S.D. SupCo affirms statute of limitations ruling

By Jessica M. Karmasek | Sep 30, 2010


PIERRE, S.D. (Legal Newsline) -- The South Dakota Supreme Court has affirmed a lower court's ruling that the statute of limitations has expired in a medical malpractice case involving the placement of a birth control device.

The state's high court, in its opinion filed Sept. 22, approved a circuit court's granting of a summary judgment in favor of Dr. Nathan Loewen.

Loewen was sued by Anne and Darin Schmiedt for medical malpractice after Anne suffered complications following the implantation of an intrauterine device, or IUD, in her endometrial cavity.

Loewen moved for summary judgment, arguing that the statute of limitations had expired.

But the Schmiedts argued their action was timely because the IUD was a "foreign object," that their claim fell within the continuing tort doctrine, and under that doctrine, the statute of limitations did not begin to run until the IUD was removed.

A Beadle County circuit court granted summary judgment in favor of Loewen, concluding that the continuing tort doctrine was inapplicable.

The Court, which affirmed the judgment, said it took issue with the circuit court's reasoning. It concluded the continuing tort doctrine applied and that the couple's cause of action was barred because they had actual knowledge of the foreign object yet failed to commence their action within two years of their discovery.

Loewen, the couple's family practitioner, implanted Anne's IUD on July 24, 2004.

According to literature provided to the patient at that time, possible migration of the device was a known risk. The literature warned that if it moved from the endometrial cavity, it wouldn't protect against pregnancy and should be removed. The literature also warned that if the device migrated it also could perforate the uterine wall, cause an infection or scarring, and damage to other organs could occur.

On Oct. 22, 2004, Anne returned to Loewen, telling him she could no longer feel the threads attached to the IUD -- an indication of possible migration.

Loewen performed a pelvic exam, but could not locate the IUD. He became concerned that it may have fallen out or moved. He then performed an ultrasound and ordered a pelvic x-ray. The x-ray revealed the device was still in Anne's endometrial cavity, but it had moved and become deformed.

For purposes of summary judgment, Loewen conceded he didn't report these findings to Anne. He only disclosed that if Anne wanted more children, the device would have to be surgically removed.

Anne saw Loewen four more times from February 2005 through January 2006. During the visits she complained of cramping, heavy menstruation and abdominal pain. When she asked about the IUD, Loewen still didn't disclose the abnormal findings. Instead, he indicated the device was doing its job.

On March 30, 2006, a home pregnancy test indicated Anne was pregnant. On April 3, 2006, she returned to Loewen's office. During the visit, he performed an ultrasound, but could not locate the IUD.

Anne decided not to return to Loewen after the April visit, instead choosing to see a gynecologist the following day.

The doctor performed an ultrasound, and after getting a second opinion from another gynecologist, both doctors concluded the IUD had penetrated the uterine wall and migrated into Anne's abdomen.

There was no dispute that the device needed to be removed; however, the gynecologist indicated that it should be left in place until the end of Anne's pregnancy because of the risk to the unborn child.

Anne delivered her baby on Nov. 28, 2006. The surgery to remove the IUD was scheduled to take place right after the birth, but a difficult delivery postponed the procedure.

Then, finally, on Jan. 31, 2007 -- almost a month before the rescheduled surgery -- Anne passed the IUD rectally.

It wasn't until Aug. 18, 2008 -- more than two years after the two gynecologists informed Anne that the device had migrated into her abdomen and needed to be removed -- that the Schmiedts sued Loewen for malpractice.

In their suit, the couple alleged 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.

But the question for the Court was whether the lower court was correct in its application of the statute of limitations.

According to South Dakota law, its 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."

The Court, in its opinion, explained that this is an "occurrence rule," which means the cause of action accrues when the alleged negligence occurs, even if the actual injury or harm hasn't been discovered.

It noted that if negligence involves a continuing tort involving a continuing injury, the statute of limitations does not begin to run until "the wrong terminates."

Justice Steven L. Zinter, who authored the opinion, wrote that the Court did 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.

The Court also had to determine when an IUD became a foreign object.

Zinter wrote in the opinion, "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, normally, it would not be considered a foreign object, the Court said.

The Court said it agreed with authorities concluding that once it becomes known that it is reasonably and medically necessary to remove an IUD, its character changes.

In this case, the Court ruled, the Schmiedts were informed of the foreign object's existence in April 2006. Therefore, the statute of limitations began to run at that time.

Because the couple did not commence their action, their claim is barred, the Court ordered.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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