Flynn v. Lucas County Memorial Hospital

Decision Date17 January 1973
Docket NumberNo. 55103,55103
Citation203 N.W.2d 613
PartiesMartin FLYNN, Appellant, v. LUCAS COUNTY MEMORIAL HOSPITAL and Frances Brunner, Appellees.
CourtIowa Supreme Court

Webster, Jordan & Oliver, by Lewis H. Jordan, Winterset, for appellant.

Ahlers, Cooney, Dorweiler, Allbee & Haynie, by H. Richard Smith, Des Moines, for appellees.

Considered en banc.

McCORMICK, Justice.

This is a malpractice action brought by a patient against a nurse and her hospital-employer. Defendants moved for summary judgment alleging the action was barred by plaintiff's failure to give notice of his claim within 60 days of injury as required by Code § 613A.5. Plaintiff resisted on the theory the notice requirements were inapplicable to his claim against the nurse and that his notice to the hospital was timely because given within 60 days of discovery of his injury. Trial court sustained the motion and plaintiff appealed. We affirm in part, reverse in part, and remand.

Three questions are presented: (1) Was trial court's order a final adjudication permitting appeal? (2) Are the notice provisions of Code § 613A.5 applicable to plaintiff's action against the nurse? (3) Was the notice to the hospital timely?

I. Jurisdiction. Although defendants have not raised the issue of jurisdiction, we have consistently recognized our duty to refuse, on our own motion, to entertain an appeal not authorized by our rules. Harden v. Illinois Central Railroad Company, 254 Iowa 426, 118 N.W.2d 76 (1962), and citations. Plaintiff in this case must bring himself within rule 331(a), Rules of Civil Procedure, which permits appeal as a matter of right from '(a)ll final judgments and decisions.' We have said:

'A final judgment or decision is one that finally adjudicates the rights of the parties. It must put it beyond the power of the court which made it to place the parties in their original position. A ruling or order is interlocutory if it is not finally decisive of the case.' Harden v. Illinois Central Railroad Company, Supra, 254 Iowa at 428, 118 N.W.2d at 77.

A summary judgment which is dispositive of a case is a final judgment subject to appeal. R.C.P. 331(a); see also 4 Am.Jur.2d Appeal and Error § 104 at 621 ('A summary judgment is appealable subject to the same conditions as any other judgment.'). An order overruling a motion for summary judgment is of course interlocutory. Rosmann v. Lawler, 257 Iowa 1292, 1295, 136 N.W.2d 513, 515 (1965) (dictum); 4 Am.Jur.2d Appeal and Error § 104 at 622; annot. 103 A.L.R. 1104 et seq. The specific issue here is whether an order granting a motion for summary judgment is appealable. We believe it is when it goes to the whole case.

This is in accordance with the prevailing, but not unanimous, rule:

'(A)lthough an order granting a motion for summary judgment has in certain cases been held not appealable on the ground of lack of finality, the general view seems to be that an order granting a motion for summary judgment is appealable since it is considered a final decision, at least when the motion is granted on the whole case.' 4 Am.Jur.2d Appeal and Error § 104 at 621, 622.

See also Wilson v. McDaniel, 449 S.W.2d 944 (Ark.1970); 6 Moore's Federal Practice, § 56.21. This also conforms with our refusal to exalt form over substance in deciding what is a final adjudication:

'The use of particular forms of words is not essential to a judgment. The sufficiency of a writing claimed to be a judgment is to be tested by its substance rather than its form. If it corresponds with the definition of a judgment and appears to have been intended by the court as the determination of the rights of the parties, and shows in intelligible language the relief granted, the absence of language commonly deemed especially appropriate to final judgments is not fatal.' Whittier v. Whittier, 237 Iowa 655, 662, 23 N.W.2d 435, 440 (1946).

See also Moreno v. Vietor, 261 Iowa 806, 813, 156 N.W.2d 305, 309 (1968) ('If he intended his acts to be the entry of a judgment, we should, if at all possible, avoid impairing its operation and validity when the rights of third parties are not affected because it is lacking in form.'). Peach v. Peach, 73 Ill.App.2d 72, 78, 218 N.E.2d 504, 507 (1966) ('(T)he only attribute indispensable to the finality of a judgment or order is that it terminate the litigation between the parties to the suit and finally determine, fix and dispose of their rights as to the issues made by the suit.'); cf. Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372 (1923); Tolliver v. Standard Oil Co., 431 S.W.2d 159 (Mo.1968); annot. 73 A.L.R.2d 250 et seq.

