Fabio v. Bellomo , 1993 Minn. LEXIS 558 ( 1993 )

GARDEBRING, Justice

(dissenting).

This case involves two misdiagnoses made by Dr. Bellomo of a malignant tumor in Delores Fabio. The first misdiagnosis occurred sometime between 1982 and 1984, the second in 1986. The correctness of the trial court’s decision to disallow amendment of Fabio’s complaint turns on whether the statute of limitations for medical malpractice for the 1982-84 misdiagnosis was tolled until the 1986 misdiagnosis. Because I believe that the limitation period was tolled until the second diagnosis, I must respectfully dissent on this issue.

The common law imposed no limitation period on the bringing of a claim; any limitation on the time in which an action may be brought is statutory. R. Muscara, Note, Tort Law—Federal Tort Claims Act—Accrual of Medical Malpractice Action, United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), 4 W.New.Eng.L.Rev. 155, 158 (1981). Statutes of limitation are based on the public policy encouraging the quick resolution of disputes. They are designed to “promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.” Order of R.R. Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342, 348-49, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944). Clearly, the main consideration underlying these statutes is one of fairness toward the defendant. “There comes a time when [a defendant] ought to be secure in his reasonable expectation that the slate has been wiped clean of ancient obligations * * Developments in the Law—Statute of Limitations, [hereinafter Developments] 63 Harv.L.Rev. 1177, 1185 (1950).

Normally, a statute of limitation begins to run when the cause of action accrues. Id. at 1200. Although it seems obvious that a cause of action would accrue at the time a suit could theoretically be maintained (i.e., at the time tortious act occurred), courts have often delayed the beginning of the statutory period until an event occurs without which a suit would be impossible or improbable (e.g., until the plaintiff learned of the wrong¹ or substantial damage occurred). Id.

In many kinds of tort actions, the act alleged to cause injury and the injury resulting therefrom occur simultaneously and are known to the injured party immediately. However, in medical malpractice cases, the injury may be totally unknown to the injured party for years after the tortious act occurs. The customary application of the rule can result in unfairness if the plaintiff does not know she has been harmed until the limitations period has run.

There is an obvious injustice in holding a plaintiff with a meritorious malpractice claim to a strict application of the statute of limitations, i.e., that his cause [of action] accrued at the time of the physician’s wrongful act or omission. A patient, who places his trust in his doctor, may know nothing of what is affecting him. He may know only that he is not getting well. He may be treated for years before learning that, initially, his case was misdiagnosed, or that at the onset of his treatment he was given the wrong drug, one which worsened rather than bettered his condition.

D. Harney, Medical Malpractice, § 8.3 at 260 (1973).

The “continuing course of treatment” doctrine has evolved as a compromise to ameliorate potential unfairness resulting from delayed discovery of an injury.² Under this doctrine, the statute of limitations is tolled until treatment is ceased by the negligent physician for the injury which formed the basis for the cause of action. The rationale underlying the doctrine is to foster the physician-patient relationship by allowing the patient to seek corrective treatment while maintaining her legal remedy,³ thus affirming the trust and confidence a patient has in her doctor.⁴ In Grondahl v. Bulluck, 318 N.W.2d 240 (Minn.1982) we stated that three factors should be considered to determine when a continuing course of treatment ceased:

(1) whether there is a relationship between physician and patient with regard to the illness; (2) whether the physician is attending and examining the patient; and (3) whether there is something more to be done.

Id. at 243 (citing Schmit v. Esser, 183 Minn. 354, 358-59, 236 N.W. 622, 625 (1931)).

It is clear that the second factor was satisfied in this case; Dr. Bellomo saw Fabio many times between 1982 and 1986. Further, the third factor was also met in this case; it is obvious that accurate diagnosis and subsequent treatment of Fabio’s cancer was required. Therefore, the only relevant inquiry concerns the first factor.

The majority states that Dr. Bellomo “treated” Fabio’s cancer when he told her “not to worry about it,” op. at 762, in effect, saying that the relationship between Dr. Bellomo and Fabio as to Fabio’s cancer began and ended each time he made a misdiagnosis. However, this view of the relationship begs the question as to whether our requirements for a continuing course of treatment are met. Treatment by a physician must necessarily include diagnosis. Proper treatment requires an accurate diagnosis — which, of course, was not present in this case. Once the admission is made by the majority that the misdiagnosis constituted treatment, and that he so “treated” her illness several times over the years, one must ask why the requirement of Grondahl is not met. It can only be that the majority implicitly affords less value to the “diagnosis” phase of treatment than to other forms of treatment.

