Pitt-Hart v. Sanford USD Med. Ctr.

• Decision Date: 13 April 2016
• Docket Number: No. 27568.,27568.
• Citation: 878 N.W.2d 406
• Parties: Barry Thomas PITT–HART, MD, Plaintiff and Appellant, v. SANFORD USD MEDICAL CENTER, Defendant and Appellee.
• Court: South Dakota Supreme Court

878 N.W.2d 406

Barry Thomas PITT–HART, MD, Plaintiff and Appellant,

v.SANFORD USD MEDICAL CENTER, Defendant and Appellee.

No. 27568.

Supreme Court of South Dakota.

Considered on Briefs on March 21, 2016.

Decided April 13, 2016.

N. Dean Nasser, Jr., James M. Nasser of Nasser Law Offices, PC, Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.

Melissa C. Hinton of Evans, Haigh & Hinton, LLP, Sioux Falls, South Dakota, Attorneys for defendant and appellee.

GILBERTSON

, Chief Justice

[¶ 1.] Barry Thomas Pitt–Hart appeals the circuit court's order granting summary judgment to defendant Sanford USD Medical Center. Pitt–Hart argues that he commenced his action within the three-year statute of limitations applicable to general-negligence actions and that the court erred by determining his action was time barred. He also argues that even if a shorter statute of limitations applies, it should have been tolled. We affirm.

Facts and Procedural History

[¶ 2.] On November 10, 2009, Pitt–Hart underwent a knee-replacement surgery at Sanford. The day after surgery, while Pitt–Hart was still hospitalized at Sanford, he asked for assistance to get out of bed and travel to and from the restroom adjoining his hospital room. Mark Nygard, a patient-care technician employed by Sanford, assisted Pitt–Hart. While Nygard attempted to help Pitt–Hart return to his bed, Pitt–Hart fell. Pitt–Hart was discharged on November 13, 2009.

[¶ 3.] After being discharged, Pitt–Hart began inpatient rehabilitation at Avera Prince of Peace in Sioux Falls. Following that, Pitt–Hart underwent outpatient physical therapy at Prairie Rehabilitation until February 1, 2010. Neither Avera Prince of Peace nor Prairie Rehabilitation is affiliated with Sanford. In June 2010, Sanford agreed to provide outpatient physical therapy to Pitt–Hart at no charge because Medicare would not cover additional treatments at Prairie Rehabilitation. Pitt–Hart's outpatient therapy with Sanford concluded on September 14, 2010.

[¶ 4.] Two years later, in September 2012, Pitt–Hart sought additional physical therapy for what he asserts were the continuing effects of the injury resulting from his fall. Sanford declined to pay for additional treatment, and Pitt–Hart commenced this action on September 14, 2012, by delivering a summons and complaint to the Minnehaha County Sheriff for service on Sanford. Sanford answered the complaint on October 5, 2012. Sanford later filed a motion for summary judgment, asserting that Pitt–Hart's action was time barred under SDCL 15–2–14.1¹

as a medical-malpractice claim. The circuit court agreed and granted Sanford's motion for summary judgment.

[¶ 5.] Pitt–Hart appeals, raising the following issue: Whether Pitt–Hart's action was time barred by SDCL 15–2–14.1

.

Standard of Review

[¶ 6.] "In reviewing a grant or a denial of summary judgment under SDCL 15–6–56(c)

, we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law." Gades v. Meyer Modernizing Co., 2015 S.D. 42, ¶ 7, 865 N.W.2d 155, 157–58 (quoting Peters v. Great W. Bank, Inc., 2015 S.D. 4, ¶ 5, 859 N.W.2d 618, 621 ). "We view the evidence ‘most favorably to the nonmoving party and resolve reasonable doubts against the moving party.’ " Id. ¶ 7, 865 N.W.2d at 158 (quoting Peters, 2015 S.D. 4, ¶ 5, 859 N.W.2d at 621 ).

[¶ 7.] "Statutory interpretation is a question of law reviewed de novo."

Wheeler v. Cinna Bakers LLC, 2015 S.D. 25, ¶ 4, 864 N.W.2d 17, 19

.

Analysis and Decision

[¶ 8.] Pitt–Hart argues that summary judgment was inappropriate for a number of reasons. First, he contends that the circuit court erred by treating his case as a direct-liability case instead of a vicarious-liability case. According to Pitt–Hart, the circuit court should have treated his action as if it were brought against Nygard for purposes of determining whether the action was time barred by SDCL 15–2–14.1

. Pitt–Hart also contends that even if SDCL 15–2–14.1 applies, the running of its two-year period was tolled because of Sanford's alleged, inequitable conduct. Finally, Pitt–Hart contends that the two-year period was tolled under the continuous-treatment rule because he continued to receive treatment until September 14, 2010.

[¶ 9.] Pitt–Hart first argues that SDCL 15–2–14.1

does not apply to this action. Pitt–Hart contends that "[s]uing only the master does not turn a respondent superior claim into a direct liability claim for statute of limitations purposes." Because Pitt–Hart concludes that SDCL 15–2–14.1 does not apply to Nygard, Pitt–Hart also concludes that it does not apply to Sanford in this case. According to Pitt–Hart, "[a]lthough a hospital is vicariously liable for the torts of its ministerial employees committed within the scope of employment, the ministerial tortious acts of the employees do not become the torts of the hospital." Therefore, Pitt–Hart concludes that SDCL 15–2–14.1 bars claims only for malpractice directly performed by those persons listed in that statute. In essence, Pitt–Hart asks us to replace the word against in SDCL 15–2–14.1 and to read that statute to address only "an action [based on an injury caused by (rather than against ) ] a physician, surgeon, dentist, hospital, sanitarium, registered nurse, licensed practical nurse, chiropractor, or other practitioner of the healing arts."

