BURKE, Justice.
[¶ 1] In this medical malpractice case, the district court granted summary judgment against Appellant, Ted Nobles, and in favor of Appellees (Hospital), after determining that Mr. Nobles did not present his claim within the time specified in the applicable statute of limitations. Mr. Nobles appealed. We will reverse.
[¶ 2] The parties present three issues:
[¶ 3] Mr. Nobles, a resident of the State of Washington, was travelling with his "significant
[¶ 4] Mr. Nobles was admitted to the intensive care unit of the hospital in Cheyenne, with a diagnosis of acute respiratory failure with bilateral pulmonary edema resulting from pneumonia. He remained intubated, and at some point also needed mechanical ventilation. He eventually received a tracheotomy. While in the intensive care unit, he also developed renal failure. He was placed on continuous renal replacement therapy, and later on hemodialysis. He also experienced complications relating to his diabetes.
[¶ 5] While in the intensive care unit, Mr. Nobles also began complaining of pain in his right shoulder. On February 10, 2008, he told his hospitalist that the shoulder "may have been injured while he was being moved." On February 13, 2008, the hospitalist's notes indicate that Mr. Nobles said his "shoulder hurts since a fall in ICU." On February 17, 2008, the doctor noted right shoulder pain and reduced mobility, and said Mr. Nobles "Relates it to being tugged at in the ICU." X-rays of the shoulder "showed mild subluxation without any fracture evident." An MRI was ordered, but not done immediately because of Mr. Nobles' claustrophobia.
[¶ 6] Mr. Nobles responded favorably to therapy and treatment, and on February 19, 2008, he was transferred to the hospital's transitional care unit, located in a separate building from the intensive care unit. However, he continued to complain of pain in his right shoulder and arm. A consulting physician who reviewed Mr. Nobles' case on February 20, 2008 wrote that Mr. Nobles:
The consulting physician questioned whether there might be a "rotator cuff tear versus brachial plexus injury versus cervical nerve root injury or some combination of the three." He recommended an MRI, an electromyogram, and nerve conduction velocity studies.
[¶ 7] According to affidavits submitted by Mr. Nobles and Dr. Arnold, as Mr. Nobles continued experiencing pain and dysfunction in his right shoulder and arm, the doctors said they thought the problems might be the result of a stroke. An MRI of the brain was conducted, but apparently did not indicate that Mr. Nobles had suffered a stroke. Throughout his stay in the transitional care unit, Mr. Nobles was given a program of physical and occupational therapy to improve the function and condition of his hand, arm, and shoulder.
[¶ 8] Mr. Nobles was discharged from the hospital on March 15, 2008. His attending physician wrote:
Mr. Nobles did follow up with further medical treatment when he got home. There, his doctors diagnosed a brachial plexus
[¶ 9] On March 11, 2010, Mr. Nobles presented his claim to the Hospital as required by the Wyoming Governmental Claims Act, Wyo. Stat. Ann. § 1-39-113(a). The same day, he filed a notice of claim against the Hospital with the Wyoming Medical Review Panel.
[¶ 10] The Hospital responded with a motion to dismiss, or, in the alternative, a motion for summary judgment, claiming that Mr. Nobles had not filed his suit within the time period specified in the applicable statute of limitations. Because the Hospital had supported its motion with portions of Mr. Nobles' medical records, the district court treated the motion as one for summary judgment, and provided Mr. Nobles an opportunity to respond with evidence in opposition to the motion. Mr. Nobles filed affidavits from Dr. Arnold and himself. After hearing arguments and considering the motion, the district court granted summary judgment in favor of the Hospital. Mr. Nobles challenges that decision in this appeal.
[¶ 11] We review a district court's decision to grant or deny summary judgment using the following standard of review:
Jacobs Ranch Coal Co. v. Thunder Basin Coal Co., LLC, 2008 WY 101, ¶ 8, 191 P.3d 125, 128-29 (Wyo.2008). In performing our de novo review, we "view the record in the light most favorable to the party opposing summary judgment, giving that party the benefit of all favorable inferences reasonably drawn from the record. Any doubts about the existence of a genuine issue of material fact must be resolved against the party seeking summary judgment." Elk Ridge Lodge, Inc. v. Sonnett, 2011 WY 106, ¶ 9, 254 P.3d 957, 960 (Wyo.2011).
