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Zenzen v. Eiser1/18/2005
cedent was never treated for the lung cancer that appellant now claims resulted in death because of respondents' alleged misdiagnosis of a spot on his lung. Rather, at the time of the alleged misdiagnosis, the decedent was being treated for urinary retention, caused by a problem with his prostate. Thus, the district court properly determined that appellant's wrongful death claim arose out of a single act of negligent conduct--a physician's alleged misdiagnosis of the spot in decedent's lung as a "calcified granuloma." See D'Amaro v. Joyce, 297 F.3d 768, 771 (8th Cir. 2002) (finding, based on the supreme court's opinion in Fabio, that failure to inform the plaintiff of a potentially harmful heart defect was a single act of negligence where plaintiff was being treated for other, unrelated ailments).
II.
Appellant's arguments regarding the accrual date of the underlying cause of action are directly contradicted by the Minnesota Supreme Court's ruling in Fabio v. Bellomo, and several recent interpretations of that decision. These cases indicate that, in Minnesota, where an alleged negligent failure to diagnose results in the subsequent progression of the plaintiff's illness, the cause of action accrues (and the statute of limitations begins running) at the time of the failure to diagnose. Compare Fabio, 504 N.W.2d 758, 762 (holding that cause of action accrued at time of misdiagnosis where doctor misdiagnosed breast cancer and the cancer progressed after the misdiagnosis) and D'Amaro, 297 F.3d at 771 (holding that cause of action accrued at time of failure to inform where x-ray results showed a pulmonary artery abnormality that became progressively worse with time), with Broek, 660 N.W.2d at 443 (holding that cause of action did not accrue until plaintiff's heart attack, where there was no evidence that misdiagnosed heart condition changed or progressed in seven years after misdiagnosis) and Molloy, 679 N.W.2d at 722 (holding that, in an action for failure to diagnose a genetic disorder, the cause of action did not accrue until the mother became pregnant because the misdiagnosis did no damage until conception of another child).
Here, appellant claims that the physician allegedly failed to diagnose a tumor in the decedent's lung as cancerous and this misdiagnosis caused the decedent's death. Appellant argues that the supreme court's decision in Molloy created an "ambiguity in the law" as to when the decedent's medical malpractice claim accrued. We disagree. While distinguishing Fabio on its facts, the supreme court in Molloy stated that " e reaffirm the long-standing principle that malpractice actions based on failures to diagnose generally accrue at the time of misdiagnosis, because some damage generally occurs at that time." 679 N.W.2d at 722. Thus, the law in Minnesota--as laid out in Fabio and reaffirmed in Molloy--provides that appellant's malpractice claim accrued on the date of the alleged misdiagnosis, and therefore, appellant's wrongful death cause of action accrued on the same day. See Minn. Stat. § 573.02 (stating that wrongful death actions shall not be commenced beyond the time set forth in section 541.076); see also Minn. Stat. § 541.076(b) (stating that medical malpractice claims must be commenced within four years from the date the cause of action accrued).
Because under Minnesota law, appellant's cause of action accrued on March 9, 1998, and the four-year statute of limitations had run by the time she filed this wrongful death action on December 6, 2002, the district court did not err in granting summary judgment in favor of respondents.
Affirmed.
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