Pamela G. Rock And Keith A. Rock Vs. Rose Warhank, Blue Grass Family Medical Center A/k/a Family Medical Center Of Blue Grass, Robert W. Hartung, Center For Breast Health, And Genesis Medical Center

• Court: Supreme Court of Iowa
• Decided: November 21, 2008
• Docket: 05–1753
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 05–1753

Filed November 21, 2008

PAMELA G. ROCK and KEITH A. ROCK,

Appellants,

vs.

ROSE WARHANK, BLUE GRASS FAMILY MEDICAL CENTER a/k/a FAMILY MEDICAL CENTER OF BLUE GRASS, ROBERT W. HARTUNG, CENTER FOR BREAST HEALTH, and GENESIS MEDICAL CENTER,

Appellees.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Scott County, David H.

Sivright, Jr., Judge.

Plaintiff in a medical malpractice case appeals the granting of a

motion for summary judgment in favor of the defendants. DECISION OF

COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT

REVERSED AND REMANDED.

Robert Gallagher and David A. Millage of Gallagher, Millage &

Gallagher, P.L.C., Davenport, for appellants. 2 Constance M. Alt, Sarah J. Gayer, and Tricia L. Hoffman-

Simanek of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for appellee

Robert W. Hartung, M.D.

Richard J. Trinrud of Brooks & Trinrud, Davenport, for appellee Rose

Warhank, M.D.

Charles E. Miller and Diane Reinsch of Lane & Waterman, L.L.P.,

Davenport, for appellee Genesis Medical Center and Center for Breast Health. 3 STREIT, Justice.

Pamela Rock sued her doctors for failing to diagnose her breast

cancer. She alleged their negligence caused her cancer to spread to her

lymph nodes. The district court granted the doctors’ motion for summary

judgment holding the statute of limitations barred Rock’s claim. The court

of appeals affirmed. Because Rock could not have known, and would not

have known through reasonable diligence, of her injury and its cause, as a

matter of law, more than two years prior to filing her claim, we vacate the

decision of the court of appeals and reverse the judgment of the district court.

I. Facts and Prior Proceedings.

Pamela Rock noticed a lump in her left breast in May 2002. She

called Dr. Warhank at the Family Medical Center in Blue Grass to have it

examined. Rock was referred to the Center for Breast Health for a bilateral

mammogram, which was performed on May 28. Rock had a follow-up

appointment with Dr. Warhank on June 3. Dr. Warhank palpated Rock’s

left breast and located the lump. Dr. Warhank told Rock the mammogram

was normal and not to worry about the lump.

Sometime on June 3 or 4, Rock received a call requesting she come in

for additional views of her right breast. Rock went to the Center for Breast

Health on June 4 and had additional views of the right breast taken. A

technician told Rock an ultrasound was not necessary because what was

seen in the earlier mammogram was no longer present. Rock reminded the

technician she had a lump in her left breast and not her right breast. The

technician assured Rock nothing was seen on the earlier mammogram of

her left breast so she should not worry about the lump anymore. Dr.

Hartung reviewed the radiology report of the right breast and advised Rock 4 in a letter dated June 5 that the additional views of the right breast

showed no sign of cancer.

In September 2002, Rock was still concerned about the lump in her

left breast. She made an appointment with Dr. Kelly at the Family Medical

Center. Dr. Kelly told Rock the lump was “probably benign.” Nevertheless,

Dr. Kelly recommended a surgical consult and referred Rock to Dr.

Congreve.

Dr. Congreve performed a fine-needle aspiration on September 25.

Two days later, Dr. Congreve called Rock and told her the test was not normal and she needed to have a biopsy of her left breast. On October 8,

2002, Dr. Congreve performed the biopsy and diagnosed Rock with breast

cancer. Rock met with Dr. Congreve on October 11. He informed her

additional tissue in her left breast needed to be removed because he did not

believe he got all of the cancer. On October 18, Dr. Congreve removed the

additional tissue and six lymph nodes. Five of the six nodes were

cancerous. Rock had an additional surgery to remove another six nodes,

one of which was cancerous. Rock was also treated with chemotherapy.

Rock filed suit against Dr. Warhank and Dr. Hartung and their

employers on October 5, 2004. She claims Dr. Warhank and Dr. Hartung

failed to properly examine, diagnose, and treat the cancer in her left breast.

As a result of this alleged negligence, Rock claims the cancer spread to six

of her twelve lymph nodes causing additional medical treatment and

expense and decreasing her life span.

The defendants filed a motion for summary judgment alleging Rock’s

lawsuit was barred by the statute of limitations. See Iowa Code § 614.1(9)

(2003). The district court agreed and granted the motion. Rock appealed.

We transferred the case to the court of appeals, which affirmed the district

court. We granted further review and now reverse. 5 II. Standard of Review.

