Jauregui v. Memorial Hospital of Sweetwater County

• Decision Date: 13 May 2005
• Docket Number: No. 04-64,04-64
• Citation: 111 P.3d 914,2005 WY 59
• Parties: JEAN LEON JAUREGUI and JOSEPHINE C. JAUREGUI, Appellants (Plaintiffs), v. MEMORIAL HOSPITAL OF SWEETWATER COUNTY; and JOSEPH J. OLIVER, M.D., Appellees (Defendants).
• Court: Wyoming Supreme Court

2005 WY 59

111 P.3d 914

JEAN LEON JAUREGUI and JOSEPHINE C. JAUREGUI, Appellants (Plaintiffs), v. MEMORIAL HOSPITAL OF SWEETWATER COUNTY; and JOSEPH J. OLIVER, M.D., Appellees (Defendants).

No. 04-64

Supreme Court of Wyoming. APRIL TERM, A.D. 2005.

May 13, 2005

Representing Appellant: Jeremy D. Michaels of Michaels and Michaels, Gillette, Wyoming; Philip White, Jr., Laramie, Wyoming. Argument by Mr. Michaels.

Representing Appellee Memorial Hospital of Sweetwater County: George E. Powers, Jr., and Isaac N. Sutphin of Sundahl, Powers, Kapp & Martin, Cheyenne, Wyoming. Argument by Mr. Powers.

Representing Appellee Joseph J. Oliver, M.D.: W. Henry Combs, III, and Kathleen J. Swanson of Murane & Bostwick, LLC, Casper, Wyoming. Argument by Ms. Swanson.

Before HILL, C.J., and GOLDEN and VOIGT, JJ., and PERRY and BURKE, DJJ.

GOLDEN, Justice.

[¶1] Appellants Jean Leon and Josephine Jauregui brought a medical malpractice action against Memorial Hospital of Sweetwater County (the Hospital) and Dr. Joseph Oliver. The district court dismissed the action as to the Hospital, holding that the action was barred as to the Hospital because the Jaureguis had not filed a governmental claim within the time frame established by Wyo. Stat. Ann. § 1-39-113 (LexisNexis 2003). The district court granted summary judgment in favor of Dr. Oliver because the Jaureguis had not filed their complaint within the time mandated by the malpractice statute of limitations, Wyo. Stat. Ann. § 1-3-107 (LexisNexis 2003). We affirm the dismissal of the claim against the hospital but reverse the grant of summary judgment in favor of Dr. Oliver and remand.

ISSUES

[¶2] The Jaureguis present the following three issues for this Court's review:

1. As to both the Hospital and Dr. Oliver, did the continuing treatment rule and/or the continuing tort rule toll the running of the malpractice statute of limitation and the notice of claim statute at least until the date of the second surgery on February 26, 1999, only a month and a half after the initial surgery?

2. As to both the Hospital and Dr. Oliver, did the district court commit an error of law in its interpretation of the discovery exception [to] the applicable statutes?

3. If the district court's interpretation of the discovery exception in the applicable statutes of limitation was correct, do those statutes violate the equal protection provisions (Art. I, §§ 2 and 3), the due process provision (Art. I, § 6), the open courts provision (Art. I, § 8), the uniform operation of laws provision (Art. I, § 34) and/or other provisions of the Wyoming Constitution?

Both Dr. Oliver and the Hospital generally join these issues, although both question whether the constitutional challenges presented by the Jaureguis in their third issue are properly before this Court.

FACTS

[¶3] The pertinent allegations in the Jaureguis' complaint are that Dr. Oliver operated on Mr. Jauregui at the Hospital, and was assisted by Hospital staff, to repair a torn rotator cuff tendon on January 11, 1999. A week later Mr. Jauregui returned to Dr. Oliver to have the stitches removed. At that time, an infection was present. On February 26, 1999, Dr. Oliver again operated on Mr. Jauregui's shoulder at the Hospital.¹ During this operation, a surgical sponge was found that had been left inside Mr. Jauregui's shoulder during the first operation. Deposition testimony revealed that the Jaureguis were informed of the presence of the surgical sponge immediately following the February surgery. The Jaureguis contended that all parties were negligent in leaving the sponge in Mr. Jauregui's shoulder. The Jaureguis filed both a governmental claim form with the Hospital and their complaint in district court on February 26, 2001.

STANDARD OF REVIEW

[¶4] The district court dismissed the cause of action against the Hospital finding that it lacked subject matter jurisdiction. This Court reviews issues concerning subject matter jurisdiction de novo. Nyberg v. State Military Dept., 2003 WY 43, ¶8, 65 P.3d 1241, ¶8 (Wyo. 2003) ("We review jurisdictional questions de novo pursuant to our power and duty to address jurisdictional defects.").

