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Copyright 2003 Dolan Media Newswires
The Minnesota Lawyer (Minneapolis, MN)
May 12, 2003 Monday
SECTION: NEWS
LENGTH: 1500 words
HEADLINE: Med-mal claim accrued when heart attack occurred
BYLINE: Barbara Jones
BODY:
The family of a man who suffered a fatal heart attack after a racquetball
game could bring a wrongful death action against a doctor who told the man seven
years earlier that his congenital heart condition did not require him to limit
his physical activities, the Court of Appeals has ruled.
A Hennepin County District Court judge dismissed the claim as untimely,
concluding that the cause of action began to accrue when the advice was given in
1993. (The statute of limitations in effect in 1993 provided that a medical
negligence claim against a doctor had to be brought within two years of when it
starts to accrue; the time period was subsequently expanded to four years.)
The plaintiffs argued the limitations period had not run because the claim
did not start to accrue until the actual injury occurred -- i.e. when the
decedent suffered his heart attack.
The Court of Appeals agreed, reversing the trial court judge's grant of
summary judgment.
"The record simply contains no evidence that [the decedent] suffered any
compensable injury before that time that could be attributable to [the doctor's]
alleged negligence," wrote Judge Harriet Lansing.
The 11-page opinion, Broek v. Park Nicollet Health Services, et al., is
Minnesota Lawyer No. CA-477-03.
The decision is one of two major med-mal decisions decided by the Court of
Appeals last week. (The second case, also reported in this issue, involved a
wrongful conception claim.)
Minneapolis attorney David Herr, who represented the plaintiff, said the case
was "clear cut" and provided "a clean analysis" on how the statute works.
"We thought [the Court of Appeals] applied settled precedent," he explained.
"A cause of action doesn't arise until there is an injury. "
Minneapolis attorney Katherine A. McBride who represented the defendants in
this case, also represented the defendants in Molloy, et. al. v. Meier, et al.,
a decision by the Court of Appeals issued the same day. (Molloy held, among
other things, that a wrongful conception claim based on genetic testing did not
accrue until the child's conception and was therefore not barred by the statute
of limitations.)
McBride sees the cases as related. "It's not a coincidence that they were
decided on the same day," she said.
The decisions implicate many dangers to physicians, particularly the danger
that there will be no end to potential liability at the termination of
treatment, according to McBride.
"We're looking at situations where damage may not occur for decades," she
explained. "That could have a serious impact on doctors' abilities to practice.
It will impact insuring decisions. Judge Bruce Willis touched on these dangers
in the concurrence in Molloy."
McBride also told Minnesota Lawyer: "It's unfortunate that the court has
departed from the termination of treatment rule. Of course we will be consulting
with our clients on both these cases about further review."
McBride said that if the Supreme Court ultimately affirms the Court of
Appeals' decisions in these cases, the medical community may look to the
Legislature to adopt a statute of repose.
Cardiac arrest
As a teenager, decedent Alan L. Uetz had been diagnosed with a ventricle
septal defect (VSD) -- an abnormal heart condition in which there is an opening
or defect in the septum, the muscular wall separating the two ventricles of the
heart. In 1991, tests revealed that he had idiopathic hypertrophic subaortic
stenosis, (IHSS) -- a heart-muscle disease of unknown cause that is typically
inherited.
In 1992, the decedent began treatment at Park Nicollet Medical Center. He
reported that he was very physically active and had no chest pain or trouble
breathing. After an echocardiogram in February 1993, the doctor at the clinic
told the decedent that he need not restrict any of his physical activities. The
decedent did not receive any further treatment for the condition.
In September 2000, the decedent suffered cardiac arrest while playing
racquetball. He died three weeks later without regaining consciousness.
The decedent's family commenced suit against the doctor and the clinic on
March 4, 2002.
The defendants moved for summary judgment, contending that the action was
time-barred by the statute of limitations applicable to wrongful-death claims.
The plaintiffs' expert submitted an affidavit that stated that at the time of
the decedent's visit to Park Nicollet, it was known that vigorous physical
activity with hypertrophic cardiomyopathy (which includes IHSS) can trigger
ventricular fibrillation and lead to sudden death, even when the condition is
otherwise stable. The expert stated that the decedent suffered no injury or
damage as a result of the alleged negligence (the advice that it was unnecessary
to restrict physical activity) until his collapse in 2000.
The District Court judge concluded that the medical opinion that no damage
was suffered until Sept. 5, 2000 was not determinative of the narrow legal
issue.
The judge concluded that the cause of action arose at the time of the alleged
failure to provide proper treatment, that the physician-patient relationship
terminated in February 1993 and that evidence of termination of the relationship
provided a more compelling basis for determining the accrual of the action than
an inference of continuing fault.
Four-year statute
Lansing noted that the statute of limitations for medical negligence was
changed in 1999 from two to four years from the date the cause of action
accrued. (The statutory change applied to actions commenced on or after Aug. 1,
1999.)
In 2002, the judge continued, the statute of limitations for claims for
wrongful death due to medical malpractice was amended to three years from the
date of death, or four years from the accrual of the cause of action. Thus, the
statute of limitations applicable to the plaintiffs' claim was four years from
the date of accrual or three years from the date of death.
