#27568-a-DG
2016 S.D. 33
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
BARRY THOMAS PITT-HART, MD, Plaintiff and Appellant,
v.
SANFORD USD MEDICAL CENTER, Defendant and Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
****
THE HONORABLE DOUGLAS E. HOFFMAN
Judge
****
N. DEAN NASSER, JR.
JAMES M. NASSER of
Nasser Law Offices, PC
Sioux Falls, South Dakota Attorneys for plaintiff and
appellant.
MELISSA C. HINTON of
Evans, Haigh & Hinton, LLP
Sioux Falls, South Dakota Attorneys for defendant and
appellee.
****
CONSIDERED ON BRIEFS
ON MARCH 21, 2016
OPINION FILED 04/13/16
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GILBERTSON, Chief Justice
[¶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.
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[¶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
SDCL 15-2-14.1 1 as a medical-malpractice claim. The circuit court agreed and
granted Sanford’s motion for summary judgment.
[¶5.] Pitt-Hart appeals, raising the following issue: Whether Pitt-Hart’s
action was time barred by SDCL 15-2-14.1.
Standard of Review
[¶6.] “In reviewing a grant or a denial of summary judgment under
SDCL 15-6-56(c), we must determine whether the moving party demonstrated the
absence of any genuine issue of material fact and showed entitlement to judgment
on the merits as a matter of law.” Gades v. Meyer Modernizing Co., 2015 S.D. 42,
¶ 7, 865 N.W.2d 155, 157-58 (quoting Peters v. Great W. Bank, Inc., 2015 S.D. 4, ¶ 5,
859 N.W.2d 618, 621). “We view the evidence ‘most favorably to the nonmoving
1. SDCL 15-2-14.1 states, in part:
An action against a physician, surgeon, dentist, hospital,
sanitarium, registered nurse, licensed practical nurse,
chiropractor, or other practitioner of the healing arts for
malpractice, error, mistake, or failure to cure, whether based
upon contract or tort, can be commenced only within two years
after the alleged malpractice, error, mistake, or failure to cure
shall have occurred . . . .
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party and resolve reasonable doubts against the moving party.’” Id. ¶ 7,
865 N.W.2d at 158 (quoting Peters, 2015 S.D. 4, ¶ 5, 859 N.W.2d at 621).
[¶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.
Analysis and Decision
[¶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
SDCL 15-2-14.1. Pitt-Hart also contends that even if SDCL 15-2-14.1 applies, the
running of its two-year period was tolled because of Sanford’s alleged, inequitable
conduct. Finally, Pitt-Hart contends that the two-year period was tolled under the
continuous-treatment rule because he continued to receive treatment until
September 14, 2010.
[¶9.] Pitt-Hart first argues that SDCL 15-2-14.1 does not apply to this
action. Pitt-Hart contends that “[s]uing only the master does not turn a respondent
superior claim into a direct liability claim for statute of limitations purposes.”
Because Pitt-Hart concludes that SDCL 15-2-14.1 does not apply to Nygard, Pitt-
Hart also concludes that it does not apply to Sanford in this case. According to Pitt-
Hart, “[a]lthough a hospital is vicariously liable for the torts of its ministerial
employees committed within the scope of employment, the ministerial tortious acts
of the employees do not become the torts of the hospital.” Therefore, Pitt-Hart
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concludes that SDCL 15-2-14.1 bars claims only for malpractice directly performed
by those persons listed in that statute. In essence, Pitt-Hart asks us to replace the
word against in SDCL 15-2-14.1 and to read that statute to address only “an action
[based on an injury caused by (rather than against)] a physician, surgeon, dentist,
hospital, sanitarium, registered nurse, licensed practical nurse, chiropractor, or
other practitioner of the healing arts.”
[¶10.] Pitt-Hart’s argument that SDCL 15-2-14.1 applies to “direct” claims
but not vicarious claims is untenable, and we decline his invitation to insert
language into SDCL 15-2-14.1. “When interpreting a statute, we ‘begin with the
plain language and structure of the statute.’” Magellan Pipeline Co., LP v. S.D.
