Blackburn v. Blue Mountain Women's Clinic

96-408

No. 96-408

IN THE SUPREME COURT OF THE STATE OF MONTANA

1997

AMY BLACKBURN, Individually, and as Personal Representative
of the Estate of Baby Boy Doe, Deceased,

Plaintiff and Appellant,

v.

BLUE MOUNTAIN WOMEN'S CLINIC; JOHN ROE, M.D.; JANE DOE,
counselor; MONTANA DEPARTMENT OF PUBLIC HEALTH AND
HUMAN SERVICES; DIRECTOR of said Department of Public Health,
individually, and not in his official capacity; SIDNEY PRATT, M.D.,
Medical Director, Medical Advisory Unit, Montana Department of Public
Health, individually and not in his official capacity; FAMILY PLANNING
CENTER OF BUTTE-SILVER BOW UNIFIED GOVERNMENT; TERRI
DOE, R.N., and JAN D., R.N., employees of said Family Planning Center,

Defendants and Respondents.

APPEAL FROM: District Court of the Second Judicial District,
In and for the County of Silver Bow,
The Honorable James E. Purcell, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Robert C. Kelleher, Sr. (argued), Attorney at Law, Butte, Montana

For Respondents:

Cynthia K. Smith (argued); Cederberg, Shott & Smith, P.C.;
Missoula, Montana (for Blue Mountain Clinic)

John P. Davis and Tina L. Morin (argued); Poore, Roth &
Robinson, P.C.; Butte, Montana (for Butte-Silver Bow County
Health Department and Jan Cossel, R.N.)

Thomas G. Bowe; Assistant Attorney General; Agency Legal
Services Bureau; Helena, Montana (for Department of Public
Health & Human Services and Sidney Pratt, M.D.)

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-408%20Opinion.htm (1 of 24)4/17/2007 4:29:14 PM
 96-408

For Amici Curiae:

Michael G. Eiselein (argued); Lynaugh, Fitzgerald & Eiselein;
Billings, Montana (for Montana Trial Lawyers Association)

Richard F. Cebull (argued) and Lisa A. Rodeghiero (argued);
Brown, Gerbase, Cebull, Fulton, Harman & Ross; Billings,
Montana (for Montana Defense Trial Lawyers Association)

Michael F. McMahon; Harrison, Loendorf, Poston & Duncan;
Helena, Montana (for Montana Medical Association)

Argued: August 12, 1997

Submitted: November 13, 1997

Decided: December 11, 1997
Filed:

__________________________________________
Clerk

Justice Jim Regnier delivered the Opinion of the Court.

In November 1995, plaintiff and appellant Amy Blackburn filed an action in the
Second Judicial District Court, Silver Bow County, against the named defendants to
recover damages she alleges in connection with an abortion she underwent at the Blue
Mountain Clinic in Missoula on January 20, 1990. Defendants subsequently moved to
dismiss Blackburn's first amended complaint on the basis that each of Blackburn's
claims
is barred by the applicable statute of limitations, and that certain claims must
fail as a
matter of law. In an order dated June 12, 1996, the court granted defendants'
respective
motions to dismiss. It is from that order that Blackburn now appeals. For the
reasons
discussed below, we affirm in part and reverse in part.
We find the following issues dispositive on appeal:
1. Did the District Court err in concluding the applicable statute of
limitations
barred Blackburn's claims for negligence and medical malpractice?
2. Did the District Court err in concluding the applicable statute of
limitations
barred Blackburn's claims for assault and battery?
3. Did the District Court err in concluding that Blackburn's 42 U.S.C. õ 1983
civil rights claim is barred by the applicable statute of limitations and fails as a
matter of
law?

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-408%20Opinion.htm (2 of 24)4/17/2007 4:29:14 PM
 96-408

4. Did the District Court err in dismissing Blackburn's claims brought on
behalf of her aborted fetus?
FACTUAL BACKGROUND
Blackburn filed her original complaint in this matter on November 29, 1995. On
December 29, 1995, Blackburn filed her first amended complaint. It is from
Blackburn's
amended complaint that this Court takes as true the following allegations of fact.
Blackburn became pregnant in 1989 and learned soon thereafter that the father
was
HIV positive. Blackburn subsequently tested negative for HIV. Jan Cossel is a
registered nurse employed by the City and County of Butte-Silver Bow who administered
Blackburn's HIV test. In so doing, Cossel allegedly advised Blackburn that, despite
her
HIV negative status, she would die within a few years and that her baby had a 50
percent
chance of being born HIV positive and would likely die within two years. Cossel and
another nurse allegedly urged Blackburn to have an abortion and made an appointment
for her at the Blue Mountain Clinic in Missoula.
When Blackburn arrived at the Blue Mountain Clinic for her abortion, she
informed a counselor at the clinic that she had tested negative for HIV, but that
the father
had tested positive. The counselor told Blackburn that, prior to proceeding with the
abortion, Blue Mountain would require written proof of Blackburn's HIV-negative
status.
Cossel provided Blackburn with the requisite written statement, which Blackburn in
turn
gave to the clinic counselor.
Prior to the procedure, Blackburn told the Blue Mountain Clinic counselor that
she
was seeking an abortion only because she feared her baby would be born HIV positive.
Blackburn claims neither the counselor, nor any nurse or doctor with whom Blackburn
spoke at any time prior to her abortion, explained to Blackburn that an HIV negative
mother could not deliver an HIV positive baby. In addition, Blackburn alleges, no
one
discussed with her any of the risks associated with the abortion procedure.
Accordingly, on January 20, 1990, Blackburn underwent an abortion at the Blue
Mountain Clinic. Blackburn was discharged from the clinic soon after the procedure,
but
she experienced continued bleeding and cramping in the days following. Two days
after
the abortion, Blackburn called the Blue Mountain Clinic and spoke with the counselor
who had advised her prior to the abortion and who now assured Blackburn her bleeding
would stop and called in a prescription for her. On January 24, 1990, Blackburn
twice
visited the emergency room at St. James Hospital in Butte with complaints of
continued
bleeding and cramping. On January 25, 1990, Blackburn returned to the Blue Mountain
Clinic and was examined by the same counselor, who advised Blackburn her condition
was normal and provided her with another prescription.
Blackburn became depressed following the abortion and entered counseling in
1990. In March 1990, Blackburn was hospitalized for more than two weeks due to an
emotional condition which resulted from the abortion. In 1993, Blackburn's counselor