A summary judgment ruling is reviewed for correction of errors at law.

James Enter., Inc. v. City of Ames, 661 N.W.2d 150, 152 (Iowa 2003).

Summary judgment is appropriate

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Iowa R. Civ. P. 1.981(3). A question of fact exists “if reasonable minds can

differ on how the issue should be resolved.” Walker v. Gribble, 689 N.W.2d

104, 108 (Iowa 2000). The party resisting the motion for summary

judgment should be afforded every legitimate inference that can reasonably

be deduced from the evidence. Clinkscale v. Nelson Secs., Inc., 697 N.W.2d

836, 841 (Iowa 2005).

III. Merits.

The issue before us is whether Rock’s lawsuit was untimely. This

case requires us to revisit the language of our statute of limitations for

medical malpractice. Our goal is to ascertain legislative intent, which is

determined by the words chosen by the legislature. Iowa Ass’n of Sch. Bds.

v. Iowa Dep’t of Educ., 739 N.W.2d 303, 309 (Iowa 2007). When the

language of a statute is plain and its meaning clear, the rules of statutory

construction do not permit us to search for meaning beyond the statute’s

express terms. City of Waterloo v. Bainbridge, 749 N.W.2d 245, 248 (Iowa

2008).

Under Iowa Code section 614.1(9), medical malpractice claims must

be brought “within two years after the date on which the claimant knew, or

through the use of reasonable diligence should have known . . . of the

existence of, the injury . . . for which damages are sought.” “Injury” within 6 the context of the statute is the physical or mental harm incurred by

the plaintiff. Langner v. Simpson, 533 N.W.2d 511, 517 (Iowa 1995).

Previously, we held the statute of limitations begins to run as soon as

the plaintiff knew or should have known of the physical or mental harm for

which damages are sought. Schlote v. Dawson, 676 N.W.2d 187, 194 (Iowa

2004); Langner, 533 N.W.2d at 517. In Rathje v. Mercy Hospital, 745

N.W.2d 443 (Iowa 2008), we acknowledged our past cases may not have

correctly captured the intent of the legislature. Rathje, 745 N.W.2d at 447.

After reviewing over a hundred years of jurisprudence and the history of the tort reform movement, we came to the conclusion the statute of limitations

for medical malpractice claims does not begin to run until the plaintiff

knew, or should have known through reasonable diligence, of both the

physical or mental harm and its cause in fact. Id. at 460–61. We held the

plaintiff must have known, or should have known through reasonable

diligence, the medical care caused or may have caused the injury. Id. at

461. However, it is not necessary for the plaintiff to discover the medical

professional was negligent in order to trigger the statute of limitations. Id.

at 462–63. The standard for summary judgment then is whether a

reasonable fact finder could conclude Rock filed her claim within two years

of when she first knew or should have known of her injury and its cause.

See Murtha v. Cahalan, 745 N.W.2d 711, 718 (Iowa 2008) (stating “[e]ven if a

fact finder concludes that [the plaintiff’s] lump developed into cancer or her

cancer progressed, i.e., she sustained an ‘injury’ for section 614.1(9)

purposes, prior to the two-year period preceding the filing of her lawsuit, it

is still a fact question under this record as to when she knew, or should

have known, of that injury and its cause in fact”); Rathje, 745 N.W.2d at

463 (holding “a reasonable jury could find [the plaintiffs] did not know the

cause of the harm until, at the earliest, April 27, 1999, the date the 7 gastroenterologist made a diagnosis of ‘drug-induced hepatitis secondary

to antabuse’ ”).

We filed Murtha on the same day as Rathje. Murtha provided an

occasion to further refine our definition of “injury” when a plaintiff, as in

this case, alleges negligent misdiagnosis. See Murtha, 745 N.W.2d at 715.

In Murtha, we said

the “injury” does not occur merely upon the existence of a continuing undiagnosed condition. Rather, the “injury” for section 614.1(9) purposes occurs when “the problem grows into a more serious condition which poses greater danger to the patient or which requires more extensive treatment.”

Id. at 717 (quoting DeBoer v. Brown, 673 P.2d 912, 914 (Ariz. 1983)). Thus,

two questions must be answered to determine when the statute of

limitations begins to run under section 614.1(9) in a negligent misdiagnosis

case. First, one must determine at what stage a plaintiff’s condition became

an “injury,” i.e., when did the problem worsen so that it posed a greater

danger to the plaintiff or required more extensive treatment. Id. Second,

one must determine when the plaintiff knew, or should have known through

reasonable diligence, of the injury and its cause in fact. Id. In Murtha, we

said both of these inquiries are “highly fact-specific.” Id. Consequently, as

we said in Murtha, they cannot be resolved as a matter of law unless no

reasonable fact finder could conclude the lawsuit was filed within two years

of when the plaintiff knew or should have known of the injury and its cause.

