Schmiedt v. Loewen

• Decision Date: 22 September 2010
• Docket Number: No. 25420.,25420.
• Citation: 789 N.W.2d 312,2010 S.D. 76
• Parties: Anne SCHMIEDT and Darin Schmiedt, Plaintiffs and Appellants, v. Nathan H. LOEWEN, M.D., Defendant and Appellee.
• Court: South Dakota Supreme Court

789 N.W.2d 312

2010 S.D. 76

Anne SCHMIEDT and Darin Schmiedt, Plaintiffs and Appellants,

v.Nathan H. LOEWEN, M.D., Defendant and Appellee.

No. 25420.

Supreme Court of South Dakota.

Argued April 28, 2010.

Decided Sept. 22, 2010.

Roger R. Gerlach, Michael E. Unke, Salem, South Dakota, Attorneys for plaintiffs and appellants.

Jeff L. Bratkiewicz, Kathryn J. Hoskins of Siegel, Barnett & Schutz, Sioux Falls, South Dakota, Attorneys for defendant and appellee.

ZINTER, Justice.

[¶ 1.] Anne and Darin Schmiedt sued Dr. Nathan Loewen for medical malpractice arising out of complications following the placement of an intrauterine device (IUD). Dr. Loewen moved for summary judgment, arguing that the statute of limitations had expired. Schmiedts argued that their action was timely because: the IUD was a “foreign object”; their claim fell within the continuing tort doctrine; and under the continuing tort doctrine, the statute of limitations did not begin to run until the IUD was removed. The circuit court granted summary judgment in favor of Dr. Loewen, concluding that the continuing tort doctrine was inapplicable. We affirm the circuit court's judgment, but we do so for a different reason. We conclude that the continuing tort doctrine applied. Nevertheless, Schmiedts' cause of action was barred because they acquired actual knowledge of the foreign object yet failed to commence their action within two years of their discovery.

Facts and Procedural History

[¶ 2.] The material facts are undisputed. To the extent other facts are disputed, we restate them in a light most favorable to Schmiedts. Dr. Loewen, a family practitioner, implanted Anne's IUD on July 27, 2004. According to the literature that Dr. Loewen provided to Anne, migration of an IUD was a known risk. The literature warned that if the IUD migrated from the endometrial cavity, it would not protect against pregnancy and should be removed. The literature also warned that if the IUD migrated and perforated the uterine wall, infection, scarring, and other damage to organs could occur.

[¶ 3.] On October 22, 2004, Anne returned to Dr. Loewen, advising him that she could no longer feel the threads attached to the IUD, an indication of possible migration. Dr. Loewen performed a pelvic exam. He could not locate the IUD and was concerned that it may have fallen out or moved. Dr. Loewen performed a transvaginal ultrasound and ordered a pelvic x-ray. The x-ray revealed that the IUD was still in Anne's endometrial cavity, but it had moved and become deformed. For purposes of summary judgment, Dr. Loewen conceded that he did not report these findings to Anne. ¹ Dr. Loewen only disclosed that if Anne wanted more children, the IUD would have to be surgically removed.

[¶ 4.] Anne saw Dr. Loewen four additional times from February 2005 through January 2006. During those visits, she complained of cramping, heavy menstruation, and abdominal pain. Although Anne asked Dr. Loewen about the IUD, he did not disclose the abnormal findings. He further indicated that the IUD was doing its job. ²

[¶ 5.] On March 30, 2006, a home pregnancy test indicated that Anne was pregnant, and on April 3, 2006, she returned to Dr. Loewen. Dr. Loewen performed a transvaginal ultrasound, but could not locate the IUD. Anne did not return to Dr. Loewen after the April 3, 2006 visit.

[¶ 6.] The following day, April 4, 2006, Anne saw Dr. Nedved, a gynecologist. Dr. Nedved performed an ultrasound. After getting a second opinion from another gynecologist, both doctors concluded that the IUD had penetrated the uterine wall and migrated into Anne's abdomen.

[¶ 7.] There is no dispute that the IUD needed to be removed. Dr. Nedved, however, indicated that it should be left in place until the end of Anne's pregnancy because of the risk of miscarriage or injury to the unborn child. Anne delivered her baby on November 28, 2006. Although the surgery to remove the IUD was scheduled to occur immediately after the birth, a difficult delivery further postponed the procedure. On January 31, 2007, approximately one month before the rescheduled surgery, Anne passed the IUD rectally.

