Continuous Treatment and Repose

Pitt-Hart v. Sanford USD Medical Center, — N.W.2d — (S.D. 2016), 2016 WL 1459018

This very recent decision of the South Dakota Supreme Court explains that continuous treatment does not entitle the patient to toll the statute of repose (as opposed to the statute of limitations that continuous treatment generally does toll). This decision also clarifies that continuous negligence allows the aggrieved patient to count the repose period from any chosen act of medical malpractice, but then, of course, s/he must prove that her damage – or a substantial part thereof – results from that act.

The decision begins with clarifying the fundamental difference between the state’s limitations and repose provisions:

“There can be little doubt that Peterson [Peterson v. Burns, 635 N.W.2d 556 (S.D. 2001)] correctly held that SDCL 15–2–14.1 is properly considered a statute of repose and not one of limitation. “[A] statute of limitations creates ‘a time limit for suing in a civil case, based on the date when the claim accrued.’” CTS Corp. v. Waldburger, ––– U.S. ––––, ––––, 134 S.Ct. 2175, 2182 (2014); . . . . Peterson, 635 N.W.2d at 570. “A statute of repose, on the other hand, … is measured not from the date on which the claim accrues but instead from the date of the last culpable act or omission of the defendant.” CTS Corp., ––– U.S. at ––––, 134 S.Ct. at 2182. The two-year period expressed in SDCL 15–2–14.1 does not begin when a cause of action accrues; it begins when the “alleged malpractice, error, mistake, or failure to cure shall have occurred[.]” SDCL 15–2–14.1. Therefore, as we held in Peterson, the two-year period expressed in SDCL 15–2–14.1 is a period of repose. Compare SDCL 15–2–14.1 (“An action … can be commenced only within two years after the alleged malpractice, error, mistake, or failure to cure shall have occurred….”), with SDCL 15–2–14(3) (“[An action for personal injury] can be commenced only within three years after the cause of action shall have accrued….”). . . . .

The reason for this critical distinction lies in the different policy objectives underlying both types of statutes. “Statutes of limitations require plaintiffs to pursue ‘diligent prosecution of known claims.’” CTS Corp., ––– U.S. at ––––, 134 S.Ct. at 2183. . . . . In contrast, “[s]tatutes of repose effect a legislative judgment that a defendant should ‘be free from liability after the legislatively determined period of time.’” Id. “[They] are based on considerations of the economic best interests of the public as a whole and are substantive grants of immunity based on a legislative balance of the respective rights of potential plaintiffs and defendants struck by determining a time limit beyond which liability no longer exists.” First United Methodist Church, 882 F.2d at 866. Thus, while tolling a period of limitation or estopping a party from asserting it as a defense may be proper, tolling a period of repose or estopping a party from raising it as a defense subverts this legislative objective. Therefore, principles of estoppel and tolling are inapplicable to a period of repose.”

The Court then goes on to explain that the rationale behind the “continuous treatment” exception to the limitations statute is “to prevent the refusal to seek or administer health care due to pending litigation when treatment may be desperately needed” (citing Bosse v. Quam, 537 N.W.2d 8, 10 (S.D. 1995)) and that this exception “also affords a medical provider ‘the opportunity to correct the error before harm ensues.’” (citing Wells v. Billars, 391 N.W.2d 668, 672 n. 1 (S.D. 1986)).

This rationale does not apply to the statute of repose, given its slate-cleaning role:

“The arguments against applying equitable tolling, estoppel, and fraudulent concealment to a period of repose apply with equal force to the tolling that would result from application of the continuous-treatment rule” (citing CTS Corp., ––– U.S. at ––––, 134 S.Ct. at 2183).

The Court then observed that “While the continuous-treatment rule does not apply to a statute of repose, the continuing-tort doctrine does” and that “[w]hen the cumulative result [ ] of continued negligence is the cause of the injury, the statute of repose cannot start to run until the last date of negligent treatment.” (citing Cunningham v. Huffman, 609 N.E.2d 321, 325 (Ill. 1993)).

This “continuing tort” doctrine is the only way for the plaintiff to sue the defendant under the stringent repose provisions.