Barry Thomas PITT-HART, MD, Plaintiff and Appellant, v. SANFORD USD MEDICAL CENTER, Defendant and Appellee.
No. 27568.
Supreme Court of South Dakota.
April 13, 2016.
2016 S.D. 33
Considered on Briefs on March 21, 2016.
Melissa C. Hinton of Evans, Haigh & Hinton, LLP, Sioux Falls, South Dakota, Attorneys for defendant and appellee.
[¶1.] Barry Thomas Pitt-Hart appeals the circuit court‘s order granting summary judgment to defendant Sanford USD Medical Center. Pitt-Hart argues that he commenced his action within the three-year statute of limitations applicable to general-negligence actions and that the court erred by determining his action was time barred. He also argues that even if a shorter statute of limitations applies, it should have been tolled. We affirm.
Facts and Procedural History
[¶2.] On November 10, 2009, Pitt-Hart underwent a knee-replacement surgery at Sanford. The day after surgery, while Pitt-Hart was still hospitalized at Sanford, he asked for assistance to get out of bed and travel to and from the restroom adjoining his hospital room. Mark Nygard, a patient-care technician employed by Sanford, assisted Pitt-Hart. While Nygard attempted to help Pitt-Hart return to his bed, Pitt-Hart fell. Pitt-Hart was discharged on November 13, 2009.
[¶3.] After being discharged, Pitt-Hart began inpatient rehabilitation at Avera Prince of Peace in Sioux Falls. Following that, Pitt-Hart underwent outpatient physical therapy at Prairie Rehabilitation until February 1, 2010. Neither Avera Prince of Peace nor Prairie Rehabilitation is affiliated with Sanford. In June 2010, Sanford agreed to provide outpatient physical therapy to Pitt-Hart at no charge because Medicare would not cover additional treatments at Prairie Rehabilitation. Pitt-Hart‘s outpatient therapy with Sanford concluded on September 14, 2010.
[¶4.] Two years later, in September 2012, Pitt-Hart sought additional physical therapy for what he asserts were the continuing effects of the injury resulting from his fall. Sanford declined to pay for additional treatment, and Pitt-Hart commenced this action on September 14, 2012, by delivering a summons and complaint to the Minnehaha County Sheriff for service on Sanford. Sanford answered the complaint on October 5, 2012. Sanford later filed a motion for summary judgment, asserting that Pitt-Hart‘s action was time barred under
[¶5.] Pitt-Hart appeals, raising the following issue: Whether Pitt-Hart‘s action was time barred by
Standard of Review
[¶6.] “In reviewing a grant or a denial of summary judgment under
[¶7.] “Statutory interpretation is a question of law reviewed de novo.” Wheeler v. Cinna Bakers LLC, 2015 S.D. 25, ¶ 4, 864 N.W.2d 17, 19.
[¶8.] Pitt-Hart argues that summary judgment was inappropriate for a number of reasons. First, he contends that the circuit court erred by treating his case as a direct-liability case instead of a vicarious-liability case. According to Pitt-Hart, the circuit court should have treated his action as if it were brought against Nygard for purposes of determining whether the action was time barred by
[¶9.] Pitt-Hart first argues that
[¶10.] Pitt-Hart‘s argument that
[¶11.] The question then becomes simply whether
[¶12.] Next, we must also determine whether the conduct alleged is of a type contemplated by
[¶13.] The majority of the foregoing authorities do not discuss the distinction between malpractice and negligence in the context of timing requirements for filing an action; instead, they address the question whether expert testimony is required in cases where a medical professional is negligent in some ordinary way. More importantly, each of the foregoing cases discusses only what constitutes malpractice. In contrast,
[¶14.] In determining the meaning of the terms error and mistake, we first examine their plain, ordinary meanings.
[¶15.] In light of the broad range of conduct contemplated by
[¶16.] Next, Pitt-Hart argues that even if
The Doctrine of Estoppel may be applied to prevent a fraudulent or inequitable resort to a statute of limitations. The issue is whether the Plaintiff, by inequitable conduct on the part of the Defendant (usually fraud or misrepresentation), has been induced to alter his position to do that which he would not otherwise have done (i.e., refrained from commencing an action within the statutory period).