Dep’t of Revenue & Reg., 2013 S.D. 68, ¶ 9, 837 N.W.2d 402, 404 (quoting In re
Pooled Advocate Tr., 2012 S.D. 24, ¶ 32, 813 N.W.2d 130, 141). “Words used [in the
South Dakota Codified Laws] are to be understood in their ordinary sense . . . .”
SDCL 2-14-1. SDCL 15-2-14.1 applies simply to an action. An action is “[a] civil or
criminal judicial proceeding.” Black’s Law Dictionary 35 (10th ed. 2014). The only
qualifiers on the type of action contemplated by SDCL 15-2-14.1 are the type of
defendant sued (i.e., “a physician, surgeon, dentist, hospital, sanitarium, registered
nurse, licensed practical nurse, chiropractor, or other practitioner of the healing
arts”) and the type of conduct alleged (i.e., “malpractice, error, mistake, or failure to
cure”). SDCL 15-2-14.1. Thus, according to its plain language, SDCL 15-2-14.1
broadly applies to any action meeting these criteria. 2 While direct and vicarious
2. Pitt-Hart contends that “[i]f the Legislature intended SDCL 15-2-14.1 to
include vicarious liability, it could have easily said so[.]” SDCL 15-2-14.1 is
(continued . . .)
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theories of liability are distinct legal concepts, SDCL 15-2-14.1 makes no distinction
between the two, nor does it appear that this Court has ever recognized such a
distinction.
[¶11.] The question then becomes simply whether SDCL 15-2-14.1 applies to
Pitt-Hart’s action against Sanford. First, we must determine whether the type of
defendant in this case is among those enumerated in SDCL 15-2-14.1. Although
Pitt-Hart contends that the statute is inapplicable because Nygard is not a
practitioner of the healing arts, our past cases establish that in vicarious-liability
cases, the employee’s negligence is treated as the employer’s negligence. See Lewis
v. Sanford Med. Ctr., 2013 S.D. 80, ¶ 1, 840 N.W.2d 662, 663; Burgard v.
Benedictine Living Cmtys., 2004 S.D. 58, ¶¶ 1-3, 680 N.W.2d 296, 297-98. More
importantly, Sanford—not Nygard—is the named defendant in this case. There is
no dispute that Sanford is a hospital. Therefore, under the plain language of
SDCL 15-2-14.1, the defendant in this action is of a type enumerated by that
statute.
[¶12.] Next, we must also determine whether the conduct alleged is of a type
contemplated by SDCL 15-2-14.1. Pitt-Hart cites several cases holding that certain
conduct of hospital employees does not fall within the ambit of medical malpractice.
See Moore v. Louis Smith Mem’l Hosp., Inc., 454 S.E.2d 190, 191 (Ga. Ct. App. 1995)
________________________
(. . . continued)
worded inclusively—it broadly applies to an action. This inclusive statement
is explicitly limited in only two ways. When the Legislature uses inclusive
language indicating a broad range of conduct, it is not required to anticipate
and individually address each subdivision of that conduct a party might
imagine. Thus, the better view is that if the Legislature intended SDCL 15-
2-14.1 to exclude vicarious liability, it could have easily said so.
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(nursing-home resident fell while nursing assistant attempted to help the resident
move from her wheelchair to her bed); Brown v. Durden, 393 S.E.2d 450, 451 (Ga.
Ct. App. 1990) (patient suffering from seizures fell off examination table at doctor’s
office); Candler Gen. Hosp., Inc. v. McNorrill, 354 S.E.2d 872, 873 (Ga. Ct. App.
1987) (hospital patient fell while orderly attempted to remove patient from a
stretcher); Landes v. Women’s Christian Ass’n, 504 N.W.2d 139, 140 (Iowa Ct. App.
1993) (hospital patient fell in restroom after staff failed to accompany him); Papa v.
Brunswick Gen. Hosp., 517 N.Y.S.2d 762, 763 (N.Y. App. Div. 1987) (hospital
patient fell out of bed); Coursen v. N.Y. Hosp.–Cornell Med. Ctr., 499 N.Y.S.2d 52,
53 (N.Y. App. Div. 1986) (hospital patient fainted in restroom, unattended by
nurse’s aide); Toledo v. Mercy Hosp. of Buffalo, 994 N.Y.S.2d 298, 299 (N.Y. Sup. Ct.
2014) (hospital patient slipped on urine while walking to restroom); Dawkins v.