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-408%20Opinion.htm (3 of 24)4/17/2007 4:29:14 PM
 96-408

referred her to Dr. Richard Moore, who determined she had been suffering from anxiety
and depression and prescribed anti-depressants which Blackburn continues to take.
Blackburn alleges that she is now dependent upon anti-depressants, and suffers from
claustrophobia, agoraphobia, anxiety, and depression.
Blackburn first consulted with an attorney in March 1995, at which point she
learned that an HIV negative mother cannot give birth to an HIV positive baby.
Blackburn contends that it was not until she realized that her baby would not have
been
born with HIV that she first learned she had been legally injured and had a cause of
action. Accordingly, on November 29, 1995, Blackburn filed suit in her own name, as
well as on behalf of the unborn fetus, against the named defendants in this case.
Blackburn's first amended complaint, filed on December 29, 1995, alleges claims for
negligence, medical negligence, assault and battery, and civil rights violations
against
various defendants.
On December 19, 1995, Blue Mountain Clinic, Inc., incorrectly identified in
Blackburn's complaint as the Blue Mountain Women's Clinic, filed a motion to dismiss
the complaint in this case pursuant to Rule 12(b)(6), M.R.Civ.P. In her complaint,
Blackburn uses the fictitious name of John Roe, M.D., to identify as an additional
defendant the physician who performed the abortion, and the fictitious name of Jane
Doe,
to identify the counselor at the Blue Mountain Clinic with whom Blackburn had
repeated
contact. Blackburn has not further identified or served either of these
fictitiously named
defendants, instead apparently alleging the Blue Mountain Clinic is vicariously
liable for
their conduct pursuant to the theory of respondeat superior. Accordingly, Blue
Mountain
Clinic moved to dismiss Blackburn's complaint insofar as the allegations contained
within
it additionally pertained to the doctor and counselor.
On December 21, 1995, Butte-Silver Bow County Health Department (BSB
Health Department), incorrectly identified in Blackburn's complaint as the Family
Planning Center of Butte-Silver Bow Unified Government, and Cossel, incorrectly
identified by the complaint as Jan D., filed a similar motion to dismiss pursuant to
Rule
12(b)(6), M.R.Civ.P. In her complaint, Blackburn also names as a defendant Terri Doe,
R.N., the second nurse employed by the City and County of Butte-Silver Bow who
allegedly advised Blackburn to obtain an abortion and helped make arrangements at the
Blue Mountain Clinic in Missoula. Blackburn did not subsequently identify or serve
Terri Doe, whose true identity remains unknown. As she does with respect to Blue
Mountain, Blackburn apparently alleges vicarious liability on the part of the BSB
Health
Department for the conduct of its employees.
On December 22, 1995, Sidney Pratt, M.D., filed a motion to dismiss pursuant
to Rule 12(b)(6), M.R.Civ.P., and on December 28, 1995, the Department of Public
Health and Human Services (DPHHS) filed a similar motion to dismiss. Blackburn also
lists the apparently deceased director of DPHHS as a defendant, but does not
identify him
by name.
On December 29, 1995, Blackburn filed her first amended complaint. Defendants

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-408%20Opinion.htm (4 of 24)4/17/2007 4:29:14 PM
 96-408

Blue Mountain Clinic, DPHHS, Dr. Pratt, BSB Health Department, and Cossel similarly
moved to dismiss Blackburn's amended complaint. On June 12, 1996, the District Court
issued an order granting defendants' respective motions to dismiss Blackburn's
complaint
in its entirety. It is from that order that Blackburn now appeals.
DISCUSSION
We review de novo a district court's ruling on a motion to dismiss under Rule
12(b)(6), M.R.Civ.P. Gerber v. Commissioner of Ins. of State of Montana (1990), 242
Mont. 369, 370, 786 P.2d 1199, 1200 (citing Koppen v. Board of Medical Examiners
(1988), 233 Mont. 214, 217, 759 P.2d 173, 175). This Court reviews an appeal from
a district court's order granting a motion to dismiss based on the sufficiency of the
complaint. Busch v. Kammerer (1982), 200 Mont. 130, 132, 649 P.2d 1339, 1340
(citing Conley v. Gibson (1957), 355 U.S. 41, 45, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d
80,
84).
In Willson v. Taylor (1981), 194 Mont. 123, 634 P.2d 1180, we recognized that
[a] complaint should not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief. A motion to dismiss under
Rule 12(b)(6), M.R.Civ.P., has the effect of admitting all well-pleaded
allegations in the complaint. In considering the motion, the complaint is
construed in the light most favorable to the plaintiff, and all allegations of
fact contained therein are taken as true.

Willson, 194 Mont. at 126, 634 P.2d at 1182 (citations omitted).
Thus, "[i]n reviewing a motion to dismiss, we construe the complaint in the
light
most favorable to the plaintiff and take the allegations of the complaint as true."
HKM
Associates v. Northwest Pipe Fittings, Inc. (1995), 272 Mont. 187, 191, 900 P.2d 302,
304-05 (quoting Goodman Realty, Inc. v. Monson (1994), 267 Mont. 228, 231, 883 P.2d
121, 123).
Pursuant to this standard of review, this Court will affirm the court's
dismissal
only if we "determine that plaintiff is not entitled to relief under any set of
facts which
could be proven in support of the claim." Grove v. Montana Army Nat'l Guard (1994),
264 Mont. 498, 501, 872 P.2d 791, 793, (citing King v. State (1993), 259 Mont. 393,
396, 856 P.2d 954, 955).
The District Court's determination that Blackburn's complaint failed to state a
claim is a conclusion of law. See Boreen v. Christensen (1994), 267 Mont. 405, 408,
884 P.2d 761, 762. This Court's standard of review of a district court's conclusion
of
law is whether the court's interpretation of the law is correct. Boreen, 267 Mont.
at 408,
884 P.2d at 762 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470,
474-75, 803 P.2d 601, 603).
ISSUE 1
Did the District Court err in concluding the applicable statute of limitations
barred
Blackburn's claims for negligence and medical malpractice?
In her amended complaint, Blackburn levels allegations of negligence and medical

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-408%20Opinion.htm (5 of 24)4/17/2007 4:29:14 PM
 96-408

negligence against various defendants. Blackburn contends the Blue Mountain Clinic,
by
virtue of physician John Roe's and counselor Jane Doe's conduct, negligently advised
and treated Blackburn prior to, during, and after her abortion. Blackburn
additionally
alleges liability on the part of the BSB Health Department for the conduct of two of
the
registered nurses it employs. Specifically, Blackburn contends that Cossel and
another
nurse acted negligently when they urged Blackburn to seek an abortion and provided
her
with inaccurate medical information upon which she relied in making the decision to
abort
her fetus. Finally, Blackburn alleges Dr. Pratt and DPHHS were negligent in their
failure to properly supervise the BSB Health Department.
In their respective motions to dismiss, defendants contend that each of
Blackburn's
claims for either general or medical negligence is barred by the applicable statute
of
limitations. The District Court agreed, and in its June 12, 1996, order held that
Blackburn's claims for negligence and medical malpractice were barred by the
applicable
time limitations codified at õõ 27-2-204 and -205, MCA, respectively. We review the
District Court's conclusion on this issue to determine whether it is a correct
application
of the law.
A. Accrual
Pursuant to õ 27-2-102(2), MCA, unless otherwise provided by statute, the period
of limitation applicable to any given cause of action begins to run "when the claim
or
cause of action accrues." Section 27-2-102(1), MCA, explains accrual as follows:
For the purposes of statutes relating to the time within which an action must
be commenced:
(a) a claim or cause of action accrues when all elements of the
claim or cause exist or have occurred, the right to maintain an action on the
claim or cause is complete, and a court or other agency is authorized to
accept jurisdiction of the action;
(b) an action is commenced when the complaint is filed.

