Metzger v. Kalke

• Decision Date: 12 November 1985
• Docket Number: No. 84-146,84-146
• Parties: Charles D. METZGER, and Carolyn K. Metzger, Appellants (Plaintiffs), v. Hein H. KALKE, M.D., Ruqaiya Hussain, M.D., and Medical Center for Women, P.C., Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 414

709 P.2d 414

Charles D. METZGER, and Carolyn K. Metzger, Appellants (Plaintiffs), v. Hein H. KALKE, M.D., Ruqaiya Hussain, M.D., and Medical Center for Women, P.C., Appellees (Defendants).

No. 84-146.

Supreme Court of Wyoming.

Nov. 12, 1985.

Rick A. Thompson of Hathaway, Speight & Kunz, Cheyenne, and Rollin R. Bailey of Bailey, Polsky, Cada, Todd & Cope, Lincoln, Nebraska, for appellants.

Michael J. Sullivan, J. Kenneth Barbe and Jeffrey C. Brinkerhoff of Brown, Drew, Apostolos, Massey & Sullivan, Casper, for appellees Kalke and Medical Center for Women, P.C.

J.E. Vlastos and Ann Rochelle of Vlastos, Reeves, Murdock & Brooks, P.C., Casper, for appellee Hussain.

Before THOMAS, C.J., and ROSE, ^* ROONEY, BROWN and CARDINE, JJ.

ROSE, Justice.

This appeal stems from medical malpractice actions brought by appellants Charles and Carolyn Metzger, husband and wife, to recover damages allegedly resulting from the failure of appellees Ruqaiya Hussain, M.D., and Hein Kalke, M.D., to diagnose and properly treat the pituitary tumor from which Carolyn Metzger suffered. The district court dismissed appellants' claims against Hussain as barred by the statute of limitations applicable to medical tort actions, § 1-3-107, W.S.1977. The court granted Kalke's motion for summary judgment on the dual grounds that no dispute of material fact existed as to his professional conduct and that § 1-3-107 barred appellants' suits for alleged acts or omissions occurring prior to September 13, 1981. We will reverse the order of dismissal and the order granting summary judgment entered by the district court.

The record before us consists of the depositions of the parties, the depositions of appellants' expert witnesses, the transcript of the hearing on appellees' pretrial motions, and the pleadings. The record also contains affidavits of the Metzgers, their expert witness, and their attorney. These affidavits were served on appellees at the hearing on pretrial motions and were disallowed by the trial court except for purposes of determining the timeliness of appellants' suits. The parties have not appealed this ruling by the trial court. The following factual summary is based on the record allowed by the district court and designated on appeal and reflects only those points pertinent to the district court's judgment.

FACTS

In December, 1979, Carolyn Metzger first contacted Dr. Hussain, a specialist in obstetrics and gynecology at the Medical Center for Women, P.C., in Gillette, Wyoming. Metzger remained under the care of Hussain until May 12, 1981, at which time the physician moved out of the state. Dr. Kalke, also a specialist at the Medical Center for Women, assumed the care of Metzger, who had become pregnant in late 1980. Kalke's last contact with Metzger was September 28, 1981, when he conducted a postpartum examination.

On December 19, 1981, Carolyn Metzger contacted an ophthalmologist in Lincoln, Nebraska, who diagnosed a pituitary tumor. The tumor was surgically removed December 22, 1981. Since that time, Metzger has been under the care of Arthur Annin, M.D., a specialist in internal medicine in Lincoln.

While Carolyn Metzger was hospitalized for surgery, Charles Metzger contacted Harvey Froscheiser, an attorney, and requested that he investigate the possible bases for legal action against appellees. No suit was filed at that time. The Metzgers state in their affidavits that they attempted without success in early 1982 to obtain Carolyn Metzger's medical records from appellees. Dr. Annin says in his affidavit that during the first half of 1982 he received only incomplete records concerning Carolyn Metzger's prior medical treatment and that such records were of no significance in evaluating the care provided by appellees. Annin says that he made no statement about the treatment which appellees afforded Metzger until he expressed his concern to Attorney Froscheiser on July 15, 1982. Froscheiser states in his affidavit that he had no information from any knowledgeable source prior to July 15, 1982, of any wrongful acts by appellees.

