Wheeler v. Schmid Laboratories, Inc.

• Decision Date: 25 January 1990
• Docket Number: No. 890264,890264
• Citation: 451 N.W.2d 133
• Parties: Helen WHEELER and David Wheeler, Plaintiffs and Appellants, v. SCHMID LABORATORIES, INC., Defendant, and Dr. Rodney G. Clark, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 133

451 N.W.2d 133

Helen WHEELER and David Wheeler, Plaintiffs and Appellants, v. SCHMID LABORATORIES, INC., Defendant and Dr. Rodney G. Clark, Defendant and Appellee.

Civ. No. 890264.

Supreme Court of North Dakota.

Jan. 25, 1990.

Mack, Moosbrugger, Ohlsen, Dvorak & Carter, Arline F. Schubert (argued), on behalf of Shirley Dvorak, Grand Forks, for plaintiffs and appellants.

Degnan, McElroy, Lamb, Camrud, Maddock & Olson, Ltd., David M. Box (argued), appearance by Patrick J. Maddock, Grand Forks, for defendant and appellee.

ERICKSTAD, Chief Justice.

Helen and David Wheeler appeal from a summary judgment dismissing their medical malpractice claim against Dr. Rodney G. Clark, as barred by the Statute of Limitations. We affirm.

Helen Wheeler consulted with Dr. Clark at the Grand Forks Clinic in 1971 for the purpose of obtaining a method of birth control. After examination and consultation, Dr. Clark recommended the use of the Saf-T-Coil IUD. Late in 1973, Helen began experiencing menstrual problems and consulted Dr. Clark. As a result of Helen's complaints and an examination in January of 1974, Dr. Clark removed the IUD. Dr. Clark noted a cyst on one of Helen's ovaries and advised her that it may have to be removed. Helen consented to an exploratory procedure with a possible removal of an ovarian cyst. ¹ The surgery was performed on January 11, 1974.

During surgery Dr. Clark determined, in his clinical judgment, the need for, and did surgically remove both ovaries, the fallopian tubes, and the uterus. Following surgery, Dr. Clark informed Helen of the extent of the surgery performed. Dr. Clark also prescribed Premarin, an artificial estrogen used to replace the estrogen normally produced by the ovaries, for Helen. Helen's prescriptions for Premarin were periodically renewed through the Grand Forks Clinic from the time of her discharge in 1974 until October 24, 1985. Dr. Clark personally examined Helen only once after 1974, a routine examination on December 13, 1978. Helen's last visit to the Grand Forks Clinic was March 16, 1982, wherein she was routinely examined by Nurse Practitioner Oleen Sveen.

A Summons and Complaint was filed in the District Court for Grand Forks County on August 7, 1986, alleging that the IUD recommended by Dr. Clark, which was manufactured by Schmid Laboratories, was unsafe, defective, and unreasonably dangerous. ² The complaint also alleged that Dr. Clark carelessly and negligently failed to diagnose her illness and carelessly and negligently advised her to continue using the IUD. Helen alleged that as a result of the use of the unsafe IUD and the subsequent surgery, she is permanently sterile. David Wheeler alleged that he has been deprived, and will in the future continue to be deprived, of the services, aid, comfort, and society of his wife.

The Wheelers made a motion to amend the complaint on September 24, 1987. The proposed amended complaint alleged that Dr. Clark carelessly and negligently failed to properly diagnose her medical condition; that Helen had not given her informed consent to the removal of her ovaries, fallopian tubes, and uterus; that the removal of such organs was unnecessary; and that Dr. Clark fraudulently concealed his negligence.

On April 8, 1989, Dr. Clark made a motion for summary judgment or, in the alternative, for dismissal based upon the Statute of Limitations. ³ Oral argument was heard on the motion on April 24, 1989. In a Memorandum Decision dated July 14, 1989, and an order dated July 31, 1989, the district court granted Dr. Clark's motion for summary judgment and determined that the pending motion to amend the complaint was moot and therefore denied. Judgment of dismissal of the complaint was entered on August 1, 1989. Although Judge Smith denied the motion to amend the complaint, it seems that he considered the issues raised by the motion and we have also done so on this appeal.

The Wheelers served and filed their Notice of Appeal to this Court on August 15, 1989. They appealed from a "decree of the Northeast Central District Court, in Grand Forks County, North Dakota in the above-styled cause entered on the 14th day of July, 1989, which granted summary judgment for Defendants." ⁴ Summary judgment is a procedure for promptly and expeditiously disposing of a controversy without a trial if there is no dispute as to any material fact or the inferences to be drawn from undisputed facts or when only a question of law is involved. Adams v. Canterra Petroleum, Inc., 439 N.W.2d 540, 542 (N.D.1989). A movant for summary judgment has the initial burden of showing that there is no dispute as to a "material" fact. Rule 56(e) of the North Dakota Rules provides in pertinent part that:

"When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."

