Tаmra K. MURTHA, an individual, and Tamra K. Murtha, as Natural Mother and Next Friend of Erin Murtha, a minor, Appellant, v. Steven CAHALAN, an individual d/b/a Surgical Affiliates, P.C.; Paul Keller, an individual d/b/a Radiology, P.C.; Breast Center West; Robert Kollmorgen, an individual d/b/a The Iowa Clinic West Lakes, L.L.C.; and Gerald Baker, an individual d/b/a The Iowa Clinic West Lakes, L.L.C., Appellees.
No. 04-1727.
Supreme Court of Iowa.
Feb. 22, 2008.
745 N.W.2d 711
Thomas J. Joensen and Jack Hilmes of Finley, Alt, Smith, Schаrnberg, Craig, Hilmes & Gaffney, P.C., Des Moines, for appellees Steven Cahalan, Paul Keller, and Breast Center West.
Stacie M. Codr and Michael H. Figenshaw of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellees Robert Kollmorgen and Gerald Baker.
On September 5, 2003, Tamra Murtha sued the defendant medical providers for failure to properly diagnose and treat her breast cancer. The dеfendants moved for summary judgment, which the court granted on the basis the suit was barred by our medical-negligence statute of limitations,
I. Facts and Prior Proceedings.
Tamra Murtha discovered a lump in her left breast through self-examination in the summer of 1997. On June 20, 1997, a mammogram revealed no evidence of breast malignancy. Murtha was referred to Dr. Cahalan for further examination. On January 23, 1998, Dr. Cahalan physically examined Murtha, performed a fine-needlе aspiration biopsy of the lump, and diagnosed the lump as a noncancerous, fibrocystic mass that was most likely fibroadenoma, which is
[a] benign neoplasm derived from glandular epithelium, in which there is a conspicuous stroma of proliferating fibroblasts and connective tissue elements; commonly occurs in breast tissue.
Stedman‘s Medical Dictionary (27th ed.2007) (online www.Stedmans.com). The pathology repоrt provided to Dr. Cahalan stated:
DIAGNOSIS:
BREAST, LEFT [thin needle aspiration biopsy]: Not within normal limits; but, no evidence of malignancy....
Dr. Cahalan provided these results to Murtha and her primary-care physician. Dr. Cahalan recommended that Murtha return in six months for a follow-up mammogram. On October 30, 1998, Murtha had a yearly mammogram revealing no definite abnormality. However, the radiologist recommended that an ultrasound or biopsy be performed to ensure the lump was not malignant. Murtha had a follow-up visit with Dr. Cahalan the next week to
On October 15, 1999, Murtha had аnother yearly mammogram. Dr. Keller reviewed the mammogram, concluding that the findings were unremarkable. He recommended that Murtha complete a routine screening in one year. Within that year, on December 3, 1999, after being advised by her sister to request an ultrasound, Murtha met with Dr. Kollmorgen. An ultrasound was performed that day. Dr. Keller reviewed the results of the ultrasound, concluding the lump was a simple cyst. Dr. Kollmorgen agreed and recommended Murtha cut down on caffeine and take vitamin E.
On November 10, 2000, Murtha had a yearly mammogram revealing no evidence of malignancy. On November 15, 2000, she returned to Dr. Kollmorgen, who noted a breast irregularity and an abnormal mammogram, observing that the lump may have been slightly more prominent than the previous year. Dr. Kollmorgen recommended that Murtha continue yearly mammograms.
On December 4, 2001, Murtha had another mammogram. Dr. Kollmorgen had retired since Murtha‘s last visit, so she was seen by Dr. Baker on December 7, 2001. Dr. Baker palpated the lump, was concerned, and performed a needle biopsy, noting that the area felt gritty, which could be a sign of cancer. This was communicated to Murtha during the exam. However, Dr. Baker doubted the accuracy of the biopsy results because the needlе had passed through an artery during the procedure, contaminating the sample with blood. Dr. Baker recommended that the lump be removed, even though the results of the needle biopsy were inconclusive, because he was concerned that the lump was irregular. An excisional biopsy was scheduled for the following Friday. Murtha was notified that the needle biopsy was nondiagnostic or benign, and she rescheduled the excisional biopsy for January 4, 2002. On January 3, 2002, Murtha canceled the excisional biopsy to get a second opinion.
In April 2002 Murtha saw Dr. Beck, who agreed with Dr. Baker that the lump should be removed, though she did not seem overly concerned. On June 14, 2002, Dr. Beck performed an excisional left-breast biopsy. Further diagnostic testing revealed adenocarcinoma—breast cancer.
Murtha filed this actiоn for damages against Drs. Cahalan, Keller, Kollmorgen, and Baker on September 5, 2003. Her suit alleged negligent treatment and care for misdiagnosis of the lump in her breast beginning in 1997.