Union Hosp. Dist., 758 S.E.2d 501, 502 (S.C. 2014) (emergency-room patient fell in
hospital restroom after staff failed to accompany her); Peete v. Shelby Cty. Health
Care Corp., 938 S.W.2d 693, 694 (Tenn. Ct. App. 1996) (hospital patient injured
after hospital technician caused an orthopedic suspension bar to fall on her);
Franklin v. Collins Chapel Connectional Hosp., 696 S.W.2d 16, 17 (Tenn. Ct. App.
1985) (nursing-home resident suffered burns after orderly placed him in a hot bath).
[¶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
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malpractice. In contrast, SDCL 15-2-14.1 applies to “[a]n action . . . for malpractice,
error, mistake, or failure to cure[.]” SDCL 15-2-14.1 (emphasis added). This is true
regardless of “whether [the action is] based upon contract or tort[.]” Id. (emphasis
added). “[W]e assume that the Legislature intended that no part of its statutory
scheme be rendered mere surplusage . . . .” Peters, 2015 S.D. 4, ¶ 8, 859 N.W.2d
at 622 (quoting Faircloth v. Raven Indus., Inc., 2000 S.D. 158, ¶ 6, 620 N.W.2d 198,
201). Therefore, the phrase malpractice, error, mistake, or failure to cure
necessarily has a broader meaning than the term malpractice alone. Even if we
accept Pitt-Hart’s authorities, then, they offer little guidance on the application of
SDCL 15-2-14.1 to the facts of this case.
[¶14.] In determining the meaning of the terms error and mistake, we first
examine their plain, ordinary meanings. SDCL 2-14-1; Magellan Pipeline Co.
2013 S.D. 68, ¶ 9, 837 N.W.2d at 404. The term error means: “1. An act, an
assertion, or a belief that unintentionally deviates from what is correct, right or
true. 2. The condition of having incorrect or false knowledge. 3. The act or an
instance of deviating from an accepted code of behavior. 4. A mistake.” The Am.
Heritage Coll. Dictionary 467 (3d ed. 1997) (emphasis added). The term mistake
means: “1. An error or a fault resulting from defective judgment, deficient
knowledge, or carelessness. 2. A misconception or misunderstanding.” Id. at 873
(emphasis added). Thus, while SDCL 15-2-14.1 applies to a personal injury
resulting from medical care (i.e., “[a]n action against a physician . . . for
malpractice . . . based upon . . . tort”), it also seems to apply to a variety of other
conduct involving unlicensed hospital personnel, such as a dispute regarding a bill
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for hospital services (i.e., “[a]n action against a . . . hospital . . . for . . . error . . .
based upon contract”).
[¶15.] In light of the broad range of conduct contemplated by SDCL 15-2-14.1,
we conclude it applies to the action in the present case. Assuming for the purpose of
summary judgment that Nygard dropped Pitt-Hart, such could easily be described
as either a deviation from an accepted code of behavior (i.e., an error) or as a fault
resulting from carelessness (i.e., a mistake). This decision does not require us to
conclude that SDCL 15-2-14.1 applies to all negligence actions against a hospital.
This is not a case of a nonpatient slipping on an icy sidewalk while walking past a
hospital; instead, it involves a health-care technician who allegedly dropped a post-
operative, knee-replacement patient contrary to standing orders that the patient
required assistance to get out of bed. In other words, there is a nexus between the
injury suffered by the plaintiff and the health care he received from the hospital.
Therefore, Pitt-Hart’s action is one against a hospital for error or mistake based
upon tort, and SDCL 15-2-14.1 applies.
[¶16.] Next, Pitt-Hart argues that even if SDCL 15-2-14.1 applies in this
case, his action is not time barred by the statute’s two-year period. He argues:
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
SDCL 15-2-14.1’s two-year period is tolled. This argument conflates principles of
fraud, estoppel, and tolling. Additionally, both Pitt-Hart’s and Sanford’s references
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to SDCL 15-2-14.1 as a “statute of limitation” require us to first address the nature
of the two-year period defined in that statute.
