Pamela G. Rock And Keith A. Rock Vs. Rose Warhank, Blue Grass Family Medical Center A/k/a Family Medical Center Of Blue Grass, Robert W. Hartung, Center For Breast Health, And Genesis Medical Center
IN THE SUPREME COURT OF IOWA
No. 05–1753
Filed November 21, 2008
PAMELA G. ROCK and
KEITH A. ROCK,
Appellants,
vs.
ROSE WARHANK, BLUE GRASS FAMILY
MEDICAL CENTER a/k/a FAMILY MEDICAL
CENTER OF BLUE GRASS, ROBERT W.
HARTUNG, CENTER FOR BREAST HEALTH,
and GENESIS MEDICAL CENTER,
Appellees.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Scott County, David H.
Sivright, Jr., Judge.
Plaintiff in a medical malpractice case appeals the granting of a
motion for summary judgment in favor of the defendants. DECISION OF
COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT
REVERSED AND REMANDED.
Robert Gallagher and David A. Millage of Gallagher, Millage &
Gallagher, P.L.C., Davenport, for appellants.
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Constance M. Alt, Sarah J. Gayer, and Tricia L. Hoffman-
Simanek of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for appellee
Robert W. Hartung, M.D.
Richard J. Trinrud of Brooks & Trinrud, Davenport, for appellee Rose
Warhank, M.D.
Charles E. Miller and Diane Reinsch of Lane & Waterman, L.L.P.,
Davenport, for appellee Genesis Medical Center and Center for Breast
Health.
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STREIT, Justice.
Pamela Rock sued her doctors for failing to diagnose her breast
cancer. She alleged their negligence caused her cancer to spread to her
lymph nodes. The district court granted the doctors’ motion for summary
judgment holding the statute of limitations barred Rock’s claim. The court
of appeals affirmed. Because Rock could not have known, and would not
have known through reasonable diligence, of her injury and its cause, as a
matter of law, more than two years prior to filing her claim, we vacate the
decision of the court of appeals and reverse the judgment of the district
court.
I. Facts and Prior Proceedings.
Pamela Rock noticed a lump in her left breast in May 2002. She
called Dr. Warhank at the Family Medical Center in Blue Grass to have it
examined. Rock was referred to the Center for Breast Health for a bilateral
mammogram, which was performed on May 28. Rock had a follow-up
appointment with Dr. Warhank on June 3. Dr. Warhank palpated Rock’s
left breast and located the lump. Dr. Warhank told Rock the mammogram
was normal and not to worry about the lump.
Sometime on June 3 or 4, Rock received a call requesting she come in
for additional views of her right breast. Rock went to the Center for Breast
Health on June 4 and had additional views of the right breast taken. A
technician told Rock an ultrasound was not necessary because what was
seen in the earlier mammogram was no longer present. Rock reminded the
technician she had a lump in her left breast and not her right breast. The
technician assured Rock nothing was seen on the earlier mammogram of
her left breast so she should not worry about the lump anymore. Dr.
Hartung reviewed the radiology report of the right breast and advised Rock
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in a letter dated June 5 that the additional views of the right breast
showed no sign of cancer.
In September 2002, Rock was still concerned about the lump in her
left breast. She made an appointment with Dr. Kelly at the Family Medical
Center. Dr. Kelly told Rock the lump was “probably benign.” Nevertheless,
Dr. Kelly recommended a surgical consult and referred Rock to Dr.
Congreve.
Dr. Congreve performed a fine-needle aspiration on September 25.
Two days later, Dr. Congreve called Rock and told her the test was not
normal and she needed to have a biopsy of her left breast. On October 8,
2002, Dr. Congreve performed the biopsy and diagnosed Rock with breast
cancer. Rock met with Dr. Congreve on October 11. He informed her
additional tissue in her left breast needed to be removed because he did not
believe he got all of the cancer. On October 18, Dr. Congreve removed the
additional tissue and six lymph nodes. Five of the six nodes were
cancerous. Rock had an additional surgery to remove another six nodes,
one of which was cancerous. Rock was also treated with chemotherapy.