Although it seems incongruous that subsequent treatment can occur without affirmative action by the physician since the term treatment connotes the presence of action, in certain situations “treatment” can occur by omission. This treatment by omission arises when a patient returns to the treating physician complaining of problems in the mistreated area but the physician disregards the complaints. The significant factor is that even though the physician may not have provided literal treatment to the afflicted area, the patient, by returning to the physician, has provided him with an opportunity to correct his previous error. The patient’s return visit has not only continued the physician-patient relationship, but it has also continued “treatment” of the specific injury.

Dana David Peck, Comment, The Continuous Treatment Doctrine: A Toll of the Statute of Limitations for Medical Malpractice in New York, 49 Alb.L.Rev. 64, 79 (1984) (citations omitted). If Dr. Bellomo, through his physician/patient relationship with Fabio, was “treating” her by examining the lump in her breast with an eye to diagnosis, I can only conclude that there was a continuing course of treatment during this time.

This court has never faced the question of whether multiple misdiagnoses, acknowledged by the majority to constitute “treatment,” are sufficient to toll the limitations period. However, other jurisdictions have reached this issue. In Fonda v. Paulsen, 46 A.D.2d 540, 363 N.Y.S.2d 841 (1975), the plaintiff underwent a biopsy in May 1969. No evidence of cancer was found and the plaintiff was so informed. The plaintiff saw the defendant doctor five times during 1970 for injuries unrelated to the cancer, but nevertheless complained about the spot from which the biopsy was taken on at least two occasions. In 1972, the defendant referred the plaintiff to another doctor for another biopsy which showed that a malignancy had existed since 1969 in the spot previously examined, and which should have been detected by the 1969 biopsy-

The plaintiff did not bring suit until 1974. The physicians claimed the action was barred by the three-year limitations period measured from the time of the negligent diagnosis. The trial court dismissed the suit finding that no treatment occurred after May 1969. In reversing the trial court, the appellate court stated:

If a patient continues under post-operative observation by his physician and is advised that his condition is being cured, this is as much “treatment” as affirmative acts such as surgery, therapy or prescription of medicines. Any other view must be based on the erroneous supposition that only acts of commission, but not acts of omission, can constitute negligence; there would be little chance for legal redress by a patient who has been the victim of an alleged malpractice who is advised that time is the only barrier to a complete cure, when in reality, time is a barrier to a cause of action.

Id., 363 N.Y.S.2d at 844 (citation omitted).

In McDermott v. Torre, 452 N.Y.S.2d 351, 437 N.E.2d 1108, in May 1974, the defendant physician examined a mole on the plaintiffs ankle, excised a portion of the mole and sent it to a lab for a biopsy, which came back negative. The plaintiff saw the defendant physician at least eight times between May 1974 and September 1976 for various other conditions, but also complained about continuing pain in her ankle and the grayish color present in the area. Each time she complained, the physician told her there was no cause for concern. Eventually, the plaintiff learned that the diagnosis was wrong and a malignant melanoma was removed from the site of the mole.

On appeal from summary judgment in favor of the defendant physician, the plaintiff argued that the continuing course of treatment acted to toll the statute of limitations until 1976. In addressing that argument the court stated:

[A] complete discharge by a physician [does not] forever [bar] a finding of continuing treatment. Included within the scope of “continuous treatment” is a timely return visit instigated by the patient to complain and seek treatment for a matter related to initial treatment. Thus, there will be continuing treatment when a -patient, instructed that he or she does not need further attention, soon returns to a doctor because of continued pain in that area for which medical attention was first sought.

Id. at 1111 (emphasis added). The rule that has evolved in New York is that when a physician tells a patient there is nothing more to be done for a particular injury, and the patient returns to that doctor for other reasons, but also complains about the earlier injury, as long as there is an ongoing relationship with the physician, the physician’s non-treatment is sufficient to toll the statute of limitations.

