Preview:

STATE OF MINNESOTA IN SUPREME COURT A06-1982 Court of Appeals Gildea, J. Took no part, Magnuson, C.J.

Margaret MacRae, trustee for the next of kin of Roderick MacRae, Appellant, vs. Group Health Plan, Inc., et al., Respondents. SYLLABUS 1. A cause of action for the negligent misdiagnosis of cancer accrues when the Filed: July 31, 2008 Office of Appellate Courts

plaintiff suffers some legally compensable damage as a result of the misdiagnosis. 2. The compensable damage that triggers the accrual of a cause of action for

the negligent misdiagnosis of cancer is not limited to wrongful death, but may include any harm caused by the continued presence of the cancer. Reversed and remanded. Heard, considered, and decided by the court en banc. OPINION GILDEA, Justice. Margaret MacRae brought this malpractice action after her husband, Roderick MacRae, died from cancer. The district court dismissed the complaint, finding that 1

Margarets claim was barred by the statute of limitations, and the court of appeals affirmed. Because respondents did not meet their burden to show that Margaret incurred compensable damage more than 4 years before she filed this action, we reverse. The relevant facts in this case are not disputed. On January 15, 2001, Roderick MacRae had a routine physical examination with respondent Dr. Michael Kelly, his primary care physician. During this examination, Dr. Kelly performed a shave biopsy on a lesion on Rodericks left leg and sent the tissue to the pathology department for analysis. Respondent Dr. Amar Subramanian analyzed the tissue sample and reported on January 18 that it was a non-cancerous compound nevus.1 More than 18 months after the biopsy, on July 31, 2002, Roderick saw Dr. Kelly due to a bulge in Rodericks right groin. Dr. Kelly diagnosed the bulge as a hernia and referred Roderick to Dr. Steven Mestitz for a surgical consultation. Roderick eventually decided to have the hernia surgically repaired. In preparation for this surgery, Dr. Kelly performed a pre-operative examination of Roderick on December 9, 2002. According to the expert affidavit submitted by Margaret in this case, "[t]he standard of care requires palpitation of both inguinal [groin] lymph nodes as part of the preoperative physical." Rodericks medical records do not indicate that any abnormalities in these lymph nodes were discovered during the December 2002 examination.

1

A nevus is "[a] birth mark or a small growth on the skin, appearing before or shortly after birth, consisting of either blood vessels or skin and connective (supporting) tissue. A nevus is usually pigmented. Same as a mole." 3 J.E. Schmidt, Attorneys' Dictionary of Medicine and Word Finder N-95 (1995). 2

On September 15, 2004--approximately 21 months after his hernia surgery and 44 months after the initial biopsy--Roderick saw Dr. Kelly for swelling in Rodericks left leg and groin. A CT scan performed that day indicated that the lymph nodes in

Rodericks left groin and pelvic areas were enlarged. Dr. Kelly again referred Roderick to Dr. Mestitz. After two surgical biopsy procedures, Roderick was diagnosed with metastatic malignant melanoma.2 As a result of this diagnosis, the tissue from the 2001 biopsy of the lesion on Rodericks left leg was re-examined and found to be a malignant melanoma, not a compound nevus as originally diagnosed. An amended pathology report was filed on November 2, 2004, and Roderick was informed of the misdiagnosis the next day.

2

According to the American Academy of Dermatology: Melanoma is a cancer of the pigment producing cells in the skin, known as melanocytes. * * * Normal melanocytes reside in the outer layer of the skin and produce a brown pigment called melanin, which is responsible for skin color. Melanoma occurs when melanocytes become cancerous, grow, and invade other tissues. Melanoma begins on the surface of the skin where it is easy to see and treat. If given time to grow, melanoma can grow down into the skin, ultimately reaching the blood and lymphatic vessels, and [s]pread around the body (metastasize), causing life-threatening illness. It is curable when detected early, but can be fatal if allowed to progress and spread.

American Academy of Dermatology, Malignant Melanoma, http://www.aad.org/public/publications/pamphlets/sun_malignant.html (last visited July 16, 2008).