To ascertain the substance of the court's order and its intention in entering it, we examine the motion as well as the decision. Cf. Continent Foods Corp. v. National-Northwood, Inc., 470 S.W.2d 315, 317 (Mo.1971). Here, defendants asked for summary judgment against plaintiff on the whole case. The court's order sustained the motion in its entirety. We do not find anything in it to indicate the court intended or needed to do anything further.

The order was a final adjudication. Plaintiff could not plead over. Even filing a motion to reconsider would not have stayed its operation as a judgment. Stover v. Central Broadcasting Co., 247 Iowa 1325, 1331, 78 N.W.2d 1, 4 (1956).

We have jurisdiction to decide the appeal.

II. The claim against the nurse. Plaintiff's petition was in two divisions. In the first he predicated liability of Frances Brunner (the nurse) upon specific negligence in administration of a hypodermic injection. He alleged liability of Lucas County Memorial Hospital (the hospital) upon a theory of Respondeat superior. He asked joint and several judgment. In the second division he asserted both defendants were liable under the doctrine of Res ipsa loquitur and again asked joint and several judgment.

Defendant hospital is a county hospital and the provisions of Code chapter 613A are concededly applicable to it. See Gruener v. City of Cedar Falls, 189 N.W.2d 577 (Iowa 1971). Defendant Brunner was at all material times a hospital employee.

The summary judgment order in this case was entered before our decision in Vermeer v. Sneller, 190 N.W.2d 389 (Iowa 1971). We there held, 'The notice of claim requirements of § 613A.5, Code, 1971, do not apply to an employee of a municipality when that employee is sued in his individual capacity for his negligent acts.' Id. at 392.

Defendants make the same arguments to extend application of Code § 613A.5 to the employee in this case as were made and rejected in Vermeer. We reject them again for the same reasons. Defendant Brunner is sued in her individual capacity. The mere fact the hospital is joined as party defendant does not change her status or alter the basis of her alleged liability. See Anderson v. Calamus Community Sch. Dist. Clinton Co., 174 N.W.2d 643 (Iowa 1970), and citations. Nor is the suit converted to one solely against the hospital where, as here, defendants allege and plaintiff admits the terms of § 613A.8 as to the hospital's duty to defend and indemnify the nurse. The question of the nurse's rights against the hospital is irrelevant to plaintiff's claim against the nurse.

We adhere to the rationale of Vermeer. It is controlling on this issue. Trial court erred in sustaining defendant Brunner's motion for summary judgment.

III. The notice to the hospital. Defendants alleged in their motion for summary judgment that plaintiff did not give notice of his claim to the hospital within the time limitations of § 613A.5. That section requires an action against a municipality to be commenced 'within three (3) months, unless (claimant) shall cause to be presented to the governing body of the municipality within sixty (60) days after the alleged * * * loss or injury a written notice stating the time, place, and circumstances thereof * * *.' The alleged date of injury here was August 20, 1968. The action was not commenced until May 5, 1970, more than 20 months after the injury. Notice of claim was admittedly not given to the hospital until April 29, 1969, eight months after the injury. Thus the action was started and notice of claim given long after the periods specified in the statute.

With these facts established under defendant's motion, plaintiff had to show his action was not barred or suffer adverse judgment as to the hospital. Gruener v. City of Cedar Falls, Supra, at 580. In an effort to do so plaintiff relied on what is called the 'discovery rule,' asserting in his amended petition and resistance to the motion for summary judgment that he did not discover his injury until it was diagnosed March 10, 1969, by Dr. John T. Bakody.

Depositions of plaintiff and Dr. Loren C. Hermann (plaintiff's initial treating physician) were incorporated into the motion and resistance. Defendants maintain the discovery rule is inapplicable to the notice provisions of Code § 613A.5, and that even if it is applicable plaintiff has failed as a matter of law to show as a genuine issue of material fact that he did not discover his injury until Dr. Bakody's diagnosis.

The discovery rule is that a cause of action based upon negligence does not accrue until plaintiff has in fact discovered his injury or by exercise of reasonable diligence should have discovered it. Chrischilles v. Griswold, 260 Iowa 453, 463, 150 N.W.2d 94, 100 (1967); Prosser, Law of Torts, § 30 at 144 (Fourth Ed. 1971).

It had its genesis in the theory a statute of limitations should not defeat the remedy of one who has not slept on his rights but has simply been excusably unaware of his cause of action. Flanagan v. Mount Eden General Hospital, 24 N.Y.2d 427, 248 N.E.2d 871 (1969), and citations. However, unlike a true statute of limitations, the notice requirements of § 613A.5 are considered a legislative restriction of the right rather than the remedy. Rules affecting ordinary statutes of limitations do not necessarily apply....

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