Stuard v. Jorgenson
| Citation | 249 P.3d 1156,150 Idaho 701 |
| Decision Date | 01 April 2011 |
| Docket Number | No. 36844.,36844. |
| Court | United States State Supreme Court of Idaho |
| Parties | Patrick STUARD and Jeanne Stuard, husband and wife, Plaintiffs–Appellants, v. Samuel JORGENSON, M.D., Defendant–Respondent. |
Comstock & Bush, Boise and Byron Foster, Boise, attorneys for Appellants. John A. Bush argued.
Carey Perkins, LLP, Boise, for Respondent. Jeremiah A. Quane argued.
Respondent Dr. Samuel Jorgenson, M.D., negligently performed a spinal surgery on Appellant Patrick Stuard on July 15, 2004. Stuard's symptoms subsided after the surgery and Dr. Jorgenson did not realize he had negligently operated at the wrong spinal level until over two years later. The parties dispute whether, for purposes of the two-year statute of limitations, the cause of action accrued at the time of the surgery or instead at the time the mistake came to light because of a second injury, when the error was discovered. Stuard appeals from the district court's grant of summary judgment to Dr. Jorgenson. The district court held that the cause of action accrued at the time of the negligent surgery, and was therefore barred.
On July 15, 2004, Dr. Samuel Jorgenson performed a spinal surgery on Patrick Stuard. Stuard had suffered an on-the-job injury on or about March 1, 2004. In performing the surgery, Stuard was placed under anesthesia, his back was cut open to expose his spine, tissue and disk material of the spine was removed, holes were drilled into Stuard's spine and a plate was installed to permanently stabilize and support the spine. Dr. Jorgenson was supposed to operate on the T6–7 spinal level but instead performed the operation on the T5–6 level.1 Dr. Jorgenson did not realize at that time that he had operated on the wrong level. Stuard had several follow up visits with Dr. Jorgenson as well as x-rays after the surgery, in which Dr. Jorgenson did not determine that he had operated at the wrong level. The chest x-rays were ordered for the routine purpose of determining whether any material had shifted or come loose, to see if any spinal fractures had developed, and to see if any screws had torn out.2 While the record indicates that an MRI would have, and eventually did, reveal the surgery was performed at the wrong level, Dr. Jorgenson did not order one until September 20, 2006, after the second injury occurred.
During the first post-operative office visit on August 4, 2004, Dr. Jorgenson took x-rays and noted that Stuard's "original pain [was] relieved with surgery." At the second visit on August 18, 2004, the office assistant conducting the visit noted that the post operative course was proceeding as expected. At the next visit on September 1, 2004, Dr. Jorgenson wrote that Stuard had told him that "his preoperative symptoms [were] completely relieved," and on September 29, 2004, Dr. Jorgenson reported that Stuard "continues to be completely asymptomatic from his left side." On November 1, 2004, and February 25, 2005, Dr. Jorgenson took more x-rays of Stuard and again found that Stuard's pain was resolved.
Stuard suffered a second work-related injury on August 31, 2006 and began to experience pain. Dr. Jorgenson performed an MRI on Stuard's spine on September 20, 2006. Sometime after that MRI, the workers compensation nurse case manager finally brought to Dr. Jorgenson's attention that he had operated on the wrong level. Dr. Jorgenson stated in his deposition that he did not have knowledge that he had operated at the wrong level until after Stuard's September 28 and October 9 visits in 2006. On October 27, 2006, Dr. Jorgenson ordered another MRI and finally determined conclusively that he had operated at the wrong level. Dr. Jorgenson testified in his deposition that he informed Stuard of this fact on November 20, 2006, stating in his deposition:
I told him that we had intended to operate on the T6–7 level. And it appears from the x-rays that we had inadvertently operated on the T5–6 level. As a consequence, he still had the same pathology and same herniation at the T6–7 level as he had before. And that's what I believe is causing his current symptoms.
Stuard then consulted Dr. Tyler Frizzell, M.D., who performed surgery to remove the plate and some of the hardware from the T5–6 level and execute the correct procedure at the T6–7 level.
