Bliss v. Stevens

544 N.W.2d 50, 1996 Minn. App. LEXIS 226, 1996 WL 81728
CourtCourt of Appeals of Minnesota
DecidedFebruary 27, 1996
DocketNo. C4-95-1821
StatusPublished
Cited by2 cases

This text of 544 N.W.2d 50 (Bliss v. Stevens) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bliss v. Stevens, 544 N.W.2d 50, 1996 Minn. App. LEXIS 226, 1996 WL 81728 (Mich. Ct. App. 1996).

Opinion

OPINION

NORTON, Judge.

This case concerns a medical malpractice claim against respondent medical doctor. Appellant contends that the trial court erred when it summarily dismissed her suit on the ground that she failed to deliver the summons and complaint timely to the appropriate sheriff for service before the two-year statute of limitations expired. A disputed issue of fact remains whether, when she delivered the summons and complaint to the Hennepin County Sheriff, appellant reasonably believed that respondent doctor resided in Hennepin County. We reverse and remand.

FACTS

Appellant Michele D. Bliss was referred to respondent Dr. Sheridan Stevens by her neurologist for back problems resulting from a motor vehicle accident. Bliss had oversized breasts, which exacerbated her back problems. On March 4, 1993, Dr. Stevens performed a bilateral breast reduction (mamma-plasty) surgery on Bliss.

Bliss remained in the hospital until March 11, 1993, when she was released for office follow-up. Dr. Stevens next saw Bliss on March 17, 1993, at his office in Minneapolis. Bliss claims that she discussed with Dr. Stevens her concern about “dog ears” on her breasts resulting from the surgery. Dr. Stevens replied that they were temporary swellings. He also informed her that he was closing his office and transferring his records to Drs. Kevin Straffe and Brian Hubble at Reconstructive Cosmetic Plastic Surgery, also in Minneapolis. Dr. Stevens did not inform Bliss that she would need any further follow-up.

On March 25, 1993, Bliss stopped by Dr. Stevens’s office and left him a going away gift of flowers. She learned then that Dr. Stevens was moving to “Boise, Idaho.” In an undated letter to his patients, Dr. Stevens stated that he would close his office permanently on March 31, 1993. He stated: “For personal reasons, I have decided to close this office, Elliot Park Plastic Surgery, Ltd. and relocate to another state.”

When Bliss’s swellings did not disappear, she sought treatment with Dr. Straffe on April 19, 1993. Dr. Straffe’s records state his impression:

I think that the overall result of the surgery is satisfactory with exception of very large dog ears on both sides. When I review her preoperative photographs it is very clear that she had a very significant roll out this way and Dr. Stevens stopped his excision at the lateral aspect of the ptotic portion of her breast. It would be optimum to remove these lateral extensions. Why this wasn’t done at the time of surgery is something I am not aware of.

On August 19, 1994, Bliss mailed a notice-of-claim letter to Dr. Stevens. The postal service returned this letter, marked “Return to Sender.” On August 25, 1994, the postal service returned another notice-of-claim letter on which it provided the forwarding address of “29 Park Ln., Minneapolis, MN 55416-4339,” and a notice that the forwarding time had expired. Bliss also sent several notice-of-claim letters in August, September, and October, 1994 to the doctors who had purchased Dr. Stevens’s practice, directing them to forward the claim letter to Dr. Stevens. She received no response.

On October 19, 1994, Bliss mailed a notice of claim letter to Dr. Stevens at the 29 Park Lane forwarding address she had received from the postal service. Dr. Stevens finally responded to the correspondence. A claims representative for Steven’s malpractice insurance carrier then had several conversations with Bliss’s attorney before Bliss brought suit. Bliss’s attorney did not verify Dr. Steven’s residence with the claims representative, nor did the representative offer an address.

Bliss sought the services of the Hennepin County Sheriff to serve the summons and [53]*53complaint on Dr. Stevens at his 29 Park Lane address. The sheriffs department received the summons and complaint for service on March 20, 1995. After Dr. Stevens’s mother refused to accept service at the Park Lane address, the sheriffs office returned a Certificate of Unserved Process to Bliss dated March 21, 1995, giving this reason for unserved process: “Moved 1 month ago to: 2829 Mansion Drive Number 505, Independence, MO 64055.”

Bliss then sent the summons and complaint to the county sheriff in Missouri where Dr. Stevens had moved. The sheriff received the summons and complaint on March 23, 1995, and completed personal service on Dr. Stevens on March 27, 1995.

Dr. Stevens moved to dismiss Bliss’s action for lack of service within the two-year statute of limitations for malpractice claims. The district court granted the motion.

ISSUE

Did the district court appropriately dismiss appellant’s action on the ground that she did not deliver the summons and complaint to the appropriate sheriff for service before the statute of limitations expired?

ANALYSIS

Dr. Stevens contends that this court must apply an abuse of discretion standard of review to the district court’s dismissal. We disagree. Dr. Stevens moved for dismissal on the ground that Bliss’s complaint did not state a claim upon which relief can be granted. See Minn. R. Civ. P. 12.02(e). If, on a rule 12 motion to dismiss,

matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided for in rule 56.

Minn.R.Civ.P. 12.03. Where a case involves a motion for judgment on the pleadings, and the court considers more than the pleadings, the appellate court reviews the district court’s determination under a summary judgment standard. Carlson v. Lilyerd, 449 N.W.2d 185, 187 (Minn.App.1989), review denied (Minn. Mar. 8, 1990). Accordingly, we apply a summary judgment standard here, because the district court considered more than the pleadings when it dismissed Bliss’s suit.

On appeal from a summary judgment, this court determines whether any genuine issues of material fact exist and whether the district court erred in its application of the law. Wartnick v. Moss & Barnett, 490 N.W.2d 108, 112 (Minn.1992). We must view the evidence in a light most favorable to the party against whom summary judgment was granted and resolve all doubts and factual inferences in favor of the nonmoving party. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn.1988); Nord v. Herreid, 305 N.W.2d 337, 339 (Minn.1981).

This case involves application of the statute of limitations for medical malpractice claims. A jury should decide fact questions regarding whether a statute of limitations bars a claim. Grondahl v. Bulluck, 318 N.W.2d 240, 243 (Minn.1982).

The statute of limitations provides that an individual must commence an action against a physician or surgeon for medical malpractice within two years of the date on which the cause of action accrued. Minn. Stat. § 541.07(1) (1994). A cause of action for medical malpractice generally accrues “when the physician’s treatment for the particular condition ceases.” Grondahl, 318 N.W.2d at 243.

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Cite This Page — Counsel Stack

Bluebook (online)
544 N.W.2d 50, 1996 Minn. App. LEXIS 226, 1996 WL 81728, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bliss-v-stevens-minnctapp-1996.