[¶ 12] There are two statutes of limitations at issue in this case. The statute of
[¶ 13] Mr. Nobles presented his claim to the Hospital, as required by the Wyoming Governmental Claims Act, on March 11.
[¶ 14] Mr. Nobles' malpractice claim is based on allegations that a hospital employee attempted to move him in bed by pulling, tugging, or twisting on his right arm. It is undisputed that, if this occurred, it was while Mr. Nobles was in the intensive care unit. Mr. Nobles was transferred from the intensive care unit on February 19, 2008. He filed his claim on March 11, 2010, two years and twenty-one days after he left the intensive care unit. The Hospital maintains that this filing was more than two years after the latest possible date of any pulling on his arm, and accordingly, that Mr. Nobles failed to commence his lawsuit within the time period specified in the statutes of limitations.
[¶ 15] Mr. Nobles responds that Wyoming has adopted the "continuous treatment rule," under which "the act, error or omission which starts the running of the statute of limitations against medical malpractice actions is the termination of the course of treatment for the same or related illnesses or injuries." Metzger v. Kalke, 709 P.2d 414, 417 (Wyo.1985). Mr. Nobles asserts that the Hospital continued treating him for the alleged injuries to his arm and shoulder until his discharge from the hospital on March 15, 2008. Applying the continuous treatment rule, Mr. Nobles contends that his claim is not barred because it was commenced within two years after the termination of his course of treatment by the Hospital.
[¶ 16] The Hospital asserts that the continuous treatment rule should not apply in Mr. Nobles' case. It also contends that, even if the continuous treatment rule applies, there is a "single act exception" to the rule. According to the Hospital, if there was malpractice in Mr. Nobles' case, it was a single, identifiable act, and the statute of limitations began to run when that act occurred. Again, it is undisputed that the tugging, pulling, and twisting of Mr. Nobles' arm occurred, if at all, prior to his transfer from the intensive care unit on February 19, 2008. If the single act exception applies here, Mr. Nobles' commencement of the lawsuit on March 11, 2010, was too late.
[¶ 17] We adopted the continuous treatment rule in Metzger, 709 P.2d at 417. In that case, Ms. Metzger had been a patient of
[¶ 18] The Metzgers appealed, asking the Court "to determine whether the trial court erred in its application of § 1-3-107." Id. at 416. We held with regard to Dr. Kalke and the Medical Center for Women that the Metzgers "timely brought suit on September 13, 1983, to recover for conduct occurring prior to September 13, 1981, since the cessation of treatment on September 28, 1981 completed the act which started the running of the two-year statute of limitations." Id.
Metzger, 709 P.2d at 417 (some internal citations omitted). Since Metzger, we have applied the continuous treatment rule in at least three other decisions. Echols v. Keeler, 735 P.2d 730, 731-32 (Wyo.1987); Sharsmith v. Hill, 764 P.2d 667, 669-71 (Wyo.1988); and Jauregui v. Memorial Hospital, 2005 WY 59, ¶¶ 9-15, 111 P.3d 914, 917-19 (Wyo.2005).
[¶ 19] In response to the Hospital's motion for summary judgment, Mr. Nobles presented evidence that would bring his case within the continuous treatment rule. Because he is opposing summary judgment, we must view this evidence in the light most favorable to Mr. Nobles. In their affidavits, Mr. Nobles and Dr. Arnold state that Mr.
[¶ 20] The Hospital presents several theories which would render the continuous treatment rule inapplicable in this case. It first asserts that "the record is replete" with evidence that Mr. Nobles had "knowledge of his cause of action prior to February 19, 2008, and certainly prior to March 11, 2008." According to the Hospital, we recently established that "[i]t appears from a plain reading of Wyo. Stat. Ann. § 1-3-107 that the time for filing suit is governed by the date when the `act, error or omission' occurs, rather than the date when the cause of action accrues." Adelizzi v. Stratton, 2010 WY 148, ¶ 12, 243 P.3d 563, 566 (Wyo.2010), quoting Lucky Gate Ranch, L.L.C. v. Baker & Associates, 2009 WY 69, ¶ 19, 208 P.3d 57, 65 (Wyo.2009). According to the Hospital, the tugging, pulling, and twisting on Mr. Nobles' arm is the act, error, or omission at issue, and Mr. Nobles was aware of that activity when it occurred. The Hospital argues that "whether [Mr.] Nobles had sustained any injury on the date of the `twisting' or `pulling' or whether he knew of any injury or its cause is of no consequence when interpreting whether the professional negligence statute commences to run."
