Cobb v. Saltiel

• Decision Date: 19 May 2009
• Docket Number: No. DA 08-0415.,DA 08-0415.
• Parties: Dorothy COBB for the Estate of Lowell Cobb, and Dorothy Cobb, an Individual, Plaintiff and Appellant, v. Doreen SALTIEL, M.D., Defendant and Appellee.
• Court: Montana Supreme Court

210 P.3d 138

2009 MT 171

350 Mont. 501

Dorothy COBB for the Estate of Lowell Cobb, and Dorothy Cobb, an Individual, Plaintiff and Appellant, v. Doreen SALTIEL, M.D., Defendant and Appellee.

No. DA 08-0415.

Supreme Court of Montana.

Submitted on Briefs April 8, 2009.

Decided May 19, 2009.

Rehearing Denied June 24, 2009.

For Appellant: James P. O'Brien, Attorney at Law, Missoula, Montana.

For Appellee: John D. Alexander and Cathy J. Lewis, Ugrin, Alexander, Zadick & Higgins, Great Falls, Montana.

Justice BRIAN MORRIS delivered the Opinion of the Court.

¶ 1 Dorothy Cobb (Cobb) appeals from an order of the Eighth Judicial District Court, Cascade County, that granted summary judgment in favor of Doreen Saltiel, M.D. (Dr. Saltiel). We affirm.

¶ 2 Cobb presents the following issue on appeal:

¶ 3 Whether Cobb timely filed her malpractice claim against Dr. Saltiel.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 4 Lowell Cobb's (Lowell) internist referred him to Michael N. Murphy, M.D. (Dr. Murphy) for treatment of his hypertension and renal insufficiency. Lowell met with Dr. Murphy on November 12, 1999. Dr. Murphy noted that Lowell also suffered from Type 1 diabetes, hypothyroidism, peripheral vascular disease, and coronary artery disease. Lowell had not controlled many of these diseases properly over the years. Dr. Murphy started Lowell on dialysis for end-state renal disease secondary to diabetic nephropathy. Dr. Murphy later placed Lowell on a kidney transplant list.

¶ 5 Lowell complained to Dr. Murphy on November 29, 2000, of an episode of crushing chest pain. Dr. Murphy referred Lowell to Dr. Saltiel, a board-certified interventional cardiologist. Dr. Saltiel met with Lowell and Cobb on December 7, 2000. Dr. Saltiel performed a complete physical exam. She also recorded Lowell's medical and social history.

¶ 6 Dr. Saltiel determined that Lowell would be a good candidate for a cardiac catheterization. A cardiac catheterization would determine the condition of Lowell's heart. Dr. Saltiel discussed the risks of the procedure with Lowell and Cobb. She explained that the risks included myocardial infarction, stroke, death, arrhythmia, bleeding, vascular compromise, and infection.

¶ 7 Cobb, Lowell's power of attorney, signed the consent for the procedure. Cobb testified in her deposition that she had a chance to read the consent and freely signed after having read it. Cobb later testified that she remained unaware, however, that the procedure involved risks.

¶ 8 Dr. Saltiel performed the cardiac catheterization on December 13, 2000. The procedure revealed that Lowell had considerable coronary artery disease in the left anterior descending artery. Dr. Saltiel estimated that Lowell's artery contained an 80% blockage.

¶ 9 Dr. Saltiel, after extensive discussion, informed Lowell and Cobb that she could perform either a rotational atherectomy with intracoronary stenting or a cardiac bypass graft. Dr. Saltiel proceeded with the rotational atherectomy and intracoronary stenting later that same day. Dr. Saltiel made certain that Brett Williams, M.D. (Dr. Williams), a heart surgeon, would be available to provide backup during the procedure. Dr. Saltiel informed Lowell and Cobb of Dr. Williams's availability.

¶ 10 Dr. Saltiel performed the procedure without incident until she attempted to deploy the second stent. The calcification in the artery required Dr. Saltiel to increase the balloon pressure. Dr. Saltiel successfully deployed the stent, but in doing so loose plaque perforated the left anterior descending artery. Dr. Saltiel immediately alerted Dr. Williams of the need to perform a coronary bypass arterial graft. Dr. Saltiel informed Cobb about the perforation and the fact that she had called on Dr. Williams.

¶ 11 Lowell survived the surgery to repair the artery. Dr. Williams cared for Lowell after the surgery. Lowell initially stabilized, but he began to become agitated the next day. Lowell died at 9:20 p.m. on December 14, 2000. The autopsy confirmed that Lowell had died of a myocardial infarction.

¶ 12 The Montana Medical Legal Panel (MMLP) received Cobb's handwritten allegations on November 5, 2003. Cobb failed to submit a formal application or a consent form. MMLP could not access confidential health care records without these forms. MMLP requested that Cobb provide the appropriate consent forms in a letter to Cobb's counsel, James P. O'Brien (O'Brien), on November 6, 2003.