"If we conclude that the cause of action accrued in February, 1993, when [the
decedent] ended his treatment ... the current four-year statute of limitations
precludes [the decedent] from bringing her claim. If we conclude, however, that
the cause of action did not accrue until [the decedent] suffered cardiac arrest
in September 2000, [the decedent's] claim is not barred and may proceed."
Damage element essential
While tort cases generally accrue at the time of injury, the
termination-of-treatment rule has been adopted in medical malpractice claims to
ameliorate the potentially harsh effects of limitations statutes, Lansing
observed. (The rule says that a claim does not start to accrue until treatment
for the particular condition is terminated.)
However, Lansing observed, Minnesota courts have carved out an exception to
the termination-of-treatment rule for cases when the alleged malpractice
consists of a single act of negligence that is complete at a precise time, when
the act cannot be cured or relieved by a continued course of treatment, and when
the plaintiff is aware of facts on which the claim is based. In these cases,
accrual is based on the alleged negligence coupled with the alleged resulting
damage, the judge pointed out.
However, either rule presupposes the existence of an injury attributable to
the defendants' negligence, Lansing continued, noting that the element of damage
must exist before an action may be brought. In the present case, the decedent
was not damaged until September 2000, the judge wrote.
"On the admittedly unusual facts of this case, we conclude that the
uncontested record establishes that the critical element of injury was missing
until September 2000, when [the decedent] suffered the fatal cardiac arrest,"
Lansing stated.
Lansing further noted that the record was devoid of medical evidence that the
decedent's medical condition changed or progressed during the seven years after
he consulted with the defendants.
"In this respect, this case differs from failure to diagnose or inform, in
which the plaintiff's illness or injury progressed during a time period after
the alleged negligence occurred, and thus triggered the running of the statute
of limitations," Lansing explained.
The court rejected the defendants' argument that allowing the action to
proceed would in effect create a "discovery rule," tolling the
medical-malpractice statute of limitations until the plaintiff becomes aware of
the injury for which compensation is sought.
"[O]ur decision in this case rests not on [the decedent's] failure to
discover a medical injury that may have been attributable to ... negligence but
rather on the proposition that no injury existed until [the decedent] suffered
cardiac arrest in September, 2000. Thus our analysis reflects an objective
standard -- ascertainable evidence of injury -- rather than a subjective
standard -- the plaintiff's personal knowledge of such an injury," wrote
Lansing. (Emphasis by court.)
LOAD-DATE: May 12, 2003
The Minnesota Lawyer (Minneapolis, MN)
May 12, 2003 Monday
SECTION: NEWS
LENGTH: 1500 words
HEADLINE: Med-mal claim accrued when heart attack occurred
BYLINE: Barbara Jones
BODY:
The family of a man who suffered a fatal heart attack after a racquetball
game could bring a wrongful death action against a doctor who told the man seven
years earlier that his congenital heart condition did not require him to limit
his physical activities, the Court of Appeals has ruled.
A Hennepin County District Court judge dismissed the claim as untimely,
concluding that the cause of action began to accrue when the advice was given in
1993. (The statute of limitations in effect in 1993 provided that a medical
negligence claim against a doctor had to be brought within two years of when it
starts to accrue; the time period was subsequently expanded to four years.)
The plaintiffs argued the limitations period had not run because the claim
did not start to accrue until the actual injury occurred -- i.e. when the
decedent suffered his heart attack.
The Court of Appeals agreed, reversing the trial court judge's grant of
summary judgment.
"The record simply contains no evidence that [the decedent] suffered any
compensable injury before that time that could be attributable to [the doctor's]
alleged negligence," wrote Judge Harriet Lansing.
The 11-page opinion, Broek v. Park Nicollet Health Services, et al., is
Minnesota Lawyer No. CA-477-03.
The decision is one of two major med-mal decisions decided by the Court of
Appeals last week. (The second case, also reported in this issue, involved a
wrongful conception claim.)
Minneapolis attorney David Herr, who represented the plaintiff, said the case
was "clear cut" and provided "a clean analysis" on how the statute works.
"We thought [the Court of Appeals] applied settled precedent," he explained.
"A cause of action doesn't arise until there is an injury. "
Minneapolis attorney Katherine A. McBride who represented the defendants in
this case, also represented the defendants in Molloy, et. al. v. Meier, et al.,
a decision by the Court of Appeals issued the same day. (Molloy held, among
other things, that a wrongful conception claim based on genetic testing did not
accrue until the child's conception and was therefore not barred by the statute
of limitations.)
McBride sees the cases as related. "It's not a coincidence that they were
decided on the same day," she said.
The decisions implicate many dangers to physicians, particularly the danger
that there will be no end to potential liability at the termination of
treatment, according to McBride.
"We're looking at situations where damage may not occur for decades," she
explained. "That could have a serious impact on doctors' abilities to practice.
It will impact insuring decisions. Judge Bruce Willis touched on these dangers
in the concurrence in Molloy."
