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Blackburn v. Blue Mountain Women's Clinic12/11/1997
), MCA, does not delay the expiration of the five-year statute of repose in this case, and that Blackburn's claims for medical malpractice are barred. Having held that the five-year statute of repose bars Blackburn's claims for medical malpractice, we do not reach the question of whether the three-year statute of limitation was tolled.
Based on the foregoing, we hold the District Court correctly concluded that § 27-2-205(1), MCA, precludes Blackburn's claims for medical malpractice and affirm their dismissal by the District Court. Specifically, we conclude that the five-year statute of repose bars Blackburn's medical malpractice claims against the fictitiously named physician, John Roe, and the Blue Mountain Clinic, insofar as Blackburn seeks to hold the clinic vicariously liable for the physician's conduct. We further conclude that the statute of repose additionally bars Blackburn's medical malpractice claims against registered nurses Cossel and Terri Doe, as well as against the BSB Health Department to the extent that Blackburn seeks to hold it responsible for the actions of its registered nurse employees.
2. Negligence
Blackburn brings a number of negligence-based claims which do not fall within the parameters of Montana's medical malpractice statute, but are instead governed by the statute of limitations for negligence claims, codified at § 27-2-204, MCA, and the tolling provisions contained in § 27-2-102(3), MCA. Specifically, Blackburn brings claims of negligence against the Blue Mountain Clinic and its counselor, Jane Doe, as well as against Dr. Pratt and DPHHS.
Blackburn alleges that Jane Doe, the Blue Mountain Clinic counselor with whom Blackburn had repeated contact both prior to and following her abortion, failed to provide Blackburn with sufficient information upon which she could base her decision to have an abortion, and treated her negligently in the days following the procedure. Blackburn also alleges negligence on the part of Blue Mountain Clinic, and seeks to recover damages pursuant to the theory of respondeat superior. Finally, Blackburn levels claims of negligence against DPHHS and its medical director, Dr. Sidney Pratt, apparently contending they negligently supervised the BSB Health Department in a number of respects.
Section 27-2-204, MCA, provides the applicable period of limitations for tort actions, including claims for negligence such as the ones presented here. See, e.g., Sorenson v. Massey-Ferguson, Inc. (1996), 279 Mont. 527, 529, 927 P.2d 1030, 1031. Section 27-2-204(1), MCA, provides that " he period prescribed for the commencement of an action upon a liability not founded upon an instrument in writing is within 3 years." Here, we have determined that the requisite elements of Blackburn's claims for negligence were present by March 1990 and that her claims accrued at that time. However, Blackburn did not commence this action, by way of filing her complaint, until November 29, 1995, more than five and one-half years after her cause of action accrued.
Blackburn argues that, even if her claim accrued earlier, pursuant to the discovery doctrine, the statute of limitations did not begin to run until 1995 when she first consulted an attorney and learned she had received erroneous medical information prior to her abortion. Alternatively, Blackburn maintains the statute of limitations began to run, at the earliest, in 1993 when Dr. Moore diagnosed her with depression and she thus discovered the facts constituting her claim.
Section 27-2-102(3), MCA, codifies the discovery doctrine applicable to general negligence cases pursuant to which
he period of limitation does not be
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