[¶17.] In Peterson ex rel. Peterson v. Burns, 2001 S.D. 126, ¶ 43, 635 N.W.2d
556, 571, we explicitly held that SDCL 15-2-14.1 is a statute of repose and not a
statute of limitation. Only two paragraphs later in the same decision, however, we
reverted to referring to SDCL 15-2-14.1 as a statute of limitation. Peterson,
2001 S.D. 126, ¶ 45, 635 N.W.2d at 571. This inconsistency has persisted in almost
all of our decisions involving SDCL 15-2-14.1. See, e.g., Lewis, 2013 S.D. 80, ¶ 25,
840 N.W.2d at 668 (referring to SDCL 15-2-14.1’s two-year period as a “limitations
period”). Yet, we have previously recognized that “the differences between statutes
of limitations and statutes of repose are substantive, not merely semantic.” Clark
Cty. v. Sioux Equip. Corp., 2008 S.D. 60, ¶ 24, 753 N.W.2d 406, 415 (quoting
Burlington N. & Santa Fe Ry. Co. v. Poole Chem. Co., 419 F.3d 355, 362 (5th Cir.
2005)). Thus, we take this opportunity to reexamine and clarify the operation of
SDCL 15-2-14.1.
[¶18.] There can be little doubt that Peterson correctly held that SDCL 15-2-
14.1 is properly considered a statute of repose and not one of limitation. “[A]
statute of limitations creates ‘a time limit for suing in a civil case, based on the date
when the claim accrued.’” CTS Corp. v. Waldburger, ___ U.S. ___, ___, 134 S. Ct.
2175, 2182, 189 L. Ed. 2d 62 (2014) (quoting Black’s Law Dictionary 1546 (9th ed.
2009)); Peterson, 2001 S.D. 126, ¶ 41, 635 N.W.2d at 570. “A statute of repose, on
the other hand, . . . is measured not from the date on which the claim accrues but
instead from the date of the last culpable act or omission of the defendant.” CTS
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Corp., ___ U.S. at ___, 134 S. Ct. at 2182. The two-year period expressed in
SDCL 15-2-14.1 does not begin when a cause of action accrues; it begins when the
“alleged malpractice, error, mistake, or failure to cure shall have occurred[.]”
SDCL 15-2-14.1. Therefore, as we held in Peterson, the two-year period expressed
in SDCL 15-2-14.1 is a period of repose. Compare SDCL 15-2-14.1 (“An action . . .
can be commenced only within two years after the alleged malpractice, error,
mistake, or failure to cure shall have occurred . . . .”), with SDCL 15-2-14(3) (“[An
action for personal injury] can be commenced only within three years after the
cause of action shall have accrued . . . .”).
[¶19.] This conclusion is reinforced by our treatment of SDCL 15-2-14.1.
Even while incorrectly referring to SDCL 15-2-14.1 as a statute of limitation, we
have preserved its function as a statute of repose in one important way. “We have
consistently held that [SDCL 15-2-14.1] is an occurrence rule, which begins to run
when the alleged negligent act occurs, not when it is discovered.” Beckel v. Gerber,
1998 S.D. 48, ¶ 9, 578 N.W.2d 574, 576. The reason SDCL 15-2-14.1 is an
occurrence rule, however, is simply because it is a statute of repose, which by
definition begins running upon the occurrence of a specified event rather than the
discovery of a cause of action.
[¶20.] While concluding that SDCL 15-2-14.1 is a statute of repose rather
than a statute of limitation does not change the basic question of determining when
the two-year period has expired in any given action, there are important differences
in the subsequent analysis. For the present action, the “critical distinction is that a
repose period is fixed and its expiration will not be delayed by estoppel or tolling[.]”
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CTS Corp., ___ U.S. at ___, 134 S. Ct. at 2183 (emphasis added). Likewise,
fraudulent concealment does not toll a period of repose. First United Methodist
Church of Hyattsville v. U.S. Gypsum Co., 882 F.2d 862, 866 (4th Cir. 1989), cert.
denied, 493 U.S. 1070, 110 S. Ct. 1113, 107 L. Ed. 2d 1020 (1990). “[A]fter the
legislatively determined period of time, . . . liability will no longer exist and will not
be tolled for any reason.” 54 C.J.S. Limitations of Actions § 7 (2015) (emphasis
added).
