Peterson, ex rel. Peterson v. Burns

• Decision Date: 24 October 2001
• Docket Number: No. 21689.,21689.
• Citation: 2001 SD 126,635 N.W.2d 556
• Parties: Ruby PETERSON, Individually and As Special Administratrix of the Estate of Edward L. PETERSON, Deceased, Plaintiff and Appellee, v. Robert J. BURNS, Defendant and Appellee, and Glen Johnson and Gregory Eiesland, Defendants and Appellants.
• Court: South Dakota Supreme Court

635 N.W.2d 556

2001 SD 126

Ruby PETERSON, Individually and As Special Administratrix of the Estate of Edward L. PETERSON, Deceased, Plaintiff and Appellee, v. Robert J. BURNS, Defendant and Appellee, and Glen Johnson and Gregory Eiesland, Defendants and Appellants.

No. 21689.

Supreme Court of South Dakota.

Argued May 31, 2001.

Decided October 24, 2001.

Rehearing Denied November 13, 2001.

Mark V. Meierhenry and Robin Jacobson Houwman of Danforth, Meierhenry & Meierhenry, Sioux Falls, for plaintiff and appellee.

Daniel F. Duffy of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for defendant and appellee Robert Burns.

Richard O. Gregerson of Woods, Fuller, Shultz & Smith, Sioux Falls, for defendant and appellants Glen Johnson and Gregory Eiesland.

GORS, Circuit Judge.

[¶ 1.] Attorneys Glen Johnson and Gregory Eiesland (Johnson and Eiesland) petitioned for intermediate appeal from a circuit court decision that determined that the three-year wrongful death statute of limitations, rather than the two-year medical malpractice statute of limitations, governs wrongful death claims from medical malpractice. The petition was granted and we now reverse.

FACTS

[¶ 2.] In Peterson v. Hohm, 2000 SD 27, 607 N.W.2d 8, this Court affirmed a judgment holding that a wrongful death claim brought by Peterson's estate was time-barred because the action was filed in state court after the statute of limitations had run. The pertinent facts of that case follow:

On March 22, 1995, Edward Peterson (Edward), who was sixty years old, went to the Tschetter and Hohm Clinic in Huron, South Dakota, complaining of headaches, nausea, vomiting and neck stiffness. He received a CT Scan of his head, was treated by Doctors at the clinic and released. On April 3, 1995, Edward suffered an undiagnosed cerebral hemorrhage that caused him to collapse. He died six days later.

At the time of Edward's death, he and Ruby were residents of Beadle County, South Dakota. Shortly after Edward's death, Ruby moved to Fairmont, Minnesota. On March 10, 1997, the Honorable Eugene Martin, Third Circuit, Beadle County, granted Ruby's petition for appointment as special administratrix of Edward's estate. On March 21, 1997, Ruby filed a medical malpractice action on behalf of her husband's estate against Doctors in the United States District Court for South Dakota based upon diversity of citizenship. In her complaint, Ruby alleged that Doctors were negligent in their failure to diagnose and treat Edward for his cerebral aneurysm. Doctor Knute Landreth (Landreth) asserted in his separate answer that no jurisdiction existed. After Doctors filed their answer, the parties undertook discovery, which included: depositions of the parties, exchange of interrogatories and production requests, and identification and disclosure of expert witnesses. Over one year after Doctors filed their answer, they moved to dismiss the action for lack of subject matter jurisdiction. Doctors argued that in determining diversity of citizenship under 28 USC § 1332(c)(2), the citizenship of the legal representative of the estate of a decedent is deemed to be the same as the decedent at the time of death. While Doctors' motion to dismiss was pending, Ruby filed a state court action on June 23, 1998, in Beadle County, South Dakota, alleging issues identical to the federal action. On September 17, 1998, the federal court found that the decedent and Doctors were all residents of South Dakota; therefore, no diversity of citizenship existed and the suit was dismissed for lack of subject matter jurisdiction.

Subsequently, Doctors filed a motion for summary judgment in the state court action on the grounds that the statutes of limitations had run. Doctors argued that under SDCL 15-2-14.1 the statute of limitations for medical malpractice is two years from the alleged malpractice. In addition, the statute of limitations under SDCL 21-5-3 for a wrongful death action is three years. The circuit court noted that Ruby filed the state court action 440 days after the expiration of the statute of limitations for a medical malpractice claim, and 75 days after the expiration of the statute of limitations for a wrongful death action. The trial court found that both statutes of limitations had expired and granted Doctors' summary judgment motion.

Id., 2000 SD 27 at ¶¶ 2-5, 607 N.W.2d at 9-10 (footnote omitted).

