Johnson v. Winthrop Lab. Div. of Sterling Drug, Inc., 42509

• Decision Date: 27 August 1971
• Docket Number: No. 42509,42509
• Citation: 190 N.W.2d 77,291 Minn. 145
• Parties: Conrad JOHNSON, et al., Appellants, v. WINTHROP LABORATORIES DIVISION OF STERLING DRUG, INC., and Sterling Drug, Inc., Respondents, Vernon L. Sommerdorf, Respondent, Francis W. Lynch, Respondent, R. L. Schmidtke and Donald C. Sterner, Respondents.
• Court: Minnesota Supreme Court

Page 77

190 N.W.2d 77

291 Minn. 145

Conrad JOHNSON, et al., Appellants, v. WINTHROP LABORATORIES DIVISION OF STERLING DRUG, INC., and Sterling Drug, Inc., Respondents Vernon L. Sommerdorf, Respondent Francis W. Lynch, Respondent R. L. Schmidtke and Donald C. Sterner, Respondents.

No. 42509.

Supreme Court of Minnesota.

Aug. 27, 1971.

Syllabus by the Court

1. The 2-year statute of limitations against medical malpractice actions created by Minn.St. 541.07(1) commences to run when the physician's medical treatment ceases.

2. In the absence of fraud, ignorance of the existence of the cause of action does not toll the statute of limitations.

3. The courts are without power to extend or modify statutory limitation periods.

4. Summary judgment is proper when there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. In this malpractice action there was no genuine issue of material fact, and defendant physicians were entitled to judgment as a matter of law because plaintiffs' action was barred by Minn.St. 541.07(1).

David W. Thurston, St. Paul, John A. McEachron, Jr., Minneapolis, for appellants.

Altman, Geraghty, Leonard & Mulally, and Terence O'Loughlin, St. Paul, for Sterling Drug and Schmidtke and Sterner.

Dorsey, Marquart, Windhorst, West & Halladay, James O'Hagan and Jan Stuurmans, James L. Murphy, Minneapolis, for Lynch.

Briggs & Morgan and Bernard Friel, St. Paul, for Sommerdorf.

Heard before KNUTSON, C.J., and NELSON, MURPHY, PETERSON, and KELLY, JJ.

OPINION

NELSON, Justice.

Appeal by plaintiffs, Conrad Johnson and Lorraine Johnson, from summary judgments in favor of defendant physicians, Donald C. Sterner, R. L. Schmidtke, and Francis W. Lynch.

In their action plaintiffs alleged medical malpractice against defendants Sterner, Schmidtke, and Lynch based on their treatment of Lorraine Johnson, which treatment allegedly caused injury to her eyesight. The suit was commenced against the physicians on November 27 and 29, 1968. On January 8, 1970, the trial court made its order granting their motions for summary judgment.

The relevant facts are as follows: From 1954 to 1966 Lorraine Johnson took a brand of chloroquine, labeled by the manufacturer 'Aralen,' for treatment of a skin condition diagnosed as lupus erythematosus. Plaintiffs contend that as a result of taking this drug Mrs. Johnson has suffered a loss of vision. They claim the physicians should have discovered or warned plaintiffs that Mrs. Johnson's ingestion of chloroquine might cause damage to her eyesight. The visual difficulty of which Mrs. Johnson complains was first noticed by her in 1960, at which time it was 'very minor.' The problem seemed to be 'getting a little worse' in 1962, and she claimed that in 1963 her vision was 'to the point where * * * I couldn't recognize people.'

Drs. Sterner and Schmidtke, both medical doctors licensed in Minnesota, practice separately as specialists in ophthalmology, the field of medicine concerned with treating eye diseases. Mrs. Johnson consulted Dr. Sterner on three occasions, the last being April 26, 1960. She consulted Dr. Schmidtke on only two occasions, the latter being October 10, 1963. She terminated the services of Dr. Sterner and Dr. Schmidtke as of the above dates. In her deposition testimony, Mrs. Johnson said that she was not happy with the eyeglasses each had prescribed and therefore decided to consult another ophthalmologist.