Here, Blackburn argues that her cause of action did not accrue until her 1995
consultation with an attorney during which she finally learned that an HIV negative
mother cannot give birth to an HIV positive baby. It was upon this revelation,
Blackburn
maintains, that she first learned she had been "legally injured" and had a cause of
action.
Alternatively, Blackburn argues her claim accrued no earlier than November 1993 when
Dr. Moore first diagnosed her with severe depression and she discovered the extent of
her damages.
Without exception, defendants argue that Blackburn's cause of action accrued,
not
in 1995 when she alleges she first became aware she had a cause of action, but by the
time of her abortion on January 20, 1990. Defendants contend the elements of

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-408%20Opinion.htm (6 of 24)4/17/2007 4:29:14 PM
 96-408

Blackburn's claims for negligence and medical negligence were all present by that
time,
and that her failure to understand the full extent of her damages until 1993 does not
prevent her cause of action from accruing.
Blackburn alleges that the Blue Mountain Clinic and BSB Health Department
defendants each had a duty to provide competent medical care, to impart accurate
medical
information regarding the transmission of HIV, and to inform her of the risks
associated
with abortion. Blackburn also alleges that Dr. Pratt and DPHHS had a duty to
properly
supervise the BSB Health Department defendants. Blackburn contends the defendants
breached their respective duties, which in turn caused Blackburn emotional injury.
Section 27-2-102(2), MCA, expressly provides that "[l]ack of knowledge of the
claim or cause of action, or of its accrual, by the party to whom it has accrued
does not
postpone the beginning of the period of limitation." The elements constituting
Blackburn's claims for negligence and medical malpractice were present at the time of
her abortion in January 1990, or, at the latest, in March of that year when
emotional
problems stemming from the abortion led to Blackburn's hospitalization.
Blackburn argues the damages element of her negligence-based claims was not
present in 1990, and that her cause of action accrued at the earliest in 1993 when
Dr.
Moore first diagnosed her with depression. This Court has previously held, however,
that "it is not necessary to know the total extent of damages that an act causes to
begin
the running of the statute of limitations." See, e.g., E.W. v. D.C.H. (1988), 231
Mont.
481, 487, 754 P.2d 817, 820-21).
Blackburn's alleged damages, including the loss of her unborn fetus as well as
ensuing emotional difficulties, were manifest at the time of the abortion procedure
or
shortly thereafter. Indeed, Blackburn sought counseling for her emotional
difficulties,
including depression, within weeks of the abortion. That a physician did not
formally
diagnose Blackburn with severe depression until 1993 is insufficient to prevent her
negligence-based claims from accruing.
The District Court concluded that Blackburn's claims for negligence and medical
negligence accrued on January 20, 1990. Having reviewed the record, we conclude
that,
pursuant to õ 27-2-102(1), MCA, the elements of Blackburn's claims for negligence and
medical negligence were present at the time of her abortion in January 1990 or
shortly
thereafter, and her right to maintain an action on those claims was complete at that
time.
B. Applicable Statute of Limitations
Having concluded that Blackburn's claims for negligence and medical negligence
accrued by March 1990 at the latest, this Court must next identify the statute of
limitations period applicable to each claim for negligence and medical negligence and
determine whether the limitation period either expired or was properly tolled prior

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-408%20Opinion.htm (7 of 24)4/17/2007 4:29:14 PM
 96-408

to
commencement of the present action.
As noted above, Blackburn has leveled claims of either negligence or medical
negligence against each defendant. Blackburn has put forth claims of negligence, to
which the statute of limitations codified at õ 27-2-204, MCA, applies, against Blue
Mountain Clinic, its counselor Jane Doe, as well as against Dr. Pratt and DPHHS.
Blackburn has also asserted medical malpractice claims, to which õ 27-2-205, MCA,
applies, against the Blue Mountain Clinic physician who performed the abortion, the
Blue
Mountain Clinic, the BSB Health Department and the two nurses employed by the BSB
Health Department.
We will address each of the above allegations of negligence and medical
negligence
in turn.
1. Medical Malpractice
The applicable period of limitations for medical negligence claims is codified
at
õ 27-2-205, MCA, which provides that an:
(1) Action in tort or contract for injury or death against a physician or
surgeon, . . . registered nurse . . . or licensed medical professional
corporation, based upon alleged professional negligence or for rendering
professional services without consent or for an act, error, or omission, must
. . . be commenced within 3 years after the date of injury or within 3 years
after the plaintiff discovers or through the use of reasonable diligence
should have discovered the injury, whichever occurs last, but in no case
may an action be commenced after 5 years from the date of injury.
However, this time limitation is tolled for any period during which there
has been a failure to disclose any act, error, or omission upon which an
action is based and that is known to the defendant or through the use of
reasonable diligence subsequent to the act, error or omission would have
been known to the defendant.

By its terms, õ 27-2-205, MCA, prescribes a three-year period for commencement
of a claim for medical negligence brought against, among others, physicians and
registered nurses. Accordingly, õ 27-2-205, MCA, applies to several of the
defendants
against whom Blackburn levels negligence-based claims. For example, this statute
clearly
applies to her allegations of medical negligence on the part of the physician at the
Blue
Mountain Clinic who performed the abortion procedure on January 20, 1990. The same
section further applies to Blackburn's claims against Blue Mountain Clinic itself,
insofar
as Blackburn seeks to hold the clinic vicariously liable for the conduct of its
physician
employee.
Section 27-2-205, MCA, additionally applies to Blackburn's claims for medical
negligence against registered nurses Cossel and Terri Doe. Finally, õ 27-2-205, MCA,
applies to Blackburn's claims against the BSB Health Department to the extent she
seeks
to hold the Department vicariously liable for the alleged professional negligence of
two

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-408%20Opinion.htm (8 of 24)4/17/2007 4:29:14 PM
 96-408

registered nurses in its employment.
Conversely, as discussed infra, õ 27-2-205, MCA, does not govern Blackburn's
claims of negligence against the fictitiously named Blue Mountain Clinic counselor
Jane
Doe, or her claims against the clinic itself insofar as Blackburn seeks to hold the
clinic
vicariously liable for the counselor's conduct. Rather, the statute of limitations
for
negligence claims, codified at õ 27-2-204, MCA, and the tolling provisions contained
in
õ 27-2-102, MCA, apply to each of these claims, as well as to Blackburn's
allegations
of negligence on the part of Dr. Pratt and DPHHS.
The District Court concluded that õ 27-2-205(1), MCA, precludes each of
Blackburn's claims for medical malpractice, although it did so without specifically
addressing, as we do below, the question of whether the statute's second sentence may
toll Montana's five-year medical malpractice statute of repose under certain
circumstances. Instead, the District Court simply found that the defendants did not
attempt to conceal information from Blackburn, and that, pursuant to our reasoning in
Major v. North Valley Hospital (1988), 233 Mont. 25, 30, 759 P.2d 153, 157, Blackburn
has alleged no facts which would toll the statute of limitations in this case.
Pursuant to the first sentence of õ 27-2-205(1), MCA, Blackburn had three years
from the date of her injury or from the date by which she discovered or, through the
use
of reasonable diligence, should have discovered her injury, within which to file
suit for
medical malpractice against Blue Mountain Clinic physician John Roe and BSB Health
Department nurses Cossel and Terri Doe. Should we conclude, however, that the
statute's subsequent five-year statute of repose precludes Blackburn's claims for
medical
malpractice, we need not reach the question of whether the three-year statute of
limitations was tolled.
The five-year statute of repose, which governs our present inquiry, provides
that
"in no case may an action be commenced after 5 years from the date of injury." See
Webb v. T.D., et. al. (1996), 275 Mont. 243, 247, 912 P.2d 202, 205 (characterizing
the
five-year period in õ 27-2-205(1), MCA, as a statute of repose). As discussed
above, we
conclude that Blackburn's cause of action accrued, and her injury accordingly
occurred,
no later than March 1990. However, Blackburn did not file the present action until
November 1995, more than five and one-half years later. Therefore, unless properly
tolled, the five-year statute of repose provision contained in the first sentence of
õ 27-2-
205, MCA, bars Blackburn's present claims for medical malpractice.
In the absence of specific statutory language to the contrary, a statute of
repose
such as the one codified in õ 27-2-205(1), MCA, is not subject to tolling. See First
United Methodist Church of Hyattsville v. United States Gypsum Co. (4th Cir. 1989),
882
F.2d 862, 866, cert. denied (1990), 493 U.S. 1070, 110 S. Ct. 1113, 107 L. Ed. 2d

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-408%20Opinion.htm (9 of 24)4/17/2007 4:29:14 PM
 96-408

1020. We conclude that Montana's medical malpractice statute contains just such a
statutory tolling provision. Specifically, the second sentence of õ 27-2-205, MCA,
directly follows the language which establishes the five-year statute of repose and
reads:
However, this time limitation is tolled for any period during which there
has been a failure to disclose any act, error, or omission upon which an
action is based and that is known to the defendant, or through the use of
reasonable diligence subsequent to the act, error, or omission would have
been known to the defendant.