3

Roderick died on August 26, 2005. The autopsy report concluded that the cause of death was "extensive metastatic malignant melanoma" that had spread to Rodericks brain, neck, liver, pancreas, small intestine, adrenal gland, and abdominal wall. On February 20, 2006, Margaret, as trustee for the next of kin of Roderick, sued Dr. Kelly and Dr. Subramanian--as well as their employers, respondents Group Health Plan, Inc., and HealthPartners, Inc.--for medical malpractice. The complaint alleged that Roderick "would have, more likely than not, survived his illness" if the initial 2001 biopsy had been correctly read and that "within four years of the date of this Complaint, Roderick MacRaes illness progressed to the point where it was no longer more likely that he would have survived his illness." The defendants moved for summary judgment, arguing that the 2001 misdiagnosis was a discrete act of negligence and that the medical malpractice suit is therefore barred by the 4-year statute of limitations. In support of their motion, the defendants submitted Rodericks medical records but did not offer any expert evidence regarding the growth or spread of his melanoma between the 2001 misdiagnosis and the eventual correct diagnosis in 2004. Margaret responded that her claim is not barred because "the cause of action did not accrue until [Rodericks] cancer reached the point where he could not survive." In an affidavit submitted to the district court, a medical expert retained by Margaret indicated that melanoma that originates in the left leg will first become metastatic in the inguinal lymph node. Because no abnormality was noted in these lymph nodes during Rodericks December 2002 pre-operative examination, the expert concluded that Rodericks cancer 4

likely had not yet metastasized and he likely would have survived if his cancer had been discovered and treated at that time. In the alternative, Margaret argued that her claim was not barred because the misdiagnosis was part of a course of treatment of Rodericks leg and skin condition that did not terminate more than 4 years before Margaret commenced the action. The district court ordered summary judgment for the defendants. The court noted that "[t]here is a ,,longstanding principle that malpractice actions based on failures to diagnose generally accrue at the time of the misdiagnosis, because some damage generally occurs at that time. " (Quoting Molloy v. Meier, 679 N.W.2d 711, 722 (Minn. 2004.)) Because "the particular lesion biopsied by Dr. Kelly healed and Dr. Kelly did nothing more for this specific ailment," the court also found that there was no continuing course of treatment and that the single act rule applied. The court therefore concluded that Margarets cause of action accrued on January 17, 20013--the date of the misdiagnosis--and that her "claim is time barred by the applicable statute of limitations." Margaret appealed, arguing that her cause of action did not accrue until after December 2002. Margaret argued that she did not suffer legally compensable damage until it became more likely than not that Roderick would not survive his disease, and that

3

The district court stated that "[o]n January 17, 2001, Dr. Subramanians pathology report stated that * * * the left leg specimen was a compound nevus" and that the misdiagnosis of Rodericks lesion "occurred on or about January 17, 2001." But it appears that the tissue sample from Rodericks biopsy was received by the pathology department on January 17 and that the report and diagnosis were made on January 18.

5

this happened within the 4-year limitations period.4 MacRae v. Group Health Plan, Inc., No. A06-1982, 2007 WL 2417167, at *3 (Minn. App. Aug. 28, 2007). The court of appeals noted that we had previously stated in dicta that a misdiagnosis of cancer caused " ,,immediate injury in the form of a continually growing cancer, which became more dangerous to the plaintiff each day it was left untreated. The action accrued at the time of misdiagnosis because some damage occurred immediately. " Id. (quoting Molloy, 679 N.W.2d at 722). The court of appeals concluded that these statements "strongly imply that as a matter of law, a misdiagnosis of cancer causes some damage resulting in accrual of a medical-malpractice claim as of the date of misdiagnosis." Id. Accordingly, the court held that "the district court did not err in concluding that an action for malpractice brought at that time would have withstood a Rule 12.02(e) motion for dismissal on the pleadings and therefore accrued at the time of misdiagnosis," and it affirmed summary judgment. Id. at *4. We granted Margarets petition for review. I. This case comes to us on review of the entry of summary judgment. Summary judgment is appropriate where "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 either party is entitled to a judgment as a matter of law." Minn. R. Civ. P. 56.03. When reviewing dismissal of a claim on summary

4

Margaret appears to have abandoned her argument that there was a continuing course of treatment. See MacRae v. Group Health Plan, Inc., No. A06-1982, 2007 WL 2417167, at *2 n.1 (Minn. App. Aug. 28, 2007). 6

judgment, we examine the record to determine (1) "whether there are any genuine issues of material fact," and (2) "whether the district court erred in its application of the law." Antone v. Mirviss, 720 N.W.2d 331, 334 (Minn. 2006). A. The parties agree that the factual record is undisputed, so the only issue before us is whether those undisputed facts establish that Margarets claim is barred by the applicable statute of limitations. The construction and application of a statute of

limitations, including the law governing the accrual of a cause of action, is a question of law and is reviewed de novo. Antone, 720 N.W.2d at 334; State Farm Fire & Cas. v. Aquila Inc., 718 N.W.2d 879, 883 (Minn. 2006). Because an assertion that the statute of limitations bars a cause of action is an affirmative defense, the party asserting the defense has the burden of establishing each of the elements. Aquila, 718 N.W.2d at 885. The statutory limitations period that governs Margarets medical malpractice action is set forth in Minn. Stat.

Download A06-1982, Margaret MacRae, trustee for the next of kin of Roderick MacRae, Appel

Minnesota Law