Webb v. T.D.

• Decision Date: 21 March 1996
• Docket Number: No. 95-234,95-234
• Citation: 912 P.2d 202,275 Mont. 243
• Parties: Diana L. WEBB, Plaintiff and Appellant, v. T.D., D.C.; R.K.S., M.D.; and C.H.A., M.D., Defendants and Respondents.
• Court: Montana Supreme Court

Page 202

912 P.2d 202

275 Mont. 243

Diana L. WEBB, Plaintiff and Appellant, v. T.D., D.C.; R.K.S., M.D.; and C.H.A., M.D., Defendants and Respondents.

No. 95-234.

Supreme Court of Montana.

Submitted on Briefs Nov. 21, 1995.

Decided Feb. 20, 1996.

Rehearing Denied March 21, 1996.

[275 Mont. 244] District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable Diane G. Barz, Judge presiding.

John M. Morrison, Meloy & Morrison, Helena, for Appellant.

Richard F. Cebull, Brown, Gerbase, Cebull, Fulton, Harman & Ross, Billings, for Respondent R.K.S., M.D.

Ronald L. Lodders, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, for Respondent C.H.A., M.D.

TRIEWEILER, Justice.

On September 9, 1991, Diana Webb filed a claim with the Medical Legal Panel against R.K.S., an orthopedist, and C.H.A., a radiologist. After the Panel rendered its decision, Webb filed a timely complaint against the two doctors in the District Court for the Thirteenth Judicial District in Yellowstone County. On August 2, 1993, Webb filed an application with the Chiropractic Legal Panel against T.D. and named R.K.S. and C.H.A. as necessary and proper parties to the action. On August 3, 1993, Webb voluntarily dismissed the pending district court action against R.K.S. and C.H.A. without prejudice. The Chiropractic Legal Panel rendered its decision on November 16, 1993. On December 13, 1993, Webb filed a second complaint in the Thirteenth Judicial District Court against all defendants. On February 3, 1995 There is one issue on appeal:

the District Court granted R.K.S.'s and C.H.A.'s motions for summary judgment on the ground that Webb's complaint was barred by the applicable statute of repose. Webb appeals the District Court's order which granted summary judgment. We reverse the District Court and remand for further proceedings.

Is Webb's complaint barred by the five-year statute of repose set forth at § 27-2-205, MCA?

FACTUAL BACKGROUND

Diana Webb suffered a back injury during the course of her employment in May 1986. After her accident, Webb consulted T.D., a chiropractor, concerning her symptoms. In October 1986, her employer's workers' compensation insurer referred her to R.K.S., an orthopedist, for further evaluation. On October 7, 1986, R.K.S. performed a clinical evaluation and ordered a CT-scan, which was read by C.H.A., a radiologist. The next day, R.K.S. wrote Webb a letter in which he stated that he had reviewed the CT-scan and it looked "excellent." He assigned Webb a two percent impairment rating and released her to perform heavy work without restriction.

In 1989, while Webb was working for a construction company in California, she suffered a severe aggravation of her earlier injury. Afterward, on August 22, 1989, Webb again consulted T.D. about her back condition. T.D. treated Webb until the end of 1989 without referring her to a physician for evaluation. In January 1990, allegedly at the insistence of Webb's husband, T.D. referred Webb to Arturo Echeverri, a neurologist. Dr. Echeverri ordered magnetic resonance imaging of Webb's spine, which revealed "a massive herniation of the L-5 disc on the right side compressing the S-1 nerve root as well as the rest of the cauda equina." Neurosurgeon Maurice Smith performed a laminotomy, but Webb was left with residual nerve damage as a result of prolonged nerve root compression from the massively herniated and fragmented disc. The January 10, 1990, MRI results were the first indication to Webb that she had a disc herniation.

On September 9, 1991, Webb filed a medical legal panel application naming R.K.S. and C.H.A., in which she alleged that R.K.S. performed a negligent physical examination and C.H.A. negligently interpreted the CT-scan on October 7, 1986. The Medical Legal Panel rendered its decision on March 18, 1992. On April 16, 1992, within thirty days of the Panel decision, Webb filed a complaint against R.K.S. and C.H.A. in the Thirteenth Judicial District Court in Yellowstone County. The summonses were issued on that date, but were never served.