Charles Metzger and Carolyn Metzger separately filed actions against Hussain, Kalke, and the Medical Center for Women on September 13, 1983. Carolyn Metzger claims damages for the physical and mental injuries suffered as a result of the undiagnosed tumor, and Charles Metzger seeks to recover for the loss of his wife's society. The trial court granted Hussain's motion to dismiss the complaints against her on the ground that they were barred by § 1-3-107, the applicable statute of limitations. The court entered summary judgment in favor of Kalke and the Medical Center for Women, ruling that (1) § 1-3-107 precluded appellants' suit to recover for acts or omissions which occurred prior to September 13, 1981, and (2) no question of material fact existed as to the conduct of Dr. Kalke.

Appellants ask this court to determine whether the trial court erred in its application of § 1-3-107 and whether appellee Kalke carried his burden of establishing the absence of any material facts necessitating trial. We will hold that appellants timely filed their actions against appellee Hussain within the two-and-one-half-year limitation period set out in § 1-3-107(a)(iv) for wrongdoing discovered during the second year following its occurrence. With respect to appellees Kalke and the Medical Center for Women, we will hold that appellants timely brought suit on September 13, 1983, to recover for conduct occurring prior to September 13, 1981, since the cessation of treatment on September 28, 1981 completed the act which started the running of the two-year statute of limitations. Section 1-3-107(a)(i). Finally, we will hold that appellees Kalke and the Medical Center for Women failed to support their motion for summary judgment with any evidence tending to refute the allegations of malpractice in the complaints and, therefore, the district court erred in ruling that no issue of material fact existed for trial.

THE STATUTE OF LIMITATIONS

IN MEDICAL MALPRACTICE ACTIONS

Section 1-3-107(a) provides that medical malpractice actions must be initiated within two years of the wrongful act or omission, subject to specified exceptions:

"(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;

"(ii) For injury to the rights of a minor * * *;

"(iii) For injury to the rights of a plaintiff suffering from a legal disability other than minority * * *;

"(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 resolving the parties' conflicting interpretations of § 1-3-107(a), we must determine (1) the particular event in a continuing course of treatment which triggers the running of the statutory period under subsection (a)(i), and (2) with respect to the claims against Hussain, the extent of information sufficient to constitute an injured party's discovery of the alleged act, error or omission under subsection (a)(iv). In undertaking this task, we are mindful that the statute of limitations represents legislative and public policy controlling the right to litigate and that we must give full force to the applicable statute without regard to the merits of a particular claim. Olson v. A.H. Robins Company, Inc., Wyo., 696 P.2d 1294 (1985); Duke v. Housen, Wyo., 589 P.2d 334, reh. denied, 590 P.2d 1340, cert. denied, 444 U.S. 863, 100 S.Ct. 132, 62 L.Ed.2d 86 (1979). We also note, however, that, where two constructions as to the limitation period are possible, the courts prefer the one which gives the longer period in which to prosecute the action. Safeco Insurance Company of America v. Honeywell, Inc., Alaska, 639 P.2d 996 (1981); 3 Sutherland Statutory Construction § 70.03, p. 301 (4th Ed.1974). Statutes prescribing a relatively short period for suit are usually construed narrowly to give the holder of a cause of action a fair opportunity to present his claim. Safeco Insurance Company of America v. Honeywell, Inc., supra. With these rules in mind, we turn to consideration of § 1-3-107(a), which addresses the permissible time frame for initiating malpractice actions.

The Alleged Act, Error or Omission in a Continuing Course of Treatment

Courts which have addressed the issue uniformly hold that where the defendant physician has provided a continuing course of care for the same or related complaints, the cessation of treatment completes the "act" which starts the running of the statutory period for filing suit. Farley v. Goode, 219 Va. 969, 252 S.E.2d 594, 3 A.L.R.4th 305 (1979); Johnson v. Winthrop Laboratories Division of Sterling Drug, Inc., 291 Minn. 145, 190 N.W.2d 77 (1971); Borgia v. City of New York, 12 N.Y.2d 151, 237 N.Y.S.2d 319, 187 N.E.2d 777 (1962); Williams v. Elias, 140 Neb. 656, 1 N.W.2d 121 (1941). The courts reason that the medical treatment and employment should be considered as a whole and if malpractice occurred during its course, the statute of limitations begins to run when the treatment terminates. Schmitt v. Esser, 178 Minn. 82, 226 N.W. 196, 197 (1929). The Supreme Court of Nebraska set out the rationale for this "continuous treatment" rule in Williams v....