Here, Rock alleges Drs. Warhank and Hartung’s failure to properly

diagnose her cancer in May and June 2002 when she reported a lump in

her left breast caused her cancer to worsen and spread into her lymph

nodes. When Rock’s injury occurred must be determined by expert

testimony. Since the parties in this action did not have the benefit of our

Murtha and Rathje opinions when the motion for summary judgment was 8 argued before the district court, the record is absent of any such

testimony. The record does not reveal when Rock’s injury occurred. Thus,

we are unable to answer the first Murtha question—when did the injury

occur—as a matter of law.

However, we are able to partly answer the second Murtha question—

when did Rock know of her injury and its cause, or when should Rock have

known of her injury and its cause through reasonable diligence—as a

matter of law. Rock could not have known, and should not have known, of

her injury and its factual cause until the day she was diagnosed with cancer at the earliest. The defendants contend Rock knew or should have

known of her injury and its cause no later than June 3 when Rock

discussed the lump with Dr. Warhank. However, we rejected a similar

contention in Rathje.1 Rathje, 745 N.W.2d at 463. They alternatively claim

Rock knew or should have known of her injury and its cause no later than

September 27, 2002, when Dr. Congreve (the doctor providing the second

opinion) told her the fine-needle aspiration was not normal. Under both of

these theories, defendants claim her action is time barred because that date

is more than two years before she filed suit.

Rock, on the other hand, contends she neither knew nor should have

known of her injury and its cause until she was diagnosed with cancer on

October 8, which is within two years of when she filed suit. We agree. In

answer to the second Murtha question, Rock could not have known, and

1Rathje stands for the proposition that, at a minimum, a fact question exists as to when the plaintiff knew or should have known of her injury and its cause when her treating physician offers a reasonable—albeit incorrect—explanation for her symptoms. Rathje, 745 N.W.2d at 463. Rathje sued her physicians for negligently prescribing a drug which ultimately caused her liver to fail. Id. at 446. Although she was suffering physical harm (nausea, cramping, and acid reflux) more than two years before she filed suit, we held a reasonable fact finder could conclude no facts were available prior to the diagnosis of liver failure that would have alerted a reasonably diligent person her symptoms were caused by the drug. Id. at 463. This determination was based on the fact her doctor diagnosed her with peptic disease and duodenitis when she complained of her symptoms. Id. at 445. 9 would not have known through reasonable diligence, of her injury,

the worsening of her cancer, or its cause in fact, the misdiagnosis, until she

had been properly diagnosed with cancer at the earliest.

Murtha does not contradict the proposition that an individual in a

misdiagnosis case could not have known, and would not have known

through reasonable diligence, of her injury or its cause in fact until proper

diagnosis. Although we rejected Murtha’s argument “that she did not suffer

an ‘injury’ until she was diagnosed with cancer,” we did not foreclose the

possibility a reasonable fact finder could conclude she neither knew nor should have known of her injury—the spread of cancer—until diagnosed

with cancer.2 Murtha, 745 N.W.2d at 714–15.

Common law notions of inquiry notice should not be incorporated into

the statute.3 Although our dicta in Rathje implies the statute of limitations

is triggered as a matter of law at the start of an investigation into the

existence of the injury,4 the plain language of the statute, that the claimant

2Like Rock, Murtha had a fine-needle aspiration that was “[n]ot within normal limits.” Murtha, 745 N.W.2d at 712. Murtha’s doctor recommended returning in six months for a follow-up mammogram. Id. That mammogram revealed “no definite abnormality,” but “the radiologist recommended an ultrasound or biopsy be performed to ensure the lump was not malignant.” Id. Murtha’s doctor also “suggested the option of surgically removing the lump to alleviate any concerns Murtha may have about it in the future.” Id. at 713. Murtha declined to have the lump removed at that time. Id. 3Ininterpreting Iowa Code section 614.4 (2008), the statute of limitations for fraud, mistake, and trespass, we have held the term “knowledge” includes not only actual knowledge but also knowledge that has been imputed from the date of inquiry regardless of whether there is a diligent investigation. Anderson v. King, 250 Iowa 208, 214–15, 93 N.W.2d 762, 766 (1958); Van Wechel v. Van Wechel, 178 Iowa 491, 496, 159 N.W. 1039, 1041 (1916); E.B. Piekenbrock & Sons v. Knoer, 136 Iowa 534, 538, 114 N.W. 200, 202 (1907). 4It was undisputed Rathje “knew she was suffering from physical harm” more than two years before filing suit. Rathje, 745 N.W.2d at 463. The case turned on whether she knew or should have known of the cause of her injury. Id. It was not necessary in Rathje to determine as a matter of law that the statute of limitations is triggered when a plaintiff begins an investigation into a potential injury and its cause. In Rathje we said “a reasonable jury could find [the Rathjes] did not know the cause of the harm until, at the earliest, April 27, 1999, the date the gastroenterologist made a diagnosis of ‘drug-induced hepatitis secondary to Antabuse.’ ” Id. Applying common law notions of inquiry notice, the 10 “knew, or through the use of reasonable diligence should have

