ZINTER, Justice.
[¶ 1.] Anne and Darin Schmiedt sued Dr. Nathan Loewen for medical malpractice arising out of complications following the placement of an intrauterine device (IUD). Dr. Loewen moved for summary judgment, arguing that the statute of limitations had expired. Schmiedts argued that their action was timely because: the IUD was a "foreign object"; their claim fell within the continuing tort doctrine; and under the continuing tort doctrine, the statute of limitations did not begin to run until the IUD was removed. The circuit court granted summary judgment in favor of Dr. Loewen, concluding that the continuing tort doctrine was inapplicable. We affirm the circuit court's judgment, but we do so for a different reason. We conclude that the continuing tort doctrine applied. Nevertheless, Schmiedts' cause of action was barred because they acquired actual knowledge of the foreign object yet failed to commence their action within two years of their discovery.
[¶ 2.] The material facts are undisputed. To the extent other facts are disputed, we restate them in a light most favorable to Schmiedts. Dr. Loewen, a family practitioner, implanted Anne's IUD on July 27, 2004. According to the literature that Dr. Loewen provided to Anne, migration of an IUD was a known risk. The literature warned that if the IUD migrated from the endometrial cavity, it would not protect
[¶ 3.] On October 22, 2004, Anne returned to Dr. Loewen, advising him that she could no longer feel the threads attached to the IUD, an indication of possible migration. Dr. Loewen performed a pelvic exam. He could not locate the IUD and was concerned that it may have fallen out or moved. Dr. Loewen performed a transvaginal ultrasound and ordered a pelvic x-ray. The x-ray revealed that the IUD was still in Anne's endometrial cavity, but it had moved and become deformed. For purposes of summary judgment, Dr. Loewen conceded that he did not report these findings to Anne.
[¶ 4.] Anne saw Dr. Loewen four additional times from February 2005, through January 2006. During those visits, she complained of cramping, heavy menstruation, and abdominal pain. Although Anne asked Dr. Loewen about the IUD, he did not disclose the abnormal findings. He further indicated that the IUD was doing its job.
[¶ 5.] On March 30, 2006, a home pregnancy test indicated that Anne was pregnant, and on April 3, 2006, she returned to Dr. Loewen. Dr. Loewen performed a transvaginal ultrasound, but could not locate the IUD. Anne did not return to Dr. Loewen after the April 3, 2006 visit.
[¶ 6.] The following day, April 4, 2006, Anne saw Dr. Nedved, a gynecologist. Dr. Nedved performed an ultrasound. After getting a second opinion from another gynecologist, both doctors concluded that the IUD had penetrated the uterine wall and migrated into Anne's abdomen.
[¶ 7.] There is no dispute that the IUD needed to be removed. Dr. Nedved, however, indicated that it should be left in place until the end of Anne's pregnancy because of the risk of miscarriage or injury to the unborn child. Anne delivered her baby on November 28, 2006. Although the surgery to remove the IUD was scheduled to occur immediately after the birth, a difficult delivery further postponed the procedure. On January 31, 2007, approximately one month before the rescheduled surgery, Anne passed the IUD rectally.
[¶ 8.] On August 18, 2008, more than two years after the gynecologists informed Anne that the IUD had migrated into her abdomen and needed to be removed, Schmiedts sued Dr. Loewen for malpractice. Schmiedts alleged that Dr. Loewen was negligent in failing to inform Anne of her test results and in failing to remove the IUD or to recognize that the IUD had migrated. Dr. Loewen moved for summary judgment based on SDCL § 15-2-14.1, a two-year statute of limitations. The circuit court granted summary judgment, concluding that the continuing tort doctrine was inapplicable because "the
[¶ 9.] Schmiedts argue that the circuit court erred in focusing on the time of Dr. Loewen's placement of the IUD. Schmiedts contend the IUD became a foreign object that should have been disclosed or removed when its movement was discovered by Dr. Loewen. They further contend that because the migrated IUD was not disclosed or removed, Anne suffered a continuing tort that delayed the running of the statute of limitations until the IUD's passage on January 31, 2007. Dr. Loewen contends that the IUD's status as a foreign object is irrelevant because the continuing treatment doctrine controls. Under the continuing treatment doctrine, Dr. Loewen contends that Schmiedts' cause of action began to run when the doctor-patient relationship ended on April 3, 2006.
