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HEADLINE: Med-mal claim accrued when heart attack occurred

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  • HEADLINE: Med-mal claim accrued when heart attack occurred

    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
    Thanks, Tim
    Forum Administrator

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