No. 87-511
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
HELEN MAJOR, Individually and as
Personal Representative of the Estate
of JUDITH M. EAYRS, and as Guardian and
Conservator of the Estate of HALLIE JEAN
EAYRS, a minor, JULIE SINA JOHNSON AND
LEIGH JOHNSON,
Plaintiffs and Appellants,
-vs-
NORTH VALLEY HOSPITAL and DEL B. COOLIDGE, M.D.,
Defendants and Respondents.
APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Robert Holter, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Richard A. Reep; Datsopoulos, MacDonald & Lind,
Missoula, Montana
For Respondent:
Stephen C. Berg; Warden, Christiansen, Johnson & Berg,
Kalispell, Montana
I. James Heckathorn; Murphy, Robinson, Heckathorn &
Phillips, Kalispell, Montana
Submitted on Briefs: May 12, 1988
Decided: July 15, 1988
Filed: m115 1988'
Clerk
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.
Plaintiff Helen Major, individually and as Personal
Representative of the Estate of Judith M. Eayrs, appeals from
the summary judgment order of the District Court of the
Eleventh Judicial District, Flathead County, declaring her
claim barred by the applicable statute of limitations. We
affirm.
Appellant presents two issues for review:
1. "Whether the District Court Erred in Making Findings
of Fact upon Defendants' Motion for Summary Judgment."
2. "Whether the District Court Erred in Finding as a
Matter of Law that the Statute of Limitation Barred the
Claims of Helen Major, individually and as Personal
Representative of the Estate of Judith Eayrs."
The facts can be summarized as follows: At approximately
7:40 a.m. on March 20, 1982, appellant received a telephone
call from her daughter, Judith Eayrs (Judy). Judy told
appellant that she was suffering from an extremely sore
throat and needed medical attention. Appellant drove to her
daughter's apartment, and at approximately 8:00 a.m., called
North Valley Hospital in Whitefish to inform personnel there
of Judy's condition and imminent arrival. While both
appellant and her daughter lived in Kalispell, they decided
it would be best to travel to Whitefish because Judy's
treating physician and medical records were located there.
Judy suffered from systemic lupus erythematosis, a disease
with multiple symptoms including episodes of swelling in the
throat with attendant breathing difficulty, and had been
treated several times at North Valley Hospital.
Upon arriving at the hospital emergency room, appellant
learned that the nurse on duty had not yet contacted Judy's
doctor, Dr. Ricker. The nurse logged a call to Dr. Ricker's
clinic at 8:38 a.m. relaying Judy's complaint that her throat
felt like it was closing shut. Dr. Ricker was not available
that day, and the call was taken by his partner, Dr.
Coolidge. The nurse called Coolidge again at approximately
9:00 a.m., and he arrived at the emergency room at
approximately 9:20 a.m.
After being examined by Dr. Coolidge, Judy was taken for
chest X-rays and admitted to the general ward. At
approximately 10:20 a.m., she lunged from her bed toward the
window and collapsed on the floor of her room. A code blue
was sounded, but those attending Judy could not revive her,
and she died of respiratory arrest.
In May of 1982, appellant sought legal assistance
concerning a possible medical malpractice action arising out
of Judy's death. On advice of counsel, she requested access
to Judy's hospital records in July of 1982, but did not take
possession of copies of those records until October of 1984.
On April 17, 1985, appellant filed an Application for Review
with the Medical-Legal Panel concerning the treatment
received by Judy. This malpractice action was filed on
August 9, 1985. The defendants moved for summary judgment
based on the passing of more than three years between Judy's
death and the filing of the Application for Review by the
Medical-Legal Panel. The District Court granted the motion
and entered its order of summary judgment on December 22,
1986. The order was certified as a final judgment on July
27, 1987, in order to facilitate an appeal to this Court.
Issue I
Appellant presents essentially two arguments regarding
the District Court's alleged error in making findings of
fact. She first contends that the mere presence of findings
in the court's order was error. Appellant cites case
authority from this Court that summary judgment is not to be
utilized as a substitute for trial of factual controversies.
Appellant is correct that summary judgment is not a
vehicle for deciding factual issues. However, she has failed
to offer any authority for her assertion that including
findings of fact in an order granting summary judgment is
reversible error. As we have previously held, facts simply
are not decided when summary judgment is granted. Rule 56,
M.R.Civ.P., requires that there be no issue of material fact
in order for summary judgment to issue. Inclusion of
findings of fact in an order of summary judgment is therefore
unnecessary and redundant. Boise Cascade Corp. v. First
Security Bank of Anaconda (1979), 183 Mont. 378, 385, 600
P.2d 173, 178. In Boise, we held that the failure of the
appellant to assign error to the findings of fact in the
court's summary judgment order had no effect on the appeal.
We did not hold the inclusion of the findings to be
reversible error, and we decline to do so in this case.