II. Standard of Review.
Our review of a district court‘s ruling on a motion for summary judgment is for correction of errors at law. Schlote v. Dawson, 676 N.W.2d 187, 188 (Iowa 2004). Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that therе is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
III. Iowa‘s Medical Malpractice Statute.
In granting summary judgment in this case, the district court concluded that,
[o]nce Murtha was aware that a problem existed, a lump in her left breast, she had a duty to investigate even though she may not have had knowledge of the nature of the problem.... In this case, Murtha‘s lawsuit was filed on September 5, 2003. There is no dispute of material fact when viewed in thе light most favorable to Murtha, that she had inquiry notice of her symptoms of her “injury” long before September 5, 2001 [the beginning of the two-year period preceding the filing of this suit]. Murtha‘s own deposition testimony reveals that the lump never went away and that she was always concerned about what it was from the time of its discovery. Thus, the knowledge of the physical harm occurred in 1997 and she was urged to have the lump removed as early as 1998. Murtha‘s knowledge of the injury was over five years prior to the filing of this lawsuit, therefore her claims are barred by the applicable statute of limitations.
The defendants contend that Murtha‘s “injury” was the lump she discovered in 1997. Further, they argue Murtha knew of the injury when she discovered the lump, was concerned about it, and knew it could be a sign of breast cancer. Murtha counters that she did not suffer an “injury” until she was diagnosed with cancer. It was only after her diagnosis, she argues, that she knew of her injury, thus triggering the beginning оf the limitations period. As discussed below, we do not agree with either party‘s argument as to when Mur-
“[i]njury” could mean the allegedly negligent act or omission; the physical damage resulting from the act or omission; or the “legal injury,” i.e., all essential elements of the malpractice cause of action.
Massey v. Litton, 99 Nev. 723, 669 P.2d 248, 250 (1983). In Schlote we defined “injury,” for purposes of
For most medical malpractice cases, such as Schlote, defining injury as “physical or mental harm” is appropriate. However, claims of negligent misdiagnosis, as in the present case, are often based on a different type of harm and require us to further develop our definition of “injury” for such cases. See St. George v. Pariser, 253 Va. 329, 484 S.E.2d 888, 891 (1997) (recognizing that a different approach is necessary to determine the existence of an “injury” in misdiagnosis cases as opposed to malpractice actions based on the affirmative conduct of the defendant).
In many medical malpractice cases, the injury for which damages are sought is immediately apparent. See, e.g., Christy v. Miulli, 692 N.W.2d 694, 699-700 (Iowa 2005) (plaintiff was immediately aware of the injury—death—upon the death оf the deceased); Langner, 533 N.W.2d at 518 (patient was immediately aware of her injury—emotional and mental stress—upon hearing the defendant‘s harmful statements). In those cases, it is relatively simple to determine what the injury is, when it occurred, its cause in fact, and when the plaintiff knew, or should have known, of it—all of which occurred at the same time. Application of
However, there are those medical malpractice cases that are based on an injury that is not immediately apparent, such as an internal condition with no specific external symptoms or a progressive condition. In such cases, it is not at all clear at what stage the ultimate injury for which the plaintiff seeks damages actually occurred, nor is the cause of such injury always clear. Rathje, 745 N.W.2d at 449. Expert testimony and other medical evidence are usuаlly required to make these determinations. See, e.g., Renner v. Stafford, 245 Va. 351, 429 S.E.2d 218, 220-21 (1993) (“[T]he crucial question in cases like this, when the date of the wrongful act possibly does not coincide with the date of the resulting harm to the plaintiff, is: When was the plaintiff hurt? The answer
In DeBoer v. Brown, 138 Ariz. 168, 673 P.2d 912 (1983), the Arizona Supreme Court addressed facts very similar to those in this case. The Arizona statute2 began to run on the “date of injury.” DeBoer, 673 P.2d at 913. “Injury” has been defined by the Arizona court as “the damaging effect sustained by the plaintiff-patient.” Id. at 914. The patient in DeBoer was being treated fоr various skin problems, and in August 1976, the patient‘s doctor diagnosed a lesion on the patient‘s back as a common wart. From that date until April of 1980, the patient noticed no change in the lesion. However, as evidence later showed, the lesion began to grow internally sometime in 1979, and in April 1980, the lesion was diagnosed as a malignant melanoma. The patient‘s chances of survival dropped from ninety-five percent in 1976 to only fifty to seven-ty-five percent in 1980. The patient filed suit in 1981 against the doctor who had missed the cancer (which was determined later to have existed at the time of his 1976 exam). The doctor raised a statute-of-limitations defense, claiming the suit was barred. Id.
The Arizona court rejected the doctor‘s statute-of-limitations defense, stating:
Where a medical malpractice claim is based on a misdiagnosis or a failure to diagnose a condition, the “injury” is not the mere undetected existence of the medical problem at the time the physician misdiagnosed or failed to diagnose it. Nor is the “injury” the mere continuance of the same problem in substantially the same state or the leaving of the patient “at risk” of developing a more serious condition. Rather, the “injury” is the development of the рroblem into a more serious condition which poses greater danger to the patient or which requires more extensive treatment.