This Court will construe a statute in accordance with the plain meaning of its
terms. State v. Martel (1995), 273 Mont. 143, 150, 902 P.2d 14, 17 (citing State v.
Lilburn (1994), 265 Mont. 258, 266, 875 P.2d 1036, 1041, cert. denied (1995), 513 U.
S.
1078, 115 S. Ct. 726, 130 L. Ed. 2d 630). The first sentence of õ 27-2-205(1), MCA,
ends with the provision that "in no case may an action be commenced after 5 years
from
the date of injury," thereby creating a five-year statute of repose for medical
malpractice
actions. Basic statutory construction and a plain reading of the statute compel the
conclusion that the subsequent phrase "this time limitation," refers to and modifies
the
immediately preceding five-year time limitation.
Further, to interpret the second sentence of õ 27-2-205, MCA, as anything other
than a tolling provision applicable to the statute of repose immediately preceding
it would
be to effectively permit a health care provider who learns of a prior negligent act,
error,
or omission to conceal that information from a patient and obtain eventual immunity
from
suit. Accordingly, we hold that, pursuant to the specific terms of õ 27-2-205(1),
MCA,
a plaintiff must commence an action for medical malpractice no later than five years
after
the date of injury except where a health care provider fails "to disclose any act,
error,
or omission upon which an action is based and that is known to the defendant, or
through
the use of reasonable diligence subsequent to the act, error, or omission would have
been
known to the defendant."
Having determined that the second sentence of õ 27-2-205(1), MCA, may, under
certain circumstances, toll the five-year statute of repose applicable in a medical
malpractice action, this Court must next determine whether it did so in the instant
case.
Here, the five-year statute of repose may not preclude Blackburn's claims for
malpractice
in the event that the physician who performed the abortion and the two registered
nurses
who counseled Blackburn each failed "to disclose [an] act, error, or omission upon
which" Blackburn's medical malpractice "action is based and that [was] known to the
defendant or through the use of reasonable diligence subsequent to the act, error, or

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-408%20Opinion.htm (10 of 24)4/17/2007 4:29:14 PM
 96-408

omission would have been known the defendant."
Under different circumstances, we have previously recognized that the tolling
provision contained in the second sentence of õ 27-2-205(1), MCA, essentially
codifies
the common law doctrine of fraudulent concealment. Major, 233 Mont. at 31, 759 P.2d
at 157. In Major, we recognized that "[i]t is the cause of action which must be
fraudulently concealed by failing to disclose the fact of injury from malpractice, by
diverting the patient from discovering the malpractice that is the basis of the
action."
Major, 233 Mont. at 31, 759 P.2d at 157 (quoting Monroe v. Harper (1974), 164 Mont.
23, 28, 518 P.2d 788, 790). In both Major and Monroe, pursuant to the doctrine of
fraudulent concealment, we required an affirmative act of diversion by the defendant,
aimed at misleading or preventing inquiry by the patient, to toll the statute of
limitations
in a medical malpractice action. Monroe, 164 Mont. at 28, 518 P.2d at 790.
By its express terms, however, the second sentence of õ 27-2-205(1), MCA,
tempers the doctrine of fraudulent concealment and states that a failure to disclose
certain
facts may be sufficient to toll the five-year statute of repose. Indeed, in Wisher
v. Higgs
(1993), 257 Mont. 132, 145, 849 P.2d 152, 160, we clarified that, pursuant to the
specific terms of õ 27-2-205(1), MCA, simple "failure to disclose facts, as opposed
to
affirmative, fraudulent concealment, is sufficient to toll the statute." Therefore,
both
Major and Monroe are overruled insofar as they suggest that an affirmative act by the
health care provider is required to trigger the tolling provision of õ 27-2-205(1),
MCA.
We also note that in both Major and Monroe, as well as in Wisher, this Court
inappropriately evaluated the tolling provision contained in the second sentence of
õ 27-2-205(1), MCA, in discussions regarding the statute of limitations in medical
malpractice cases. Having held in the present case that the second sentence of õ 27-
2-
205(1), MCA, applies exclusively to toll the five-year statute of repose under
certain
limited circumstances, we additionally overrule Major, Monroe, and Wisher, to the
extent
they suggest that the statutory provision may apply to toll the statute of
limitations in
medical malpractice cases.
Pursuant to the specific terms of the statute, we hold that a failure to
disclose facts
may toll the five-year statute of repose, but only where that failure to disclose is
an act
separate from the alleged act of malpractice upon which the claim for professional
negligence rests. In other words, by its terms, the statute's tolling provision
applies
where a health care worker learns, or through the use of reasonable diligence would
have
learned, that he or she committed an error but subsequently conceals or fails to
disclose
that error to the patient.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-408%20Opinion.htm (11 of 24)4/17/2007 4:29:14 PM
 96-408

Here, Blackburn alleges medical malpractice on the part of the Blue Mountain
Clinic physician who performed the abortion, as well as on the part of the two BSB
Health Department nurses who counseled and treated her prior to her abortion. The
central allegation upon which Blackburn bases her claims for medical malpractice is
that
each of these defendants failed to disclose to her the fact that, because she was
not HIV
positive, she could not deliver an HIV positive baby. Blackburn also alleges
professional
negligence on the part of these three defendants for their alleged failure to inform
her of
the risks associated with the abortion procedure. Thus, Blackburn alleges medical
malpractice based on defendants' alleged failure to disclose accurate medical
information.
Blackburn does not, however, allege any separate failure to disclose as required
by the medical malpractice statute's tolling provision. Rather, the failure to
disclose
accurate medical information which Blackburn alleges constitutes the very act of
medical
malpractice for which she seeks to recover. Blackburn simply alleges no act,
affirmative
or otherwise, separate from the alleged act of malpractice. Blackburn does not
allege that
defendants ever learned of, or through the use of reasonable diligence would have
learned
of, their alleged failure to disclose accurate medical information or that they
subsequently
concealed or failed to disclose that information to Blackburn.
Accordingly, we conclude that the tolling provision contained in õ 27-2-205(1),
MCA, does not delay the expiration of the five-year statute of repose in this case,
and
that Blackburn's claims for medical malpractice are barred. Having held that the
five-
year statute of repose bars Blackburn's claims for medical malpractice, we do not
reach
the question of whether the three-year statute of limitation was tolled.
Based on the foregoing, we hold the District Court correctly concluded that
õ 27-2-205(1), MCA, precludes Blackburn's claims for medical malpractice and affirm
their dismissal by the District Court. Specifically, we conclude that the five-year
statute
of repose bars Blackburn's medical malpractice claims against the fictitiously named
physician, John Roe, and the Blue Mountain Clinic, insofar as Blackburn seeks to hold
the clinic vicariously liable for the physician's conduct. We further conclude that
the
statute of repose additionally bars Blackburn's medical malpractice claims against
registered nurses Cossel and Terri Doe, as well as against the BSB Health Department
to the extent that Blackburn seeks to hold it responsible for the actions of its
registered
nurse employees.
2. Negligence
Blackburn brings a number of negligence-based claims which do not fall within
the