On appeal from a summary judgment, the evidence is viewed in a light most favorable to the party against whom the summary judgment was granted. Adams, supra at 542; Thiele v. Lindquist & Vennum, 404 N.W.2d 52, 53-54 (N.D.1987). The Wheelers assert that the full hysterectomy was not a medically necessary procedure. They argue that this is a disputed material fact and support their view with the affidavit of Dr. Jeffrey P. Block. The district court found nothing in Dr. Block's affidavit which raised an issue of material fact. The Honorable Kirk Smith, in his Memorandum Decision on Motion for Summary Judgment, stated:

"Dr. Block posits that the discovery of an unsuspected ectopic pregnancy on the right side and cysts on both ovaries by Dr. Clark did not necessitate the total hysterectomy because the cysts 'in all likelihood, would have resolved on their own once the pregnancy was terminated.' Block Dep. p. 2, 1, 14. The consent forms signed by Mrs. Wheeler authorized exploratory and such further surgery as was 'therapeutically necessary' or 'surgically necessary.' (Defendant's Exhibit No. 21.) Dr. Block gives as his opinion that the consent forms gave no permission for surgery to remove both ovaries and her uterus. (Block Dep. p. 2, 1.22.) No statement as to a prevailing medical standard as to when removal of these reproductive organs may be considered therapeutically or medically necessary has been put forth by either of the parties.

"So it is the opinion of Plaintiff's expert who examined the medical records against the opinion of Dr. Clark who saw the conditions within Plaintiff's body under surgery. Dr. Clark's post-operative opinion is supported by the pathological report. Report of UND Medical School Pathology Laboratory # 0-74-416, 1-14-74, Ex. 14. There is no such objective support for Dr. Block's opinion. Facts are the grist of a summary judgment action. Opinions however learned, are not of themselves 'facts'. It is only when opinions are based upon other evidence in the case that they can create a genuine issue of material fact that would bar the granting of a summary judgment. Therefore, the bare medical opinion of Dr. Block as to the probability that the growths found by Dr. Clark on Plaintiff's fallopian tubes and uterus would disappear by themselves following removal of her ectopic pregnancy does not raise a 'fact issue' as would bar Defendant's motion for summary judgment."

From our review of the record in the light most favorable to the Wheelers, we could conclude that they produced no evidence from which a reasonable inference could be drawn that the surgery was "unnecessary" pursuant to the prevailing medical standard in 1974. Relative to this issue, the Wheelers failed to show that there is a genuine issue of material fact for trial. Rule 56(e), N.D.R.Civ.P.

The Wheelers also contend that the trial court erred in granting Dr. Clark's motion for summary judgment by failing to apply the continual treatment rule to toll the Statute of Limitations, and in the alternative, the trial court erred in failing to toll the Statute of Limitations because of fraudulent concealment.

Medical malpractice actions must be commenced within two years of the discovery of the act or omission of alleged malpractice. Section 28-01-18(3), N.D.C.C. ⁵ This limitation begins to run when the plaintiff knows, or with reasonable diligence should know, of (1) the injury, (2) its cause, and (3) the defendant's possible negligence. Froysland v. Altenburg, 439 N.W.2d 797, 798 (N.D.1989); Wall v. Lewis, 393 N.W.2d 758, 761 (N.D.1986) (legal malpractice case). In no case, except where there is fraudulent concealment, will "the limitation of an action ... be extended beyond six years of the act or omission of alleged malpractice by a nondiscovery thereof." Section 28-01-18, N.D.C.C.; See Anderson v. Shook, 333 N.W.2d 708 (N.D.1983). This "discovery" rule as to when the limitation period commences to run against a malpractice action was adopted by this Court in Iverson v. Lancaster, 158 N.W.2d 507 (N.D.1968). ⁶ We have interpreted the knowledge requirement to be an objective standard, not a subjective one:

"Thus, the focus is upon whether the plaintiff has been apprised of facts which would place a reasonable person on notice that a potential claim exists. It is not necessary that the plaintiff be subjectively convinced that he has been injured and that the injury was caused by the defendant's negligence."

Wall, supra at 761.

The malpractice plaintiff's knowledge is ordinarily a fact question which is inappropriate for summary judgment, Wall, supra at 761, but the issue becomes one of law if the evidence is such that reasonable minds could draw but one conclusion. See Belgarde v. Rosenau, 388 N.W.2d 129, 130 (N.D.1986).

The Wheelers knew or, with reasonable diligence,...