Id. (emphasis added) (citing Augustine v. United States, 704 F.2d 1074, 1078 (9th Cir. 1983)). Based on its analysis of cases from other jurisdictions, the Arizona court concluded the patient “was damaged and his ‘injury’ occurred when the misdiagnosed lesion began to grow and threaten his life expectancy, not when the misdiagnosis occurred.” Id. at 915.
These principles аre well supported by cases from other jurisdictions. For example, in a case similar to Murtha‘s, a Maryland court said, as to the defendant‘s negligent failure to diagnose cancer:
In our view, a negligent misdiagnosis is not necessarily an “injury” for pur-
poses of limitations; a wrongful “act” or “omission” is not the same as an “injury.” Indeed, the two need not necessarily occur simultaneously.
Edmonds v. Cytology Servs. of Md., Inc., 111 Md.App. 233, 681 A.2d 546, 558 (Md. App.1996), aff‘d sub nom Rivera v. Edmonds, 347 Md. 208, 699 A.2d 1194 (1997). The rule of law in other jurisdictions is that, undеr statutes requiring identification of the “injury” rather than the negligent act or omission, an injury in a negligent misdiagnosis case requires more than a continuing undiagnosed condition. See, e.g., Augustine, 704 F.2d at 1078 (injury was not the existing lump, but the development of it into cancer); Doe v. Cutter Biological, 844 F.Supp. 602, 608 (D.Idaho 1994) (applying Idaho law and holding that Doe‘s injury was not “objectively ascertainable” until he tested positive for HIV); Larcher v. Wanless, 18 Cal.3d 646, 135 Cal.Rptr. 75, 557 P.2d 507, 512 n. 1 (1976) (injury is “damaging effect“); Steingart v. Oliver, 198 Cal.App.3d 406, 243 Cal.Rptr. 678, 682 (1988) (undiagnosed breast cancer not injury until the plaintiff “suffered ... damaging effect or appreciable harm“); Rivera, 699 A.2d at 1202 (suggesting that condition became injury when “additional adverse consequences” occurred); St. George, 484 S.E.2d at 891 (“This is a misdiagnosis case, not a malpractice action based on negligently performed surgery. In every misdiagnosis case, the patient has some type of medical problem at the time the physician is consulted. But the injury upon which the cause of aсtion is based is not the original detrimental condition; it is the injury which later occurs because of the misdiagnosis and failure to treat.” (Citation omitted.)); Lo v. Burke, 249 Va. 311, 455 S.E.2d 9, 12 (1995) (plaintiff‘s condition, initially diagnosed as a cyst, became cancerous; the court held the plaintiff “suffered a physical hurt [or injury] only when the cancer developed,” relying on Locke v. Johns-Manville Corp., 221 Va. 951, 275 S.E.2d 900, 904 (1981), which held an injury is a “positive, physical or mental hurt to the claimant, not legal wrong to him in the broad sense that his legally protected interests have been invaded“); Paul v. Skemp, 242 Wis.2d 507, 625 N.W.2d 860, 873 (Wis.2001) (recurring headaches, misdiagnosed by the defendant, became injury when patient‘s arteriovenous malfunction either ruptured or could no longer be treated). Our definition of “injury” as physical or mental harm is consistent with the holdings in these cases when the claim is one of negligent misdiagnosis.
IV. Disposition.
The key to applying
A reasonable fact finder could conclude that none of the events before September 5, 2001 (the beginning of the two-year period preceding the filing of Murtha‘s lawsuit) were “injuries” within the meaning of
Because we hold that the issue was not properly resolved by summary judgment, we reverse аnd remand for further proceedings.
REVERSED AND REMANDED.
WIGGINS, Justice, (concurring specially).
As stated in my special concurrence in Rathje v. Mercy Hospital, 745 N.W.2d 443 (Iowa 2008) (filed today), I concur in the legal interpretation by the majority opinion of
Because a crоss-motion for summary judgment on the statute-of-limitations issue was not filed by the plaintiff, the majority has declined to extend its discussion to consider the adequacy of the record to withstand such a motion. In order to more clearly describe the scope of our ruling and to provide guidance to the district court, I would make it clear that under the current record no reasonable jury could conclude the plаintiff should have known of her injury or that it was caused by medical care prior to the time the treating physician made the diagnosis that she had a malignancy. See Hardi v. Mezzanotte, 818 A.2d 974, 980 (D.C.2003) (holding when the physician is at the stage where he is providing a diagnosis and advice for the patient‘s medical care, the patient cannot be expected to question him or to know the doctor‘s actions might be negligent and result in harm to the patient).
Nothing in the majority opinion is inconsistent with these observations.