Appellant's second argument is that the District Court
made findings involving disputed issues of fact, and has
thereby "precluded the Plaintiff from presenting certain
proof at the time of trial." Appellant does not cite any
authority that could give an indication of the basis for her
argument. However, while the court's summary judgment order
will operate to remove appellant from this action
individually and as personal representative of her daughter's
estate, she will remain a party as guardian of Hallie Jean
Eayrs, Judy's minor daughter, and presumably will wish to
enter factual proof in that capacity. We will therefore
examine her argument in order to foreclose any doubts as to
her ability to continue in her capacity as guardian.
The most relevant basis for appellant's argument is the
"law of the case" doctrine, which states that once an issue
has been judicially determined, that decision should put the
issue to rest for the remainder of the case. State v. Carden
(1976), 170 Mont. 436, 555 P.2d 738. However, the law of the
case doctrine does not apply when a separate issue is
involved. In B.M. by Berger v. State (Mont. 1985), 698 P.2d
399, 42 St.Rep. 272, we held that the doctrine did not
preclude a district court from granting summary judgment,
even though this Court had earlier reversed an order granting
summary judgment to the same party in the same case. The
later summary judgment was upheld because it was based on a
different motion and grounded on different issues. Berger,
698 P.2d at 401-02. The issue involved in this summary
judgment is the running of the statute of limitations against
appellant. The judge did not attempt to reach the merits of
the malpractice claim. Conversely, the statute of
limitations will not be an issue at the trial on the merits.
The statute of limitations issue will be settled by the
District Court's summary judgment order, but because it is an
issue separate from the merits of this case, the summary
judgment order cannot preclude appellant from attempti-ng to
prove the +acts of her case.
Issue 11.
Appellant asserts that the District Court erred in
granting summary judgment on the basis of the running of the
statute of limitations. She again advances two arguments.
First, she argues that the statute did not begin to run until
she discovered the legal cause of her daughter's death.
Second, she asserts that the statute was tolled by acts,
errors or omissions of the defendants.
Under our interpretation of Rule 56, M.R.Civ.P., summary
judgment is properly granted if "there is no genuine issue as
to any fact deemed material in light of the substantive
principles that entitled the movant to judgment as a matter
of law. " Flemming v. Flemming Farms, Inc. (Mont. 1986) , 717
P.2d 1103, 1105-06, 43 St.Rep. 776, 779. The substantive
principle involved here is the three-year statute of
limitations for medical malpractice cases:
Action in tort or contract for injury or death
against a physician or surgeon, dentist, ...
based
upon alleged professional negligence or for
rendering professional services without consent or
for an act, error or omission, shall ...be
commenced within 3 years after the date of injury
or 3 years after the plaintiff discovers or through
the use of reasonable diligence should have
discovered the injury, whichever occurs last, ...
However, this time limitation shall be tolled for
any period during which there has been a failure to
disclose any act, error, or omission upon which
such action is based and which is known to him or
through the use of reasonable diligence subsequent
to said act, error, or omission would have been
known to him.
Section 27-2-205 (1), MCA.
Judy Eayrs died on March 20, 1982. On April 17, 1985,
appellant filed an Application for Review with the
Medical-Legal Panel, and initiated this action August 9,
1985. Normally, filing an application with the panel tolls
the running of the statute of limitations until 30 days after
the panel renders its decision. Section 27-6-702, MCA.
However, three years and 27 days elapsed between Judy's death
and the filing of the application. The District Court found
that the statute had run as to appellant, and defendants were
therefore entitled to summary judgment.
Appellant first asserts that the court's ruling was
erroneous under the "discovery doctrine" incorporated in 5
27-2-205 (1), MCA, through the words "3 years after the
plaintiff discovers or through the use of reasonable
diligence should have discovered the injury". She argues the
statute did not begin to run until she "discover[edl facts
providing a causal connection between her daughter's death
and the acts, errors or omissions of her daughter's health
care provider." Appellant further argues that because
Montana law requires expert testimony to prove malpractice,
this "discovery" did not take place until she came into
possession of her daughter's medical records in October of
1984, giving her the opportunity to have the records reviewed
by an expert. We disagree.
Appellant notes that this Court has not yet construed 5
27-2-205, MCA, and cites Bennett v. Dow Chemical Co., et al.,
(Mont. 1986), 713 P.2d 992, 43 St.Rep. 221, for guidance in
the application of the discovery doctrine. In Bennett we
stated, "the fact that a party with a cause of action has no
knowledge of his rights, or even the facts out of which the
cause arises, does not delay the running of the statute of
limitations until [the party] discovers the facts or learns
of his rights under those facts." Bennett, 713 P.2d at 994.
However, we also noted that in cases where the plaintiff was
prevented from knowing of his injury by concealment or other
circumstances, certain recognized exceptions would operate to
toll the statute of limitations. It is this discussion that
appellant relies on for her interpretation of the discovery
doctrine.
