Runstrom v. Allen

• Decision Date: 11 August 2008
• Docket Number: No. DA 06-0464.,DA 06-0464.
• Parties: Edward D. RUNSTROM, personal representative of the Estate of Richard Runstrom, and Edward and Nancy Runstrom, Individually, Plaintiffs and Appellants, v. Jake ALLEN, M.D., Defendant and Appellee.
• Court: Montana Supreme Court

191 P.3d 410

2008 MT 281

345 Mont. 314

Edward D. RUNSTROM, personal representative of the Estate of Richard Runstrom, and Edward and Nancy Runstrom, Individually, Plaintiffs and Appellants, v. Jake ALLEN, M.D., Defendant and Appellee.

No. DA 06-0464.

Supreme Court of Montana.

Submitted on Briefs July 18, 2007.

Decided August 11, 2008.

For Appellant: Douglas A. Buxbaum, John M. Fitzpatrick; Buxbaum, Daue & Fitzpatrick, PLLC, Missoula, Montana.

For Appellee: John H. Maynard, Kenneth K. Lay; Crowley, Haughey, Hanson, Toole & Dietrich, PLLP, Helena, Montana.

For Amicus: William A. Rossbach; Rossbach Hart Bechtold, PC, Missoula, Montana (for Montana Trial Lawyers Association).

Chief Justice KARLA M. GRAY delivered the Opinion of the Court.

¶ 1 Edward D. Runstrom (Ed), acting as personal representative of the Estate of Richard Runstrom, and Edward (Ed) and Nancy Runstrom, individually, appeal from the order entered by the Eighth Judicial District Court, Cascade County, granting summary judgment to Jake Allen, M.D. (Dr. Allen) on the basis that the applicable statute of limitations had expired. We affirm.

¶ 2 The restated issues on appeal are:

¶ 3 1. Did the District Court err in concluding that minority tolling under § 27-2-401(1), MCA, does not apply to the limitations period for the survival claim?

¶ 4 2. Did the District Court err in concluding that minority tolling under § 27-2-401(1), MCA, does not apply to the limitations period for the wrongful death claim?

¶ 5 3. Did the District Court err in concluding that the "discovery" provision of § 27-2-205(1), MCA, does not delay the running of the limitations period?

¶ 6 4. Does the "failure to disclose" provision of § 27-2-205(1), MCA, apply to the 3-year limitations period?

BACKGROUND

¶ 7 On August 3, 2000, Ed and Nancy's son Richard sustained a broken femur in an all-terrain vehicle accident. An ambulance took him to the emergency room at Benefis Healthcare, Inc. (Benefis), where Dr. Allen was the trauma surgeon on call. Richard died the next day; he was sixteen years old. On the day Richard died, Ed requested an autopsy and confronted Dr. Allen. In the weeks following Richard's death, Ed obtained the autopsy report and Richard's medical records. He subsequently consulted with attorneys.

¶ 8 On February 13, 2004, the Great Falls Tribune reported on an administrative proceeding regarding Dr. Allen, and referred to a peer reviewer's report and some of Dr. Allen's former patients whose names had not been released. Ed and Nancy believed Richard was one of the unnamed patients, and they obtained documents associated with the administrative proceeding.

¶ 9 On July 30, 2004, Ed and Nancy initiated a proceeding with the Montana Medical Legal Panel (MMLP), which ended in April of 2005. In May of 2005, Ed and Nancy sued Benefis and Dr. Allen, asserting wrongful death and survival medical malpractice claims. Benefis and Dr. Allen moved for summary judgment on statute of limitations grounds. The District Court granted both defendants' motions.

¶ 10 Ed and Nancy appealed, and we subsequently granted their motion to dismiss Benefis. Consequently, this appeal is limited to the judgment in Dr. Allen's favor. We set forth additional facts as necessary below.

STANDARD OF REVIEW

¶ 11 Summary judgment is proper under M.R. Civ. P. 56(c) if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." We review a summary judgment ruling de novo. Fabich v. PPL Montana, LLC, 2007 MT 258, ¶ 9, 339 Mont. 289, ¶ 9, 170 P.3d 943, ¶ 9 (citation omitted).

DISCUSSION

¶ 12 This case involves a wrongful death claim and a survival claim. Only an estate's personal representative—here, Ed—may bring a wrongful death action. See § 27-1-513, MCA; Renville v. Fredrickson, 2004 MT 324, ¶¶ 20-25, 324 Mont. 86, ¶¶ 20-25, 101 P.3d 773, ¶¶ 20-25. Moreover, as discussed further below, only an estate's personal representative—again, Ed in this case—may bring a survival action. See In re Estate of Lambert, 2006 MT 229, ¶ 15, 333 Mont. 444, ¶ 15, 143 P.3d 426, ¶ 15 (citations omitted). The parties have not requested a determination of whether Ed and Nancy are properly acting in their individual capacities in bringing the wrongful death claim, and such a determination would not substantively affect the disposition of this case. Accordingly, we treat Ed as the plaintiff and appellant.

