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Jauregui v. Memorial Hospital of Sweetwater County5/13/2005
2) year period despite the exercise of due diligence.
(iv) If under paragraph (i) or (ii) of this subsection, the alleged act, error or omission is discovered during the second year of the two (2) year period from the date of the act, error or omission, the period for commencing a lawsuit shall be extended by six (6) months.
In applying this statute, the district court determined that any potential negligent "act, error or omission" occurred during the January 11, 1999, surgery, and therefore the action should have been filed no later than January 11, 2001. The Jaureguis argue that the time for filing the action should run from the date the alleged negligence was discovered, which was when the sponge was discovered and removed on February 26, 1999.
[ ] While the district court engaged in statutory interpretation in reaching its decision, we find it unnecessary to engage in such an exercise. Prior precedent from this Court is directly applicable and determinative of the outcome of this appeal. This Court has held on many occasions that § 1-3-107 is a discovery statute. Almost twenty years ago, this Court, in Metzger v. Kalke, 709 P.2d 414 (Wyo. 1985), in construing § 1-3-107, defined the "act, error or omission which starts the running of the statute of limitations against malpractice actions" as "the termination of the course of treatment for the same or related illnesses or injuries." Id. at 417. This is commonly referred to as the "continuous treatment" doctrine. The legislature has not changed the statute since Metzger was decided. The continuous treatment doctrine remains applicable in Wyoming.
[ ] The continuous treatment doctrine is founded upon sound policy. The nature of the physician-patient relationship requires the patient to rely on the knowledge and skill of the doctor. At the stage where the physician is providing a diagnosis and advice for the patient's medical care, the patient cannot be expected to know that the doctor's actions might be negligent and result in harm or to question them. The continuous treatment doctrine directly applies to the instant case. Dr. Oliver's treatment to repair Mr. Jauregui's torn rotator cuff tendon did not end with the first surgery. Dr. Oliver continued to treat Mr. Jauregui specifically with regard to his rotator cuff tendon surgery. Dr. Oliver treated the immediately ensuing infection, and Dr. Oliver performed the second surgery wherein the surgical sponge was removed. Each treatment up to the second surgery on February 26 was directly connected to the initial surgery. Thus, the act constituting the final act in the course of treatment for the surgical repair of Mr. Jauregui's torn rotator cuff was the second surgery. The statute of limitation thus began to run as of the date of the second surgery. The underlying malpractice action, brought within two years of that date, is not time barred.
[ ] Dr. Oliver argues that the "single-act" exception to the continuous treatment doctrine applies to the facts of this case. Dr. Oliver argues that the continuous treatment doctrine applies only when there is no single identifiable act of malpractice from which the statute of limitation can be said to run. Dr. Oliver contends that, in the instant case, any alleged malpractice was a single act that, if it occurred at all, occurred during the January 11, 1999, surgery. Thus, according to Dr. Oliver, the continuous treatment doctrine does not apply and the statute of limitation began to run on January 11, 1999.
[ ] While it is true that the continuous treatment doctrine applies to cases involving a continuous course of treatment where no single act can be pointed to as the act of malpractice, see Sharsmith v
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