As we said in Bennett, the farthest reaches of the
discovery doctrine in Montana are represented by the case of
Hornung v. Richardson-Merrill, Inc. (D.Mont. 1970), 317
F.Supp. 183. In Hornung, the court tolled the statute of
limitations in a products liability case until the plaintiff
discovered that his cataracts may - - caused by the
have been
defendant's drug. Appellant knew that her daughter's death
may have been caused by medical malpractice on the day she
died. She testified in deposition that on March 20, 1982,
she thought Judy did not receive adequate treatment at the
hospital, describing the events of the day as a "nightmare".
Furthermore, we have held that failure to understand the
causal relationship between an injury and the alleged
wrongful act will not resuscitate a claim on which the
statute of limitations has run. E.W. v. D.C.H. (Mont. 1988),
754 P.2d 817, 820, 45 St.Rep. 778, 782-83, citing Mobley v.
Hall (1983), 202 Mont. 227, 657 P.2d 604. Appellant's
alleged lack of knowledge of the facts connecting her
daughter's death to acts of the defendants did not prevent
her from discovering the injury at issue in this case.
Appellant also contends that the statute was tolled by
the acts or omissions of the defendants, which concealed the
cause of Judy's death. She points to the language in 5
27-2-205, MCA, providing for such a toll for failure to
disclose any act, error or omission upon which the action is
based. According to her brief, appellant was stymied in her
attempts to gain access to Judy's records, first by the
failure of Dr. Coolidge to finalize the records and then by
the refusal of the hospital to allow her access to them.
The statutory language pointed to by appellant is the
codification of the doctrine of fraudulent concealment. To
toll the statute of limitations in a medical malpractice
case, "It is the cause of action which must be fraudulently
concealed by failing to disclose - - - of injury from
the fact
malpractice, by diverting the patient from discovering the
malpractice that is the basis of the action." Monroe v.
Harper (1974), 164 Mont. 23, 28, 518 P.2d 788, 790, (emphasis
supplied). Appellant obviously was cognizant of the fact of
the injury complained of here on the day her daughter died.
As pointed out above, appellant was also aware of the alleged
wrongful acts complained of in this case on that day, and
therefore "discovered" her cause of action on March 20, 1982.
She was not prevented from doing so through acts of
concealment by defendants.
The District Court was correct in issuing its order
granting summary judgment. The cause of action accrued on
March 20, 1982, and the application for review was not filed
with the Medical-Legal Panel until April 17, 1985. The
statute of limitations had run against appellant, and there
being no basis for tolling the statute, no issue of material
fact existed as to defendants' entitlement to summary
judgment.
We affirm the order of the District Court.
We Concur: /
Justices
Mr. Justice John C. Sheehy, dissenting:
I dissent to the interpretation put upon the statutory
language of 5 27-2-205(1), MCA, by the majority.
One basis of my dissent is that the majority have
changed the tolling language of the statute from a failure to
disclose to one of fraudulent concealment of information.
That interpretation is a severe limitation on the legislative
act, for it constricts the tolling statute to actual fraud by
the medical person. The word "fraud" appears nowhere in the
statute. The time for filing an action for malpractice could
as well be tolled for negligent concealment as for fraudulent
or intentional concealment, if the statutes were properly
construed.
The second basis of my dissent is that fraudulent
concealment is not involved in this case. What is involved
is the issue when the plaintiff, through the use of
reasonable diligence, could have discovered the claimed
medical malpractice. The tolling statute, S 27-2-205(1),
applies solely to malpractice cases. It has three distinct
features: (1) the statute of limitations for medical
malpractice is three years, but it is tolled (2) until the
plaintiff discovers or by reasonable diligence should have
discovered the medical malpractice, or (3) during the period
when the medical person has failed to disclose the
malpractice known to him or by reasonable diligence should
have been known to him. Here the plaintiff's case falls in
the second category : when did she discover through
reasonable diligence the claimed malpractice?
When the issue is properly examined, one sees that a
question of fact exists as to when the statute began to run.
The District Court, and now the majority, resolved that issue
summarily by holding that on the - -of death she should
date -
reasonably have known that the death was caused or
accelerated by malpractice. I disagree with that conclusion.
No lay person should be considered to have that degree of
expertise about the treatment of lupus so as to impute as a
matter of law knowledge of malpractice in the course of the
treatment. I don't have that kind of expertise and neither
does any member of this Court. The time for filing her
action should be tolled in this case at least for the period
required by reasonable diligence to find and consult with
experts about the treatment of the decedent. That is a
question of fact, not susceptible to summary judgment by any
court. Undoubtedly the reasonable period would take more
than 27 days, for which period the plaintiff is here denied
her day in court.
I would reverse the summary judgment and remand for
further proceedings, including determination of the fact
issue as to the tolling of the limitations statute.
(
Justice
I join in the foregoing dissent.