Wyoming’s Supreme Court delivers an important decision on the statute of limitations and the “continuous treatment” rule

Nobles v. Memorial Hosp. of Laramie County, 2013 WL 2303241 (Wyo. 2013)

Two days ago, the Supreme Court of Wyoming delivered an important and well-reasoned decision explaining the “continuous treatment” rule that tolls the statute of limitations.  Every lawyer interested in medical malpractice must read this decision: it cannot be missed!

The case before the Court featured a patient hospitalized in an intensive care unit with a diagnosis of acute respiratory failure resulting from pneumonia. While in the unit, the patient developed complications that were treated successfully by the medical staff. The staff also successfully treated the patient’s respiratory failure and significantly improved his condition.

But not everything went well. According to the patient, a hospital employee attempted to move him in bed by pulling, tugging, or twisting on his right arm. As a result, the patient developed acute pain and dysfunction in his shoulder: allegedly, the nerves in his shoulder had been torn apart, resulting in an incurable brachial plexus injury. The patient sued the hospital for that injury, arguing that it resulted from the employee’s malpractice, for which the hospital was vicariously responsible.

The patient filed this suit on March 11, 2010: more than two years after February 19, 2008—the day on which he was transferred from the intensive care unit, where the alleged malpractice occurred, to a different ward at the same hospital. Under Wyoming’s statute of limitations, medical malpractice suits can only be filed within two years from the day of the defendant’s allegedly negligent act or omission. The day on which the patient sustains injury as a result of that act or omission—and her cause of action consequently accrues—is immaterial. This provision introduces into the statute a rigid repose mechanism that other states combine with longer windows for filing suits (typically, four or five years).

Wyoming’s Supreme Court, however, recognizes the “continuous treatment” rule (Metzger v. Kalke, 709 P.2d 414 (Wyo. 1985)), as do many other courts across the country. Under this rule, “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, at 417. Hence, “where the defendant physician has provided a continuing course of care for the same or related complaints, the cessation of treatment completes the “act” which starts the running of the statutory period for filing suit.” Nobles, at *4.

This rule’s rationale is well articulated in the Nebraska Supreme Court’s decision in Williams v. Elias, 1 N.W.2d 121, 124 (1941):

“In the treatment of a patient the diagnosis might change from time to time, and it is commonly accepted in the medical profession that the diagnosis, in the first instance, is not binding on the physician.  He should have the right, during the course of treatment, to change the diagnosis. … The diagnosis referred to was a continuing biweekly one, and each time an incorrect diagnosis was made and an incorrect treatment applied, plaintiff’s injuries were extended. It was not the error in the diagnosis originally made by defendant but its adherence thereto and course of treatment that brought about the injuries.”

By the same token, a doctor may also try different treatments and medications to resolve the patient’s problem.  The doctor’s need to make those adjustments over the course of treatment makes it legitimate—if not mandatory—for the patient to let the treatment run its course before suing the doctor.

In the Nobles case, the patient asserted 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.  Under this theory of the case, the patient’s ability to sue the hospital and its staff did not expire.  The patient managed to bring his case within the continuous treatment rule.

The hospital, however, argued that the rule was still inapplicable because Mr. Nobles had “knowledge of his cause of action prior to February 19, 2008, and certainly prior to March 11, 2008.”  The Court found this argument wrongheaded because the hospital took care of the patient’s arm and shoulder problem until March 15, 2008.  The patient knew about it as well and gave the hospital and its staff the chance to fix the problem.  In the Court’s words,

“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.” Id. at *6.

The hospital also tried to convince the Court to adopt the “single act” exception to the continuous treatment rule that applies in Minnesota: Swang v. Hauser, 180 N.W.2d 187, 189–90 (Minn. 1970). Under this exception, “the cause of action begins to run at the time of the negligent act (and not at the end of the course of treatment) when the alleged tort consists of (1) a single act; (2) which is complete at a precise time; (3) which no continued course of treatment can either cure or relieve; and (4) where the plaintiff is actually aware of the facts upon which the claim is based; that is, the plaintiff is aware of the malpractice prior to the end of treatment.” Id. at *11.

The Court declined to introduce the “single act” exception into Wyoming’s law of medical malpractice. The Court reasoned that this exception is “at odds with our precedent,” “difficult to apply,” and that it also “leads to confusion rather than predictability.” Id. at *12.  Separating a “single” and “complete” act of negligence from a series of treatment and diagnostic procedures directed at the same end is well nigh impossible. Establishing that no continued course of treatment can cure or relieve the damage is equally hard: “unless a patient dies immediately as a result of the malpractice, some form of follow-up treatment will likely be given in every case.”  Id. at *14.

The Court therefore ruled for the patient and remanded the case for further proceedings.

This decision is impeccable. One of the best ones I read.