Dr. Lynch, a physician specializing in dermatology, first saw Mrs. Johnson for her skin condition on May 6, 1954. He thereafter treated her periodically in 1954, 1955, and 1956, prescribing chloroquine (Aralen). Mrs. Johnson was seen twice in 1957 in Dr. Lynch's office, the first time on January 24 by an associate of Dr. Lynch, and the other time by Dr. Lynch on November 7, 1957. Mrs. Johnson was not seen again by Dr. Lynch or any associate of his until December 15, 1959. Dr. Lynch spoke to Mrs. Johnson on the phone once and saw her once in 1960, and she was seen by an associate in 1960. In 1961 Mrs. Johnson called Dr. Lynch's office but made no personal visit. Dr. Lynch did not see her again until March 1964, during which month he saw her twice and talked with her by telephone three times. He advised Mrs. Johnson on March 9, 1964, to stop taking chloroquine. During a final telephone consultation on March 23, 1964, Dr. Lynch advised Mrs. Johnson to consult her family physician, Dr. Vernon L. Sommerdorf. At that time, Dr. Lynch noted on his chart, 'Ret. (Returned) to care of Dr. Sommerdorf.'

Mrs. Johnson saw Dr. Cora Ruhr, an optometrist, for the first time during the early fall of 1966 at which time Mrs. Johnson requested glasses. She admitted that after she received her glasses she called Dr. Ruhr and complained that she could not see clearly. Dr. Ruhr at that time told Mrs. Johnson that the problem with her eyesight was caused by chloroquine or something else.

1. One legal issue raised by plaintiffs' appeal is whether the 2-year statute of limitations against medical malpractice actions created by Minn.St. 541.07(1) commences to run when the physician's medical treatment ceases.

Minn.St. 541.01 and 541.07 establish the statutory limitation period governing medical malpractice claims. Section 541.01 provides in pertinent part:

'Actions can only be commenced within the periods prescribed in this chapter, after the cause of action accrues, * * *.'

Section 541.07 provides in pertinent part:

'Except where the uniform commercial code otherwise prescribes, the following actions shall be commenced within two years:

'(1) For libel, slander, assault, battery, false imprisonment, or other tort, resulting in personal injury, and all actions against physicians, surgeons, dentists, hospitals, sanatoriums, for malpractice, error, mistake or failure to cure, whether based on contract or tort; * * *.'

Plaintiffs contend that the 2-year statute of limitations in § 541.07(1) started to run when Mrs. Johnson first discovered her injury, or, by the exercise of reasonable diligence, should have discovered it. As stated above, Mrs. Johnson first noticed a loss of vision in 1960, and was advised of the possible connection that might exist between her loss of vision and her taking of chloroquine in September or October of 1966 by Dr. Ruhr. This argument has been made before, but we have consistently rejected it, holding that the medical malpractice statute of limitations begins to run when the physician's medical treatment for the particular condition ceases. The leading case on the question of when the statute of limitations begins to run on a medical malpractice claim against a physician is Schmit v. Esser, 183 Minn. 354, 236 N.W. 622, 74 A.L.R. 1312. There, we reaffirmed the rule, announced in an earlier case involving the same parties, 178 Minn. 82, 226 N.W. 196, that the 2-year statutory period commences to run when the treatment ceases. We said in the second Schmit case (183 Minn. 357, 236 N.W. 624, 74 A.L.R. 1315):

'From the plaintiff's testimony and the evidence as a whole, the jury could find that defendant was employed generally to treat, care for, and heal the fracture; that such employment continued through July and August, 1926; and that he failed in his duty and was negligent in failing to apply proper treatment after his examination of the foot in July and August. Where the physician is employed generally to treat and heal an injury, he owes the duty of giving continued care and treatment. Nelson v. Farrish, 143 Minn. 368, 173 N.W. 715. If, then, the jury found that the defendant, under his general contract of employment, was negligent in failing to apply proper treatment in July and August, 1926, this action, commenced on June 5, 1928, would not be barred.

'In the opinion on the former appeal, 178 Minn. 82, 226 N.W. 196, 197, the case of Bowers v. Santee, 99 Ohio St. 361, 124 N.E. 238, is cited with approval, wherein it was held that where the physician is employed generally to treat and effect a cure his duty continues until the relation terminates; that the treatment does not include merely the immediate and isolated resetting or reduction or adjustment of a fracture or dislocation, but all subsequent care and treatment essential to recovery. The conclusion reached by this court was stated as follows (178 Minn. 86, 226 N.W. 197):

"We think the treatment and employment should be considered as a whole, and, if there occurred therein malpractice the statute of limitations begins to run when the treatment ceases.'

'When does the treatment cease? 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...