Bliss v. Stevens
| Decision Date | 27 February 1996 |
| Docket Number | No. C4-95-1821,C4-95-1821 |
| Citation | 544 N.W.2d 50 |
| Parties | Michelle D. BLISS, Appellant, v. Dr. Sheridan STEVENS, Respondent. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
1. An individual's cause of action against a surgeon for medical malpractice generally accrues on the last day the surgeon treats the individual. Evidence that a defendant surgeon has closed his office and transferred his records to another surgeon is not, by itself, sufficient to toll the statute of limitations when an individual seeks and receives further treatment from the other surgeon.
2. Delivery of the summons to the sheriff of the county in which a defendant has formerly resided satisfies Minn.R.Civ.P. 3.01 and commences a suit against the defendant if the plaintiff reasonably believes that the defendant still lives in that county.
Appeal from District Court, Hennepin County, Peter J. Lindberg, Judge.
Helen Dovolis, Edina, for appellant.
Rosalyn W. Otieno, Bloomington, for respondent.
Considered and decided by NORTON, P.J., and TOUSSAINT, C.J., and PARKER, J.
This case concerns a medical malpractice claim against respondent medical doctor. Appellant contends that the trial court erred when it summarily dismissed her suit on the ground that she failed to deliver the summons and complaint timely to the appropriate sheriff for service before the two-year statute of limitations expired. A disputed issue of fact remains whether, when she delivered the summons and complaint to the Hennepin County Sheriff, appellant reasonably believed that respondent doctor resided in Hennepin County. We reverse and remand.
Appellant Michele D. Bliss was referred to respondent Dr. Sheridan Stevens by her neurologist for back problems resulting from a motor vehicle accident. Bliss had oversized breasts, which exacerbated her back problems. On March 4, 1993, Dr. Stevens performed a bilateral breast reduction (mammaplasty) surgery on Bliss.
Bliss remained in the hospital until March 11, 1993, when she was released for office follow-up. Dr. Stevens next saw Bliss on March 17, 1993, at his office in Minneapolis. Bliss claims that she discussed with Dr. Stevens her concern about "dog ears" on her breasts resulting from the surgery. Dr. Stevens replied that they were temporary swellings. He also informed her that he was closing his office and transferring his records to Drs. Kevin Straffe and Brian Hubble at Reconstructive Cosmetic Plastic Surgery, also in Minneapolis. Dr. Stevens did not inform Bliss that she would need any further follow-up.
On March 25, 1993, Bliss stopped by Dr. Stevens's office and left him a going away gift of flowers. She learned then that Dr. Stevens was moving to "Boise, Idaho." In an undated letter to his patients, Dr. Stevens stated that he would close his office permanently on March 31, 1993. He stated: "For personal reasons, I have decided to close this office, Elliot Park Plastic Surgery, Ltd. and relocate to another state."
When Bliss's swellings did not disappear, she sought treatment with Dr. Straffe on April 19, 1993. Dr. Straffe's records state his impression:
I think that the overall result of the surgery is satisfactory with exception of very large dog ears on both sides. When I review her preoperative photographs it is very clear that she had a very significant roll out this way and Dr. Stevens stopped his excision at the lateral aspect of the ptotic portion of her breast. It would be optimum to remove these lateral extensions. Why this wasn't done at the time of surgery is something I am not aware of.
On August 19, 1994, Bliss mailed a notice-of-claim letter to Dr. Stevens. The postal service returned this letter, marked "Return to Sender." On August 25, 1994, the postal service returned another notice-of-claim letter on which it provided the forwarding address of "29 Park Ln., Minneapolis, MN 55416-4339," and a notice that the forwarding time had expired. Bliss also sent several notice-of-claim letters in August, September, and October, 1994 to the doctors who had purchased Dr. Stevens's practice, directing them to forward the claim letter to Dr. Stevens. She received no response.
On October 19, 1994, Bliss mailed a notice of claim letter to Dr. Stevens at the 29 Park Lane forwarding address she had received from the postal service. Dr. Stevens finally responded to the correspondence. A claims representative for Steven's malpractice insurance carrier then had several conversations with Bliss's attorney before Bliss brought suit. Bliss's attorney did not verify Dr. Steven's residence with the claims representative, nor did the representative offer an address.
