Blackburn v. Blue Mountain Women's Clinic
| Decision Date | 15 January 1998 |
| Docket Number | No. 96-408,96-408 |
| Citation | 951 P.2d 1,286 Mont. 60 |
| Parties | Amy BLACKBURN, Individually, and as Personal Representative of the Estate of Baby Boy Doe, Deceased, Plaintiff and Appellant, v. BLUE MOUNTAIN WOMEN'S CLINIC; John Roe, M.D.; Jane Doe, counselor; Montana Department of Public Health and Human Services; Director of said Department of Public Health, individually, and not in his official capacity; Sidney Pratt, M.D., Medical Director, Medical Advisory Unit, Montana Department of Public Health, individually and not in his official capacity; Family Planning Center of Butte-Silver Bow Unified Government; Terri Doe, R.N., and Jan D., R.N., employees of said Family Planning Center, Defendants and Respondents. |
| Court | Montana Supreme Court |
Cynthia K. Smith (argued), Cederberg, Shott & Smith, P.C., Missoula, for Defendant and Respondent Blue Mountain Clinic.
John P. Davis and Tina L. Morin (argued), Poore, Roth & Robinson, P.C., Butte, for Defendants and Respondents Butte-Silver Bow County Health Department and Jan Cossel, R.N.
Thomas G. Bowe, Assistant Attorney General, Agency Legal Services Bureau, Helena, for Defendants and Respondents Department of Public Health & Human Services and Sidney Pratt, M.D.
Michael G. Eiselein (argued), Lynaugh, Fitzgerald & Eiselein, Billings, for Amicus Curiae Montana Trial Lawyers Association.
Richard F. Cebull (argued) and Lisa A. Rodeghiero (argued), Brown, Gerbase, Cebull, Fulton, Harman & Ross, Billings, for Amicus Curiae Montana Defense Trial Lawyers Association.
Michael F. McMahon, Harrison, Loendorf, Poston & Duncan, Helena, for Amicus Curiae Montana Medical Association.
In November 1995, plaintiff and appellant Amy Blackburn filed an action in the Second Judicial District Court, Silver Bow County, against the named defendants to recover damages she alleges in connection with an abortion she underwent at the Blue Mountain Clinic in Missoula on January 20, 1990. Defendants subsequently moved to dismiss Blackburn's first amended complaint on the basis that each of Blackburn's claims is barred by the applicable statute of limitations, and that certain claims must fail as a matter of law. In an order dated June 12, 1996, the court granted defendants' respective motions to dismiss. It is from that order that Blackburn now appeals. For the reasons discussed below, we affirm in part and reverse in part.
We find the following issues dispositive on appeal:
1. Did the District Court err in concluding the applicable statute of limitations 2. Did the District Court err in concluding the applicable statute of limitations barred Blackburn's claims for assault and battery?
barred Blackburn's claims for negligence and medical malpractice?
3. Did the District Court err in concluding that Blackburn's 42 U.S.C. § 1983 civil rights claim is barred by the applicable statute of limitations and fails as a matter of law?
4. Did the District Court err in dismissing Blackburn's claims brought on behalf of her aborted fetus?
Blackburn filed her original complaint in this matter on November 29, 1995. On December 29, 1995, Blackburn filed her first amended complaint. It is from Blackburn's amended complaint that this Court takes as true the following allegations of fact.
Blackburn became pregnant in 1989 and learned soon thereafter that the father was HIV positive. Blackburn subsequently tested negative for HIV. Jan Cossel is a registered nurse employed by the City and County of Butte-Silver Bow who administered Blackburn's HIV test. In so doing, Cossel allegedly advised Blackburn that, despite her HIV negative status, she would die within a few years and that her baby had a 50 percent chance of being born HIV positive and would likely die within two years. Cossel and another nurse allegedly urged Blackburn to have an abortion and made an appointment for her at the Blue Mountain Clinic in Missoula.
When Blackburn arrived at the Blue Mountain Clinic for her abortion, she informed a counselor at the clinic that she had tested negative for HIV, but that the father had tested positive. The counselor told Blackburn that, prior to proceeding with the abortion, Blue Mountain would require written proof of Blackburn's HIV-negative status. Cossel provided Blackburn with the requisite written statement, which Blackburn in turn gave to the clinic counselor.
Prior to the procedure, Blackburn told the Blue Mountain Clinic counselor that she was seeking an abortion only because she feared her baby would be born HIV positive. Blackburn claims neither the counselor, nor any nurse or doctor with whom Blackburn spoke at any time prior to her abortion, explained to Blackburn that an HIV negative mother could not deliver an HIV positive baby. In addition, Blackburn alleges, no one discussed with her any of the risks associated with the abortion procedure.