Rock filed suit against Dr. Warhank and Dr. Hartung and their
employers on October 5, 2004. She claims Dr. Warhank and Dr. Hartung
failed to properly examine, diagnose, and treat the cancer in her left breast.
As a result of this alleged negligence, Rock claims the cancer spread to six
of her twelve lymph nodes causing additional medical treatment and
expense and decreasing her life span.
The defendants filed a motion for summary judgment alleging Rock’s
lawsuit was barred by the statute of limitations. See Iowa Code § 614.1(9)
(2003). The district court agreed and granted the motion. Rock appealed.
We transferred the case to the court of appeals, which affirmed the district
court. We granted further review and now reverse.
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II. Standard of Review.
A summary judgment ruling is reviewed for correction of errors at law.
James Enter., Inc. v. City of Ames, 661 N.W.2d 150, 152 (Iowa 2003).
Summary judgment is appropriate
if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.
Iowa R. Civ. P. 1.981(3). A question of fact exists “if reasonable minds can
differ on how the issue should be resolved.” Walker v. Gribble, 689 N.W.2d
104, 108 (Iowa 2000). The party resisting the motion for summary
judgment should be afforded every legitimate inference that can reasonably
be deduced from the evidence. Clinkscale v. Nelson Secs., Inc., 697 N.W.2d
836, 841 (Iowa 2005).
III. Merits.
The issue before us is whether Rock’s lawsuit was untimely. This
case requires us to revisit the language of our statute of limitations for
medical malpractice. Our goal is to ascertain legislative intent, which is
determined by the words chosen by the legislature. Iowa Ass’n of Sch. Bds.
v. Iowa Dep’t of Educ., 739 N.W.2d 303, 309 (Iowa 2007). When the
language of a statute is plain and its meaning clear, the rules of statutory
construction do not permit us to search for meaning beyond the statute’s
express terms. City of Waterloo v. Bainbridge, 749 N.W.2d 245, 248 (Iowa
2008).
Under Iowa Code section 614.1(9), medical malpractice claims must
be brought “within two years after the date on which the claimant knew, or
through the use of reasonable diligence should have known . . . of the
existence of, the injury . . . for which damages are sought.” “Injury” within
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the context of the statute is the physical or mental harm incurred by
the plaintiff. Langner v. Simpson, 533 N.W.2d 511, 517 (Iowa 1995).
Previously, we held the statute of limitations begins to run as soon as
the plaintiff knew or should have known of the physical or mental harm for
which damages are sought. Schlote v. Dawson, 676 N.W.2d 187, 194 (Iowa
2004); Langner, 533 N.W.2d at 517. In Rathje v. Mercy Hospital, 745
N.W.2d 443 (Iowa 2008), we acknowledged our past cases may not have
correctly captured the intent of the legislature. Rathje, 745 N.W.2d at 447.
After reviewing over a hundred years of jurisprudence and the history of the
tort reform movement, we came to the conclusion the statute of limitations
for medical malpractice claims does not begin to run until the plaintiff
knew, or should have known through reasonable diligence, of both the
physical or mental harm and its cause in fact. Id. at 460–61. We held the
plaintiff must have known, or should have known through reasonable
diligence, the medical care caused or may have caused the injury. Id. at
461. However, it is not necessary for the plaintiff to discover the medical
professional was negligent in order to trigger the statute of limitations. Id.
at 462–63. The standard for summary judgment then is whether a
reasonable fact finder could conclude Rock filed her claim within two years
of when she first knew or should have known of her injury and its cause.