On June 29, 1992, Webb's attorney died in an airplane crash. On June 29, 1993, a new attorney appeared on Webb's behalf. Shortly thereafter he decided that T.D. should have been a defendant in the original action. Accordingly, on August 2, 1993, Webb filed an application with the Chiropractic Legal Panel for review of her treatment by T.D. and named R.K.S. and C.H.A. as necessary and proper parties to the action. On August 3, 1993, Webb voluntarily dismissed the pending district court action against R.K.S. and C.H.A. without prejudice. The Chiropractic Legal Panel rendered its decision on November 16, 1993. Webb filed her second complaint in District Court against all defendants on December 13, 1993, within thirty days of the Chiropractic Legal Panel decision.

On February 3, 1995, the District Court granted the motions for summary judgment filed by R.K.S. and C.H.A. The court held that Webb's injury occurred in October 1986 when the defendants failed to diagnose a damaged intervertebral disc; that six years had passed from the date of injury before Webb filed her complaint in district court; and therefore, that Webb's complaint is barred by the five-year statute of repose found at § 27-2-205, MCA.

DISCUSSION

Is Webb's complaint barred by the five-year statute of repose set forth at § 27-2-205, MCA?

This Court reviews a district court's order granting summary judgment based on the same criteria applied originally by the district court. Bruner v. Yellowstone County (1995), 272 Mont. 261, 263-264, 900 P.2d 901, 903. Rule 56(c), M.R.Civ.P., provides that summary judgment is proper only when "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law."

In this case, the District Court granted summary judgment in favor of R.K.S. and C.H.A. because it held that Webb's malpractice claim was barred by the five-year statute of repose found at § 27-2-205, MCA. Section 27-2-205, MCA (1985), in effect at the time of Webb's treatment in 1986, provides:

Action for injury or death against a physician or surgeon ... [or] chiropractor ... based upon such person's alleged professional negligence or for rendering professional services without consent or for error or omission in such person's practice, shall be commenced within 3 years after the date of injury or 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 such action be commenced after 5 years from the date of injury. However, this time limitation shall be tolled for any period during which such person has failed to disclose any act, error, or omission upon which such action is based and which is known to him or through the use of reasonable diligence subsequent to said act, error, or omission would have been known to him.

(Emphasis added).

Webb contends that the five-year statute of repose set forth in § 27-2-205, MCA, did not begin to run until 1989 because the "date of injury" was the date on which she herniated the bulging disc which respondents failed to diagnose. Because she filed her complaint in 1993, she contends that it was filed well within the five-year period. The defendants contend, and the District Court agreed, that Webb's date of injury, if there was an injury, occurred on October 7, 1986, when the defendants allegedly failed to diagnose her true condition.

Webb further asserts that even if the "date of injury" was in 1986, when R.K.S. and C.H.A. allegedly misread her CT-scan, the statute of repose still would not have run because the statute was tolled continuously from the time she filed her original application with the Medical Legal Panel. Based on our resolution of this issue, we decline to address the first issue, and therefore, draw no conclusion about Webb's "date of injury."

The date of discovery has not been contested, and therefore, is not an issue in this case.

Section 27-2-205, MCA, requires that a medical malpractice action be "commenced" within three years from the date of injury or within three years after the plaintiff discovers the injury, but in no case, later than five years from the date of the injury. Section 27-2-102(1)(b), MCA, states that "[f]or the purposes of statutes relating to the time within which an action must be commenced ... an action is commenced when the complaint is filed." Section 27-6-702, MCA (1985), provides that "[t]he running of the applicable limitation period in a malpractice claim is tolled upon receipt by the director of the application for review ... [and] does not begin again until 30 days after ... the panel's final decision...." Diana Webb filed her application on September 9, 1991, and effectively tolled the running of the applicable limitation period four years, eleven months, and two days after the date of defendants' alleged malpractice on October 7, 1986. Her action was commenced on April 16, 1992, before the limitation period began to run again, and therefore, within five years from the date defendants rely on as the "date of injury."

Webb's district court complaint was still pending when she filed her application with the Chiropractic Legal Panel which named T.D. as the subject care provider, and R.K.S. and C.H.A. as necessary and proper parties to the action. The statute of limitations remained tolled throughout the pendency of the Chiropractic Legal Panel decision pursuant to § 27-12-701, MCA, which provides:

(1) Upon receipt of an application by the director, the running of an applicable limitation period in a malpractice claim is tolled as to each chiropractic physician named as a party and as to each other person or entity named as a necessary or proper party for a court action that might subsequently arise out of the factual circumstances set forth in the application.

(2) The running of...