudorf, O'Loughlin & Gudorf, Dayton, OH, Michael J. O'Loughlin, Minneapolis, Stephen E. Yoch, Geoffrey P. Jarpe, Maun & Simon, PLC, St. Paul, for Appellant.
between the doctors and the hospital or to present testimony on any applicable standard of care.
William M. Hart, Joseph W.E. Schmitt, Robert M. Frazee, Meagher & Geer, P.L.L.P., Minneapolis, for Respondent Gary Banks.
Anne T. Johnson, Barry G. Vermeer, Gislason, Dosland, Hunter & Malecki, Minnetonka, for Respondent University of Minnesota Hospital and Clinic.
Charles E. Lundberg, Kathryn Davis Messerich, Bassford, Lockhart, Truesdell & Briggs, P.A., Minneapolis, for Respondent Timothy A. Garvey.
Considered and decided by CRIPPEN, P.J., and LANSING and PETERSON, JJ.
A surgical patient who suffered a perforated ileum and sigmoid colon during a spinal fusion operation challenges evidentiary rulings and an adverse jury verdict. We find no reversible error in the evidentiary rulings and affirm the jury verdict. We also affirm the district court's entry of a directed verdict dismissing the patient's negligent supervision claim against the hospital. We reverse, however, the district court's pretrial order disallowing, as time-barred, an amended claim for negligent treatment.
Shari Bigay first met with Dr. Timothy Garvey at the Veterans' Administration Medical Center in 1992 to seek treatment for lower back pain. Garvey diagnosed degenerative disk disease at the level of L5-S1 and foraminal stenosis, and recommended back surgery. In later meetings Garvey discussed surgical options and recommended to Bigay that she undergo spinal fusion surgery. On May 28, 1992, Bigay signed a written consent for the surgery.
On June 3, 1992, Garvey and Dr. Gary Banks performed the spinal fusion surgery on Bigay at the University of Minnesota Hospital and Clinic (UMHC). The surgical process involved removing the diseased disk material and fusing the spine with a graft of morcellized bone. Removing the disk material may require up to 300 passes into the disk space with surgical instruments. Following the surgery Bigay began to experience pain in her abdomen. Dr. John Delaney performed an exploratory laparatomy that revealed multiple lacerations of her ileum and sigmoid colon. Delaney performed a double colostomy to stop the spread of substantial fecal peritonitis. Further complications required additional surgery.
Bigay filed her original complaint in this action on June 2, 1994, almost exactly two years after the spinal fusion was performed. The complaint alleged that Garvey and Banks were negligent in the performance of the spinal fusion surgery and sought damages for Bigay's injuries. In May 1995, about six months before trial, the district court permitted Bigay to amend the complaint to add a claim against her doctors for negligent nondisclosure of treatment risks and alternatives, but reserved the issue of whether the claim was time-barred. According to Bigay's amended complaint, the doctors failed to inform her of the experimental nature of the surgery, its risks, its lack of success, and other alternatives. Prior to trial the district court struck the negligent nondisclosure claim, reasoning that it was barred by the statute of limitations.
The trial began on November 6, 1995. At the close of plaintiff's case-in-chief, the district court directed a verdict for UMHC on the negligent supervision claim. The jury returned a verdict on the remaining issues, finding that Garvey and Banks were not negligent in their treatment of Bigay. Bigay's posttrial motions were denied, and Bigay now appeals.
claim was barred by the statute of limitations?
Shari Bigay served her original complaint on June 2, 1994, alleging negligent treatment. The complaint was served within the two-year statute of limitations that governs actions against physicians and surgeons. See Minn.Stat. § 541.07(1) (1996). The amended complaint for negligent nondisclosure was served on March 29, 1995, well beyond the limitations period. The district court ruled that the statute of limitations barred Bigay's claim for negligent nondisclosure, after concluding that the claim did not relate back to the negligent treatment alleged in the original complaint.
The district court further held that even if the nondisclosure claim related back, it was still time-barred because it arose on May 28, 1992, the day Bigay signed the surgical consent form, and the statute of limitations on the nondisclosure claim had run before June 2, 1994, when Bigay sued for negligent treatment.
Whether Bigay satisfies the requirements of Minnesota Rule 15.03, allowing claims in an amended complaint to relate back, is a question of law subject to de novo review. Carlson v. Hennepin County, 479 N.W.2d 50, 53 (Minn.1992). Minnesota Rule 15.03 applies the same standard as Federal Rule of Civil Procedure 15(c), permitting relation-back "[w]henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Minn. R. Civ. P. 15.03.
The doctors argue that because the amended pleading is a new cause of action, requiring proof of different elements, it cannot relate back to the original complaint. See Plutshack v. University of Minn. Hosps., 316 N.W.2d 1, 5, 9 (Minn.1982) (). We agree that negligent treatment and negligent nondisclosure are different causes of action, but we disagree that this distinction determines whether the amended claim relates back.
The determination on whether a claim relates back focuses on whether there are common facts underlying the claim:
The principle of relation back of amended pleadings existed in prior law, but it was limited to an amendment which did not state a new cause of action. The harshness of the rule was modified by a liberal construction of a 'cause of action.' In accord with this liberal application of the principle, the rule requires only that the amendment arise out of the 'conduct, transaction or occurrence' set forth in the original pleading.
Swenson v. Emerson Elec. Co., 374 N.W.2d 690, 696 (Minn.1985).
Focusing on the facts underlying the claim rather than comparing the causes of action comports with the shift from "code pleading" to "notice pleading." See generally 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §§ 1216-18 (2d ed.1990). If the original and the amended claim are based on common facts, the original claim provides notice of the transaction:
The rationale of allowing an amendment to relate back is that once a party is notified of litigation involving a specific factual occurrence, the party has received all the notice and protection that the statute of limitations requires.
3 Jeremy C. Moore, Moore's Federal Practice p 15.19 (3d ed.1997). So long as the original pleading gives fair notice of the fact situation from which the claim or defense arises, Rule 15(c) permits a wide range of amendments: a change in the legal theory of the action or an amendment that adds a claim arising out of the same transaction or occurrence. Id. p 15.19.
The original complaint in this case contained a specific allegation that Bigay's doctors failed to meet the standard of care customarily exercised by similarly trained physicians in performing a surgical procedure. The amended complaint alleged the failure to inform Bigay of the experimental nature of the surgical procedure. These claims both arise from the same general conduct and occurrence that caused Bigay's injury and are based on a common factual transaction: surgical treatment for Bigay's lower back pain. The factual commonality is evident. The parties are the same in both the original and amended petition, Bigay signed the consent form during a consultation with Garvey that occurred shortly (five days) before the surgery, and the consent was for the surgery from which the original claim arose. The consent consultation and any other visits Bigay made in preparation for surgery represent one continuous transaction in which the doctors provided medical care and surgical treatment for Bigay's lower back pain. Bigay's relationship with the doctors was formed by her need for back surgery: she was not contracting for a series of meetings with the doctors; she was contracting for an ongoing continuum of care directed toward the single goal of correcting her degenerative...
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...in a "fragmented fashion," shows an association giving rise to bias, there is no prejudice and no cause for reversal. Bigay v. Garvey, 562 N.W.2d 695, 702 (Minn.App. 1997), rev'd on other grounds, 575 N.W.2d 107 In this case, the jury knew that Drs. Esensten and Arenson worked for the clini......
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