See Murtha v. Cahalan, 745 N.W.2d 711, 718 (Iowa 2008) (stating “[e]ven if a
fact finder concludes that [the plaintiff’s] lump developed into cancer or her
cancer progressed, i.e., she sustained an ‘injury’ for section 614.1(9)
purposes, prior to the two-year period preceding the filing of her lawsuit, it
is still a fact question under this record as to when she knew, or should
have known, of that injury and its cause in fact”); Rathje, 745 N.W.2d at
463 (holding “a reasonable jury could find [the plaintiffs] did not know the
cause of the harm until, at the earliest, April 27, 1999, the date the
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gastroenterologist made a diagnosis of ‘drug-induced hepatitis secondary
to antabuse’ ”).
We filed Murtha on the same day as Rathje. Murtha provided an
occasion to further refine our definition of “injury” when a plaintiff, as in
this case, alleges negligent misdiagnosis. See Murtha, 745 N.W.2d at 715.
In Murtha, we said
the “injury” does not occur merely upon the existence of a
continuing undiagnosed condition. Rather, the “injury” for
section 614.1(9) purposes occurs when “the problem grows into
a more serious condition which poses greater danger to the
patient or which requires more extensive treatment.”
Id. at 717 (quoting DeBoer v. Brown, 673 P.2d 912, 914 (Ariz. 1983)). Thus,
two questions must be answered to determine when the statute of
limitations begins to run under section 614.1(9) in a negligent misdiagnosis
case. First, one must determine at what stage a plaintiff’s condition became
an “injury,” i.e., when did the problem worsen so that it posed a greater
danger to the plaintiff or required more extensive treatment. Id. Second,
one must determine when the plaintiff knew, or should have known through
reasonable diligence, of the injury and its cause in fact. Id. In Murtha, we
said both of these inquiries are “highly fact-specific.” Id. Consequently, as
we said in Murtha, they cannot be resolved as a matter of law unless no
reasonable fact finder could conclude the lawsuit was filed within two years
of when the plaintiff knew or should have known of the injury and its cause.
Here, Rock alleges Drs. Warhank and Hartung’s failure to properly
diagnose her cancer in May and June 2002 when she reported a lump in
her left breast caused her cancer to worsen and spread into her lymph
nodes. When Rock’s injury occurred must be determined by expert
testimony. Since the parties in this action did not have the benefit of our
Murtha and Rathje opinions when the motion for summary judgment was
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argued before the district court, the record is absent of any such
testimony. The record does not reveal when Rock’s injury occurred. Thus,
we are unable to answer the first Murtha question—when did the injury
occur—as a matter of law.
However, we are able to partly answer the second Murtha question—
when did Rock know of her injury and its cause, or when should Rock have
known of her injury and its cause through reasonable diligence—as a
matter of law. Rock could not have known, and should not have known, of
her injury and its factual cause until the day she was diagnosed with
cancer at the earliest. The defendants contend Rock knew or should have
known of her injury and its cause no later than June 3 when Rock
discussed the lump with Dr. Warhank. However, we rejected a similar
contention in Rathje.1 Rathje, 745 N.W.2d at 463. They alternatively claim
Rock knew or should have known of her injury and its cause no later than
September 27, 2002, when Dr. Congreve (the doctor providing the second
opinion) told her the fine-needle aspiration was not normal. Under both of
these theories, defendants claim her action is time barred because that date
is more than two years before she filed suit.
Rock, on the other hand, contends she neither knew nor should have
known of her injury and its cause until she was diagnosed with cancer on
October 8, which is within two years of when she filed suit. We agree. In
answer to the second Murtha question, Rock could not have known, and
1Rathje stands for the proposition that, at a minimum, a fact question exists as to
when the plaintiff knew or should have known of her injury and its cause when her treating
physician offers a reasonable—albeit incorrect—explanation for her symptoms. Rathje, 745
N.W.2d at 463. Rathje sued her physicians for negligently prescribing a drug which
ultimately caused her liver to fail. Id. at 446. Although she was suffering physical harm
(nausea, cramping, and acid reflux) more than two years before she filed suit, we held a
reasonable fact finder could conclude no facts were available prior to the diagnosis of liver
failure that would have alerted a reasonably diligent person her symptoms were caused by
the drug. Id. at 463. This determination was based on the fact her doctor diagnosed her
with peptic disease and duodenitis when she complained of her symptoms. Id. at 445.