[¶ 3.] Attorney Robert Burns (Burns) filed the action for medical malpractice in federal court before the two-year medical malpractice statute of limitations expired. On March 12, 1998, Burns withdrew and Johnson and Eiesland were substituted as counsel. Johnson and Eiesland did not institute an action in state circuit court until June 23, 1998, after both the two-year medical malpractice and three-year wrongful death statutes of limitations had expired. On February 23, 2000, this Court affirmed the circuit court's dismissal of the state action because it was time-barred by all statutes of limitations. Id., 2000 SD 27 at ¶ 19, 607 N.W.2d at 14.

[¶ 4.] Thus, Peterson's estate was barred from bringing any action arising from his death except an action against the attorneys for legal malpractice. Ruby Peterson, individually and as special administratrix of her husband's estate, filed this legal malpractice action against Burns, Johnson and Eiesland. The attorneys cross-claimed and raised the issue of the applicable statute of limitations. The circuit court held that the three-year wrongful death statute of limitations applied. Johnson and Eiesland petitioned for intermediate appeal, which this Court granted. They raise a single issue:

[¶ 5.] Does the three-year wrongful death statute of limitations in SDCL 21-5-3 extend the two-year medical malpractice statute of limitations set forth in SDCL 15-2-14.1?¹

ANALYSIS AND DECISION

[¶ 6.] All of Peterson's attorneys in the medical malpractice action applied the two-year medical malpractice statute of limitations. Burns commenced his action in federal court one day before two years had elapsed from the occurrence of the claimed medical malpractice. Once the federal case filed by Burns was dismissed, Johnson and Eiesland argued that the pendency of the federal action tolled the state medical malpractice statute of limitations, not that the three-year wrongful death statute of limitations applied. None took the position that the three-year wrongful death statute of limitations applied until this lawsuit was filed. If the applicable statute of limitations is two years, only Burns may be liable in a legal malpractice action. If the applicable statute of limitations is three years, Johnson and Eiesland may also be liable.

STANDARD OF REVIEW

[¶ 7.] This is a case of first impression in South Dakota, requiring statutory interpretation. We interpret "statutes under a de novo standard of review without deference to the decision of the trial court." In re Estate of Karnen, 2000 SD 32, ¶ 7, 607 N.W.2d 32, 35.

THE STATUTES

[¶ 8.] The statute of limitations governing medical malpractice actions is set forth in SDCL 15-2-14.1, which provides in pertinent part that:

An action against a physician, surgeon, dentist, hospital, sanitarium, registered nurse, licensed practical nurse, chiropractor, or other practitioner of the healing arts for malpractice, error, mistake or failure to cure, whether based upon contract or tort, can be commenced only within two years after the alleged malpractice, error, mistake or failure to cure shall have occurred, provided, a counterclaim may be pleaded as a defense to any action for services brought by a physician, surgeon, dentist, hospital, sanitarium, registered nurse, licensed practical nurse, chiropractor, or other practitioner of the healing arts after the limitation herein prescribed, notwithstanding it is barred by the provisions of this chapter, if it was the property of the party pleading it at the time it became barred and was not barred at the time the claim was sued or originated, but no judgment thereon except for costs can be rendered in favor of the party so pleading it.

The statute of limitations for wrongful death claims is provided by SDCL 21-5-3:

Every action for wrongful death shall be commenced within three years after the death of such deceased person.

SDCL 15-2-1 applies to civil actions generally:

Civil actions can only be commenced within the periods prescribed in this title after the cause of action shall have accrued except where in special cases a different limitation is prescribed by statute. The objection that the action was not commenced within the time limited can only be taken by answer or other responsive pleading.

At issue in this case is whether a different limitation than the two-year medical malpractice statute of limitations is prescribed by the wrongful death statute of limitations.

WRONGFUL DEATH

[¶ 9.] Two causes of action can arise from medical malpractice resulting in death. The first is an action by the representative of the deceased's estate to recover damages for personal injury and medical expenses. Sander v. Geib, Elston, Frost Pro. Ass'n, 506 N.W.2d 107, 127 (S.D.1993). The second is the legislatively created wrongful death action in SDCL 21-5-1 that may be brought in the name of the executor or administrator on behalf of certain beneficiaries.² SDCL 21-5-5; Sander, 506 N.W.2d at 127. These are separate and distinct causes of action and may have different plaintiffs, different remedies, different recipients of damages and different distributions of damage awards. Id.

[¶ 10.] Wrongful death (either survival of decedent's tort claims or a new cause of action in favor of the statutory beneficiaries) was unknown at common law. Steckman v. Silver Moon, Inc., 77 S.D. 206, 209, 90 N.W.2d 170, 172 (1958). It took the passage of Lord Campbell's Act³ in 1846 in England to create a cause of action in favor of certain survivors for wrongful death. South Dakota passed a wrongful death ...