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VAN OVERBEKE v. YOUBERG11/22/1995
This is an appeal from a judgment for the defendants in a medical malpractice case. The plaintiff raises several substantive issues, but one of those issues is dispositive of the case: the plaintiff's failure to bring the action within six years after the alleged acts of negligence. Iowa Code § 614.1(9) (1991). The jury found that the plaintiff had not established her claim of fraudulent concealment so as to avoid the time bar of that section, and the trial court accordingly entered judgment for the defendants. We affirm.
I. The Jurisdiction Issue.
We first address a procedural issue raised by the defendants. They contend that we lack jurisdiction of the appeal because the plaintiff's new trial motion, and her notice of appeal that followed, were untimely.
Iowa Rule of Civil Procedure 247 requires motions for new trial to be filed within ten days of the verdict "unless the court, for good cause shown and not ex parte, grants an additional time not to exceed thirty days." The jury verdict was returned on November 10, 1993. Because November 20 was a Saturday, the plaintiff had until Monday, November 22, to file her motion for new trial.
On November 19, the court orally granted the plaintiff an extension to November 23. While the written order was dated November 24, it is clear by its language that it was granted on November 19. Iowa Rule of Appellate Procedure 5(a) requires appeals to be taken within thirty days from the judgment "unless a motion for new trial . . . is filed, and then within thirty days after the entry of the ruling on such motions. . . ." The ruling on the plaintiff's motion for new trial was entered on December 13, 1993. Therefore, Van Overbeke had until January 12, 1994, to file her notice of appeal. She filed her notice on January 12, and we therefore have jurisdiction of her appeal.
II. The Facts.
The plaintiff, Kim Van Overbeke was admitted to Loring Hospital for the Caesarean delivery of her first child in March 1981. Dr. Youberg was her attending physician. Prior to the hospitalization, Dr. Youberg had the couple's blood types determined. The plaintiff was RH negative, and her husband was RH positive. When this difference occurs, there is a ten to fifteen percent chance that the mother may become sensitized to the RH [540 NW2d Page 275]
positive blood, with sometimes serious consequences. To prevent sensitization, the drug RHoGAM should be administered and is said to be eighty-five percent effective.
In this case, the plaintiff did not receive the RHoGAM. The jury found the doctor (but not the hospital) negligent in failing to secure the proper laboratory tests and to assure that the plaintiff received the RHoGAM injection.
The parties' negligence, however, is no longer the issue. While the jury found negligence on the part of the doctor, it did not find that he had fraudulently concealed information so as to avoid the six-year time bar of section 614.1(9). The plaintiff won the battle but lost the war. This raises the next issue — the statute of limitations.
III. The Statute of Limitations.
Iowa Code section 614.1(9) is a special statute of limitations for malpractice cases. It first provides a statutory version of a "discovery" rule: actions against health care providers must be brought "within two years after the date on which the claimant knew, or through the use of reasonable diligence, should have known . . . of the injury or death for which damages are sought."
This section then incorporates this language of repose:
In no event shall any action be brought more than six years after the date on which occurre
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