Stuard filed an application for the convening of a prelitigation screening panel with the Idaho State Board of Medicine on April 2, 2007. He filed his Complaint and Demand for a Jury Trial for medical malpractice against Dr. Jorgenson on February 14, 2008.3 Dr. Jorgenson answered, raising the statute of limitations as a defense. Stuard filed an Amended Complaint on December 10, 2008 and Dr. Jorgenson answered. Dr. Jorgenson filed a motion for summary judgment on February 17, 2009, arguing that the action was barred by the statute of limitations contained in I.C. § 5–219(4), which was granted by the district court. The court held that the action accrued at the time of the surgery because the ongoing presence of the herniated disk, and the other injuries from the surgery itself, were objectively ascertainable at that time, and therefore the action was barred. It also held that the foreign-object exception did not apply to the hardware installed at the wrong level, and even if it did, the action was still untimely because the Complaint and Demand for Jury Trial were not filed until February 14, 2008. Judgment was entered on July 14, 2009, and Stuard timely filed a notice of appeal. Stuard filed a Motion for Reconsideration arguing that the action was timely if the foreign-object exception applied because the filing of a Prelitigation Claim with the Idaho State Board of Medicine tolls the statute of limitations under I.C. § 6–1005.4 The district court issued an Amended Memorandum Decision and Order, limiting its holding regarding the foreign-object exception to the determination that it did not apply, and maintaining its other holdings.
1. Whether there was a genuine issue of material fact as to whether "some damage" was "objectively ascertainable" at the time the first surgery was negligently performed such that the action accrued at that time under I.C. § 5–219.
2. Whether the locking plate and other hardware installed at the wrong spinal level constitute a "foreign object" under I.C. § 5–219, such that the discovery rule would apply.
Summary judgment is proper "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." I.R.C.P. 56(c). "If the evidence reveals no disputed issues of material fact, then only a question of law remains, over which this Court exercises free review." Watson v. Weick, 141 Idaho 500, 504, 112 P.3d 788, 792 (2005). When there is conflicting evidence as to when the cause of action accrued, the issue is one for the trier of fact. Id. The statute of limitations is an affirmative defense and the defendant has the burden of establishing the elements necessary to establish the defense. Hawley v. Green, 117 Idaho 498, 504, 788 P.2d 1321, 1327 (1990).
"An action to recover damages for ‘professional malpractice’ must be commenced within two years after the cause of action has accrued." Conway v. Sonntag, 141 Idaho 144, 146, 106 P.3d 470, 472 (2005) ; I.C. § 5–219(4).5 The cause of action accrues "as of the time of the occurrence, act or omission complained of" unless it is based upon leaving a foreign object in a patient's body or fraudulent concealment of damage. I.C. § 5–219(4). Fraudulent concealment is not alleged here. If the "foreign object" exception applies, the cause of action only accrues once the plaintiff "knows or in the exercise of reasonable care should have been put on inquiry" of the injury. I.C. § 5–219(4). Otherwise, "[i]n most cases, the act or omission complained of and the injury to the plaintiff occur at the same time, particularly in the medical context." Davis v. Moran, 112 Idaho 703, 708, 735 P.2d 1014, 1019 (1987). However, this Court has held that there must be "some damage" before the action begins to accrue. Lapham v. Stewart, 137 Idaho 582, 586, 51 P.3d 396, 400 (2002).
Assuming first that the "foreign object" exception does not apply, this Court has recognized that a professional malpractice action only accrues once there has been "some damage." Conway, 141 Idaho at 146, 106 P.3d at 472; Streib v. Veigel, 109 Idaho 174, 178, 706 P.2d 63, 67 (1985). In Davis v. Moran, this Court stated that the damage must be "objectively ascertainable." 112 Idaho at 709, 735 P.2d at 1020. In that case, the Court explained that "objectively ascertainable" means "that objective medical proof would support the existence of an actual injury." Id. at 709 n. 4, 735 P.2d at 1020 n. 4.6 Subsequent decisions by this Court have recognized that "[t]he existence of ‘objectively ascertainable injury’ is simply an analytical tool to be used in determining when ‘some damage’ has occurred." Conway, 141 Idaho at 146–47, 106 P.3d at 472–73 (citing Lapham, 137 Idaho at 587, 51 P.3d at 401). "[T]he ‘some damage’ that has occurred must be damage that the client could recover from the professional in an action for malpractice." City of McCall v. Buxton, 146 Idaho 656, 659, 201 P.3d 629, 632 (2009). Further, the statute makes clear that any "continuing consequences" of the act or omission do not extend the limitations period. I.C. § 5–219(4).
Stuard argues he did not suffer any damage until Aug. 31, 2006, the date of his second work-related injury, because he did not have any symptoms or knowledge of the negligence of Dr. Jorgenson until...
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