Lead Opinion
delivered the Opinion of the Court.
¶2 The restated issues on appeal are:
¶3 1. Did the District Court err in concluding that minority tolling
under § 27-2-401(1), MCA, does not apply to the limitations period for the survival claim?
¶4 2. Did the District Court err in concluding that minority tolling under § 27-2-401(1), MCA, does not apply to the limitations period for the wrongful death claim?
¶5 3. Did the District Court err in concluding that the “discovery” provision of § 27-2-205(1), MCA, does not delay the running of the limitations period?
¶6 4. Does the “failure to disclose” provision of § 27-2-205(1), MCA, apply to the 3-year limitations period?
BACKGROUND
¶7 On August 3, 2000, Ed and Nancy’s son Richard sustained a broken femur in an all-terrain vehicle accident. An ambulance took him to the emergency room at Benefis Healthcare, Inc. (Benefis), where Dr. Allen was the trauma surgeon on call. Richard died the next day; he was sixteen years old. On the day Richard died, Ed requested an autopsy and confronted Dr. Allen. In the weeks following Richard’s death, Ed obtained the autopsy report and Richard’s medical records. He subsequently consulted with attorneys.
¶8 On February 13, 2004, the Great Falls Tribune reported on an administrative proceeding regarding Dr. Allen, and referred to a peer reviewer’s report and some of Dr. Allen’s former patients whose names had not been released. Ed and Nancy believed Richard was one of the unnamed patients, and they obtained documents associated with the administrative proceeding.
¶9 On July 30, 2004, Ed and Nancy initiated a proceeding with the Montana Medical Legal Panel (MMLP), which ended in April of 2005. In May of 2005, Ed and Nancy sued Benefis and Dr. Allen, asserting wrongful death and survival medical malpractice claims. Benefis and Dr. Allen moved for summary judgment on statute of limitations grounds. The District Court granted both defendants’ motions.
STANDARD OF REVIEW
¶11 Summary judgment is proper under M. R. Civ. P. 56(c) if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” We review a summary judgment ruling de novo. Fabich v. PPL Montana, LLC,
DISCUSSION
¶12 This case involves a wrongful death claim and a survival claim. Only an estate’s personal representative-here, Ed-may bring a wrongful death action. See § 27-1-513, MCA; Renville v. Fredrickson,
¶13 1. Did the District Court err in concluding that minority tolling under § 27-2-401(1), MCA, does not apply to the limitations period for the survival claim?
¶14 The statute of limitations for a medical malpractice claim is § 27-2-205(1), MCA, which states, in pertinent part, that:
[ajction in tort or contract for injury or death against a physician or surgeon ... based upon alleged professional negligence ... or for an act, error, or omission, must, except as provided in subsection (2), be commenced within 3 years after the date of injury or within 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 an action be commenced after 5 years from the date of injury. However, this time limitation is tolled for any period during which there has been a failure to*318 disclose any act, error, or omission upon which an action is based and that is known to the defendant or through the use of reasonable diligence subsequent to the act, error, or omission would have been known to the defendant.
Thus, except as discussed below, the statute of limitations for a medical malpractice claim generally is 3 years. Section 27-2-205(1), MCA. The parties do not dispute that, because § 27-6-702, MCA, tolls the limitations period during a MMLP proceeding and for 30 days thereafter, only the 4-year period between Richard’s death in August of 2000 and the filing of the MMLP claim in July of 2004 is at issue.
¶15 In the District Court, Ed asserted that minority tolling delayed the running of the 3-year statute of limitations for the estate’s survival claim until November 3,2001, the date Richard would have turned 18 had he lived. Stated differently, Ed contended the limitations period did not expire until November 3, 2004, and the MMLP claim was timely.
¶16 The District Court rejected Ed’s argument, relying on cases from other jurisdictions for the proposition that death ends a minor’s “disability”-by which, as discussed further below, the court was referring to a minor’s inability to sue or defend against suit without assistance. While Ed and Dr. Allen discuss out-of-state cases on appeal, we address this issue in light of Montana authorities.