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would not have known through reasonable diligence, of her injury,
the worsening of her cancer, or its cause in fact, the misdiagnosis, until she
had been properly diagnosed with cancer at the earliest.
Murtha does not contradict the proposition that an individual in a
misdiagnosis case could not have known, and would not have known
through reasonable diligence, of her injury or its cause in fact until proper
diagnosis. Although we rejected Murtha’s argument “that she did not suffer
an ‘injury’ until she was diagnosed with cancer,” we did not foreclose the
possibility a reasonable fact finder could conclude she neither knew nor
should have known of her injury—the spread of cancer—until diagnosed
with cancer.2 Murtha, 745 N.W.2d at 714–15.
Common law notions of inquiry notice should not be incorporated into
the statute.3 Although our dicta in Rathje implies the statute of limitations
is triggered as a matter of law at the start of an investigation into the
existence of the injury,4 the plain language of the statute, that the claimant
2Like Rock, Murtha had a fine-needle aspiration that was “[n]ot within normal
limits.” Murtha, 745 N.W.2d at 712. Murtha’s doctor recommended returning in six
months for a follow-up mammogram. Id. That mammogram revealed “no definite
abnormality,” but “the radiologist recommended an ultrasound or biopsy be performed to
ensure the lump was not malignant.” Id. Murtha’s doctor also “suggested the option of
surgically removing the lump to alleviate any concerns Murtha may have about it in the
future.” Id. at 713. Murtha declined to have the lump removed at that time. Id.
3Ininterpreting Iowa Code section 614.4 (2008), the statute of limitations for fraud,
mistake, and trespass, we have held the term “knowledge” includes not only actual
knowledge but also knowledge that has been imputed from the date of inquiry regardless of
whether there is a diligent investigation. Anderson v. King, 250 Iowa 208, 214–15, 93
N.W.2d 762, 766 (1958); Van Wechel v. Van Wechel, 178 Iowa 491, 496, 159 N.W. 1039,
1041 (1916); E.B. Piekenbrock & Sons v. Knoer, 136 Iowa 534, 538, 114 N.W. 200, 202
(1907).
4It was undisputed Rathje “knew she was suffering from physical harm” more than
two years before filing suit. Rathje, 745 N.W.2d at 463. The case turned on whether she
knew or should have known of the cause of her injury. Id. It was not necessary in Rathje to
determine as a matter of law that the statute of limitations is triggered when a plaintiff
begins an investigation into a potential injury and its cause. In Rathje we said “a
reasonable jury could find [the Rathjes] did not know the cause of the harm until, at the
earliest, April 27, 1999, the date the gastroenterologist made a diagnosis of ‘drug-induced
hepatitis secondary to Antabuse.’ ” Id. Applying common law notions of inquiry notice, the
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“knew, or through the use of reasonable diligence should have
known,” does not support charging the claimant with common law inquiry
notice. Iowa Code § 614.1(9). Under the statute, the clock begins ticking
when the claimant has actual knowledge of her injury and its cause or
“through the use of reasonable diligence should have known” of the injury
and its cause. Id. (emphasis added). The latter provision simply prevents
the tolling of the statute of limitations if a claimant fails to use reasonable
diligence. In other words, the “reasonable diligence” component adds an
objective standard of knowledge to the statute to prevent a plaintiff from
benefiting from willful or reckless ignorance.5 The word “through” in the
context of the statute means “by way of,” “by means of,” or “because of.”
