Fabio v. Bellomo

• Citation: 504 N.W.2d 758
• Decision Date: 20 August 1993
• Docket Number: No. C6-91-2542,C6-91-2542
• Parties: Delores FABIO, petitioner, Appellant, v. James BELLOMO, M.D., Respondent.
• Court: Supreme Court of Minnesota (US)

Page 758

504 N.W.2d 758

Delores FABIO, petitioner, Appellant, v. James BELLOMO, M.D., Respondent.

No. C6-91-2542.

Supreme Court of Minnesota.

Aug. 20, 1993.

Syllabus by the Court

1. Whether to grant a motion to amend a complaint is committed to the discretion of the trial court and the trial court's determination will not be overturned absent an abuse of that discretion.

2. The statute of limitations barred a claim for medical malpractice for failing to diagnose a cancerous condition because the alleged failure to diagnose occurred more than two years before a complaint was filed and was not part of a continuing course of treatment. Minn.Stat. Sec. 541.07(1) (1992).

3. Because the statute of limitations barred the claim which appellant sought to amend to her complaint, the trial court did not abuse its discretion by denying the motion to amend the complaint.

4. Summary judgment against appellant was appropriate when appellant failed to present sufficient proof of causation and damages.

Peter J. Krieser, Susan F.K. Bieniek, Minneapolis, for appellant.

Phillip A. Cole, Kay Nord Hunt, Minneapolis, for respondent.

Terry L. Wade, Anne Workman, St. Paul, for amicus curiae Minnesota Trial Lawyer's Assoc.

Suzanne M. Veenhuis, Minneapolis, for amicus curiae, Minnesota Medical Assoc.

Heard, considered, and decided by the court en banc.

TOMLJANOVICH, Justice.

This case arises upon the affirmance by the Minnesota Court of Appeals of a dismissal of appellant's complaint by Ramsey County District Court. We affirm.

Respondent Dr. James Bellomo was the primary care physician for Appellant Delores Fabio from 1977 until he retired in 1986. Fabio alleges that on at least two occasions during this period Dr. Bellomo noticed a lump in her left breast, but told her not to worry about it because it was a "fibrous mass." These visits occurred once between 1982 and 1984, and on March 10, 1986. Each time Dr. Bellomo allegedly noticed this mass, Fabio had gone to see him for an unrelated ailment.

After Dr. Bellomo's retirement, Fabio went to Dr. Keith Chilgren, complaining of ailments unrelated to breast cancer. During the course of Dr. Chilgren's examination, he noticed the lump in Fabio's breast and ordered that a mammogram be performed on her. The mammogram showed two 2-centimeter tumors. A biopsy determined that the mass was cancerous, and that the cancer had metastasized to four lymph nodes. The tumor was subsequently excised, and Fabio underwent chemotherapy treatment.

Fabio then sued Dr. Bellomo, alleging that he committed medical malpractice when he failed to palpate the lump or order a mammogram when he noticed it on March 10, 1986. Prior to trial, Fabio sought to amend her complaint to include charges of malpractice against Dr. Bellomo for failing to properly treat her when he previously noticed the lump between 1982 and 1984. Fabio offered the testimony of Dr. Chilgren that a reasonably careful physician, under similar circumstances, would have ordered a mammogram.

She also offered her oncologist, Dr. Caldwell, as an expert witness to establish causation and damages. If allowed to testify, Dr. Caldwell would give his opinion, to a reasonable degree of medical certainty, that it is more probable than not that Fabio's cancer spread from her breast tumor to the lymph nodes between 1984 and 1987. Dr. Caldwell would also testify that, in his opinion and to a reasonable degree of medical certainty, that it is more probable than not that additional lymph nodes became involved between March 10, 1986, the date of the last examination by Dr. Bellomo, and June 1, 1987, when Fabio saw Dr. Chilgren.

Fabio argued three forms of damage: First, she argued that the delay in treatment resulting from Dr. Bellomo's failure to diagnose her cancer caused her to undergo chemotherapy; second, that the delay resulted in a "loss of chance" of life expectancy and a greater risk of recurrence of cancer; third, that the delay negligently aggravated her preexisting cancerous condition.

After briefs were submitted and depositions taken, the trial court dismissed Fabio's complaint at a pre-trial conference. The trial court ruled, as a matter of law, that no cause of action existed for loss of chance or negligent aggravation of a preexisting condition. The trial court also dismissed her motion to amend her complaint, ruling that any malpractice occurring in the examinations during 1982-1984 was barred by the statute of limitations. Minn.Stat. Sec. 541.07(1) (1992). These rulings were affirmed by the court of appeals 489 N.W.2d 241.

