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Conway v. Sonntag2/7/2005
ess stated that Dr. Sonntag's medical records show the optic nerve was still alive on November 12, 1999, when Dr. Sonntag saw Lynda Conway at his office. In the expert's opinion, "What caused Ms. Conway to lose her eyesight permanently was Dr. Sonntag's failure to be more aggressive in his treatment and continuing treatment by the prescription of medication after November 12, 1999." In his affidavit, Dr. Sonntag stated that the elevated intraocular pressure caused injury to Lynda Conway's left eye, and that such injury was objectively ascertainable during her seven postoperative visits from October 11 through November 3, 1999.
An action to recover damages for "professional malpractice" must be commenced within two years after the cause of action has accrued. I.C. §§ 5-201 & 5-219 (1998). Except for actions based upon leaving a foreign object in a person's body or where the fact of damage has been fraudulently and knowingly concealed, the cause of action for professional malpractice accrues "as of the time of the occurrence, act or omission complained of," I.C. § 5-219 (1998), although there must also be "some damage" for the cause of action to accrue. Lapham v. Stewart, 137 Idaho 582, 51 P.3d 396 (2002). The limitation period is not extended by reason of any continuing consequences or damages resulting from the malpractice or any continuing professional or commercial relationship between the injured party and the alleged wrongdoer.
I.C. § 5-219 (1998). In a medical malpractice action, the statute of limitations is tolled upon the filing of a request for a prelitigation screening panel, during the time the claim is pending before the panel, and for thirty days thereafter. James v. Buck, 111 Idaho 708, 727 P.2d 1136 (1986); I.C. § 6-1005. Since the Conways filed their request for a prelitigation panel on November 8, 2001, their claim would be barred by the statute of limitations unless it accrued after November 8, 1999.
The puncturing of the lens capsule increased the intraocular pressure in Lynda Conway's left eye. As a result of that increased pressure, it is undisputed that she had "objectively ascertainable injury " to her left eye during her postoperative visits from October 11 through November 3, 1999. The existence of "objectively ascertainable injury" is simply an analytical tool to be used in determining when "some damage" has occurred. Lapham v. Stewart, 137 Idaho 582, 51 P.3d 396 (2002). Until the injured party has suffered some damage resulting from the alleged malpractice, the cause of action has not accrued and the statute of limitations does not begin to run. Id. In order for the cause of action to accrue, there must be both the alleged act of malpractice and the resulting damage. Id. The fact that after the surgery Lynda Conway suffered some damage that was objectively ascertainable prior to November 3, 1999, is not determinative of when her cause of action for malpractice accrued. For the cause of action to have accrued, the damage must have resulted from an act of malpractice ("the occurrence, act or omission complained of").
For a health care provider's conduct to constitute malpractice, the provider must have negligently failed to meet the applicable standard of health care, as it existed at the time and place of the alleged negligent act. Dulaney v. St. Alphonsus Reg'l Med. Ctr., 137 Idaho 160, 45 P.3d 816 (2002); I.C. § 6-1012. Generally speaking, whether a health care provider was negligent is an issue that must be established by expert medical testimony because it is a matter not ordinarily within the knowledge or experience of lay persons. Maxwell v. Women's Clinic, P.A., 102 Idaho 53, 625 P.2d 407 (1981). There was no expert testimony asserting
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