Pitt-Hart further contends that if his argument is successful, the effect is that
[¶17.] In Peterson ex rel. Peterson v. Burns, 2001 S.D. 126, ¶ 43, 635 N.W.2d 556, 571, we explicitly held that SDCL 15-
[¶18.] There can be little doubt that Peterson correctly held that
[¶19.] This conclusion is reinforced by our treatment of
[¶20.] While concluding that
[¶21.] The reason for this critical distinction lies in the different policy objectives underlying both types of statutes. “Statutes of limitations require plaintiffs to pursue ‘diligent prosecution of known claims.‘” CTS Corp., — U.S. at —, 134 S.Ct. at 2183 (quoting Black‘s Law Dictionary 1546 (9th ed.2009)). “[W]hen an ‘extraordinary circumstance prevents [a plaintiff] from bringing a timely action,’ the restriction imposed by the statute of limitations does not further the statute‘s purpose.” Id. (quoting Lozano v. Montoya Alvarez, — U.S. —, —, 134 S.Ct. 1224, 1231-32, 188 L.Ed.2d 200 (2014)). In contrast, “[s]tatutes of repose effect a legislative judgment that a defendant should ‘be free from liability after the legislatively determined period of time.‘” Id. (quoting 54 C.J.S. Limitations of Actions § 7 (2010)). “[They] are based on considerations of the economic best interests of the public as a whole and are substantive grants of immunity based on a legislative balance of the respective rights of potential plaintiffs and defendants struck by determining a time limit beyond which liability no longer exists.” First United Methodist Church, 882 F.2d at 866. Thus, while tolling a period of limitation or estopping a party from asserting it as a defense may be proper, tolling a period of repose or estopping a party from raising it as a defense subverts this legislative objective. Therefore, principles of estoppel and tolling are inapplicable to a period of repose.
[¶22.] In Anson v. Star Brite Inn Motel, 2010 S.D. 73, 788 N.W.2d 822, although we stopped short of recognizing that
[¶23.] Finally, Pitt-Hart argues that even if the two-year period of repose applies, his action is timely under the continuous-treatment rule. This Court, as well as other jurisdictions, has recognized two different versions of the continuous-treatment rule. Under one version, the limitation period on an accrued cause of action may be tolled when a “medical practitioner . . . continue[s] ‘to treat the patient for the particular disease or condition created by the original act of alleged negligence.‘” Lewis, 2013 S.D. 80, ¶ 23, 840 N.W.2d at 667 (emphasis added) (quoting Liffengren v. Bendt, 2000 S.D. 91, ¶ 17, 612 N.W.2d 629, 633). This rule applies only when the plaintiff receives “continuous treatment . . . by the same physician or clinic.” Liffengren, 2000 S.D. 91, ¶ 17, 612 N.W.2d at 633. The rationale behind this rule is “to prevent the refusal to seek or administer health care due to pending litigation when treatment may be desperately needed.” Bosse v. Quam, 537 N.W.2d 8, 10 (S.D.1995); see also Wells v. Billars, 391 N.W.2d 668, 672 n. 1 (S.D.1986). It
[¶24.] Pitt-Hart‘s action is not saved by the foregoing rule. The arguments against applying equitable tolling, estoppel, and fraudulent concealment to a period of repose apply with equal force to the tolling that would result from application of the continuous-treatment rule. See CTS Corp., — U.S. at —, 134 S.Ct. at 2183; First United Methodist Church, 882 F.2d at 866; 54 C.J.S. Limitations of Actions § 7 (2015). Thus, while the rule applies to a period of limitation, it does not apply to a period of repose like
[¶25.] The second version of the continuous-treatment rule is simply a mislabeled application of the continuing-tort doctrine. “Generally, when a tort involves a continuing injury, the cause of action accrues and the statute of limitations commences when the wrong terminates.” Alberts v. Giebink, 299 N.W.2d 454, 456 (S.D.1980). In the context of medical malpractice, this doctrine applies when harm is the cumulative effect of several treatments rather than the result of a single act. Wells, 391 N.W.2d at 672 n. 1. However, the doctrine does not apply when “a patient is able to identify the specific negligent treatment that caused [his or her] injury[.]” Roberts v. Francis, 128 F.3d 647, 651 (8th Cir.1997); Wells, 391 N.W.2d at 672 n. 1; 70 C.J.S. Physicians & Surgeons § 141 (2015).
[¶26.] While the continuous-treatment rule does not apply to a statute of repose, the continuing-tort doctrine does. “When the cumulative result[] of continued negligence is the cause of the injury, the statute of repose cannot start to run until the last date of negligent treatment.” Cunningham v. Huffman, 154 Ill.2d 398, 182 Ill.Dec. 18, 609 N.E.2d 321, 325 (1993); Wells, 391 N.W.2d at 672 n. 1. This is true because the repose period “is measured . . . from the date of the last culpable act or omission of the defendant.” CTS Corp., — U.S. at —, 134 S.Ct. at 2182. Thus, although a period of repose will not be tolled for any reason once commenced, id. at —, 134 S.Ct. at 2183, such a period may be delayed from commencing if a plaintiff “demonstrate[s]: (1) that there was a continuous and unbroken course of negligent treatment, and (2) that the treatment was so related as to constitute one continuing wrong.” Cunningham, 609 N.E.2d at 325. Pitt-Hart does not allege his injury resulted from a continuous and unbroken course of negligent conduct; rather, Pitt-Hart‘s complaint alleges his injury was caused solely by being dropped. Because Pitt-Hart‘s injury resulted from a single, identifiable act and not from a continuing course of negligent treatment, the tort alleged was complete on November 11, 2009. Therefore, Pitt-Hart‘s action became time barred by
Conclusion
[¶27.] Pitt-Hart‘s action against Sanford is one for error or mistake. Therefore,
[¶28.] We affirm.
[¶29.] ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.