Fabio v. Bellomo

• Decision Date: 28 July 1992
• Docket Number: No. C6-91-2542,C6-91-2542
• Citation: 489 N.W.2d 241
• Parties: Delores FABIO, Appellant, v. James BELLOMO, M.D., Respondent.
• Court: Minnesota Court of Appeals

Page 241

489 N.W.2d 241

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

No. C6-91-2542.

Court of Appeals of Minnesota.

July 28, 1992.

Review Granted Sept. 30, 1992.

Syllabus by the Court

1. A patient's last day of treatment for a particular injury or malady marks the termination of treatment for that condition with the physician even though the patient may return at a later date for treatment of an unrelated condition.

2. A plaintiff must prove that the negligence of her physician more likely than not caused her injury in order to establish a prima facie case of medical malpractice.

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

Kay Nord Hunt, Philip A. Cole, Steven Theesfeld, Lommen, Nelson, Cole & Stageberg, Minneapolis, for respondent.

Considered and decided by FORSBERG, P.J., and HUSPENI, and PETERSON, JJ.

OPINION

HUSPENI, Judge.

In challenging summary judgment for respondent, appellant argues that her negligence action should not be barred because she maintained a continuous course of treatment with respondent until 1986, and that respondent's conduct was a substantial factor in the advancement of appellant's breast cancer. We affirm.

FACTS

Appellant Delores Fabio was a patient of respondent James Bellomo, M.D., from 1977 until June 27, 1986. Appellant noticed a lump in her left breast and consulted respondent about it sometime between 1982 and 1984. During that examination, respondent detected a mass but dismissed it as a "fibrous mass" and told appellant she need not worry about it.

In March 1986, appellant consulted respondent about a cervical polyp. During that exam, respondent felt the mass in appellant's breast again, but again told appellant it was a fibrous mass that she need not worry about. Although appellant had contact with other doctors (one foot doctor, one surgeon) the topic of the mass in her breast never arose and she never mentioned it.

In June 1987, appellant consulted Dr. Chilgren because she was experiencing rectal bleeding. During the exam, the doctor detected the mass in appellant's breast and scheduled her for an immediate mammogram. The mammogram showed two tumors. Appellant underwent a biopsy that revealed the two tumors were cancerous; one was three centimeters in diameter. Within a week, appellant had a modified radical mastectomy to remove her left breast and the four lymph nodes into which the cancer had metastasized. Appellant then underwent chemotherapy for nine months.

Appellant brought this medical malpractice action in March 1988 against respondent for his failure in 1986 to properly diagnose and treat appellant's breast cancer. On the day of trial, appellant moved to amend her complaint to include an action for negligence arising out of the examination that had occurred between 1982 and 1984. Respondent moved to dismiss the action alleging negligence in 1986 on the basis that appellant failed to prove causation and failed to prove any damage for which she could recover. Respondent raised a statute of limitations defense to any claims appellant raised from examination between 1982 and 1984. The parties agreed, for the purposes of the summary judgment motion, that the record would contain the pleadings, deposition testimony of appellant's medical expert on causation and damages, and appellant's deposition testimony regarding her course of treatment for purposes of determining the statute of limitations.

Dr. Caldwell, appellant's cancer specialist, provided medical expert testimony. Based upon the size of the cancer and the extent it had metastasized by the time of appellant's surgery in June 1987, Dr. Caldwell believed the mass was big enough in March 1986 that respondent could have felt it during a physical examination and that it would have shown up on a mammogram. Based upon the same indicia, Dr. Caldwell also believed the cancer could have been palpable and traceable by mammogram in 1984. Dr. Caldwell considered it more probable than not that the cancer had not spread to the lymph nodes before 1984. By March 1986, if cancer had spread to the lymphatic system, Dr. Caldwell believed probably fewer than all four lymph nodes were involved. Dr. Caldwell believed that more probably than not the cancer metastasized into the lymphatic system between March 1986 and June 1987.

With regard to appellant's prognosis, Dr. Caldwell believed appellant to have a better than 50% chance she'll survive for 20 years, and a 30% or greater chance of recurrence because the cancer had spread to four of her lymph nodes before discovery, surgery and chemotherapy. Had appellant been diagnosed and treated before the cancer metastasized, her likelihood of recurrence would probably only be 15-25%.