[¶ 10.] Pitt–Hart's argument that SDCL 15–2–14.1

applies to "direct" claims but not vicarious claims is untenable, and we decline his invitation to insert language into SDCL 15–2–14.1. "When interpreting a statute, we ‘begin with the plain language and structure of the statute.’ " Magellan Pipeline Co., LP v. S.D. Dep't of Revenue & Reg., 2013 S.D. 68, ¶ 9, 837 N.W.2d 402, 404 (quoting In re Pooled Advocate Tr., 2012 S.D. 24, ¶ 32, 813 N.W.2d 130, 141 ). "Words used [in the South Dakota Codified Laws] are to be understood in their ordinary sense...." SDCL 2–14–1. SDCL 15–2–14.1 applies simply to an action. An action is "[a] civil or criminal judicial proceeding." Black's Law Dictionary 35 (10th ed.2014). The only qualifiers on the type of action contemplated by SDCL 15–2–14.1 are the type of defendant sued (i.e., "a physician, surgeon, dentist, hospital, sanitarium, registered nurse, licensed practical nurse, chiropractor, or other practitioner of the healing arts") and the type of conduct alleged (i.e., "malpractice, error, mistake, or failure to cure"). SDCL 15–2–14.1. Thus, according to its plain language, SDCL 15–2–14.1 broadly applies to any action meeting these criteria.² While direct and vicarious theories of liability are distinct legal concepts, SDCL 15–2–14.1

makes no distinction between the two, nor does it appear that this Court has ever recognized such a distinction.

[¶ 11.] The question then becomes simply whether SDCL 15–2–14.1

applies to Pitt–Hart's action against Sanford. First, we must determine whether the type of defendant in this case is among those enumerated in SDCL 15–2–14.1. Although Pitt–Hart contends that the statute is inapplicable because Nygard is not a practitioner of the healing arts, our past cases establish that in vicarious-liability cases, the employee's negligence is treated as the employer's negligence. See Lewis v. Sanford Med. Ctr., 2013 S.D. 80, ¶ 1, 840 N.W.2d 662, 663 ; Burgard v. Benedictine Living Cmts., 2004 S.D. 58, ¶¶ 1–3, 680 N.W.2d 296, 297–98. More importantly, Sanford—not Nygard—is the named defendant in this case. There is no dispute that Sanford is a hospital. Therefore, under the plain language of SDCL 15–2–14.1, the defendant in this action is of a type enumerated by that statute.

[¶ 12.] Next, we must also determine whether the conduct alleged is of a type contemplated by SDCL 15–2–14.1

. Pitt–Hart cites several cases holding that certain conduct of hospital employees does not fall within the ambit of medical malpractice. See Moore v. Louis Smith Mem'l Hosp., Inc., 216 Ga.App. 299, 454 S.E.2d 190, 191 (1995) (nursing-home resident fell while nursing assistant attempted to help the resident move from her wheelchair to her bed); Brown v. Durden, 195 Ga.App. 340, 393 S.E.2d 450, 451 (1990) (patient suffering from seizures fell off examination table at doctor's office); Candler Gen. Hosp., Inc. v. McNorrill, 182 Ga.App. 107, 354 S.E.2d 872, 873 (1987) (hospital patient fell while orderly attempted to remove patient from a stretcher); Landes v. Women's Christian Ass'n, 504 N.W.2d 139, 140 (Iowa Ct.App.1993) (hospital patient fell in restroom after staff failed to accompany him); Papa v. Brunswick Gen. Hosp., 132 A.D.2d 601, 517 N.Y.S.2d 762, 763 (1987) (hospital patient fell out of bed); Coursen v. N.Y. Hosp.—Cornell Med. Ctr., 114 A.D.2d 254, 499 N.Y.S.2d 52, 53 (1986) (hospital patient fainted in restroom, unattended by nurse's aide); Toledo v. Mercy Hosp. of Buffalo, 45 Misc.3d 973, 994 N.Y.S.2d 298, 299 (N.Y.Sup.Ct.2014) (hospital patient slipped on urine while walking to restroom); Dawkins v. Union Hosp. Dist., 408 S.C. 171, 758 S.E.2d 501, 502 (2014) (emergency-room patient fell in hospital restroom after staff failed to accompany her); Peete v. Shelby Cty. Health Care Corp., 938 S.W.2d 693, 694 (Tenn.Ct.App.1996) (hospital patient injured after hospital technician caused an orthopedic suspension bar to fall on her); Franklin v. Collins Chapel Connectional Hosp., 696 S.W.2d 16, 17 (Tenn.Ct.App.1985) (nursing-home resident suffered burns after orderly placed him in a hot bath).

[¶ 13.] The majority of the foregoing authorities do not discuss the distinction between malpractice and negligence in the context of timing requirements for filing an action; instead, they address the question whether expert testimony is required in cases where a medical professional is negligent in some ordinary way. More importantly, each of the foregoing cases discusses only what constitutes malpractice. In contrast, SDCL 15–2–14.1

applies to "[a]n action ... for...