Campbell v. Stafford, 10–110.

• Docket Nº: No. 10–110.
• Citation: 15 A.3d 126, 2011 VT 11
• Case Date: January 27, 2011
• Court: United States State Supreme Court of Vermont

15 A.3d 126
2011 VT 11

Cora CAMPBELL
v.
Dale D. STAFFORD, M.D. and Fletcher Allen Health Care, Inc.

No. 10–110.

Supreme Court of Vermont.

Jan. 27, 2011.

[15 A.3d 128]

Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.

ENTRY ORDER

¶ 1. Plaintiff Cora Campbell appeals the trial court's denial of her motion for reconsideration and motion to amend. We affirm.

¶ 2. The relevant facts are not in dispute. This case arises from the treatment of plaintiff's thyroid by defendant Dale Stafford, M.D. Doctor Stafford has long been a family practitioner at Berlin Family Health, which is owned by defendant Fletcher Allen Health Care (FAHC). From 1989 until 2004, Dr. Stafford provided treatment for plaintiff as her primary care physician. Following a 1991 motor vehicle collision, plaintiff sought treatment from Dr. Stafford for neck and back injuries. In the process of treating these injuries, Dr. Stafford received an x-ray report showing that plaintiff had an enlarged thyroid. After referral to an endocrinologist and the performance of several additional tests, including an ultrasound and a fine needle biopsy, plaintiff was diagnosed in 1992 with a benign enlargement of the thyroid consistent with a common goiter. The endocrinologist recommended another ultrasound in six months to assess any enlargement of the goiter.

¶ 3. Plaintiff saw Dr. Stafford on a number of occasions between 1992 and 2004. From August 1992 until April 1995, neither Dr. Stafford nor any FAHC staff recommended any further treatment plan to evaluate plaintiff's thyroid. In April 1995, Dr. Stafford performed thyroid function blood tests that returned normal results. Following a visit in October 2001, Dr. Stafford noted the continued presence of the enlarged thyroid and wrote that plaintiff had “[n]o desire for cancer screening studies or examinations.” In March 2004, after a new x-ray showed an increased mass, Dr. Stafford noted that plaintiff “continues to decline mammogram or other cancer screening intervention.”

¶ 4. Following another visit on October 4, 2004, Dr. Stafford noted that there “could be some other neck mass unrelated to the thyroid,” and ordered a set of thyroid laboratory tests and an ultrasound of plaintiff's thyroid. The ultrasound was ultimately performed on October 6 and revealed a nonuniform mass with six solid nodules on the right side of plaintiff's neck. A November 1, 2004, fine needle biopsy confirmed the presence of “papillarythyroid carcinoma” or thyroid cancer. On December 7, 2004, plaintiff underwent a total thyroidectomy or removal of her thyroid. During this surgery, her left vocal cord was damaged.

¶ 5. On October 16, 2007, plaintiff filed suit, alleging that Dr. Stafford failed to adequately diagnose and treat her thyroid cancer. She claimed medical malpractice under 12 V.S.A. § 1908, which sets out the elements of that tort. She alleged that the late discovery of her cancer resulted in more invasive surgery, prolonged hospitalizations, permanent physical disabilities, mental anguish, extreme financial expense, loss of enjoyment of life, and probably a significant reduction in her life expectancy. She also alleged that FAHC was responsible as Dr. Stafford's employer.

¶ 6. Following their answer to plaintiff's complaint, defendants moved for summary judgment on June 1, 2009. This motion claimed that the medical malpractice three-year statute of limitations in 12 V.S.A. § 521 barred plaintiff's October 16, 2007, complaint because Dr. Stafford's last act of alleged negligence occurred prior to October 4, 2004, the date on which he ordered additional tests and an updated ultrasound. Defendants' motion was accompanied,

[15 A.3d 129]

pursuant to Vermont Rule of Civil Procedure 56(c)(2), by a statement of undisputed facts, which were based on the factual allegations in plaintiff's complaint.

¶ 7. Prior to a decision on defendants' summary judgment motion, plaintiff filed the following documents on August 6, 2009:(1) a reply memorandum opposing defendants' motion for summary judgment, including a V.R.C.P. 15(a) motion to amend her complaint; and (2) an amended complaint and demand for trial by jury. Plaintiff did not file a statement of undisputed facts or a response to defendants' statement. Plaintiff's amended complaint added a second count (Count II) to her original complaint, claiming that the longer statute of limitations in 12 V.S.A. § 518(a) should be applied to plaintiff's case as opposed to the statute of limitations in 12 V.S.A. § 521. Section 518(a) concerns actions “to recover for ionizing radiation injury or injury from other noxious agents medically recognized as having a prolonged latent development.”

¶ 8. On October 21, 2009, the trial court issued a decision and order granting plaintiff's motion to amend her complaint to add Count II, but granting defendants' motion for summary judgment.

¶ 9. In response to the grant of summary judgment, plaintiff filed a Rule 59(a) motion for reconsideration of the court's summary judgment order, asking the court to rule that plaintiff's original action had been timely filed under 12 V.S.A. § 518(a). Accompanying this motion was a second motion to amend plaintiff's already-amended complaint to add a new, third count (Count III). This new count alleged that plaintiff's original action was filed within the applicable period of limitations set forth in 12 V.S.A. § 521 under the common law doctrine of “continuing course of treatment.” Plaintiff argued that under this doctrine the statute of limitations did not accrue under 12 V.S.A. § 521 until the “treatment by [Dr. Stafford] ... had terminated.” Since, under the facts alleged in Count III, Dr. Stafford continued to care for plaintiff until November 22, 2004, plaintiff claimed that she had successfully filed her initial suit within the requisite three-year period. On February 10, 2010, the trial court denied plaintiff's motion for reconsideration and her motion to amend and add Count III. This appeal followed.

¶ 10. We review orders for summary judgment de novo using the same standard as the trial court. Madowitz v. Woods at Killington Owners' Ass'n, 2010 VT 37, ¶ 9, 188 Vt. ––––, 6 A.3d...