¶17 A minor may enforce his or her rights by civil action or other legal proceedings in the same manner as a person of full age, except that a guardian must conduct the action or proceedings. Section 27-1-511, MCA. Stated differently, a minor is under a disability, insofar as he or she may not sue or defend against suit without the assistance of a person who has reached majority. See § 27-1-511, MCA; M. R. Civ. P. 17(c).
¶18 Section 27-2-401(1), MCA, provides in pertinent part that:
[i]f a person entitled to bring an action mentioned in part 2 [of Title 27, chapter 2, MCA] ... is, at the time the cause of action accrues ... a minor ... the time of the disability is not a part of the time limit for commencing the action.
Thus, § 27-2-401(1), MCA, generally applies to wrongful death and medical malpractice actions because they are “mentioned” in §§ 27-2-204(2) and -205, MCA. Minority tolling applies, however, only “[i]f a person entitled to bring an action ... is, at the time the cause of action accrues ... a minor[.]” See § 27-2-401(1), MCA.
¶19 A survival action is a cause of action that arises during a person’s lifetime; it survives his or her death. See § 27-1-501(1), MCA;
¶20 After Richard’s death, Ed-as the personal representative of Richard’s estate-was the “person entitled to bring” the survival claim. See § 27-2-401(1), MCA. It is undisputed that Ed was not a minor when the cause of action accrued, and he was not — and could not have been — a minor when he filed the survival action. See § 72-3-501(1), MCA. Based on the plain language of § 27-2-401(1), MCA, we conclude minority tolling does not apply to the time after Richard’s death, when Ed-not Richard-was the “person entitled to bring” the survival action.
¶21 Ed argues, however, that the Legislature contemplated that death would end tolling of the 3-year limitations period in § 27-2-205(1), MCA, for some medical malpractice claims involving minors. He relies on § 27-2-205(2), MCA, which states:
[n]otwithstanding the provisions of 27-2-401, in an action for death or injury of a minor who was under the age of 4 on the date of the minor’s injury, the period of limitations in subsection (1) begins to run when the minor reaches the minor’s eighth birthday or dies, whichever occurs first, and the time for commencement of the action is tolled during any period during which the minor does not reside with a parent or guardian.
Ed highlights the “or dies” language in § 27-2-205(2), MCA, and the omission of such language in § 27-2-401(1), MCA. Via that language, Ed asserts the Legislature intended death to end “eighth birthday” tolling in survival medical malpractice actions involving children injured before age 4, but not to end minority tolling before a child’s eighteenth birthday in survival medical malpractice cases involving minors injured at age 4 or older. His arguments are not persuasive.
¶22 Notwithstanding the “or dies” language in § 27-2-205(2), MCA, only the adult personal representative of an estate may bring a survival medical malpractice claim regarding injuries the deceased allegedly sustained as a minor, regardless of whether the action involves injury to a minor younger or older than 4 years of age. See Estate of Lambert, ¶ 15; § 72-3-501(1), MCA. While tolling applies in a survival medical malpractice claim to the time a minor-or, in an “under age 4” injury case, a child under age 8-lived between the
¶23 Alternatively, Ed relies on Payne v. Eighth Judicial Dist. Court,
¶24 Payne, ¶ 14, distinguishes laws pertaining to the procedure for bringing an action from substantive laws applicable to the elements of a claim. While Payne, ¶ 7, states that an estate’s “right of recovery is identical to the decedent’s had he or she lived[,]” the time period in which the estate’s personal representative may bring a survival action is a procedural question separate from the substantive elements of the claim, such as the damages at issue in Payne. Thus, Payne does not support Ed’s position.
¶25 Finally, we note the assertion in Ed’s reply brief that, if his arguments regarding minority tolling are unsuccessful, any new principle of law should not apply retroactively under Ereth v. Cascade County,
¶26 We hold the District Court correctly concluded minority tolling does not apply to the survival claim against Dr. Allen.
¶28 Ed argues that, because § 27-1-501(2), MCA, requires a survival claim and a wrongful death claim to be joined in a single proceeding, the limitations period for the wrongful death claim is tolled along with-or, in other words, “piggy backs” onto-the period for the survival claim. Having determined minority tolling does not apply to Ed’s survival claim, we conclude it also does not apply to the joined wrongful death claim.