Merriam-Webster’s Collegiate Dictionary 1226 (10th ed. 2002). It could also
mean “to completion, conclusion, or accomplishment.” Id. Replacing the
word “through” in section 614.1(9) with the clause “at the beginning of” as
Rathje suggests makes the statute nonsensical because it is not until the
conclusion of an investigation that a plaintiff “should have known” of her
injury and cause.6
It is inconsistent with the plain language of the statute to charge
Rock—a layperson—with knowledge of facts before Dr. Congreve—an
expert—knows these facts or conveys them to her. If we were to hold the
statute of limitations begins to run at the start of an investigation into the
existence of a possible injury, then the statute would always be triggered
statute of limitations would have been triggered as a matter of law on the previous day,
when blood tests revealed “abnormal results” because that is the date that began her
investigation into the cause of her injury. See id. at 446.
5No one disputes Rock used “reasonable diligence” to determine her injury and its
cause in fact.
6
Here is Rathje’s modified version of the statute: “after the date on which the
claimant knew, or [at the beginning of] the use of reasonable diligence should have known
. . . of the existence of, the injury” and its cause. Iowa Code § 614.1(9).
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prior to the date the plaintiff gained actual knowledge of the injury
unless the injury was immediately apparent. Such a holding would
eliminate any reasonable application of the discovery rule in medical
malpractice claims. Moreover, the cases relied upon in Rathje—United
States v. Kubrick, 444 U.S. 111, 100 S. Ct. 352, 62 L. Ed. 2d 259 (1979);
Franzen v. Deere & Co., 377 N.W.2d 660 (Iowa 1985)—do not stand for the
proposition that the statute of limitations begins to run at the start of an
investigation into a possible injury. Instead, both cases hold the statute is
triggered once the plaintiff knows of her injury and its cause. See Kubrick,
444 U.S. at 122, 100 S. Ct. at 359, 62 L. Ed. 2d at 269 (stating the statute
of limitations is triggered once the plaintiff is “in possession of the critical
facts that he has been hurt and who has inflicted the injury”); Franzen, 377
N.W.2d at 663 (stating the statute of limitations began to run on the date of
the injury because the plaintiff “knew the instrumentality that caused the
injury at the time it occurred” and “knew the injury was caused when
[plaintiff] became entangled in the beaters of the forage wagon”). Thus, the
clause “through the use of reasonable diligence should have known” does
not charge a patient with knowledge that could not have been reasonably
discovered at the time. Iowa Code § 614.1(9).
Finally, we must adhere to the bedrock principle we use when
interpreting statutes of limitations: “When two interpretations of a
limitations statute are possible, the one giving the longer period to a litigant
seeking relief is to be preferred and applied.” Orr v. Lewis Cent. Sch.
Dist., 298 N.W.2d 256, 261 (Iowa 1980). We rely on this principle because
statutes of limitations are disfavored. Id.
Notwithstanding the lack of evidence in the record regarding when
Rock’s injury occurred, we conclude the record does establish as a matter of
law that Rock could not have known, and would not have known through
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reasonable diligence, of her injury (the spread of cancer) and its cause
(the misdiagnosis) more than two years prior to filing this action. Summary
judgment was improperly granted.
IV. Conclusion.
We conclude summary judgment was not appropriate in this case
because as a matter of law Rock filed suit within two years of when she
knew or should have known of her injury and its cause in fact. We reverse
and remand for further proceedings.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
JUDGMENT REVERSED AND REMANDED.
All justices concur except Ternus, C.J., and Cady, J., who concur
specially and Baker, J., who takes no part.
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#05–1753, Rock v. Warhank
TERNUS, Chief Justice (concurring specially).
I concur in the court’s conclusion that Rock neither “knew, [nor]
through the use of reasonable diligence should have known . . . of the
existence of, [her] injury” until, at the earliest, she was informed she had
cancer. Iowa Code § 614.1(9). I do not concur in the gratuitous and
inconsistent discussion regarding inquiry notice.
Cady, J., joins this special concurrence.