[¶ 21] The Hospital is correct about our holding in Adelizzi. We stated that the professional or health care services statute of limitations is triggered by the act, error, or omission. This is in contrast to statutes of limitations for other causes of action in which "the concept of `when the cause of action accrues,'" defines the start of the period of limitation. Adelizzi, ¶ 13, 243 P.3d at 566. However, the Hospital has failed to grasp the significance of the last sentence in that same paragraph: "The statute of limitations began to run in this case on June 1, 2006,
[¶ 22] The Hospital focuses solely on the pulling and twisting of Mr. Nobles' right arm, and contends that the pulling and twisting was the act triggering the running of the statute of limitations. Under the continuous treatment rule, however, the act was not completed the moment the Hospital employee stopped the pulling and twisting. As we said in Metzger, 709 P.2d at 417, "the cessation of treatment completes the `act' which starts the running of the statutory period for filing suit." The act was not completed until the termination of the Hospital's treatment of the shoulder and arm. There is evidence in the record supporting Mr. Nobles' contention that such treatment did not end until the day of his discharge.
[¶ 23] Next, the Hospital argues that the district court properly found that the continuous course of treatment rule did not apply
[¶ 24] The continuous treatment rule is, in at least three respects, not as limited as the district court ruled. First, while Metzger discussed reasons the rule should apply in cases where a patient is misdiagnosed, it contained no indication that it applies only in misdiagnosis cases. In Echols, 735 P.2d at 731, we discussed reasons the rule should also apply in a case involving treatment:
(Quotation marks omitted.) In Jauregui, we applied the continuous treatment rule in a case involving treatment:
Id., ¶ 10, 111 P.3d at 917. The continuous treatment rule is not limited to cases involving misdiagnosis.
[¶ 25] Second, the district court was correct that, in Echols, 735 P.2d at 732, we stated that the "policies behind the continuous treatment rule would not be served" by applying it in a situation where the plaintiff "is not prejudiced by an inability to identify the treatment which might have caused his harm." However, that statement should be considered in context. In Echols, the appellant was treated for several months for a back injury by a chiropractor, Dr. Keeler. Then, "[a]fter October 6, 1981, appellant had no further contact with Dr. Keeler." Id. at 730. Shortly thereafter, the appellant was hospitalized for bladder problems. He was examined by Dr. Cole, who referred him to Dr. Gordy, who performed surgery on his back. "Tissue samples obtained during the surgery revealed a bacterial infection in appellant's spine. After the surgery, appellant was treated by Dr. Landon and two other specialists, Dr. Bailey and Dr. Lyford, for the damage caused by the infection." Id. at 730-31. The appellant eventually filed a malpractice claim against the chiropractor, Dr. Keeler, claiming negligence in the diagnosis and treatment of his back injury. Although suit was filed approximately three and a half years after he had last been seen by Dr. Keeler, the appellant contended "that he is receiving a continuous course of treatment from Drs. Keeler, Landon, Cole, Lyford, and Bailey for the same injury which is the subject of this action and that, therefore, the two-year statute of limitations had not run at the time of filing his complaint." Id. at 731.
[¶ 26] We rejected this interpretation of the continuous treatment rule. Quoting Metzger, we said that "the act, error or omission which starts the running of the statute of limitations against medical malpractice actions is the termination of the course of treatment for the same or related illnesses or injuries." Echols, 735 P.2d at 731. "`Termination' of treatment," we explained, "has reference to the practitioner against whom claim is made." Id. After quoting the applicable policy considerations, we said:
Id. at 732.
[¶ 27] The policies behind the continuous treatment rule were not served in Echols because the appellant had not been continuously treated by Dr. Keeler. Significantly, we did not rule that the statute of limitations began to run as soon as the appellant was able "to identify the treatment which might have caused his harm." Id. Rather, we noted that appellant last saw Dr. Keeler on October 6, 1981, and applied the continuous treatment rule to conclude that "the statute began to run, at the very latest, on October 6, 1981." Id. The limitation we observed in Echols — limiting the continuous treatment rule by "reference to the practitioner against whom claim is made" — does not apply in Mr. Nobles' case.