¶29 We hold the District Court correctly concluded minority tolling does not apply to the wrongful death claim against Dr. Allen.
¶30 3. Did the District Court err in concluding that the “discovery” provision of § 27-2-205(1), MCAl, does not delay the running of the limitations period?
¶31 As set forth above, § 27-2-205(1), MCA, states in part that medical malpractice actions generally must be commenced within 3 years after the injury or “within 3 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the injury, whichever occurs last[.]” The District Court relied on Major v. North Valley Hosp.,
¶32 In Major, a plaintiff brought a medical malpractice action regarding her daughter’s death, and the district court granted summary judgment to the defendants on statute of limitations grounds. Major,
¶33 Here, Ed confronted Dr. Allen on the day Richard died, stating “I guess you put off fixing his leg long enough, now you don’t have to do it[.]” He also stated that, shortly after Richard’s death, he contemplated a lawsuit “if there was something wrong,” and suspected at that time that something had gone wrong because “[tjoday’s time, you know, people don’t usually die from a broken leg[.j” We conclude that, as in Major, the record here reflects a parent’s suspicion of malpractice shortly after his child died.
¶34 Ed does not challenge the reasoning in Major, but asserts Major is distinguishable because the facts there established obvious injury caused by obvious negligence, while the present case involves a death resulting from hidden injuries with unknown causes. Ed does not dispute that the autopsy report-which he obtained within weeks after Richard’s death-stated the cause of death was “[mjultifactorial: Fat embolism syndrome, aspiration pneumonia, and multisystem failure.” Rather, he asserts that, due to his lack of medical training and inability to understand the conditions allegedly leading to his son’s death, “discover/’ under § 27-2-205(1), MCA, did not occur until he read the Great Falls Tribune article in February of 2004. In this regard, Ed analogizes to Wisher v. Higgs,
¶35 In Wisher, the plaintiff sued her surgeon for malpractice, alleging she sustained an injury during a surgery that occurred several years earlier. In the years between the surgery and the filing of her claim, the plaintiff allegedly had symptoms unrelated to the injury sustained during surgery; consulted several professionals and specialists; was repeatedly misdiagnosed; had a two-year period of improvement; and ultimately obtained a medical opinion that she sustained an injury during the surgery. Wisher,
¶36 The record here is not as extensive as that in Wisher, in part because Ed asserted attorney-client privilege and declined to answer certain deposition questions. In addition to matters set forth above including consultations with attorneys and the like, however, Ed’s deposition testimony reflects that: (1) after Richard’s death, he did not discuss Richard’s care with Benefis employees, because he “didn’t want anything to do with the hospital at that point”; (2) he discussed Richard’s medical records with a general practitioner who was “not a surgeon” and “didn’t say one thing one way or the other”; (3) he spoke with a friend who worked at the hospital in a non-surgical position and had worked in the morgue, who “would have no way of knowing” whether an error occurred; and (4) he did not discuss the autopsy report with anyone other than Nancy, the general practitioner and the hospital worker and, while he did not understand the report, he “thought if there was something major in it, it would have popped out[.]” In light of this testimony, the undisputed facts here are distinguishable from those in Wisher.
¶37 Moreover, unlike the expert opinion in Wisher that the plaintiff sustained an injury during her surgery, Ed points to nothing in the 2004 Great Falls Tribune article providing different information about the cause of Richard’s injuries than the autopsy report and medical records in Ed’s possession since 2000. Indeed, most of the article focused on Dr. Allen’s treatment of a patient in 2003, and its only mention of the cause of Richard’s death was its reference to a fat embolism-one of the causes listed in the autopsy report-without any statement regarding the cause of the embolism. Ed appears to argue that he discovered Dr. Allen’s care was substandard upon reading the report on regulatory proceedings; however, as already discussed, his deposition testimony reflects he suspected malpractice on the day Richard died. In any event, the newspaper article provides no more information about the injury at issue or the cause of that injury than the information in Ed’s possession. Thus, we conclude Ed’s analogy to Wisher is misplaced.