Accordingly, on January 20, 1990, Blackburn underwent an abortion at the Blue Mountain Clinic. Blackburn was discharged from the clinic soon after the procedure, but she experienced continued bleeding and cramping in the days following. Two days after the abortion, Blackburn called the Blue Mountain Clinic and spoke with the counselor who had advised her prior to the abortion and who now assured Blackburn her bleeding would stop and called in a prescription for her. On January 24, 1990, Blackburn twice visited the emergency room at St. James Hospital in Butte with complaints of continued bleeding and cramping. On January 25, 1990, Blackburn returned to the Blue Mountain Clinic and was examined by the same counselor, who advised Blackburn her condition was normal and provided her with another prescription.
Blackburn became depressed following the abortion and entered counseling in 1990. In March 1990, Blackburn was hospitalized for more than two weeks due to an emotional condition which resulted from the abortion. In 1993, Blackburn's counselor referred her to Dr. Richard Moore, who determined she had been suffering from anxiety and depression and prescribed anti-depressants which Blackburn continues to take. Blackburn alleges that she is now dependent upon anti-depressants, and suffers from claustrophobia, agoraphobia, anxiety, and depression.
Blackburn first consulted with an attorney in March 1995, at which point she learned that an HIV negative mother cannot give birth to an HIV positive baby. Blackburn contends that it was not until she realized that her baby would not have been born with HIV that she first learned she had been legally injured and had a cause of action. Accordingly, on November 29, 1995, Blackburn filed suit in her own name, as well as on behalf of the unborn fetus, against the named defendants in this case. Blackburn's first amended complaint, filed on December 29, 1995, alleges claims for negligence, medical negligence, assault and battery, and civil rights violations against various defendants.
On December 19, 1995, Blue Mountain Clinic, Inc., incorrectly identified in Blackburn's complaint as the Blue Mountain Women's Clinic, filed a motion to dismiss the complaint in this case pursuant to Rule 12(b)(6), M.R.Civ.P. In her complaint, Blackburn uses the fictitious name of John Roe, M.D., to identify as an additional defendant the physician who performed the abortion, and the fictitious name of Jane Doe, to identify the counselor at the Blue Mountain Clinic with whom Blackburn had repeated contact. Blackburn has not further identified or served either of these fictitiously named defendants, instead apparently alleging the Blue Mountain Clinic is vicariously liable for their conduct pursuant to the theory of respondeat superior. Accordingly, Blue Mountain Clinic moved to dismiss Blackburn's complaint insofar as the allegations contained within it additionally pertained to the doctor and counselor.
On December 21, 1995, Butte-Silver Bow County Health Department (BSB Health Department), incorrectly identified in Blackburn's complaint as the Family Planning Center of Butte-Silver Bow Unified Government, and Cossel, incorrectly identified by the complaint as Jan D., filed a similar motion to dismiss pursuant to Rule 12(b)(6), M.R.Civ.P. In her complaint, Blackburn also names as a defendant Terri Doe, R.N., the second nurse employed by the City and County of Butte-Silver Bow who allegedly advised Blackburn to obtain an abortion and helped make arrangements at the Blue Mountain Clinic in Missoula. Blackburn did not subsequently identify or serve Terri Doe, whose true identity remains unknown. As she does with respect to Blue Mountain, Blackburn apparently alleges vicarious liability on the part of the BSB Health Department for the conduct of its employees.
On December 22, 1995, Sidney Pratt, M.D., filed a motion to dismiss pursuant to Rule 12(b)(6), M.R.Civ.P., and on December 28, 1995, the Department of Public Health and Human Services (DPHHS) filed a similar motion to dismiss. Blackburn also lists the apparently deceased director of DPHHS as a defendant, but does not identify him by name.
On December 29, 1995, Blackburn filed her first amended complaint. Defendants Blue Mountain Clinic, DPHHS, Dr. Pratt, BSB Health Department, and Cossel similarly moved to dismiss Blackburn's amended complaint. On June 12, 1996, the District Court issued an order granting defendants' respective motions to dismiss Blackburn's complaint in its entirety. It is from that order that Blackburn now appeals.
We review de novo a district court's ruling on a motion to dismiss under Rule 12(b)(6), M.R.Civ.P. Gerber v. Commissioner of Ins. of State of Montana (1990), 242 Mont. 369, 370, 786 P.2d 1199, 1200 (citing Koppen v. Board of Medical Examiners (1988), 233 Mont. 214, 217, 759 P.2d 173, 175). This Court reviews an appeal from...
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