Haberle v. Buchwald

• Decision Date: 28 January 1992
• Docket Number: No. C9-91-1238,C9-91-1238
• Citation: 480 N.W.2d 351
• Parties: Tammy HABERLE, Appellant, v. Henry BUCHWALD, M.D., Respondent, Jerome A. Burns, M.D., Defendant, Scott Gruber, M.D., et al., Respondents.
• Court: Minnesota Court of Appeals

Page 351

480 N.W.2d 351

Tammy HABERLE, Appellant, v. Henry BUCHWALD, M.D., Respondent Jerome A. Burns, M.D., Defendant Scott Gruber, M.D., et al., Respondents.

No. C9-91-1238.

Court of Appeals of Minnesota.

Jan. 28, 1992.

Review Denied Aug. 4, 1992.

Syllabus by the Court

1. The single act exception to the termination of treatment rule applies when all alleged acts of malpractice occurred at or prior to an identifiable date, and when the final result or harm was readily apparent as of that date and could not be cured or relieved by a continued course of treatment.

2. No evidence was produced to establish fraudulent concealment when the defendant merely denied knowledge of the cause of complications, and there is no evidence he intentionally concealed information, made statements in reckless disregard of the truth, or intentionally omitted important information from medical records.

Arlo H. Vande Vegte, Arlo H. Vande Vegte, P.A., Long Lake, Terence J. McCloskey, New Brighton, for appellant.

Kay Nord Hunt, Phillip A. Cole, Lommen, Nelson, Cole & Stageberg, Minneapolis, for Henry Buchwald, M.D.

Timothy R. Murphy, Geraghty, O'Loughlin & Kenney, P.A., St. Paul, for Scott Gruber, M.D., et al.

Considered and decided by FORSBERG, P.J., and CRIPPEN and DAVIES, JJ.

OPINION

FORSBERG, Judge.

Appellant Tammy Haberle brought this medical malpractice action against respondent Henry Buchwald, M.D.; respondents Scott Gruber, M.D., University of Minnesota Hospitals and Clinics, and University of Minnesota Clinical Associates Chartered; and defendant Jerome A. Burns, M.D., who was never served and has not been a party to this action.

Appellant's complaint alleges negligent care and treatment with respect to a stomach stapling procedure performed by respondents. Following completion of discovery, respondents brought motions for summary judgment, arguing appellant's action was barred by the two-year statute of limitations. Appellant opposed the motions, and moved to amend her complaint to include claims of failure to obtain her informed consent, fraudulent concealment, and more specific allegations of negligent care and treatment.

This appeal is from the judgment granting respondents' motions for summary judgment and dismissing appellant's claims with prejudice. Respondents Gruber and the University have since been dismissed by stipulation, and are no longer involved in this appeal. We affirm the grant of summary judgment to respondent Buchwald.

FACTS

Appellant began treating at the University of Minnesota Family Practice Clinic in 1984 for chronic abdominal pain, obesity, and dietary problems. In the summer of 1985, she was diagnosed as suffering from gastritis and/or peptic ulcer disease. She was not advised of this diagnosis, and was treated with Ranitidine and antacids.

After a year of unsuccessful standard dieting measures, appellant was referred to respondent Buchwald at the University's Red Surgery Service. While Buchwald was not employed by the University, he performed virtually all of the "Roux-en-Y gastric by-pass" (also referred to as "GIB" or "stomach stapling") procedures at the University.

In November 1985, appellant was interviewed by Buchwald and a nurse employed by the University. Appellant's chart from the University Family Practice Clinic was not available at the interview, and a verbal history was taken. The notes taken during the interview fail to mention appellant's history of peptic ulcer disease.

On Buchwald's recommendation, appellant made arrangements to be admitted in January 1986 for GIB surgery. Her history of peptic ulcer disease was documented in a pre-operative history and in admission notes, but no diagnostic tests were conducted in that regard.

On January 13, Buchwald performed the GIB. The operative reports do not disclose any problems. During the procedure, the top portion of the stomach is stapled shut to create a smaller pouch through which food and liquids pass. The large lower portion of the stomach becomes inaccessible to normal diagnostic methods, and the only way to examine any pathology which may be occurring inside the lower portion is to open it up surgically.

Within days, appellant began experiencing severe complications. While a leak of gastro-intestinal fluids was suspected, no leak could be demonstrated by x-ray. However, by January 16, appellant had entered a downward, progressive spiral of hypovolemic shock.

