Collins v. Wilson

Decision Date04 June 1999
Docket NumberNo. 970257.,970257.
Citation1999 UT 56,984 P.2d 960
PartiesSteven COLLINS, Plaintiff and Appellant, v. Merrill L. WILSON, M.D., and LDS Hospital, a division of Intermountain Health Care, Inc., Defendants and Appellee.
CourtUtah Supreme Court

John L. Black, Sr., John L. Black, Jr., Salt Lake City, for plaintiff

David H. Epperson, Jaryl L. Rencher, Stephen W. Owens, Salt Lake City, for Merrill L. Wilson, M.D.

HOWE, Chief Justice:

¶1 Plaintiff Steven Collins appeals from a judgment entered pursuant to a jury verdict against him and in favor of defendant Merrill L. Wilson, M.D., in a medical malpractice action arising out of an abdominal surgery.

BACKGROUND

¶2 Collins initially sought treatment from Dr. Wilson, a general surgeon, on February 2, 1988, on the referral of an ear, nose, and throat specialist for the treatment and eventual surgical removal of enlarged lymph nodes from Collins' neck. At that time, as part of a comprehensive medical history and physical examination, Collins reported suffering frequent recurrent nausea and vomiting. Collins' digestive complaints steadily worsened; in September of 1988, Dr. Wilson referred Collins to Dr. John H. Bowers, a gastroenterologist. Dr. Bowers performed an esophagogastroduodenoscopy ("EGD")1 on Collins; during this EGD, Dr. Bowers found numerous ulcerations and erosions in Collins' stomach lining which Dr. Bowers attributed to acid secretion.

¶3 As a result of these EGD findings, and a history suggesting Collins had a possible genetic predisposition to ulcer disease, Dr. Bowers followed a conservative treatment plan using an acid blocker and avoiding substances likely to irritate the stomach, such as aspirin, ibuprofen, and caffeine. Dr. Bowers also advised Collins to quit smoking. This treatment plan failed to produce favorable results and Collins' digestive problems became more serious, including increased vomiting, vomiting blood-streaked material, heartburn, and nocturnal dyspnea.2 After an endoscopic procedure in March 1989, Dr. Bowers recommended that Collins return to Dr. Wilson for a hiatal hernia surgical repair and a vagotomy.3 ¶4 Prior to his surgery on May 11, 1989, Collins signed an "authorization and consent" form. The form stated that Dr. Wilson planned to perform a "repair of hiatus hernia, antrectomy,4 [and] vagotomy"; by signing the form, Collins also consented to "additional or different procedures" as required in Dr. Wilson's professional judgment by any unforeseen conditions. During the surgery at LDS Hospital in Salt Lake City, Dr. Wilson determined that the hiatal hernia surgery was not necessary, but that a truncal vagotomy5 and antrectomy, as predicted, were necessary and performed the procedures accordingly. Following the surgery, Dr. Wilson reported to Mrs. Collins "that everything went well [with] no complications." He further informed her that he "found no evidence of [a hiatal hernia], and therefore ... did not need to do it, but that [he] went ahead and did the antrectomy and vagotomy as previously discussed."

¶5 Post-operatively, Collins experienced multiple serious and severe complications, including abdominal abscesses and additional digestive problems. For eighteen months following the surgery, from August 1989 to March 1991, Dr. Wilson was not actively involved in treating Collins; his assistance was limited to authorizing prescription refills. During this period, Collins instead saw two gastroenterology specialists for treatment of his continuing digestive problems. These specialists, Dr. William Hutson and Dr. Terry Box, diagnosed Collins with motility6 problems, specifically chronic idiopathic intestinal pseudo-obstruction of the neurogenic type.7 In various consultations in 1989 and 1990, both doctors discussed with Collins the possible relationship between his continuing problems and Dr. Wilson's surgery. For example, Collins contacted Dr. Hutson on or shortly after September 25, 1990, and asked if "something [was] done wrong during [Dr. Wilson's] surgery?" to which Dr. Hutson replied that "the surgery probably had something to do with his whole condition."

¶6 On March 24, 1993, after discussing the case with attorneys and looking over medical records from his surgery and subsequent care, Collins filed a notice of intent to commence a malpractice action against Dr. Wilson and LDS Hospital. In his notice of intent, Collins asserted several instances of malpractice. Specifically, he alleged that Dr. Wilson and the staff of LDS Hospital (1) performed surgical procedures (the antrectomy and vagotomy) to which Collins had not given an informed consent; (2) performed the allegedly unauthorized procedures in a negligent manner; (3) falsified Collins' consent form post-operatively to make it appear he had consented to the procedures; and (4) misrepresented the necessary treatment and the treatments they rendered.