[¶ 10.] "Summary judgment is proper on statute of limitations issues only when application of the law is in question, and not when there are remaining issues of material fact." Greene v. Morgan, Theeler, Cogley, and Petersen, 1998 SD 16, ¶ 6, 575 N.W.2d 457, 459. Although there are disputes of fact regarding Dr. Loewen's disclosures, disposition of this case involves legal questions regarding application of the statute of limitations. We review such legal issues de novo.
[¶ 11.] South Dakota's medical malpractice statute of limitations provides in relevant part: "An action against a physician... for malpractice, error, mistake, or failure to cure, whether based upon contract or tort, can be commenced only within two years after the alleged malpractice, error, mistake, or failure to cure shall have occurred[.]" SDCL § 15-2-14.1. This is an "occurrence rule." The cause of action accrues when the alleged negligence occurs, even if the actual injury or harm has not been discovered. Beckel v. Gerber, 1998 SD 48, ¶ 9, 578 N.W.2d 574, 576. If, however, the negligence involves a continuing tort involving a continuing injury, the statute of limitations does not begin to run until "the wrong terminates." Alberts v. Giebink, 299 N.W.2d 454, 456 (S.D.1980).
[¶ 12.] In Alberts, the plaintiff brought suit in 1979 for medical services provided in 1968. A pin had been inserted in the plaintiff's knee in November 1968 and was scheduled to be removed the next month. Although the wires attached to the pin were removed, the plaintiff was not informed that the pin was left in his knee. In January 1979, the plaintiff visited another doctor who informed the plaintiff of the pin in his knee. The pin was immediately removed, and the plaintiff filed suit one year later for failure to remove the pin or inform the plaintiff of its existence. This Court concluded that the action was not barred by the two-year statute of limitations because the negligence was not the physician's insertion of the pin, but rather the failure to inform the patient of the pin's existence and the failure to remove it when it was reasonably and medically necessary to do so. We explained:
Id. (emphasis added).
[¶ 13.] Schmiedts rely on Alberts, arguing that the IUD was a foreign object causing a continuing tort, which delayed
[¶ 14.] We do not agree that the continuing tort and continuing treatment doctrines are interchangeable such that the statute of limitations begins to run under both when the doctor-patient relationship terminates. Our analysis in Beckel reflects that they are separate doctrines involving potentially different dates upon which the statute of limitations begins to run. In Beckel, we stated that the continuing tort theory is "one exception," under which the statute of limitations does not begin to run until the wrong terminates. Id. We then observed that "[t]he `continuing tort' theory was extended to provide for another exception known as the `continuing treatment' rule." Id. (emphasis added). And, under that additional exception, the statute of limitations does not begin to run as long as there is "an `on-going, continuous, developing and dependent relationship.'" Id. (citing Bruske v. Hille, 1997 SD 108, ¶ 15, 567 N.W.2d 872, 877). Our subsequent, separate application of each doctrine confirmed that the continuing tort and continuing treatment doctrines are not interchangeable for purposes of determining when a statute of limitations commences to run. We first concluded that the doctor-patient relationship had terminated precluding application of the continuing treatment doctrine. Nevertheless, we also considered whether the action could be timely under the continuing tort doctrine. Thus, the statute of limitations does not necessarily begin to run under both doctrines when the patient-physician relationship terminates. Dr. Loewen's point that the doctor-patient relationship terminated more than two years before filing suit is not dispositive.
[¶ 15.] Schmiedts' cause of action concerns Dr. Loewen's alleged "failure to remove the ... [IUD] ... and failure to inform [Anne] of its [migration]." See Alberts, 299 N.W.2d at 456; see also Beckel, 1998 SD 48, ¶ 10, 578 N.W.2d at 576. To determine when the statute of limitations began to run, we must first determine whether the IUD was a foreign object that triggered the continuing tort doctrine. See Beckel, 1998 SD 48, ¶ 14, 578 N.W.2d at 577. If it was, we then must determine how long the continuing tort doctrine delayed the commencement of the statute of limitations.