Essentially, two issues are before this court. First, we must determine whether the trial court abused its discretion by denying Fabio's motion to amend her complaint to allege malpractice against Dr. Bellomo between 1982 and 1984. Second, we must determine whether Fabio has put forth sufficient evidence of causation and damages against Dr. Bellomo for his alleged malpractice.

When the trial court granted Dr. Bellomo's motion to dismiss, it considered matters outside the pleadings, e.g., the deposition of Dr. Caldwell, Fabio's oncologist. When matters outside the pleadings are presented to a court considering a motion to dismiss, and those external matters are not excluded by the court when it makes its determination, the motion to dismiss shall be treated as one for summary judgment. Minn.R.Civ.P. 12.02.

A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law. Minn.R.Civ.P. 56.03. On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted. Abdallah, Inc. v. Martin, 242 Minn. 416, 424, 65 N.W.2d 641, 646 (1954). For purposes of this case, therefore, we must accept as true the factual allegations made by Fabio.

Fabio argues that the trial court erred by not granting her motion to amend her complaint. A party may amend a pleading by leave of court, and amendments should be freely granted, except where to do so would result in prejudice to the other party. Minn.R.Civ.P. 15.01; Hughes v. Micka, 269 Minn. 268, 275, 130 N.W.2d 505, 510 (1964). The trial court has wide discretion to grant or deny an amendment, and its action will not be reversed absent a clear abuse of discretion. LaSalle Cartage & Johnson Brothers Wholesale Liquor, 302 Minn. 351, 357-58, 225 N.W.2d 233, 237-38 (1974).

The trial court denied Fabio's motion to amend because it found that "the proffered allegation of negligence in 1984 shows that Defendant's 'treatment' of Plaintiff * * * was terminated upon the Defendant's determination that Plaintiff had no condition of her breasts requiring further treatment on his part." Because it found that there was no continuing course of treatment, the trial court denied Fabio's motion to amend her complaint as barred by the statute of limitations. Whether the trial court abused its discretion by denying the amendment, therefore, turns on whether it was correct that there was no continuing course of treatment.

An action for medical malpractice is barred if not commenced within two years of the date on which the cause of action accrued. Minn.Stat. Sec. 541.07(1). Generally, the cause of action accrues when the physician's treatment for the particular condition ceases. Johnson v. Winthrop Laboratories Division of Sterling Drug, Inc., 291 Minn. 145, 149, 190 N.W.2d 77, 80 (1971); Schmit v. Esser, 183 Minn. 354, 358, 236 N.W. 622, 624-25 (1931). The statute of limitations will be extended when a doctor's negligence is part of a continuing course of treatment, such as when a doctor consistently fails to properly treat a fracture.

When Dr. Bellomo examined Fabio's breast between 1982 and 1984, he did not recommend any further treatment. His treatment of her condition ceased at the time he told her not to worry about it. We therefore hold that the trial court was correct to rule that Dr. Bellomo's examinations of Fabio's breast that occurred between 1982 and 1984 are barred by the statute of limitations, because these examinations were not part of a continuing course of treatment. Because these examinations were barred by the statute of limitations, we also hold that the trial court did not abuse its discretion by denying Fabio's motion to amend her complaint. Absent the amendment, therefore, Fabio may recover in medical malpractice from Dr. Bellomo only if she can prove damages attributable to his failure to diagnose her breast cancer in 1986.

To establish a prima facie case of medical malpractice, a plaintiff must introduce expert testimony demonstrating (1) the standard of care recognized by the medical community as applicable to the particular defendant, (2) that the defendant departed from that standard, and (3) that the defendant's departure was a direct cause of the plaintiff's injuries. Plutshack v. University of Minnesota Hospitals, 316 N.W.2d 1, 5 (Minn.1982). In this case, Fabio has offered evidence by Dr. Chilgren that a reasonably careful physician would have ordered a mammogram upon feeling a lump like that described by Fabio. His testimony would establish the standard of care and show Dr. Bellomo's breach of that standard. Fabio may recover from Dr. Bellomo, therefore, if she can show that his failure to order a mammogram was a direct cause of her damages.

To make out a prima facie case of causation in medical malpractice against Dr. Bellomo, Fabio must present expert testimony that establishes that it is more probable than not that damages resulted from his malpractice. Harvey v. Fridley Medical Center, 315 N.W.2d 225, 227 (Minn.1982). Fabio argues that Dr. Bellomo's negligence caused her to suffer three forms of damages: chemotherapy, "loss of chance," and "negligent aggravation of a...