¶7 On September 16, 1994, following Collins' deposition, both Dr. Wilson and LDS Hospital moved for summary judgment, asserting that Collins had failed to comply with section 78-14-4 of the Utah Code, which dictates in pertinent part:

No malpractice action against a health care provider may be brought unless it is commenced within two years after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered the injury, whichever first occurs, but not to exceed four years after the date of the alleged act, omission, neglect or occurrence....

Utah Code Ann. § 78-14-4(1) (1996). The district court denied both defendants' motions. Dr. Wilson subsequently moved for a bifurcated trial pursuant to Utah Code Ann. § 78-12-47 (1996).8

¶8 The trial court granted the motion, and accordingly, a three-day jury trial on the applicability of the statute of limitations was held on July 25-27, 1995, resulting in a unanimous verdict for Dr. Wilson and LDS Hospital. The jury found that Collins discovered or should have discovered his injury prior to March 24, 1991—more than two years prior to filing a notice of intent to commence the malpractice action. Following the verdict, Collins moved for a judgment notwithstanding the verdict—citing a "lack of substantial evidence to support the jury verdict"—or, alternatively, for a new trial. The court rejected the motion for judgment notwithstanding the verdict ("j.n.o.v.") and denied Collins' motion for a new trial as to LDS Hospital. However, the court granted a new trial as to Dr. Wilson on the ground that Collins had discovered new evidence.

¶9 The second trial on the statute of limitations issue began on February 24, 1997. Immediately prior to trial, Collins changed his theory of the case, conceding that it was possible the procedures performed were properly listed on the consent form, thereby doing away with his "fraudulent alteration" allegation. Following four days of trial, the second jury returned a verdict for Dr. Wilson, finding that Collins discovered or should have discovered the injury prior to March 24, 1991. Collins again moved for j.n.o.v., once again arguing the "fact that there is an absence of any substantial evidence to support the Jury Verdict and Judgment ... that [he] had discovered or should have discovered his legal injury prior to March 24, 1991." The district court denied this second motion for j.n.o.v. Collins appeals from the judgment in favor of Dr. Wilson, contending that the trial court erred in (1) refusing to instruct the jury on the "continuous treatment" rule, (2) denying Collins' motion for judgment notwithstanding the verdict, and (3) refusing to use a special verdict form.

ANALYSIS
I. TRIAL COURT'S REFUSAL TO GIVE PROPOSED JURY INSTRUCTION

¶10 Collins first contends that the trial court erred in its refusal to give his proposed jury instruction addressing the "continuous treatment" rule. The proposed instruction reads as follows:

If the treatment of the physician is a continuing course and the patient's illness, injury or condition is of such a nature as to impose on the doctor a duty of continuing treatment and care, the statute of limitations does not commence running until treatment by the doctor has terminated, unless during treatment the plaintiff learns or should have learned of the malpractice, in which case the statute runs from the time of discovery.

See also 1 David W. Louisell & Harold Williams, Medical Malpractice ¶ 13.02(3) at 13-43 to -45 (defining rule in similar terms). In sum, this rule would allow the statute of limitations to begin running only after the termination of treatment by the doctor for the particular disease or condition involved. If the patient learns of the negligence during the time of treatment, however, the discovery rule applies and the statute of limitations begins to run accordingly. Under this rule, the applicable statute of limitations is tolled in part because the trust inherent in a doctor-patient relationship may inhibit a patient's ability to discover acts that amount to malpractice. See Haberle v. Buchwald, 480 N.W.2d 351, 354 (Minn.Ct.App.1992) (finding need for continuous treatment rule because trust-based relationship may inhibit patient's ability to discover malpractice); Miller v. United States, 932 F.2d 301, 304 (4th Cir.1991) (holding that discovery rule may deprive patient of right to place trust and confidence in physician). ¶11 In his brief, Collins has correctly noted that Utah courts have not yet considered the continuous treatment rule.9 The time may come when a Utah appellate court must examine this rule in depth. However, we need not do so today.

¶12 Even assuming that we recognized the continuous treatment rule, the facts of this case would not satisfy the rule's requirements. The post-surgery interaction between Dr. Wilson and Collins was minimal. For an eighteen-month period, Dr. Wilson was not actively involved in treating Collins except to authorize prescription refills. Merely continuing to authorize prescription refills is in no way...

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