[¶ 28] Third, the district court's reliance on the decision in Roberts, 128 F.3d 647 is misplaced. That decision is incompatible with Wyoming precedent. In Roberts, 128 F.3d at 648-49, the patient "had surgery for severe urological problems" in May, 1990. "For reasons not explained in the record," Dr. Francis also removed Ms. Roberts' only remaining ovary. Ms. Roberts "remained
[¶ 29] The appeals court recognized that continuous treatment operated to toll the Arkansas statute of limitations, but also stated that, "[w]here, however, a patient is able to identify the specific negligent treatment that caused his/her injury, the continuous treatment does not toll the statute of limitations." Id. at 651. The appeals court quoted and agreed with the district court's ruling:
Id. at 651-52.
[¶ 30] That result is directly contrary to our decision in Jauregui. In that case, Dr. Oliver performed rotator cuff surgery on Mr. Jauregui on January 11, 1999, and apparently due to infection, Mr. Jauregui had a second shoulder operation on February 26, 1999. Jauregui, ¶ 3, 111 P.3d at 915. "During this [second] operation, a surgical sponge was found that had been left inside Mr. Jauregui's shoulder during the first operation." Id. He filed a complaint against Dr. Oliver and the hospital on February 26, 2001.
[¶ 31] If we had applied the reasoning of the Roberts case, we would have said that Mr. Jauregui was not injured as the cumulative result of several treatments, but that he could identify the single negligent act — the initial surgery — that caused his injury. We would have held that the continuous treatment rule was inapplicable, and that Mr. Jauregui was required to file suit within two years of January 11, 1999, the date of the first surgery that caused the injury.
[¶ 32] We did not apply the reasoning of the Roberts case. Instead, we ruled that:
Jauregui, ¶ 10, 111 P.3d at 917.
[¶ 33] As we observed in Jauregui, ¶ 9, 111 P.3d at 917:
The continuous treatment rule also applies in this case. The evidence indicates that Mr. Nobles continued to be treated for "the same or related" condition until his discharge from the hospital on March 15, 2008. His claim filed on March 11, 2010, was within the two-year period of the applicable statute of limitations.
[¶ 34] The Hospital contends that, if the continuous treatment rule applies, Mr. Nobles' case qualifies for the single act exception to that rule. Mr. Nobles asserts that the single act exception has not been adopted in Wyoming. He further contends that the exception does not apply to his case.
[¶ 35] We discussed the single act exception in Jauregui. After explaining the continuous treatment rule, we noted an exception to that rule, stating as follows:
Jauregui, ¶¶ 11-12, 111 P.3d at 917-18. We went on to explain that factors three and four were not supported by the underlying facts, and concluded that the single act exception did not apply. Id., ¶ 13, 111 P.3d at 918. We did not specifically adopt the exception in that case.
[¶ 36] We also referenced the single act exception in our decision in Ballinger v. Thompson, 2005 WY 101, ¶ 29, 118 P.3d 429, 438 (Wyo.2005). Ballinger involved a legal malpractice claim. We concluded that the continuous representation doctrine should not be adopted "in these circumstances." Id., ¶ 27, 118 P.3d at 437. We did not specifically adopt the single act exception in that case.
[¶ 38] We have found little application of the single act exception outside of Minnesota. There is no question that it is widely applied in that state. In Jauregui, we introduced the single act exception and the four factors that must be satisfied for the exception to apply by quoting Doyle v. Kuch, a decision of the Minnesota Court of Appeals. In Doyle, the court provided insight regarding application of the single act exception in Minnesota. The court states:
611 N.W.2d at 32. The decision of the Minnesota Supreme Court in Fabio is irreconcilable with the decision we reached in Sharsmith, 764 P.2d 667.
[¶ 39] Fabio involved a medical malpractice suit brought by Ms. Fabio against Dr. Bellomo who was Ms. Fabio's primary care physician from 1977 to 1986. Id., 504 N.W.2d at 760. Ms. Fabio claimed, among other things, that Dr. Bellomo had misdiagnosed her breast cancer as a "fibrous mass" at some time between 1982 and 1984. Id. Ms. Fabio brought her claim after she received a diagnosis of cancer from another doctor in 1987. Applying a two-year statute of limitations, the Minnesota Supreme Court ruled that her suit was not timely with regard to the misdiagnosis that occurred between 1982 and 1984.