[¶ 8.] On August 18, 2008, more than two years after the gynecologists informed Anne that the IUD had migrated into her abdomen and needed to be removed, Schmiedts sued Dr. Loewen for malpractice. Schmiedts alleged that Dr. Loewen was negligent in failing to inform Anne of her test results and in failing to remove the IUD or to recognize that the IUD had migrated. Dr. Loewen moved for summary judgment based on SDCL 15-2-14.1, a two-year statute of limitations. The circuit court granted summary judgment, concluding that the continuing tort doctrine was inapplicable because “the negligence was not the failure to remove the IUD, but rather [its] placement.”

Decision

[¶ 9.] Schmiedts argue that the circuit court erred in focusing on the time of Dr. Loewen's placement of the IUD. Schmiedts contend the IUD became a foreign object that should have been disclosed or removed when its movement was discovered by Dr. Loewen. They further contend that because the migrated IUD was not disclosed or removed, Anne suffered a continuing tort that delayed the running of the statute of limitations until the IUD's passage on January 31, 2007. Dr. Loewen contends that the IUD's status as a foreign object is irrelevant because the continuing treatment doctrine controls. Under the continuing treatment doctrine, Dr. Loewen contends that Schmiedts' cause of action began to run when the doctor-patient relationship ended on April 3, 2006.

[¶ 10.] “Summary judgment is proper on statute of limitations issues only when application of the law is in question, and not when there are remaining issues of material fact.” Greene v. Morgan, Theeler, Cogley, and Petersen, 1998 S.D. 16, ¶ 6, 575 N.W.2d 457, 459. Although there are disputes of fact regarding Dr. Loewen's disclosures, disposition of this case involves legal questions regarding application of the statute of limitations. We review such legal issues de novo.

[¶ 11.] South Dakota's medical malpractice statute of limitations provides in relevant part: “An action against a physician ... 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[.]” SDCL 15-2-14.1. This is an “occurrence rule.” The cause of action accrues when the alleged negligence occurs, even if the actual injury or harm has not been discovered. Beckel v. Gerber, 1998 S.D. 48, ¶ 9, 578 N.W.2d 574, 576. If, however, the negligence involves a continuing tort involving a continuing injury, the statute of limitations does not begin to run until “the wrong terminates.” Alberts v. Giebink, 299 N.W.2d 454, 456 (S.D.1980).

[¶ 12.] In Alberts, the plaintiff brought suit in 1979 for medical services provided in 1968. A pin had been inserted in the plaintiff's knee in November 1968 and was scheduled to be removed the next month. Although the wires attached to the pin were removed, the plaintiff was not informed that the pin was left in his knee. In January 1979, the plaintiff visited another doctor who informed the plaintiff of the pin in his knee. The pin was immediately removed, and the plaintiff filed suit one year later for failure to remove the pin or inform the plaintiff of its existence. This Court concluded that the action was not barred by the two-year statute of limitations because the negligence was not the physician's insertion of the pin, but rather the failure to inform the patient of the pin's existence and the failure to remove it when it was reasonably and medically necessary to do so. We explained:

The alleged misconduct here is defendants' failure to remove the ... pin (which assumes that it was reasonably and medically necessary to do so), and failure to inform plaintiff of its existence. If proven, this failure would constitute a continuing tort. Generally, when a tort involves a continuing injury, the cause of action accrues and the statute of limitations commences when the wrong terminates.

Id. (emphasis added).

[¶ 13.] Schmiedts rely on Alberts, arguing that the IUD was a foreign object causing a continuing tort, which delayed the running of the statute of limitations until the wrong terminated. They further argue that the wrong did not terminate until the IUD passed on January 31, 2007. Dr. Loewen responds that the continuing tort doctrine is “one in the same” and “interchangeable” with the continuing treatment doctrine. Dr. Loewen points out that under the continuing treatment doctrine, although the statute of limitations does not generally run while the patient continues to receive treatment, the statute begins to run when the doctor-patient relationship ends. See Beckel, 1998 S.D. 48, ¶ 10, 578 N.W.2d at 576. Dr. Loewen argues that the statute of limitations expired in this case because the doctor-patient relationship ended on April 3, 2006, more than two years before Schmiedts brought suit.

[¶ 14.] We do not agree that the continuing tort and continuing treatment doctrines are interchangeable such that the statute of limitations begins to run under both when the doctor-patient relationship terminates. Our analysis in Beckel reflects that they are separate doctrines involving potentially different dates upon which the statute of limitations begins to run. In Beckel, we stated that the continuing tort theory is “one exception,” under which the statute of limitations does not begin to run until the wrong terminates. Id. We then observed that “[t]he ‘continuing tort’ theory was extended to provide for another exception known as the ‘continuing treatment’ rule.” Id. (emphasis added). And, under that additional exception, the statute of limitations does not begin to run as long as there is “an ‘on-going, continuous, developing and dependent relationship.’ ” Id. (citing ...