Bliss sought the services of the Hennepin County Sheriff to serve the summons and complaint on Dr. Stevens at his 29 Park Lane address. The sheriff's department received the summons and complaint for service on March 20, 1995. After Dr. Stevens's mother refused to accept service at the Park Lane address, the sheriff's office returned a Certificate of Unserved Process to Bliss dated March 21, 1995, giving this reason for unserved process: "Moved 1 month ago to: 2829 Mansion Drive Number 505, Independence, MO 64055."
Bliss then sent the summons and complaint to the county sheriff in Missouri where Dr. Stevens had moved. The sheriff received the summons and complaint on March 23, 1995, and completed personal service on Dr. Stevens on March 27, 1995.
Dr. Stevens moved to dismiss Bliss's action for lack of service within the two-year statute of limitations for malpractice claims. The district court granted the motion.
Did the district court appropriately dismiss appellant's action on the ground that she did not deliver the summons and complaint to the appropriate sheriff for service before the statute of limitations expired?
matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided for in rule 56.
Minn.R.Civ.P. 12.03. Where a case involves a motion for judgment on the pleadings, and the court considers more than the pleadings, the appellate court reviews the district court's determination under a summary judgment standard. Carlson v. Lilyerd, 449 N.W.2d 185, 187 (Minn.App.1989), review denied (Minn. Mar. 8, 1990). Accordingly, we apply a summary judgment standard here, because the district court considered more than the pleadings when it dismissed Bliss's suit.
On appeal from a summary judgment, this court determines whether any genuine issues of material fact exist and whether the district court erred in its application of the law. Wartnick v. Moss & Barnett, 490 N.W.2d 108, 112 (Minn.1992). We must view the evidence in a light most favorable to the party against whom summary judgment was granted and resolve all doubts and factual inferences in favor of the nonmoving party. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn.1988); Nord v. Herreid, 305 N.W.2d 337, 339 (Minn.1981).
This case involves application of the statute of limitations for medical malpractice claims. A jury should decide fact questions regarding whether a statute of limitations bars a claim. Grondahl v. Bulluck, 318 N.W.2d 240, 243 (Minn.1982).
The statute of limitations provides that an individual must commence an action against a physician or surgeon for medical malpractice within two years of the date on which the cause of action accrued. Minn.Stat. § 541.07(1) (1994). A cause of action for medical malpractice generally accrues "when the physician's treatment for the particular condition ceases." Grondahl, 318 N.W.2d at 243. The supreme court has directed the court to consider three factors in determining when treatment ceases:
(1) whether there is a relationship between physician and patient with regard to the illness; (2) whether the physician is attending and examining the patient; and (3) whether there is something more to be done.
Id. (citing Schmit v. Esser, 183 Minn. 354, 358-59, 236 N.W. 622, 625 (1931)) (footnote omitted).
Bliss argues: the district court erred when it determined that no questions of material fact exist about whether the last date of treatment was Bliss's visit to the doctor who bought Dr. Stevens's practice, whether delivery of the summons and complaint to the Hennepin County Sheriff was appropriate, and whether Dr. Stevens moved out of state to evade service. We will address each argument in turn.
Bliss contends that her last day of treatment, for purposes of the statute of limitations, was her visit with Dr. Straffe on April 19, 1993. But Bliss's claim is against Dr. Stevens, who ended his treatment of her on March 17, 1993. Based on this fact, the district court determined that Bliss's cause of action against Dr. Stevens accrued on March 17, 1993. We agree.
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.
Schmit, 183 Minn. at 359, 236 N.W. at 625, quoted in Grondahl, 318 N.W.2d at 243 n. 2.
Bliss claims, however, that her treatment with Dr. Straffe was a continuation of the treatment by Dr. Stevens. But Dr. Stevens's records indicated Bliss's treatment was completed; he referred her back to her neurologist's care. Dr. Stevens's letter to his patients and Bliss's affidavit do not give an inference of referral for continued treatment to Dr. Straffe.
An issue arose at oral argument regarding the possibility of an agency relationship...
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Burruss v. Liming, File No. 27CV06-7683.
...believes that the defendant still lives in that county at the time the plaintiff forwards process to the sheriff." Bliss v. Stevens, 544 N.W.2d 50, 55 (Minn. Ct. App. 1996) (citingMcBride, 310 N.W.2d at 563), rev'd, Bliss v. Stevens, 551 N.W.2d 919 (Minn. 1996). The Minnesota Supreme Court ......
- Bliss v. Stevens, C4-95-1821