[¶ 16.] In Beckel we considered whether a hemoclip was a foreign object triggering the continuing tort doctrine, thereby delaying the commencement of the statute of limitations. We adopted "[t]he general consensus ... that objects intentionally placed within a body, and with the intention that they remain therein, do not qualify as `foreign objects' so as to [delay the commencement of] the statute of limitations." Beckel, 1998 SD 48, ¶ 17, 578 N.W.2d at 577 (concluding that "[a] fixation device ... intentionally placed in the body and not left there in the course of some later procedure in which it should have been removed, does not constitute a
[¶ 17.] An IUD's status as a foreign object is not readily apparent because an IUD is intentionally placed in a woman's body but is removed when its birth control function is no longer desired or it becomes medically necessary. Therefore, "[n]ormally, an I.U.D. in situ, will not be considered a foreign object." Ogle v. De Sano, 107 Idaho 872, 876, 693 P.2d 1074, 1078 (Ct.App.1984). On the other hand,
Id. (second emphasis added). Other courts follow this analysis when removal is medically necessary. See Beatman v. Gates, 36 Ohio App.3d 114, 116, 521 N.E.2d 521, 523 (1987) (concluding that summary judgment was inappropriate because the IUD could become a foreign object if it repositioned itself within the body and the physician failed to inform the patient of that occurrence). Beatman noted that at that point, an IUD has no further function to perform and no longer belongs in the patient's body. Id. "Certainly the device [is] not performing any birth control chemistry in the appellant's abdominal cavity[.]" Id. See also Newberry v. Tarvin, 594 S.W.2d 204, 206 (Tex. Civ.App.1980) (concluding that an IUD, which became lost in the patient's body necessitating surgery to locate and remove, was considered a foreign object). But see Rodriguez v. Manhattan Med. Group, 155 A.D.2d 114, 115-16, 552 N.Y.S.2d 947, 948 (App.Div.1990) (concluding that a "fixation device," such as an IUD, is not transformed into a "foreign object" when a physician fails to remove it after being retained to do so).
[¶ 18.] In this case, the IUD allegedly deformed and migrated into Anne's abdomen while she was in Dr. Loewen's care. Schmiedts' complaint alleges that Dr. Loewen failed to inform them of the migration so that informed decisions could be made regarding its removal. We agree with those authorities concluding that once it becomes known that it is reasonably and medically necessary to remove an IUD, its character changes. Under those circumstances, an IUD is no longer intentionally in the body and the IUD becomes a foreign object. See Ogle, 107 Idaho at 876, 693 P.2d at 1078.
[¶ 19.] This leaves us with the final question: when does the statute of limitations begin to run in a case involving a foreign object causing a continuing injury? There is no dispute that in April 2006, Schmiedts were informed of the IUD's migration and of the need for its removal. There is also no dispute that Schmiedts failed to commence suit within two years of that disclosure. Schmiedts contend that the disclosure is irrelevant because the continuing tort doctrine generally delays the commencement of the statute until the wrong terminates. See Alberts, 299 N.W.2d at 455. Schmiedts further contend that the wrong did not terminate until the IUD passed in January 2007.
[¶ 20.] In describing the nature of the continuing wrong in Alberts, we explained "that the negligence is not the insertion of the [object], but rather the failure to remove [it] when it [is] reasonably and medically necessary to do so, or
[¶ 21.] A Georgia Court of Appeals decision explained why, in continuing tort cases, the continuing wrong terminates and the statute of limitations begins to run when the foreign object is removed or the patient learns of its existence:
Parker v. Vaughan, 124 Ga.App. 300, 302, 183 S.E.2d 605, 606 (1971). Other courts, whether applying the continuing tort doctrine under occurrence, discovery, foreign object, or accrual statutes of limitation, also conclude that the statute begins to run no later than when the patient discovers or should have discovered the malpractice.
[¶ 23.] Affirmed.
[¶ 24.] GILBERTSON, Chief Justice, and KONENKAMP, MEIERHENRY, and SEVERSON, Justices, concur.
We also note that, even under discovery statutes of limitation, Schmiedts' interpretation of "when the wrong terminates" is inconsistent with South Dakota law. In Strassburg v. Citizens State Bank, 1998 SD 72, 581 N.W.2d 510, we observed that discovery of the cause of action precludes delaying the commencement of the statute of limitations until such time as a plaintiff discovers all of his or her injuries. We specifically stated that "[l]imitations periods will not abide indefinitely while those aggrieved discover all their damages." Id. ¶ 11, 581 N.W.2d at 515.