In Shumway v. DeLaus, 152 A.D.2d 951, 543 N.Y.S.2d 777 (1989), motion for leave to appeal dismissed 75 N.Y.2d 946, 555 N.Y.S.2d 693, 554 N.E.2d 1281 (1990), the Appellate Division of the Supreme Court of New York, Fourth Department, refused to hold that a 2¾⅛ year gap in treatment, the length of the medical malpractice limitations period in New York, barred the continuing course of treatment doctrine as a matter of law. Instead of adopting a rigid approach, it articulated the following standard:

[W]e adhere to the principal that “where the physician and patient reasonably intend the patient’s uninterrupted reliance on the physician’s observation, directions, concern, and responsibility for overseeing the patient’s progress, the requirement of continuous treatment for the purpose of the Statute of Limitations is certainly satisfied.”

Id. (quoting Richardson v. Orenteich, 64 N.Y.2d 896, 487 N.Y.S.2d 731, 477 N.E.2d 210 (1985).

Between 1982 and 1986, Fabio saw Bello-mo approximately 60 times for various ailments. She saw no other doctor during that time. She did not complain of continuing pain in the area where Bellomo made the misdiagnosis, but the malignant tumor, which Bellomo determined to be a fibrous mass, was nevertheless brought to his attention by his own examination. Surely, the only reason' for requiring a patient to complain about the area previously misdiagnosed is to bring it to the attention of the physician. The key .inquiry must be whether the physician was put on notice, through the actions of her patient or herself, that an abnormal condition existed. Dr. Bellomo certainly possessed such knowledge.

A physician’s diagnosis that nothing further is necessary does not end “treatment” if the physician is subsequently given notice within a reasonable time that the initial diagnosis was wrong. Treatment by omission can toll the statute of limitations if the subsequent misdiagnosis occurred within a reasonable time after the initial diagnosis, and there was a continuing relationship between the physician and the patient.

I respectfully dissent from the majority opinion on the issue of whether a continuing course of treatment existed, so as to toll running of the statute of limitations until 1986.

1 . This is the so-called "discovery rule.” Historically it has been used in cases involving fraud, mistake and breach of fiduciary duty. Developments — Statute of Limitations, 63 Harv.L.Rev. 1177, 1221-22 (1950).

2 . The other exceptions in the medical malpractice context are the discovery rule, which tolls the limitations period until a patient discovered or should have discovered the injury; the fraudulent concealment exception, which tolls the statute until the condition was discovered or should have been discovered when a physician attempts to conceal his or her' negligence/ and the foreign object exception, which tolls the statute when a foreign object is found inside the body of a patient. Of these three, Minnesota recognizes only fraudulent concealment as a means of tolling the two-year statute of limitations. Schmucking v. Mayo, 183 Minn. 37, 235 N.W. 633 (1931); Couillard v. Charles T. Miller Hospital, Inc., 253 Minn. 418, 92 N.W.2d 96 (1958). This court has never considered whether the statute should be tolled when a foreign object is discovered and it has explicitly declined to adopt the discovery rule. Johnson v. Winthrop Laboratories Division of Sterling Drug, Inc., 291 Minn. 145, 190 N.W.2d 77 (1971). As of early 1993, 41 states had adopted the discovery rule in some fashion for medical malpractice cases. Annotation, When Statute of Limitations Commences to Run Against Malpractice Action Against Physician, Surgeon, Dentist, or Similar Practitioner, 80 A.L.R.2d 368, 387 (1961), 79-80 A.L.R.2d (later case service) at 293 (1990 & Supp.1993).

3 . This rationale is well articulated in McDermott v. Torre, 56 N.Y.2d 399, 452 N.Y.S.2d 351, 355, 437 N.E.2d 1108, 1112 (N.Y.1982):

The policy underlying the continuous treatment doctrine seeks to maintain the physician-patient relationship in the belief that the most efficacious medical care will be obtained when the attending physician remains on the case from onset to cure. Implicit in the policy is the recognition that the doctor not only is in a position to identify and correct his or her malpractice, but is best placed to do so. [citation omitted].

4 . This rationale was given in support of the rule by this court in Swang v. Hauser, 288 Minn. 306, 309, 180 N.W.2d 187, 189-90 (1970):

The 2-year statute of limitations for medical malpractice ordinarily does not commence to run until the termination of the treatment for which the physician is retained. A practical reason for this general rule is that the actionable treatment does not ordinarily consist of a single act, or even if it does, it is most difficult to determine the precise time of its occurrence. A policy reason is that the patient must repose reliance upon his physician in the completion of the course of cura-five treatment, a relationship of trust which inhibits the patient’s ability to discover acts of omission or commission constituting malpractice.

(Emphasis added) (citations omitted).