¶ 13 1. Did the District Court err in concluding that minority tolling under § 27-2-401(1), MCA, does not apply to the limitations period for the survival claim?

¶ 14 The statute of limitations for a medical malpractice claim is § 27-2-205(1), MCA, which states, in pertinent part, that:

[a]ction in tort or contract for injury or death against a physician or surgeon ... based upon alleged professional negligence ... or for an act, error, or omission, must, except as provided in subsection (2), be commenced within 3 years after the date of injury or within 3 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs last, but in no case may an action be commenced after 5 years from the date of injury. However, this time limitation is tolled for any period during which there has been a failure to disclose any act, error, or omission upon which an action is based and that is known to the defendant or through the use of reasonable diligence subsequent to the act, error, or omission would have been known to the defendant.

Thus, except as discussed below, the statute of limitations for a medical malpractice claim generally is 3 years. Section 27-2-205(1), MCA. The parties do not dispute that, because § 27-6-702, MCA, tolls the limitations period during a MMLP proceeding and for 30 days thereafter, only the 4-year period between Richard's death in August of 2000 and the filing of the MMLP claim in July of 2004 is at issue.

¶ 15 In the District Court, Ed asserted that minority tolling delayed the running of the 3-year statute of limitations for the estate's survival claim until November 3, 2001, the date Richard would have turned 18 had he lived. Stated differently, Ed contended the limitations period did not expire until November 3, 2004, and the MMLP claim was timely.

¶ 16 The District Court rejected Ed's argument, relying on cases from other jurisdictions for the proposition that death ends a minor's "disability"—by which, as discussed further below, the court was referring to a minor's inability to sue or defend against suit without assistance. While Ed and Dr. Allen discuss out-of-state cases on appeal, we address this issue in light of Montana authorities.

¶ 17 A minor may enforce his or her rights by civil action or other legal proceedings in the same manner as a person of full age except that a guardian must conduct the action or proceedings. Section 27-1-511, MCA. Stated differently, a minor is under a disability, insofar as he or she may not sue or defend against suit without the assistance of a person who has reached majority. See § 27-1-511, MCA; M.R. Civ. P. 17(c).

¶ 18 Section 27-2-401(1), MCA, provides in pertinent part that:

[i]f a person entitled to bring an action mentioned in part 2 [of Title 27, chapter 2, MCA] ... is, at the time the cause of action accrues ... a minor ... the time of the disability is not a part of the time limit for commencing the action.

¶ Thus, § 27-2-401(1), MCA, generally applies to wrongful death and medical malpractice actions because they are "mentioned" in §§ 27-2-204(2) and -205, MCA. Minority tolling applies, however, only "[i]f a person entitled to bring an action ... is, at the time the cause of action accrues ... a minor[.]" See § 27-2-401(1), MCA.

¶ 19 A survival action is a cause of action that arises during a person's lifetime; it survives his or her death. See § 27-1-501(1), MCA; Estate of Lambert, ¶ 15. No survival action exists if the person dies instantaneously, and any damages suffered are personal to the decedent. See Estate of Lambert, ¶ 15 (citations omitted). A survival action belongs to the decedent's estate, and only the estate's personal representative may bring the survival action. Estate of Lambert, ¶ 15 (citations omitted). The personal representative of an estate may not be under the age of 18. See § 72-3-501(1), MCA.

¶ 20 After Richard's death, Ed—as the personal representative of Richard's estate—was the "person entitled to bring" the survival claim. See § 27-2-401(1), MCA. It is undisputed that Ed was not a minor when the cause of action accrued, and he was not—and could not have been—a minor when he filed the survival action. See § 72-3-501(1), MCA. Based on the plain language of § 27-2-401(1), MCA, we conclude minority tolling does not apply to the time after Richard's death, when Ed—not Richard—was the "person entitled to bring" the survival action.

¶ 21 Ed argues, however, that the Legislature contemplated that death would end tolling of the 3-year limitations period in § 27-2-205(1), MCA, for some medical malpractice claims involving minors. He relies on § 27-2-205(2), MCA, which states:

[n]otwithstanding the provisions of 27-2-401, in an action for death or injury of a minor who was under the age of 4 on the date of the minor's injury, the period of limitations in subsection (1) begins to run when the minor reaches the minor's eighth birthday or dies, whichever occurs first, and the time for commencement of the action is tolled during any period during which the minor does not reside with a parent or guardian.

Ed highlights the "or dies" language in § 27-2-205(2), MCA, and the omission of such language in § 27-2-401(1), MCA. Via that language, Ed asserts the Legislature intended death to end "eighth birthday" tolling in survival medical malpractice actions involving...