¶ 13 MMLP received a consent form from Cobb on November 19, 2003. The consent form did not include the patient's name or the names of the patient's health care providers. Cobb signed the consent form as the "patient/claimant" and did not explain her capacity in signing. MMLP sent a fax to O'Brien on November 24, 2003, in which it requested a formal application and identification of the health care providers who provided care for the patient. Cobb provided a partially completed application to MMLP on November 25, 2003. The partially completed application failed to designate the health care providers.

¶ 14 MMLP did not receive any additional information concerning Cobb's claim until MMLP wrote to O'Brien on March 12, 2004. MMLP once again asked O'Brien to provide consent forms for the relevant health care providers. O'Brien called MMLP on March 22, 2004, to indicate that he had no idea that MMLP had been holding an incomplete claim. O'Brien claimed that he simply assumed that MMLP had been too busy to forward the claim.

¶ 15 MMLP received a consent form that addressed the records from only one of Lowell's health care providers on March 25, 2004. The consent form did not designate other health care providers who cared for the patient relative to the conduct alleged in the claim. MMLP called O'Brien on March 26, 2004, to ask for a complete listing of pertinent health care providers. MMLP received the full listing of Lowell's health care providers and consents to obtain access to the health care records on April 1, 2004. Cobb finally completed her claim at that point.

¶ 16 MMLP transmitted the claim to Dr. Saltiel on April 23, 2004. MMLP heard the claim and rendered a decision on August 12, 2004. MMLP mailed its decision to the parties on August 12, 2004. MMLP deemed service complete on August 18, 2004, to allow three business days for mailing and to account for an intervening weekend.

¶ 17 Cobb filed her suit against Dr. Saltiel on May 16, 2005. Dr. Saltiel responded by filing a motion for summary judgment. Dr. Saltiel argued that the three-year statute of limitations for medical malpractice claims in § 27-2-205, MCA, barred Cobb's claim. Dr. Saltiel pointed to several facts to support her motion. Cobb knew about the perforation when it happened and that the perforation required bypass surgery to repair it. Cobb admitted that she believed that the perforation constituted malpractice at the time of Lowell's death. Cobb further admitted that she had contemplated a lawsuit within a month or two of Lowell's death. In fact, Cobb conceded that she had contacted a lawyer for the first time about a possible malpractice action in January or February of 2001. Cobb acknowledged that she learned nothing new from the time of Lowell's death until the time she first had contacted a lawyer about a possible malpractice action.

¶ 18 Cobb resisted Dr. Saltiel's motion on the grounds that Dr. Saltiel had failed to disclose to her acts, errors, and omissions. Cobb argued that Lowell's injuries "were well beyond the understanding of the lay person." She asserted that Dr. Saltiel's concealed acts were sufficiently material to her claim that the court should toll the statute of limitations. Cobb further alleged that Dr. Saltiel had continued to treat Lowell after his operation and had concealed this treatment. Cobb finally argued that Dr. Saltiel's extended absence from Montana prevented her from serving Dr. Saltiel with a summons and complaint. Cobb claimed that Dr. Saltiel's absence from Montana tolled the running of the statute of limitations.

¶ 19 The District Court rejected Cobb's claim that Dr. Saltiel fraudulently had concealed Lowell's injury. The District Court further determined that Cobb had "discovered" Lowell's injury at the time of his death. Cobb knew at the time of Lowell's death that something had gone wrong. The court determined that this knowledge triggered the running of the three-year statute of limitations in § 27-2-205(1), MCA. The court opined that the running of the statute of limitations did not require that a lay person understand the exact nature of the malpractice. The court thus concluded that the statute of limitations had begun to run no later than December 15, 2000, the day after Lowell's death.

¶ 20 The court also rejected Cobb's argument that Dr. Saltiel's absence from Montana tolled the statute of limitations pursuant to § 27-2-402, MCA. The court looked to M.R. Civ. P. 4 D(3). M.R. Civ. P. 4 D(3) provides the same force and effect of service of a summons and complaint outside of Montana as though service had been perfected in Montana. The court determined that Cobb had a legal mechanism available to serve Dr. Saltiel. The court further determined that Cobb had failed to raise material facts to show that she could not serve Dr. Saltiel while she was out of Montana and thus had failed to establish that the tolling provision in § 27-2-402, MCA, should apply. The court concluded that the three-year statute of limitations in § 27-2-205(1), MCA, barred Cobb's claims. Cobb appeals.

STANDARD OF REVIEW

¶ 21 We review de novo a district court's grant of summary judgment based on the same criteria applied by the district court. Hopkins v. Superior Metal Workings Systems, L.L.C., 2009 MT 48, ¶ 5, 349 Mont. 292, 203 P.3d 803. The moving party must establish the absence of genuine issues of material fact and entitlement to judgment as a matter of law. Hopkins, ¶ 5. The opposing party must raise a genuine issue of material fact to...