Based upon this record, the trial court determined that appellant's last date of treatment by respondent related to the mass in appellant's breast was in 1984 and that her negligence claim arising from that treatment was barred by the statute of limitations. On that basis the trial court denied appellant's motion to amend her complaint. With regard to the action based on respondent's 1986 negligence, the trial court found the evidence insufficient to establish a causal relationship between the delay in treatment and any harm to appellant and granted summary judgment to respondent.

ISSUES

1. Did the trial court err in applying the "last date of treatment rule" to determine the viability of appellant's negligence claim?

2. Did the trial court err in granting summary judgment for respondent based upon the conclusion that appellant had failed to establish a prima facie malpractice case?

3. Does the record on appeal include the report on breast cancer appended to respondent's brief?

ANALYSIS

1. Appellant's motion to amend the complaint

Minn.Stat. § 541.07(1) (1990) provides a two year statute of limitations for "all actions against physicians * * * for malpractice, error, mistake or failure to cure." Under Minnesota's "termination of treatment rule," the statute of limitations begins to run when a patient ceases treatment with the doctor. Schmit v. Esser, 183 Minn. 354, 358, 236 N.W. 622, 624-25 (1931); Willette v. Mayo Found., 458 N.W.2d 120, 121 (Minn.App.1990), pet. for rev. denied (Minn. Sept. 14, 1990).

Appellant argues that her "last day of treatment" with respondent occurred on March 10, 1986 when he examined her for the last time. We do not agree. In an effort to define when treatment ceases, the court has explained:

So long as the relation of physician and patient continues as to the particular injury or malady which he is employed to cure, and the physician continues to attend and examine the patient in relation thereto, and there is something more to be done by the physician in order to effect a cure, it cannot be said that the treatment has ceased. That does not mean that there must be a formal discharge of the physician or any formal termination of his employment. 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 358-59, 236 N.W. at 625.

We believe the operative words in this analysis are "particular injury or malady." Id. at 358, 236 N.W. at 625. The "particular injury or malady" at issue here was the mass in appellant's breast. She did not consult respondent about this condition after he dismissed it as a fibrous mass during the examination between 1982 and 1984; respondent did not treat, examine, or monitor this mass after the 1982-84 examination, and there was "nothing more to be done by * * * [respondent] as to the particular injury or malady which he was employed to treat" according to his diagnosis of her condition. Id. at 359, 236 N.W. at 625.

Appellant offers her March 1986 examination as proof of continuing treatment with respondent. Again, we cannot agree. The statute begins to run on the last date a patient consults her physician for a specific course of treatment, even if she returns to that physician at a later date for treatment of an unrelated condition. Murray v. Fox, 300 Minn. 373, 377-78, 220 N.W.2d 356, 359 (1974). Appellant's 1986 examination was for a routine physical prior to surgery for a cervical polyp; she was not consulting respondent about the mass in her breast at that time. Respondent noticed the mass during the examination but neither he nor appellant pursued the issue of investigating or treating it.

Appellant's first course of treatment for her breast ended with the examination that occurred sometime between 1982 and 1984, and a separate course of treatment for an unrelated condition began two years later when she consulted respondent about the cervical polyp in March 1986. See id. The trial court properly found appellant's negligence claim barred by the two year statute of limitations and properly denied her motion to amend the complaint.

2. Appellant's allegations of respondent's 1986 negligence

On appeal from summary judgment, this court must review the record to determine whether any genuine issues of material fact exist and whether the trial court erred as a matter of law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn.1988).

When reviewing a summary judgment, we "must take a view of the evidence most favorable to the one against whom the motion was granted."

Id. (quoting Abdallah Inc. v. Martin, 242 Minn. 416, 424, 65 N.W.2d 641, 646 (1954)).

In challenging summary judgment for respondent, appellant next argues the trial court erred when it determined that appellant failed to establish a prima facie malpractice case for respondent's alleged negligence in 1986. We disagree.

To establish a prima facie case of medical malpractice for negligent medical treatment, appellant had the burden of proving:

1. the standard of care recognized by the medical...