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Phillips v. Gehrke3/27/2002
the continuous treatment doctrine is it is absurd to expect a patient who is still being treated by a doctor to interrupt corrective treatment by instituting suit. Plaintiff was not receiving corrective treatment from Dr. Gehrke or Dr. Fellows, although Dr. Fellows offered it. Therefore, there was no corrective treatment to interrupt by filing suit. By October 10, plaintiff had lost confidence in Dr. Gehrke and Dr. Fellows. She would not have chosen either doctor to provide corrective treatment. This rationale is not supported by the circumstances of this case.
We need not accept plaintiff's invitation to adopt the continuous treatment doctrine in Iowa. For even if we did, it would not apply in this case. The statute of limitations began to run on October 10, 1996, more than two years before plaintiff filed suit on November 2, 1998.
Plaintiff's second contention is that she did not know she was injured until November 7, 1996 after Dr. Saltzman operated on her ankle. Plaintiff reasons that while she knew prior to that time the surgery could fail, it was not until Saltzman told her after the second surgery there was no evidence of Dr. Gehrke's surgery in the areas where he expected, that she knew of her injury .
Iowa Code section 614.1(9) (1999) provides that medical malpractice actions must be brought:
within two years after the date on which the claimant knew, or through the use of reasonable diligence should have know, . . . the injury or death for which damages are sought in the action . . . .
The relevant fact is knowledge of an injury rather than knowledge of physician negligence. Langner, 533 N.W.2d at 517. Knowledge of an injury is imputed when there are sufficient facts to alert a reasonable person of the need to investigate. Id. at 518. Resolution of this issue by summary judgment is appropriate if the only controversy concerns the legal consequences flowing from undisputed facts. See McClendon v. Beck, 569 N.W.2d 382, 384 (Iowa 1997).
We conclude the circumstances before us do not require a different result than the result reached in Langner, 533 N.W.2d at 519. We need not decide whether the continuous treatment doctrine would ever apply in Iowa, because even if it did, it does not apply in this case. Consequently, the statute of limitations began to run on October 10, 1996, more than two years before Phillips filed suit on November 2, 1998. The district court correctly applied the law to the facts before it, and we affirm on its grant of summary judgment.
AFFIRMED.
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