known,” does not support charging the claimant with common law inquiry

notice. Iowa Code § 614.1(9). Under the statute, the clock begins ticking

when the claimant has actual knowledge of her injury and its cause or

“through the use of reasonable diligence should have known” of the injury

and its cause. Id. (emphasis added). The latter provision simply prevents

the tolling of the statute of limitations if a claimant fails to use reasonable

diligence. In other words, the “reasonable diligence” component adds an

objective standard of knowledge to the statute to prevent a plaintiff from benefiting from willful or reckless ignorance.5 The word “through” in the

context of the statute means “by way of,” “by means of,” or “because of.”

Merriam-Webster’s Collegiate Dictionary 1226 (10th ed. 2002). It could also

mean “to completion, conclusion, or accomplishment.” Id. Replacing the

word “through” in section 614.1(9) with the clause “at the beginning of” as

Rathje suggests makes the statute nonsensical because it is not until the

conclusion of an investigation that a plaintiff “should have known” of her

injury and cause.6

It is inconsistent with the plain language of the statute to charge

Rock—a layperson—with knowledge of facts before Dr. Congreve—an

expert—knows these facts or conveys them to her. If we were to hold the

statute of limitations begins to run at the start of an investigation into the

existence of a possible injury, then the statute would always be triggered

statute of limitations would have been triggered as a matter of law on the previous day, when blood tests revealed “abnormal results” because that is the date that began her investigation into the cause of her injury. See id. at 446. 5No one disputes Rock used “reasonable diligence” to determine her injury and its cause in fact. 6 Here is Rathje’s modified version of the statute: “after the date on which the claimant knew, or [at the beginning of] the use of reasonable diligence should have known . . . of the existence of, the injury” and its cause. Iowa Code § 614.1(9). 11 prior to the date the plaintiff gained actual knowledge of the injury

unless the injury was immediately apparent. Such a holding would

eliminate any reasonable application of the discovery rule in medical

malpractice claims. Moreover, the cases relied upon in Rathje—United

States v. Kubrick, 444 U.S. 111, 100 S. Ct. 352, 62 L. Ed. 2d 259 (1979);

Franzen v. Deere & Co., 377 N.W.2d 660 (Iowa 1985)—do not stand for the

proposition that the statute of limitations begins to run at the start of an

investigation into a possible injury. Instead, both cases hold the statute is

triggered once the plaintiff knows of her injury and its cause. See Kubrick, 444 U.S. at 122, 100 S. Ct. at 359, 62 L. Ed. 2d at 269 (stating the statute

of limitations is triggered once the plaintiff is “in possession of the critical

facts that he has been hurt and who has inflicted the injury”); Franzen, 377

N.W.2d at 663 (stating the statute of limitations began to run on the date of

the injury because the plaintiff “knew the instrumentality that caused the

injury at the time it occurred” and “knew the injury was caused when

[plaintiff] became entangled in the beaters of the forage wagon”). Thus, the

clause “through the use of reasonable diligence should have known” does

not charge a patient with knowledge that could not have been reasonably

discovered at the time. Iowa Code § 614.1(9).

Finally, we must adhere to the bedrock principle we use when

interpreting statutes of limitations: “When two interpretations of a

limitations statute are possible, the one giving the longer period to a litigant

seeking relief is to be preferred and applied.” Orr v. Lewis Cent. Sch.

Dist., 298 N.W.2d 256, 261 (Iowa 1980). We rely on this principle because

statutes of limitations are disfavored. Id.

Notwithstanding the lack of evidence in the record regarding when

Rock’s injury occurred, we conclude the record does establish as a matter of

law that Rock could not have known, and would not have known through 12 reasonable diligence, of her injury (the spread of cancer) and its cause

(the misdiagnosis) more than two years prior to filing this action. Summary

judgment was improperly granted.

IV. Conclusion.

We conclude summary judgment was not appropriate in this case

because as a matter of law Rock filed suit within two years of when she

knew or should have known of her injury and its cause in fact. We reverse

and remand for further proceedings.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.

All justices concur except Ternus, C.J., and Cady, J., who concur

specially and Baker, J., who takes no part. 13 #05–1753, Rock v. Warhank

TERNUS, Chief Justice (concurring specially).

I concur in the court’s conclusion that Rock neither “knew, [nor]

through the use of reasonable diligence should have known . . . of the

existence of, [her] injury” until, at the earliest, she was informed she had

cancer. Iowa Code § 614.1(9). I do not concur in the gratuitous and

inconsistent discussion regarding inquiry notice.

Cady, J., joins this special concurrence.