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-408%20Opinion.htm (12 of 24)4/17/2007 4:29:14 PM
 96-408

parameters of Montana's medical malpractice statute, but are instead governed by the
statute of limitations for negligence claims, codified at õ 27-2-204, MCA, and the
tolling
provisions contained in õ 27-2-102(3), MCA. Specifically, Blackburn brings claims of
negligence against the Blue Mountain Clinic and its counselor, Jane Doe, as well as
against Dr. Pratt and DPHHS.
Blackburn alleges that Jane Doe, the Blue Mountain Clinic counselor with whom
Blackburn had repeated contact both prior to and following her abortion, failed to
provide
Blackburn with sufficient information upon which she could base her decision to have
an
abortion, and treated her negligently in the days following the procedure.
Blackburn also
alleges negligence on the part of Blue Mountain Clinic, and seeks to recover damages
pursuant to the theory of respondeat superior. Finally, Blackburn levels claims of
negligence against DPHHS and its medical director, Dr. Sidney Pratt, apparently
contending they negligently supervised the BSB Health Department in a number of
respects.
Section 27-2-204, MCA, provides the applicable period of limitations for tort
actions, including claims for negligence such as the ones presented here. See, e.g.,
Sorenson v. Massey-Ferguson, Inc. (1996), 279 Mont. 527, 529, 927 P.2d 1030, 1031.
Section 27-2-204(1), MCA, provides that "[t]he period prescribed for the commencement
of an action upon a liability not founded upon an instrument in writing is within 3
years."
Here, we have determined that the requisite elements of Blackburn's claims for
negligence were present by March 1990 and that her claims accrued at that time.
However, Blackburn did not commence this action, by way of filing her complaint,
until
November 29, 1995, more than five and one-half years after her cause of action
accrued.
Blackburn argues that, even if her claim accrued earlier, pursuant to the
discovery
doctrine, the statute of limitations did not begin to run until 1995 when she first
consulted
an attorney and learned she had received erroneous medical information prior to her
abortion. Alternatively, Blackburn maintains the statute of limitations began to
run, at
the earliest, in 1993 when Dr. Moore diagnosed her with depression and she thus
discovered the facts constituting her claim.
Section 27-2-102(3), MCA, codifies the discovery doctrine applicable to general

negligence cases pursuant to which

[t]he period of limitation does not begin on any claim or cause of action for
an injury to person or property until the facts constituting the claim have
been discovered or, in the exercise of due diligence, should have been
discovered by the injured party if:
(a) the facts constituting the claim are by their nature concealed
or self-concealing; or
(b) before, during, or after the act causing the injury, the
defendant has taken action which prevents the injured party from
discovering the injury or its cause.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-408%20Opinion.htm (13 of 24)4/17/2007 4:29:14 PM
 96-408

In apparent reliance upon õ 27-2-102(3)(b), MCA, but without specifically
analyzing õ 27-2-102(3)(a), MCA, the District Court concluded that, as the record
contained no evidence that the defendants affirmatively acted to conceal the facts
constituting Blackburn's claim from her, the statute of limitations barred
Blackburn's
claims for negligence. Having reviewed the record, and for the reasons stated
below, we
hold the trial court correctly concluded the statute of limitations bars Blackburn's
negligence claims against Dr. Pratt and DPHHS, but erred in concluding that statute
similarly precludes her claims against the Blue Mountain Clinic and its counselor.
a. Blue Mountain Clinic and Counselor Jane Doe
Blackburn alleges negligence on the part of the Blue Mountain Clinic, by way of
inadequate treatment she allegedly received from clinic counselor Jane Doe, in a
number
of respects. As she does with respect to several of the defendants in this case,
Blackburn
primarily contends the counselor failed to inform Blackburn that, because she was HIV
negative her baby would not be born HIV positive, and, therefore, that an abortion
was
unnecessary. Blackburn additionally alleges the counselor failed to inform her of
the
risks associated with the abortion procedure, and provided her with substandard care
in
the days following the abortion.
As noted above, õ 27-2-102(3)(a), MCA, may toll the statute of limitations in a
negligence case where the facts constituting the claim are self-concealing, thereby
preventing their discovery by the plaintiff. We have previously addressed the
nature of
self-concealing injuries in the context of medical malpractice claims. See Grey v.
Silver
Bow County (1967), 149 Mont. 213, 217, 425 P.2d 819, 821 (infection introduced during
surgery due to hospital's failure to use proper sterile techniques considered a self-
concealing injury); Johnson v. St. Patrick's Hosp. (1966), 148 Mont. 125, 417 P.2d
469,
aff'd after remand (1968), 152 Mont. 300, 448 P.2d 729.
In 1987, the Montana Legislature amended õ 27-2-102, MCA, to address the
unique problems presented by self-concealing injuries. See õ 27-2-102(3), MCA. In
so
doing, the Legislature specifically exempted application of õ 27-2-102(3), MCA, to
medical malpractice actions which are instead governed by the limitations period and
tolling provisions codified at õ 27-2-205, MCA. In order to properly calculate a
particular statute of limitations period, it is necessary to determine the date that
the period
of limitations begins to run. In such circumstances, õ 27-2-102(3)(a), MCA, protects
plaintiffs against the harsh results of having their claim barred before they even
know it
exists. Our precise inquiry at this juncture, then, is whether Blackburnþs injury
is of a
self-concealing nature, thereby bringing her claim for negligence within the
protection
afforded by õ 27-2-102(3)(a), MCA.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-408%20Opinion.htm (14 of 24)4/17/2007 4:29:14 PM
 96-408