Early on January 17, Buchwald performed emergency exploratory surgery. On visual examination, Buchwald discovered what he described as a "bruise" on the posterior of the lower pouch of appellant's stomach. He elected to "imbricate the gastric pouch," which was accomplished by tucking the bruised area underneath an area of nearby uncompromised stomach tissue and an area of nearby tissue from the small intestine. By injecting dye, Buchwald concluded there were no leaks either in the surgical connections or in the lower pouch. He did not open the lower pouch to look inside.

On January 21, four days after this first exploratory emergency surgery, appellant again fell into severe hypovolemic shock. A second emergency exploratory surgery was performed by Robert Goodale, M.D. Upon removing the stitches from the area oversewn by Buchwald on January 17, Goodale discovered that the underlying area was necrotic and perforated. After an endoscopic examination, Goodale further determined the posterior of the upper pouch was also necrotic. Under these circumstances, Goodale had no choice but to remove 80% of appellant's stomach. Goodale also had to disconnect appellant's esophagus from her bowel, place a tube in her neck to drain her esophagus, and place a feeding tube in her abdomen.

Appellant claims that when she asked Buchwald to explain the reason for her complications, he denied knowledge of any cause. In a letter dated March 24, 1986, Buchwald stated it was "impossible to ascertain why gastric necrosis had taken place." He did, however, suggest that the necrosis may have been caused by the failure of the nasal gastric suctioning system to properly operate following the January 13 procedure.

Appellant continued to treat with Buchwald until late 1988 or early 1989, when this action was commenced. In an affidavit, appellant's expert witness concluded the following acts were negligent:

1. failure to obtain appellant's medical chart during her initial interview with Buchwald in November 1985;

2. failure to perform additional pre-surgical diagnostic workup to document the status of appellant's peptic ulcer disease;

3. failure to obtain appellant's informed consent;

4. allowing an embarrassment of the stomach's blood supply during the January 13 surgery; and

5. treatment of the "bruise" during the January 17 surgery.

It is undisputed that these claims of negligence relate solely to the period prior to her January 13 surgery, and to the January 13 and January 17 surgeries themselves. Appellant does not allege any negligence occurred during the January 21 surgery or during the post-operative period when she was still being treated by Buchwald.

ISSUES

1. Did the trial court err in determining the "single act exception" applies and bars this action?

2. Did the trial court err in concluding no evidence was produced to show fraudulent concealment?

ANALYSIS

On appeal from a grant of summary judgment, this court's role is to determine whether there are any genuine issues of material fact or whether the trial court erred in its application of the law. Offerdahl v. Univ. of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn.1988). For the purposes of this appeal, the facts will be viewed in a light most favorable to appellant, the party against whom summary judgment was granted. See Peterson v. St. Cloud Hosp., 460 N.W.2d 635, 638 (Minn.App.1990).

I.

Medical malpractice actions in Minnesota must be commenced within two years after the cause of action accrues. Minn.Stat. Secs. 541.01 and 541.07(1) (1988). Accrual of the cause of action in such cases generally does not occur until the treatment ceases. Schmitt v. Esser, 178 Minn. 82, 86, 226 N.W. 196, 197 (1929).

A "practical reason" for this termination of treatment rule is that "actionable treatment does not ordinarily consist of a single act or, even if it does, it is most difficult to determine the precise time of its occurrence." Swang v. Hauser, 288 Minn. 306, 309, 180 N.W.2d 187, 189 (1970). This rule is also based on a "policy reason" that,

the patient must repose reliance upon his physician in the completion of the course of curative treatment, a relationship of trust which inhibits the patient's ability to discover acts of omission or commission constituting malpractice. The physician must accordingly assume a most substantial burden to establish with certainty that his patient actually knew, or should have known, of the malpractice prior to the end of treatment.

Id.

In cases where these concerns are not present, the two-year statute of limitations begins to run at the time of the negligent act, and not at the termination of treatment. See Schmitt, 178 Minn. at 84, 226 N.W. at 197 ("It is true that if there be but a single act of malpractice subsequent time and effort merely to remedy or cure that act could not toll the running of the statute."). The following four elements must be met before this single act exception applies: there must be a single act of negligence, which is complete at a precise time, which no continued course of treatment can either cure or relieve, and the plaintiff must be actually aware of the facts upon which the claim is based. Crenshaw v. St. Paul Ramsey Medical Ctr., 379 N.W.2d 720, 721 (Minn.App.1986), pet. for rev. denied (Minn. Mar. 27, 1986).

1. "A single act of malpractice."

Appellant's claims of negligence include failure to read her chart in November 1985, failure to obtain gastric hemostasis during the first surgery on January 13, 1986, performing a...