¶38 Alternatively, Ed asserts-in one paragraph of his opening brief and a short follow-up in his reply brief-that, since he is a lay person and the medical issues are complex, the date of his “discovery” is a vigorously contested factual issue. In the District Court, Ed did not
¶39 On appeal, as in the District Court, Ed’s “disputed facts” arguments do not advance any allegedly conflicting evidence regarding discovery which raises an issue of fact. It is not this Court’s obligation to develop arguments on a party’s behalf. See In re Marriage of McMichael,
¶40 We hold the District Court correctly concluded the “discovery” provision of § 27-2-205(1), MCA, does not delay the running of the 3-year limitations period and, therefore, Ed’s claims are time-barred.
¶41 4. Does the “failure to disclose” provision of § 27-2-205(1), MCA, apply to the 3-year limitations period?
¶42 As noted above, § 27-2-205(1), MCA, sets forth a 3-year statute of limitations, which may be delayed pursuant to the “discovery” provision,
but in no case may an action be commenced after 5 years from the date of injury. However, this time limitation is tolled for any period during which there has been a failure to disclose any act, error, or omission upon which an action is based and that is known to the defendant or through the use of reasonable diligence subsequent to the act, error, or omission would have been known to the defendant.
In the alternative to his assertions regarding minority tolling and the discovery provision, Ed argues the foregoing “failure to disclose” provision of § 27-2-205(1), MCA, applies to the 3-year statute of
¶43 Ed asserts Blackburn is wrong because, if a medical malpractice action is barred by the 3-year statute of limitations, applying the “failure to disclose” provision to the 5-year statute of repose would accomplish nothing. He is incorrect, primarily because he fails to acknowledge the interplay between the delay of the running of the 3-year limitations period pursuant to the “discovery” provision and the tolling of the 5-year statute of repose under the “failure to disclose” provision. In other words, a claim filed more than 5 years after injury may be timely if the plaintiff could not through reasonable diligence have earlier discovered the injury and its cause and the defendant failed to disclose an act, error or omission upon which the action is based. We reject Ed’s assertion that applying the “failure to disclose” provision solely to the 5-year statute of repose accomplishes nothing.
¶44 We also reject Ed’s argument that applying the “failure to disclose” provision only to the 5-year statute of repose would negate what he characterizes as the “central policy” of Blackburn, which he describes as disallowing immunity for concealment. Blackburn involved a plain language statutory interpretation of the “failure to disclose” provision. It was not premised on a policy determination by this Court, but was a straightforward interpretation of the policy reflected in the Legislature’s statutory language.
¶45 Finally, Ed asserts we were careful iuBlackburn to overrule prior cases only insofar as they applied the statutory “failure to disclose” language to the 3-year statute of limitations. From that premise, Ed posits that the common law remains viable insofar as pre-Blackburn cases addressed a health care provider’s failure to disclose or concealment in relation to the 3-year limitations period. We disagree.
¶46 In Blackburn, we began our discussion of the time limitations associated with medical malpractice actions by recognizing that the limitations period for medical negligence claims is “codified” at § 27-2-205, MCA. Blackburn,
¶47 We hold the “failure to disclose” provision of § 27-2-205(1), MCA, does not apply to the 3-year limitations period.
¶48 Affirmed.
Concurrence Opinion
dissenting in part and concurring in part.
¶49 I dissent as to Issue 1 and concur as to Issues 2, 3, and 4.