[¶5] The district court granted summary judgment in favor of Dr. Oliver. The scope of our review of the granting of a motion for summary judgment is plenary. "In reviewing summary judgment orders, we have the same duty, review the same materials, and follow the same standards as the district court." Merrill v. Jansma, 2004 WY 26, ¶6, 86 P.3d 270, ¶6 (Wyo. 2004). In this appeal, no factual issues are contested. This Court reviews issues of law de novo, according no deference to the district court's decision on issues of law. Id. at ¶7.

DISCUSSION

The Hospital

[¶6] Because the Hospital qualifies as a governmental entity, any action against it must comply with the Wyoming Governmental Claims Act, Wyo. Stat. Ann. §§ 1-39-101 through 1-39-121 (LexisNexis 2003), as well as requirements of the Wyoming Constitution. The argument of the parties, and the decision by the district court dismissing the complaint, revolve solely around whether the notice of claim was brought within the time frame of § 1-39-113. However, this Court can affirm on any lawful reason reflected in the record. Pasenelli v. Pasenelli, 2002 WY 159, ¶16, 57 P.3d 324, ¶16 (Wyo. 2002) ("This Court may affirm a judgment or order on any legal ground appearing in the record."). We therefore choose not to discuss the time frame set by the claims procedure but rather affirm the dismissal for a much more simple reason. The notice of claim submitted to the Hospital and attached to the complaint of the Jaureguis, while signed by the Jaureguis, is not certified to under penalty of perjury as required by the Wyoming Constitution.

[¶7] Article 16, § 7 of the Wyoming Constitution commands:

No money shall be paid out of the state treasury except upon appropriation by law and on warrant drawn by the proper officer, and no bills, claims, accounts or demands against the state, or any county or political subdivision, shall be audited, allowed or paid until a full itemized statement in writing, certified to under penalty of perjury, shall be filed with the officer or officers whose duty it may be to audit the same.

(Emphasis added). Failure to adhere to the constitutional requirement that the notice of claim be certified to under penalty of perjury prevents the district court from acquiring subject matter jurisdiction over the claim. Yoak v. Ide, 2004 WY 32, ¶8, 86 P.3d 872, ¶8 (Wyo. 2004) ("We have affirmed dismissal of the appellant's complaint because her underlying governmental claim did not meet the constitutional signature and certification requirements."); Beaulieu v. Florquist, 2004 WY 31, ¶15, 86 P.3d 863, ¶15 (Wyo. 2004) ("The courts do not have subject matter jurisdiction over a governmental claim that has not met the . . . constitutional signature and certification requirements."). For the foregoing reason, we affirm the dismissal of the complaint against the Hospital.

Dr. Oliver

[¶8] The time for bringing a legal action against Dr. Oliver is governed by the malpractice statute of limitation, § 1-3-107, which in pertinent part reads:

Act, error or omission in rendering professional or health care services.

(a) A cause of action arising from an act, error or omission in the rendering of licensed or certified professional or health care services shall be brought within the greater of the following times:

(i) Within two (2) years of the date of the alleged act, error or omission, except that a cause of action may be instituted not more than two (2) years after discovery of the alleged act, error or omission, if the claimant can establish that the alleged act, error or omission was:

(A) Not reasonably discoverable within a two (2) year period; or

(B) The claimant failed to discover the alleged act, error or omission within the two (2) year period despite the exercise of due diligence.

* * * *

(iv) If under paragraph (i) or (ii) of this subsection, the alleged act, error or omission is discovered during the second year of the two (2) year period from the date of the act, error or omission, the period for commencing a lawsuit shall be extended by six (6) months.

In applying this statute, the district court determined that any potential negligent "act, error or omission" occurred during the January 11, 1999, surgery, and therefore the action should have been filed no later than January 11, 2001. The Jaureguis argue that the time for filing the action should run from the date the alleged negligence was discovered, which was when the sponge was discovered and removed on February 26, 1999.

[¶9] While the district court engaged in statutory interpretation in reaching its decision, we find it unnecessary to engage in such an exercise. Prior precedent from this Court is directly applicable and determinative of the outcome of this appeal. This Court has held on many occasions that § 1-3-107 is a discovery statute. Almost twenty years ago, this Court, in Metzger v. Kalke, 709 P.2d 414 (Wyo. 1985), in construing § 1-3-107, defined the "act, error or omission which starts the running of the statute of limitations against malpractice actions" as "the termination of the course of treatment for the same or related illnesses or injuries." Id. at 417. This is commonly referred to as the "continuous treatment" doctrine. The legislature has not changed the statute since Metzger was decided. The continuous treatment doctrine remains applicable in Wyoming.

[¶10] The continuous treatment doctrine is founded upon sound policy. The nature of the physician-patient relationship requires the patient to rely on the knowledge and skill of the doctor. At the stage where the physician is providing a diagnosis and advice for the patient's medical care, the patient cannot be expected to know that the doctor's actions might be negligent and result in harm or to question them. The...