Murray v. Fox

220 N.W.2d 356, 300 Minn. 373, 1974 Minn. LEXIS 1349
CourtSupreme Court of Minnesota
DecidedJuly 12, 1974
Docket44288
StatusPublished
Cited by22 cases

This text of 220 N.W.2d 356 (Murray v. Fox) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Murray v. Fox, 220 N.W.2d 356, 300 Minn. 373, 1974 Minn. LEXIS 1349 (Mich. 1974).

Opinions

Peterson, Justice.

Ronald Thomas Murray instituted this medical malpractice action against Dr. LeRoy J. Fox by service of the summons and complaint on January 18, 1972, claiming that surgery performed upon him by defendant on May 15, 1969, was negligently performed and was not reasonably necessary. The trial court, at the conclusion of the testimony, granted defendant’s motion for a directed verdict and dismissal of plaintiff’s action on the ground that the applicable statute of limitations had run. The only issue raised by plaintiff’s appeal is whether the trial court correctly ruled that plaintiff’s action was barred by the statute of limitations.

Plaintiff’s medical problems began in late April 1969. Plain[374]*374tiff, a man of 41 at the time of trial, had been employed for a number of years by a battery plant in St. Paul. While working on April 29, 1969, plaintiff lifted several heavy batteries and dropped one of them. Complaining of back pain, he went to see the plant nurse and was sent by her to see the plant physician, Dr. William H. Hollinshead. Hollinshead gave plaintiff a prescription for pain medication and referred him to a physician specializing in orthopedics, Dr. Donald R. Lannin.

However, plaintiff did not see Dr. Lannin immediately. Instead, on May 6,1969, he first saw defendant Fox, a surgeon who had been the family physician for other members of plaintiff’s family. Three days later, on May 9, plaintiff again saw Dr. Fox for his back pain. At this time he was advised that he would probably require back surgery and should be admitted to the hospital, where additional X-rays would determine the need for surgery.

Several days later, on May 13, plaintiff went to Dr. Lannin’s office for an examination. After examining plaintiff and learning of the scheduled hospitalization and probable surgery, Dr. Lannin very clearly advised plaintiff of his opinion that plaintiff did not need surgery. Instead, Dr. Lannin advised in favor of conservative care. Nevertheless, plaintiff checked into St. Joseph’s Hospital that very evening. Having obtained further radiological studies, Dr. Fox was still in favor of surgery, and on May 15 he performed a lumbar laminectomy on plaintiff.

After the surgery, plaintiff was seen daily at the hospital by defendant Fox until being discharged on May 22. Plaintiff thereafter kept appointments with Fox on June 10 and June 24, 1969, but did not return for a third scheduled visit. In Dr. Fox’s opinion, treatment of plaintiff’s back ended at this point.

On the date on which this action was instituted, more than 2 years had elapsed since the period of May to June 1969, during which plaintiff’s surgery and post-operative care took place. The applicable statute of limitations, Minn. St. 541.07, provides a 2-[375]*375year limitation in malpractice actions. In pertinent part, it reads as follows:

“Except where the uniform commercial code otherwise prescribes, the following actions shall be commenced within two years:
“(1) For libel, slander, assault, battery, false imprisonment, or other tort, resulting in personal injury, and all actions against physicians, surgeons, dentists, hospitals, sanatoriums, for malpractice, error, mistake or failure to cure, whether based on contract or tort * *

In dismissing the action, the trial court held that the limitation period expired on June 24,1971, at the latest. The court reasoned that because the heart of the complaint was malpractice or negligence in connection with the surgery, the statute began to run on the date of the surgery, May 15, 1969, or at most on the date of the last post-surgical visit, June 24, 1969. The trial court thus held that the action was instituted some 6 months after the statute had run.

The principal thrust of plaintiff’s case at trial was that the surgery should not have been performed at all. Since there was little if any evidence of negligence in the course of performing the surgery or providing the post-operative care, the essence of plaintiff’s case was that defendant was negligent in deciding upon and undertaking the surgery. If that was so, the event of malpractice irrevocably occurred on May 15, 1969, and nothing thereafter could have cured it. In this sense, the present case is fully analogous to the situation present in Swang v. Hauser, 288 Minn. 306, 180 N. W. 2d 187 (1970), and is controlled by our holding there.