Id. at 762.
[¶ 40] In Sharsmith, we also were faced with application of a statute of limitations in a medical malpractice misdiagnosis case. We reached a different result. In that case, Ms. Sharsmith had a tumor surgically removed from behind her knee on May 19, 1982, by Dr. Feagin. Id., 764 P.2d at 668. Dr. Fogarty, a pathologist, examined samples of the tumor and diagnosed it as benign. On December 6, 1982, Ms. Sharsmith returned to Dr. Feagin because of swelling at the site of the operation. He asked her to return in a month, and she saw him again on January 18, 1983. This time, Dr. Feagin asked Dr. Fogarty to re-examine the preserved samples. Dr. Fogarty again said the tumor was benign. When Ms. Sharsmith returned to Dr. Feagin on February 15, 1983, he found "two distinct masses at or near the operative site." Id. at 669. He referred her to Dr. Coleman for a "second biopsy and pathological diagnosis." Id. Dr. Coleman determined that the two new masses, as well as the tumor removed in 1982, were malignant. Id. Ms. Sharsmith elected to have her left leg amputated above the knee. The amputation was performed on March 16, 1983. Id.
[¶ 41] Ms. Sharsmith sued Dr. Fogarty in February, 1985. The district court granted summary judgment in favor of Dr. Fogarty. Id. We applied the continuous treatment doctrine and reversed the district court's decision. We determined that "with respect to
Id. at 670. Our analysis and decision in Sharsmith cannot be reconciled with the decision reached by the Minnesota Supreme Court in Fabio.
[¶ 42] In Doyle, "the court recognized that in Minnesota, ordinarily, subsequent remedial treatment does not toll the statute." Id., 611 N.W.2d at 32. That approach is also inconsistent with application of the continuous treatment doctrine in Wyoming. For example, in Jauregui, Dr. Oliver provided remedial treatment to the patient by treating the infection following the first surgery and performing a second surgery. Jauregui, ¶ 3, 111 P.3d at 915. We held that the statute of limitations did not begin to run until the remedial treatment had concluded. Id., ¶ 17, 111 P.3d at 919. The remedial treatment was apparently successful in Jauregui, but we are hard pressed to understand why the success or failure of remedial efforts by the treating physician should impact the start of the running of the statute of limitations. Evaluation of the success of remedial treatment also makes the exception difficult to apply.
[¶ 43] As noted above, the Minnesota Court of Appeals listed four factors that must be satisfied for the exception to apply. Doyle, 611 N.W.2d at 31. The third factor is the most problematic. In order for the exception to apply, it must be established that no continued course of treatment can either cure or relieve the damage. But unless a patient dies immediately as a result of the malpractice, some form of follow-up treatment will likely be given in every case.
[¶ 44] In this case, the success of the treatment provided by the Hospital to Mr. Nobles for injuries caused by the pulling on his arm may be in dispute. Under the third factor of the Minnesota exception, if the treatment was successful and Mr. Nobles was cured, the single act exception would not apply. If the Hospitals subsequent treatment failed to provide any relief, the third factor would apparently be satisfied, and the single act exception would apply. In applying the exception, it is unclear what decision should be reached if the remedial treatment provided some relief but did not result in a cure. Such a situation is simply unworkable and is at odds with the basic policies at the heart of the continuous treatment rule. Because the single act exception is inconsistent with our precedent, not widely accepted, and difficult to apply, we decline to adopt the single act exception to the continuous treatment rule in Wyoming.
[¶ 45] The applicable statute of limitations required Mr. Nobles to present his claim within two years. Mr. Nobles has presented evidence indicating that the Hospital treated him for the pain and dysfunction in his shoulder and arm until he was discharged. We must consider this evidence in the light most favorable to Mr. Nobles. Applying the continuous treatment rule to this evidence, the statute of limitations began running on the date of his discharge from the hospital, March 15, 2008. He presented his claim to the Hospital, along with his claim to the Wyoming Medical Review Panel, on March 11, 2010, just under two years from the date of his discharge. The district court erred in granting summary judgment in favor of the Hospital and against Mr. Nobles. We decline to adopt the single act exception to the continuous treatment rule. This case is reversed and remanded for further proceedings consistent with this opinion.