Here, the negligent act alleged by Blackburn is the withholding of accurate
medical
information by the Blue Mountain Clinic counselor. It is this alleged withholding of
information which forms the basis for Blackburn's negligence claim. Nondisclosure of
information is, by its nature, self-concealing. We conclude that the alleged facts
upon
which Blackburn's claim for negligence against the Blue Mountain Clinic counselor
rests
were, by their nature, self-concealing. So too, then, was the very nature of
Blackburn's
injury self-concealing. Blackburn could not have discovered she underwent an
unnecessary abortion until she learned the counselor had withheld from her accurate
medical information which Blackburn needed in order to make an informed decision
regarding whether to obtain an abortion.
In any event, Blue Mountain Clinic argues Blackburn failed to exercise due
diligence in discovering her claim as required by the tolling provision at õ 27-2-102
(3),
MCA. Under the facts alleged, however, we are unable to reach such a conclusion.
After her abortion, Blackburn sought no additional advice regarding the risks of
abortion
or the transmission of HIV. Blackburn had no reason to suspect that the Blue
Mountain
Clinic counselor had provided her with inaccurate information.
Under the facts as alleged by Blackburn, a trier of fact might find
circumstances
which warrant tolling the three-year negligence statute of limitations until the
date by
which it determines Blackburn, through due diligence, should have discovered that
information withheld by the Blue Mountain Clinic counselor caused her to undergo an
unnecessary abortion. As we note above, "[a] complaint should not be dismissed for
failure to state a claim unless it appears beyond doubt that the plaintiff can prove
no set
of facts in support of [her] claim which would entitle [her] to relief." Willson,
194 Mont.
at 126, 634 P.2d at 1182. Here, it is conceivable that Blackburn could prove a set
of
facts which would warrant tolling the statute of limitations, and which would
support a
claim of negligence against the Blue Mountain Clinic counselor for her alleged
failure to
disclose the risks of abortion and the truth about HIV transmission.
Based on the foregoing, we conclude the facts constituting select portions of
Blackburn's claims for negligence against the counselor, and therefore against Blue
Mountain Clinic itself, were self-concealing as contemplated by the tolling
provision of
õ 27-2-102(3), MCA. We hold that the facts constituting Blackburn's claims of
negligence were self-concealing to the extent that Blackburn alleges clinic
counselor Jane
Doe failed to disclose the risks of abortion and failed to reveal the truth about the
transmission of HIV. Whether Blackburn may be able to demonstrate she exercised due
diligence sufficient to trigger the tolling provision of õ 27-2-102(3), MCA, cannot
yet be

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-408%20Opinion.htm (15 of 24)4/17/2007 4:29:14 PM
 96-408

determined.
We additionally conclude that Blackburn's allegations that the clinic counselor
provided her with substandard care in the days following the abortion are not of a
self-
concealing nature, and that the tolling provision of õ 27-2-102(3), MCA, does not
apply
to these claims.
Accordingly, we hold the District Court erred in concluding that, as a matter of
law, õ 27-2-204(1), MCA, precludes Blackburn's claims of negligence, based on the
withholding of accurate medical information, against the Blue Mountain Clinic and its
counselor. However, we hold the District Court properly concluded that õ 27-2-204
(1),
MCA, precludes her claims of negligence based on allegedly substandard care she
received following the abortion.
b. Dr. Pratt and DPHHS
Blackburn generally alleges negligence on the part of DPHHS and its medical
director, Dr. Sidney Pratt. Blackburn apparently contends that Dr. Pratt and DPHHS
negligently supervised the BSB Health Department. As Blackburn makes no allegations
of medical negligence, or medical malpractice, against Dr. Pratt, the three-year
limitations period codified in õ 27-2-204(1), MCA, and the discovery doctrine
appearing
at õ 27-2-102(3), MCA, govern her claims both against DPHHS as well as against Dr.
Pratt.
As it did with respect to Blackburn's negligence claims brought against the
remaining defendants, the District Court concluded the applicable three-year statute
of
limitations precluded Blackburn's claims for negligence against Dr. Pratt and DPHHS.
See õ 27-2-204(1), MCA. Having reviewed the record, we affirm this determination by
the District Court.
As noted above, although Blackburn's claims accrued by March 1990, she did not
commence the present negligence action until November 1995, well beyond the
applicable
three-year statutory limitations period. Thus, we must determine whether the
discovery
doctrine, codified at õ 27-2-102(3), MCA, tolls the limitations period with respect
to
Blackburn's claims for negligence against Dr. Pratt and DPHHS.
Having reviewed the record, we conclude the District Court properly concluded
that, pursuant to õ 27-2-102(3)(b), MCA, neither Dr. Pratt nor DPHHS in any way
concealed information regarding Blackburn's claim from her. Although the District
Court
did not specifically do so, we evaluate õ 27-2-102(3)(a), MCA, and further conclude
that
the facts constituting her claims against Dr. Pratt and DPHHS were not, by their
nature,
self-concealing. Accordingly, neither of the conditions necessary to trigger
application
of the discovery doctrine and subsequent tolling of the statute of limitations is
satisfied
with respect to Blackburn's negligence claims against Dr. Pratt and DPHHS. Based on
the foregoing, we hold the District Court properly concluded the statute of
limitations

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-408%20Opinion.htm (16 of 24)4/17/2007 4:29:14 PM
 96-408

precludes Blackburn's negligence claims against Dr. Pratt and DPHHS.
ISSUE 2
Did the District Court err in concluding the applicable statute of limitations
barred
Blackburn's claims for assault and battery?
In addition to allegations of negligence and medical negligence, Blackburn
brings
claims for assault and battery against various defendants. Specifically, Blackburn
contends she did not give her informed consent to the abortion procedure because no
one
advised her that an HIV negative mother could not deliver an HIV positive baby and no
one explained any of the risks associated with an abortion. Blackburn maintains
that,
because she did not consent to the abortion, defendants committed an assault and
battery
against her person. Accordingly, Blackburn has leveled a claim for assault and
battery
against the Blue Mountain Clinic physician who performed the abortion, the counselor
employed by the clinic, and the Blue Mountain Clinic itself. Blackburn also alleges
assault and battery by registered nurses Cossel and Terri Doe, and their employer,
the
BSB Health Department.
Pursuant to õ 27-2-204(3), MCA, a two-year statute of limitations governs claims
for assault and battery. The elements constituting Blackburn's claim for assault and
battery were present at the time of her January 20, 1990, abortion, so her claim
therefore
accrued, and the limitation period began to run, at that time. See õ 27-2-102(1)
and (2),
MCA. Blackburn did not commence her present action until November 1995, well
beyond the permissible two-year limitation period.
Further, we conclude that neither of the tolling provisions contained in õ 27-2-
102(3), MCA, apply to delay the running of the two-year period in this case. The
facts
constituting Blackburn's claim for assault and battery, an intentional tort, were
not self-
concealing as contemplated by õ 27-2-102(3)(a), MCA. Further, we conclude defendants
took no action to prevent Blackburn from discovering her alleged injury or its
cause.
Section 27-2-102(3)(b), MCA. Accordingly, we hold the District Court correctly
concluded the applicable two-year statute of limitations bars plaintiffs claims for
assault
and battery.
ISSUE 3
Did the District Court err in concluding that Blackburn's 42 U.S.C. õ 1983 civil
rights claim is barred by the applicable statute of limitations and fails as a
matter of law?
By way of her amended complaint, Blackburn alleges defendants violated her civil
rights pursuant to 42 U.S.C. õ 1983, by failing to disclose to her the risks
associated with
an abortion and by failing to inform her that an HIV negative mother could not give
birth
to an HIV positive infant. Blackburn also generally alleges that defendants