¶50 The plain meaning of the phrase “time of the disability” reasonably could be interpreted to encompass the time between when a minor dies and when the minor would have reached the age of majority. The phrase also reasonably could be interpreted to include only the time that the minor remains alive. I conclude that the phrase “time of the disability” is ambiguous regarding the effect of a minor’s death. We must look beyond the plain language of the statute, therefore, to ascertain the Legislature’s intent. Mont, for Justice v. State ex rel. McGrath,
¶51 We must determine the Legislature’s intent with respect to the “time of the disability” as contained in § 27-2-401(1), MCA. The Runstroms argue that the structure of §§ 27-2-205 and 27-2-401, MCA, supports their interpretation of the phrase “time of the disability.” The Runstroms correctly point out that this Court previously has interpreted ambiguous language in a statute based on the statutory structure in which the language operates. See e.g., Strzelczyk v. Jett,
¶52 Sections 27-2-205 and 27-2-401, MCA, operate together to provide the statute of limitations on medical malpractice claims brought on behalf of minors. Section 27-2-205(1), MCA, provides that a plaintiff must file a medical malpractice claim within three years of the date of the injury or within three years after the plaintiff reasonably should have discovered the injury. Before 1987, § 27-2-401, MCA, tolled this three-year statute of limitations for any minor until that minor reached the age of majority. Estate of McCarthy v. Second Judicial Dist.,
¶53 The Legislature in 1987 limited minority tolling for minors injured while under the age of four, however, when it added subsection (2) to § 27-2-205, MCA. Estate of McCarthy, ¶ 10. Section 27-2-205(2),
¶54 The Runstroms argue that we must interpret the malpractice statutes in a manner that gives effect to all provisions. In particular, they cite to the requirement in § 1-2-101, MCA, that when a statutory scheme has several provisions, a construction is to be adopted which will, if possible, give effect to all. The Runstroms point to the fact that the Legislature included the “or dies” provision in § 27-2-205(2), MCA, when it amended the statute in 1987.
¶55 The “or dies” provision represents one contingency that triggers the running of the period of limitation for a minor injured while under the age of four. Section 27-2-205(2), MCA. The minor’s eighth birthday represents the other possible trigger. Section 27-2-205(2), MCA. The Runstroms contend that the Legislature’s inclusion of the “or dies” provision in subsection (2) would have been unnecessary if the “time of the disability” in § 27-2-401(1), MCA, automatically ended upon the death of a minor. They argue that this interpretation of “time of the disability” would render superfluous the phrase “or dies” in § 27-2-205(2), MCA.
¶56 Dr. Allen contends that the Runstroms “ignore[] critical differences in how [§§ 27-2-205(2), and 27-2-401(1), MCA] work.” He explains that § 27-2-205(2), MCA, by its plain language, tolls the statute of limitations until “a fixed date (the child’s eighth birthday) on which tolling will end.” He asserts that the plain language of § 27-2-205(2), MCA, would toll the statute of limitations until the “fixed date” at which the child would have turned eight absent language to the contrary. He suggests that the Legislature included the “or dies” provision in order to prevent the statute from continuing to toll until the “fixed date” when the minor would have turned eight.
¶57 Dr. Allen contends that § 27-2-401(1), MCA, to the contrary, provides for tolling “only ‘until the plaintiff is no longer disabled.’” He argues that the plain language of § 27-2-401(1), MCA, would not toll the statute of limitations after the child’s death in light of the fact that the phrase “time of the disability” ends upon a minor’s death by its
¶58 Dr. Allen’s proposed interpretation of the two statutes contradicts itself. He argues on the one hand that “time of the disability” in § 27-2-401(1), MCA, cannot continue after death. He argues, on the other hand, that “the minor’s eighth birthday” in § 27-2-205(2), MCA, can occur after death. Dr. Allen attempts to explain away this contradiction by focusing on the fact that a “minor’s eighth birthday” represents a fixed date, while “time of the disability” does not represent a fixed date. His distinction fails. The date at which the disability of minority normally ends-i.e. 18-and the date at which a minor will reach the age of eight, equally will be fixed for any particular child regardless of the fact that the Legislature expresses one age as a number and another age as a legal status.
¶59 I conclude that the structure of the applicable statute of limitations indicates that the phrase “time of the disability” encompasses the time between the death of a minor and when that minor would have reached the age of majority. The Legislature limited the minority tolling provision so that it would end the “time of the disability” when a minor injured while under the age of four reaches the age of eight, or dies. The Legislature would have had no reason to specify in § 27-2-205(2), MCA, that tolling would end upon the death of the minor, had the phrase “time of the disability,” in § 27-2-401(1), MCA, already ended upon the death of the minor pursuant to its plain language.
¶60 Dr. Allen argues that this interpretation conflicts with other courts’ interpretations of analogous statutes. He points specifically to Holt v. Lenko,
¶62 I concur with the result on Issue 2, but for different reasons. We interpret statutes of limitations according to their plain language. Wing v. State ex. rel. Dept, of Transp.,