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Phillips v. Gehrke3/27/2002
Appeal from the Iowa District Court for Polk County, Glenn E. Pille, Judge.
Plaintiff appeals from the district court ruling granting summary judgment in favor of defendants on her medical malpractice claim. AFFIRMED.
The plaintiff-appellant, Rachel Phillips, appeals from the district court's grant of summary judgment in favor of the defendants in her medical malpractice suit. Phillips claims the court erred by rejecting her argument the statute of limitations was tolled by the continuous treatment doctrine, and by incorrectly determining the point in time when she knew or should have known of her injury . We affirm.
Background.
On November 2, 1998, plaintiff filed a medical malpractice suit against Dr. Jon Gehrke and Des Moines Orthopaedic Surgeons, P.C., the group in which he is a partner. In May 2000, contending the statute of limitations had run on plaintiff's claim, defendants successfully moved for summary judgment.
The following facts are basically undisputed. Defendant Jon Gehrke, an orthopedic surgeon and member of defendant Des Moines Orthopaedic Surgeons, performed ankle stabilization surgery on plaintiff on June 18, 1996. Dr. Gehrke told plaintiff he would see her once or twice following the surgery, and then Dr. Fellows would provide follow-up care. Plaintiff saw Dr. Fellows on September 10, 1996 before attending a National Outdoor Leadership School. On or about September 25 of the same year plaintiff left to attend the National Outdoor Leadership School. While there, she had difficulty with her ankle. She returned to Des Moines and saw Dr. Fellows on October 10, 1996. During that visit plaintiff said Fellows informed her that her ankle was "more unstable than it had been prior to surgery." Plaintiff said Dr Fellows told her, "it was so messed up at that point that couldn't do any more damage, so may as well go back (to the National Outdoor Leadership School) and may eventually need another surgery." He also told her "the ankle was worse at that point than it had been before the surgery." There was some discussion about failure of the surgery and that they would have to redo the surgery and that was why the ankle was worse. Plaintiff told Dr. Fellows she was upset and unhappy with what had happened. According to plaintiff's mother and father, by October 10, 1996 confidence had been lost in both Dr. Gehrke and Dr. Fellows. Plaintiff's mother said they thought at this point they needed to seek a second opinion because they had lost confidence in both doctors.
Plaintiff returned to the National Outdoor Leadership School and continued having problems. Because of the "constant ache within the ankle joint" plaintiff saw Dr. Richard Silver of Tucson Orthopaedic and Fracture Surgery Association, Ltd. on October 25, 1996. He diagnosed plaintiff's ankle problem as a "failed Brostrom repair by Dr. Gehrke."
On October 29, 1996 plaintiff and her parents again saw Dr. Fellows. Her parents expressed concern she had been allowed to return to the National Outdoor Leadership School despite her continuing ankle problems. Dr. Fellows told the family, "I wish that you had let me operate on her the first time. I would like to do it. I would like to make it right. This was a terrible failure and it never should have happened." Fellows also said he was distressed about the procedure and if he had done the procedure it would not have happened. The family had decided at that point that if further surgery were required, it would be done by someone other than Dr. Gehrke.
Sometime before the October 29, 1996 visit to Dr. Fellows, plaintiff made an appointment to see Dr. Saltzman in Iowa City. On November 4, 1996 she saw
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