[¶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
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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 SDCL 15-2-14.1 has been incorrectly
treated as a statute of limitation, we touched on the problem of applying tolling
principles to it. We recognized that “a very compelling argument can be made that
equitable tolling cannot be recognized as a legal doctrine in South Dakota.” Id. ¶ 15
n.2, 788 N.W.2d at 825 n.2. This recognition was based on the absolute language of
the statute, which identifies it as a statute of repose. SDCL 15-2-14.1 (“An
action . . . can be commenced only within two years after the alleged [actionable
conduct] shall have occurred . . . .” (emphasis added)); CTS Corp., ___ U.S. at ___,
134 S. Ct. at 2183; Peterson, 2001 S.D. 126, ¶ 41, 635 N.W.2d at 570. Our hesitancy
to apply equitable tolling in Anson is easily explained as an unrealized recognition
that SDCL 15-2-14.1 is a statute of repose and that, therefore, it is not subject to
tolling. CTS Corp., ___ U.S. at ___, 134 S. Ct. at 2183; First United Methodist
Church, 882 F.2d at 866.
[¶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
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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 also affords a medical provider “the opportunity to correct the
error before harm ensues.” Wells, 391 N.W.2d at 672 n.1 (quoting 1 David W.
Louisell & Harold Williams, Medical Malpractice § 13.08 (1981)).
[¶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 SDCL 15-2-14.1. Even if the rule did apply, it is undisputed
that Pitt-Hart received treatment from two providers unaffiliated with Sanford—let
alone the same physician or clinic—after his discharge from Sanford on November
13, 2009. Therefore, the continuous-treatment rule cannot toll SDCL 15-2-14.1’s
two-year period of repose, nor should it under the facts of this case.
[¶25.] The second version of the continuous-treatment rule is simply a
mislabeled application of the continuing-tort doctrine. “Generally, when a tort
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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,
609 N.E.2d 321, 325 (Ill. 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
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course of negligent treatment, the tort alleged was complete on November 11, 2009.
Therefore, Pitt-Hart’s action became time barred by SDCL 15-2-14.1 nearly one
year before he commenced this action.
Conclusion
[¶27.] Pitt-Hart’s action against Sanford is one for error or mistake.
Therefore, SDCL 15-2-14.1’s two-year period of repose applies. Today we correct the
past practice of referring to SDCL 15-2-14.1 as a statute of limitation in
contravention of its status as a statute of repose. See CTS Corp., ___ U.S. at ___,
134 S. Ct. at 2182; Peterson, 2001 S.D. 126, ¶ 41, 635 N.W.2d at 570. However, the
analysis of our previous malpractice cases remains largely undisturbed. Legal
concepts such as fraudulent concealment, estoppel, and equitable tolling are still
applicable to statutes of limitation, and the continuing-tort doctrine is applicable to
both statutes of limitation and repose. 3 Even so, the Legislature’s creation of a two-
year period of repose in SDCL 15-2-14.1 essentially renders such tolling moot for
any limitation period of two years or longer. As we said in Peterson: “The policy of
the Legislature is clearly to make SDCL 15-2-14.1 a statute of repose. . . . If the
3. In this case, it appears that the applicable statute of limitation is SDCL 15-2-
14(3), which states that an action for a personal injury “can be commenced
only within three years after the cause of action shall have accrued[.]”
Because we reaffirm that SDCL 15-2-14.1 is a statute of repose, there is no
conflict between it and SDCL 15-2-14(3). However, SDCL 15-2-14.1 would
control even if it was a statute of limitation. “A rule of statutory construction
is that the more specific statute governs the more general statute.” Peterson,
2001 S.D. 126, ¶ 28, 635 N.W.2d at 567. “Another rule of statutory
construction is that the more recent statute [supersedes] the older statute.”
Id. ¶ 29, 635 N.W.2d at 567. Because SDCL 15-2-14.1 is both more specific
and more recently modified than SDCL 15-2-14(3), SDCL 15-2-14.1’s two-
year period would apply to Pitt-Hart’s action even if SDCL 15-2-14.1 was a
statute of limitation.
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policy is to be changed, the Legislature, not this Court, should make the change.”
2001 S.D. 126, ¶ 43, 635 N.W.2d at 571.
[¶28.] We affirm.
[¶29.] ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.
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