McBride also told Minnesota Lawyer: "It's unfortunate that the court has
departed from the termination of treatment rule. Of course we will be consulting
with our clients on both these cases about further review."
McBride said that if the Supreme Court ultimately affirms the Court of
Appeals' decisions in these cases, the medical community may look to the
Legislature to adopt a statute of repose.
Cardiac arrest
As a teenager, decedent Alan L. Uetz had been diagnosed with a ventricle
septal defect (VSD) -- an abnormal heart condition in which there is an opening
or defect in the septum, the muscular wall separating the two ventricles of the
heart. In 1991, tests revealed that he had idiopathic hypertrophic subaortic
stenosis, (IHSS) -- a heart-muscle disease of unknown cause that is typically
inherited.
In 1992, the decedent began treatment at Park Nicollet Medical Center. He
reported that he was very physically active and had no chest pain or trouble
breathing. After an echocardiogram in February 1993, the doctor at the clinic
told the decedent that he need not restrict any of his physical activities. The
decedent did not receive any further treatment for the condition.
In September 2000, the decedent suffered cardiac arrest while playing
racquetball. He died three weeks later without regaining consciousness.
The decedent's family commenced suit against the doctor and the clinic on
March 4, 2002.
The defendants moved for summary judgment, contending that the action was
time-barred by the statute of limitations applicable to wrongful-death claims.
The plaintiffs' expert submitted an affidavit that stated that at the time of
the decedent's visit to Park Nicollet, it was known that vigorous physical
activity with hypertrophic cardiomyopathy (which includes IHSS) can trigger
ventricular fibrillation and lead to sudden death, even when the condition is
otherwise stable. The expert stated that the decedent suffered no injury or
damage as a result of the alleged negligence (the advice that it was unnecessary
to restrict physical activity) until his collapse in 2000.
The District Court judge concluded that the medical opinion that no damage
was suffered until Sept. 5, 2000 was not determinative of the narrow legal
issue.
The judge concluded that the cause of action arose at the time of the alleged
failure to provide proper treatment, that the physician-patient relationship
terminated in February 1993 and that evidence of termination of the relationship
provided a more compelling basis for determining the accrual of the action than
an inference of continuing fault.
Four-year statute
Lansing noted that the statute of limitations for medical negligence was
changed in 1999 from two to four years from the date the cause of action
accrued. (The statutory change applied to actions commenced on or after Aug. 1,
1999.)
In 2002, the judge continued, the statute of limitations for claims for
wrongful death due to medical malpractice was amended to three years from the
date of death, or four years from the accrual of the cause of action. Thus, the
statute of limitations applicable to the plaintiffs' claim was four years from
the date of accrual or three years from the date of death.
"If we conclude that the cause of action accrued in February, 1993, when [the
decedent] ended his treatment ... the current four-year statute of limitations
precludes [the decedent] from bringing her claim. If we conclude, however, that
the cause of action did not accrue until [the decedent] suffered cardiac arrest
in September 2000, [the decedent's] claim is not barred and may proceed."
Damage element essential
While tort cases generally accrue at the time of injury, the
termination-of-treatment rule has been adopted in medical malpractice claims to
ameliorate the potentially harsh effects of limitations statutes, Lansing
observed. (The rule says that a claim does not start to accrue until treatment
for the particular condition is terminated.)
However, Lansing observed, Minnesota courts have carved out an exception to
the termination-of-treatment rule for cases when the alleged malpractice
consists of a single act of negligence that is complete at a precise time, when
the act cannot be cured or relieved by a continued course of treatment, and when
the plaintiff is aware of facts on which the claim is based. In these cases,
accrual is based on the alleged negligence coupled with the alleged resulting
damage, the judge pointed out.
However, either rule presupposes the existence of an injury attributable to
the defendants' negligence, Lansing continued, noting that the element of damage
must exist before an action may be brought. In the present case, the decedent
was not damaged until September 2000, the judge wrote.
"On the admittedly unusual facts of this case, we conclude that the
uncontested record establishes that the critical element of injury was missing
until September 2000, when [the decedent] suffered the fatal cardiac arrest,"
Lansing stated.
Lansing further noted that the record was devoid of medical evidence that the
decedent's medical condition changed or progressed during the seven years after
he consulted with the defendants.
"In this respect, this case differs from failure to diagnose or inform, in
which the plaintiff's illness or injury progressed during a time period after
the alleged negligence occurred, and thus triggered the running of the statute
of limitations," Lansing explained.
The court rejected the defendants' argument that allowing the action to
proceed would in effect create a "discovery rule," tolling the
medical-malpractice statute of limitations until the plaintiff becomes aware of
the injury for which compensation is sought.
"[O]ur decision in this case rests not on [the decedent's] failure to
discover a medical injury that may have been attributable to ... negligence but
rather on the proposition that no injury existed until [the decedent] suffered
cardiac arrest in September, 2000. Thus our analysis reflects an objective
standard -- ascertainable evidence of injury -- rather than a subjective
standard -- the plaintiff's personal knowledge of such an injury," wrote
Lansing. (Emphasis by court.)
LOAD-DATE: May 12, 2003