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-408%20Opinion.htm (17 of 24)4/17/2007 4:29:14 PM
 96-408

violated her
Fourteenth Amendment rights.
In response, defendants maintain that Blackburn's õ 1983 civil rights claims are
barred by the applicable statute of limitations. Alternatively, defendants argue
Blackburn
has failed to state a claim for relief pursuant to 42 U.S.C. õ 1983 and her claims
must
fail as a matter of law.
A. Statute of Limitations
Defendants argue that the statute of limitations precludes Blackburn's õ 1983
claims. The District Court agreed, concluding that, because the applicable statutes
of
limitation bar Blackburn's claims for medical malpractice, negligence, and assault
and
battery, so too do they preclude her õ 1983 claims.
The limitation period applicable to a õ 1983 action is the statute of
limitation for
personal injury actions in the state in which the claim accrues. Owens v. U.U. Okure
(1989), 488 U.S. 235, 250, 109 S. Ct. 573, 582, 102 L. Ed. 2d 594, 606; Wilson v.
Garcia (1985), 471 U.S. 261, 276, 105 S. Ct. 1938, 1947, 85 L. Ed. 2d 254, 266.
State
law additionally governs questions of tolling. Wilson, 471 U.S. at 268; see also
Vaughan
v. Grijalva (9th Cir. 1993), 927 F.2d 476, 478.
Thus, in the instant case, Montana's three-year statute of limitation governing
personal injury actions, codified at õ 27-2-204(1), MCA, applies to Blackburn's civil
rights claims. As we have discussed above, with the exception of certain allegations
against Blue Mountain Clinic and its counselor Jane Doe, all of Blackburn's claims
for
medical malpractice, negligence, and assault and battery are precluded by the
periods of
limitation codified at õõ 27-2-205, -204(1), and -204(3), MCA.
Blackburn's civil rights claims essentially rest upon the same facts which
comprise
her various claims for medical malpractice, negligence, and assault and battery.
Just as
Montana's statute of limitations bars the majority of these claims, so too does it
bar most
of her õ 1983 claims.
Accordingly, with respect to all defendants except the Blue Mountain Clinic and
its counselor Jane Doe, we hold the District Court correctly concluded that Blackburn
cannot assert any set of facts which state a claim for which relief may be granted
pursuant to 42 U.S.C. õ 1983, and her civil rights claims are precluded by the
statute of
limitations.
B. Failure to State a Claim
Each defendant alternatively argues that Blackburn has failed to state a claim
for
which relief may be granted, and that her õ 1983 claims must therefore fail as a
matter
of law. Having concluded that Blackburn's õ 1983 claims are precluded by the statute
of limitations, however, we need only address this alternative argument as it

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-408%20Opinion.htm (18 of 24)4/17/2007 4:29:14 PM
 96-408

applies to
the Blue Mountain Clinic and its counselor.
Section 1983 provides in pertinent part that:
[E]very person who, under color of any state [law] . . . subjects, or causes
to be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for
redress.

42 U.S.C. õ 1983.
Therefore, to state a claim pursuant to 42 U.S.C. õ 1983, a plaintiff must
allege
the presence of, as well as the deprivation of, a federally protected right,
privilege, or
immunity. A plaintiff must additionally allege the defendant caused the deprivation
of
that right, privilege, or immunity, and in so doing acted under color of state law.
See,
e.g., Lugar v. Edmonson Oil Co. (1982), 457 U.S. 922, 931, 102 S. Ct. 2744, 2750, 73
L. Ed. 2d 482, 491; Parratt v. Taylor (1981), 451 U.S. 527, 535, 101 S. Ct. 1908,
1913, 68 L. Ed. 2d 420, 428, overruled on other grounds, Daniels v. Williams (1986),
474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662; Gomez v. Toledo (1980), 446 U.S.
635, 640, 100 S. Ct. 1920, 1923, 64 L. Ed. 2d 572, 577.
Blue Mountain Clinic argues that Blackburn has failed to properly state a claim
for
relief against it pursuant to 42 U.S.C. õ 1983. In particular, Blue Mountain
contends
Blackburn has failed to allege the presence of a federally protected right, and has
failed
to allege facts which might demonstrate that Blue Mountain Clinic acted under color
of
state law. Consequently, Blue Mountain argues, Blackburn's civil rights claims must
fail
as a matter of law.
1. Federally Protected Right
To properly state a claim for relief pursuant to 42 U.S.C. õ 1983, Blackburn
must
allege, among other items, the presence of a federally protected right. Although õ
1983
provides a remedy for violations of federal rights, it does not in itself create or
provide
a party with substantive rights. See, e.g., Albright v. Oliver (1994), 510 U.S.
266, 271,
114 S. Ct. 807, 811, 127 L. Ed. 2d 114, 122, rehearing denied by 520 U.S. 1215, 114
S. Ct. 1340, 127 L. Ed. 2d 688.
In her amended complaint, Blackburn frequently refers to and alleges various
violations of Title X of the Public Health Service Act. For example, Blackburn
alleges
that defendants inappropriately used federal funds in violation of 42 U.S.C. õ 300a-6
which provides in pertinent part that "[n]one of the funds appropriated under this
subchapter shall be used in programs where abortion is a method of family planning."

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-408%20Opinion.htm (19 of 24)4/17/2007 4:29:14 PM
 96-408

We conclude, as did the District Court below, that those provisions of Title X of the
Public Health Service Act upon which Blackburn relies do not confer upon her the
substantive rights she claims. Accordingly, we hold Blackburn has failed to allege a
violation of her substantive rights as necessary in an action pursuant to 42 U.S.C.
õ 1983.

2. Under Color of State Law
To properly state a claim for relief pursuant to 42 U.S.C. õ 1983, Blackburn
must
additionally allege that any deprivation of a federal right was proximately caused
by a
defendant who was exercising "some right or privilege created by the State, by a
rule of
conduct imposed by the State, or by a person for whom the State is responsible."
Lugar,
457 U.S. at 937. Blackburn must allege facts to demonstrate Blue Mountain Clinic was
a "state actor."
Review of the record indicates Blackburn has failed to do so. She alleges no
facts
that would sufficiently show Blue Mountain Clinic, or its employees, were state
actors,
acted under color of state law, or acted in concert with state officials in
counseling and
treating her.
C. DPHHS
Further, although we need not do so in light of our determination that
Blackburn's
õ 1983 claim against DPHHS is barred by the statute of limitation, we additionally
note
that, in any event, she has failed to state a claim for which relief may be granted
as
against DPHHS. Pursuant to the explicit terms of õ 1983, a plaintiff may only bring
a
õ 1983 claim against a "person." In Will v. Michigan Dep't of State Police (1989),
491
U.S. 58, 71, 109 S. Ct. 2304, 2312, 105 L. Ed. 2d 45, 58, the United States Supreme
Court held that neither a state nor a state agency is a person within the meaning of
õ
1983. DPHHS is a state agency, and Blackburn's claim against it therefore fails as a
matter of law.
Based on the foregoing, we hold the District Court correctly concluded that
Blackburn failed to allege a violation of her substantive rights and that each of
her õ 1983
claims, including those against Blue Mountain Clinic and its counselor, must fail as
a
matter of law. Based on the foregoing, we conclude that, as a matter of law,
Blackburn
has not stated a claim for which relief may be granted pursuant to 42 U.S.C. õ 1983,
and
we affirm the District Court's order dismissing each and every one of her civil
rights
claims.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-408%20Opinion.htm (20 of 24)4/17/2007 4:29:14 PM
 96-408