Swang was an action alleging negligence on the part of two physicians, and technical assault and battery by one of them as well, in connection with pin-installation surgery by Dr. Hauser on plaintiff’s hip. The court held that there was no evidence to support the negligence claim. It further held that the action for [376]*376technical assault and battery, based primarily upon claims that plaintiff had never been informed of her transfer back from Dr. Chatterton to Dr. Hauser and that she had been led to believe that Dr. Chatterton would perform prosthesis surgery, was barred by the 2-year statute of limitations.

In Swang the court noted the usual rule that in malpractice actions the statute of limitations does not begin to run until treatment terminates. See Schmit v. Esser, 178 Minn. 82, 226 N. W. 196 (1929) ; Id. 183 Minn. 354, 236 N. W. 622, 74 A. L. R. 1312 (1931). However, we held that the plaintiff’s action fell outside the Schmit rule and enunciated instead a different approach for a particular category of cases. We explained our ruling that the statute began to run on the date of surgery on the following basis (288 Minn. 309, 180 N. W. 2d 190):

“* * * The alleged tort was a single act of surgery on April 7, 1964; that is, it was complete at that precise time, for no continued course of treatment could either cure or relieve it. And, notwithstanding plaintiff’s allegation that defendants failed to communicate with her as to her medical status (cf. Schmucking v. Mayo, 183 Minn. 37, 235 N. W. 633), the evidence clearly establishes that she was actually aware of the facts upon which that claim is based at least by mid-May 1964, more than 2 years before the commencement of her action against either defendant. The fact that the physician-patient relationship with defendant Hauser continued for a few months into the 2-year statutory period would not, therefore, avoid the statutory bar as to that action.”

Whatever distinctions might be drawn between Swang and the instant case are largely without significance. The gist of the present plaintiff’s case was that defendant was negligent in deciding upon and undertaking the surgery. This single act of surgery was complete on May 15, 1969, and like the alleged battery in Swang, could not be subsequently undone or cured. Yet if there was negligence in the decision to undertake surgery rather than [377]*377conservative care, plaintiff was clearly aware of an expert medical opinion against surgery before he entered the hospital. As we discuss in greater detail below, the allegations of fraudulent concealment were as unfounded in this case as in Swang. Ih each case plaintiff was aware of the facts upon which the claim was ultimately based more than 2 years before the action was commenced.

Considerably before the 2-year limitation expired, then, plaintiff was cognizant of the facts and theories giving rise to his claim.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Broek v. Park Nicollet Health Services
660 N.W.2d 439 (Court of Appeals of Minnesota, 2003)
Ciardelli v. Rindal
582 N.W.2d 910 (Supreme Court of Minnesota, 1998)
Ciardelli v. Rindal
565 N.W.2d 465 (Court of Appeals of Minnesota, 1997)
Fabio v. Bellomo
489 N.W.2d 241 (Court of Appeals of Minnesota, 1992)
Mutual Service Life Insurance Co. v. Galaxy Builders, Inc.
435 N.W.2d 136 (Court of Appeals of Minnesota, 1989)
Offerdahl v. University of Minnesota Hospitals & Clinics
426 N.W.2d 425 (Supreme Court of Minnesota, 1988)
Holstad v. Southwestern Porcelain, Inc.
421 N.W.2d 371 (Court of Appeals of Minnesota, 1988)
Offerdahl v. University of Minnesota Hospitals & Clinics
411 N.W.2d 20 (Court of Appeals of Minnesota, 1987)
Crenshaw v. St. Paul Ramsey Medical Center
379 N.W.2d 720 (Court of Appeals of Minnesota, 1986)
Krause v. Farber
379 N.W.2d 93 (Court of Appeals of Minnesota, 1985)
Collins v. Johnson
374 N.W.2d 536 (Court of Appeals of Minnesota, 1985)
Giles v. Sanford Memorial Hospital & Nursing Home
371 N.W.2d 635 (Court of Appeals of Minnesota, 1985)
Marriage of Carlson v. Carlson
371 N.W.2d 591 (Court of Appeals of Minnesota, 1985)
Grondahl v. Bulluck
318 N.W.2d 240 (Supreme Court of Minnesota, 1982)
Ishler v. Miller
384 N.E.2d 296 (Ohio Supreme Court, 1978)
Ballenger v. Crowell
247 S.E.2d 287 (Court of Appeals of North Carolina, 1978)
Murray v. Fox
220 N.W.2d 356 (Supreme Court of Minnesota, 1974)

Cite This Page — Counsel Stack

Bluebook (online)
220 N.W.2d 356, 300 Minn. 373, 1974 Minn. LEXIS 1349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murray-v-fox-minn-1974.