ISSUE 4
Did the District Court err in dismissing Blackburn's claims brought on behalf of
her aborted fetus?
Blackburn filed the present action, not only on her own behalf, but also as the
"Personal Representative of the Estate of Baby Boy Doe, Deceased." As such,
Blackburn
seeks to bring a number of claims on behalf of her unborn fetus against defendants.
A. 42 U.S.C. õ 1983
Blackburn contends defendants violated the civil rights of her unborn fetus, and
accordingly attempts to allege a claim on behalf of her fetus pursuant to 42 U.S.C. õ
1983. Blackburn's fetus, however, is not a "person" on whose behalf a civil rights
action
may be commenced pursuant to 42 U.S.C. õ 1983 for deprivation of rights. Reed v.
Gardner (7th Cir. 1993), 986 F.2d 1122, 1127-28, cert. denied (1993), 510 U.S. 947,
114 S. Ct. 389, 126 L. Ed. 2d 337; McGarvery v. Magee-Women's Hospital (D. Pa.
1972), 340 F. Supp. 751, 754, aff'd by (3rd. Cir. 1973), 474 F.2d 1339. Blackburn's
õ 1983 claim brought on behalf of the fetus thus fails as a matter of law.
B. State Law Claims
Each state law claim which Blackburn alleges on her own behalf, she additionally
alleges on the behalf of her unborn fetus. This Court has recognized a claim of
wrongful
death for a stillborn fetus, and held that a full-term fetus may be considered a
person for
the purpose of Montana's wrongful death statute. Strzelczyk v. Jett (1994), 264
Mont.
153, 158, 870 P.2d 730, 733.
However, we limited our holding in Strzelczyk to the facts of that case,
recognizing
only a full-term, stillborn fetus as a person. Unlike Strzelczyk, the instant case
involves
an attempt by Blackburn to bring an action on behalf of a first-trimester, non-
viable fetus.
Under Montana law, Blackburn may not maintain an action for the death of a non-viable
fetus. Kuhnke v. Fisher (1984), 210 Mont. 114, 120, 683 P.2d 916, 919.
Based on the foregoing, we hold the District Court correctly concluded that
Montana does not recognize a cause of action for a first-trimester, non-viable
fetus, and
properly dismissed Blackburn's claims brought on its behalf.

/S/ JIM REGNIER

We Concur:

/S/ J. A. TURNAGE
/S/ KARLA M. GRAY
/S/ W. WILLIAM LEAPHART

Justice James C. Nelson concurs in part and dissents in part.

I concur with the analysis and in everything stated in the Court's opinion

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-408%20Opinion.htm (21 of 24)4/17/2007 4:29:14 PM
 96-408

except
as to that part of the discussion of Issue 1 wherein we hold that in order to toll
the five-
year statute of repose, the failure to disclose must be an act separate from the
alleged act
of malpractice upon which the claim for professional negligence is based. In my
opinion,
the plain, unambiguous language of õ 27-2-205(1), MCA, does not contain that sort of
restriction. Moreover, I conclude that, in judicially imposing this construction on
the
statute, we have deprived a whole class of medical-malpractice plaintiffs of the
protection
of the tolling provisions that the legislature enacted.
I begin my analysis with those well-established, oft-cited rules of statutory
construction that have become axiomatic:
In interpreting a statute, we look first to the plain meaning of the
words it contains. [Citation omitted]. Where the language is clear and
unambiguous, the statute speaks for itself and we will not resort to other
means of interpretation. [Citation omitted.] "In the search for plain
meaning, 'the language used must be reasonably and logically interpreted
giving words their usual and ordinary meaning.'" [Citation omitted.]

Werre v. David (1996), 275 Mont. 376, 385, 913 P.2d 625, 631. Moreover,

[i]n the construction of a statute, the office of the judge is simply to
ascertain and declare what is in terms or in substance contained therein, not
to insert what has been omitted or to omit what has been inserted. Where
there are several provisions or particulars, such a construction is, if
possible, to be adopted as will give effect to all.

Section 1-2-101, MCA.
We have properly concluded that the five-year statute of repose in õ 27-2-205
(1),
MCA, is tolled by language in the statute itself
for any period during which there has been a failure to disclose any act,
error, or omission upon which an action is based and that is known to the
defendant or through the use of reasonable diligence subsequent to the act,
error, or omission would have been known to the defendant.

Contrary to the majority opinion, however, a reading of the plain language of this
tolling
provision reveals no requirement whatsoever that the failure to disclose be an act
separate
from the malpractice itself. The elements of the statute-of-repose tolling
provision are
simple and straightforward. There must be:
(a) a failure to disclose any act, error, or omission
(b) upon which an action is based and
(c) that is known to the defendant or
(d) through the use of reasonable diligence subsequent to the act, error or
omission
would have been known to the defendant.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-408%20Opinion.htm (22 of 24)4/17/2007 4:29:14 PM
 96-408

Moreover, under the statutory language, tolling takes place "for any period during
which
there has been a failure to disclose." Section 27-2-205(1), MCA (emphasis added).
Obviously, þany periodþ would include a failure to disclose either coincidental with
or
subsequent to the malpractice and, where the failure to disclose is the malpractice,
then
logically the failure to disclose cannot be an act separate from the malpractice
itself.
The majority can point to no statutory language that supports the
interpretation that
it has placed on the subject language. Rather, it has impermissibly failed to look
first
to the plain meaning of the words the statute contains and then reasonably and
logically
interpret the statutory language giving words their usual and ordinary meaning. The
majority has improperly inserted that which the statute does not require--an element
that
the failure to disclose be a separate act.
The mischief in the Court's interpretation of the statute cannot be fully
appreciated
until one understands that, under this construction, a whole class of medical-
malpractice
plaintiffs has now been deprived of the protection of the tolling provisions of the
statute
of repose that the legislature enacted. In those cases where the failure to disclose
is the
malpractice--for example, in those cases where the injured plaintiff did not give
informed
consent to the offending treatment because the health-care provider negligently
failed to
disclose the risks attendant to the procedure--there can now be no tolling of the
statute
of repose because the malpractice and the failure to disclose are not separate acts;
rather,
they are one and the same act, error or omission.
To illustrate, assume the health-care provider fails to disclose a particular
known
risk attendant to a surgical procedure and, knowing that he has not properly advised
the
patient of this risk, he obtains consent for the procedure nonetheless. Five years
and one
day following the procedure the latent effects attendant to the risk manifest
themselves
in injury to the patient. Assume further that the health-care provider made no
mention
of his negligent failure to disclose the risk to the patient during the five years
following
his pre-surgery consultation. Under our decision, the patient is barred from filing a
malpractice claim based upon lack of informed consent, notwithstanding the health-
care

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-408%20Opinion.htm (23 of 24)4/17/2007 4:29:14 PM
 96-408

provider's failure to disclose, because, under our decision here, the failure to
disclose is
the malpractice and is not an act, error or omission separate from the
malpractice.
If the purpose of the "failure to disclose" provision in the tolling of the
statute of
repose is to protect the public from dishonest health-care providers and to encourage
negligent health-care providers to disclose their malpractice so that injured
patients might
be able to timely seek corrective medical treatment and avoid further or prolonged
injury,
then we have effectively denied these remedial aspects of the statute to this whole
class
of informed-consent plaintiffs. Importantly, we have also deprived plaintiff
Blackburn of
the tolling protection that the statute was enacted to provide.
I would hold that Blackburn's medical malpractice claims which are premised in
her allegation that her health-care providers failed to disclose to her that, being
HIV
negative, she could not give birth to an HIV-positive baby, are not barred by the
five-
year statute of repose. Rather, liability under this theory presents factual
questions that
should be resolved by the jury.
I dissent.

/S/ JAMES C. NELSON

Justices Terry N. Trieweiler and William E. Hunt, Sr., concur in the foregoing
dissent
and concurrence.

/S/ TERRY N. TRIEWEILER
/S/ WILLIAM E. HUNT, SR.

file:///C|/Documents%20and%20Settings/cu1046/Desktop/opinions/96-408%20Opinion.htm (24 of 24)4/17/2007 4:29:14 PM