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Jauregui v. Memorial Hospital of Sweetwater County5/13/2005
ccrual of a cause of action need not wait until a plaintiff in fact has sought an expert opinion stating there was a departure from accepted medical practice. Acceptance of such a position would emasculate the single act exception.
In conclusion, we note that the phrase "a single act of malpractice" is a misleading title for the legal concept it identifies. The rule applies, not to conduct that starts and ends in a moment, but rather to a course of malpractice which terminates at a specific point in time. In this instance, the alleged malpractice clearly ended on January 17, with the emergency exploratory operation. All subsequent treatment was independent of the alleged malpractice and in no way negligent. Following the January 21 surgery, appellant's injuries were obvious, and the facts upon which her claims are based were readily obtainable and discoverable at that point.
A literal interpretation of the "single act" requirement would mean the statute of limitations would never run for a physician who continued to provide treatment. A rule of law that would force a doctor to terminate treatment in order to have the benefit of the statute of limitations would be unfair, protecting all doctors except those who continue to provide care. It is unfortunate that this exception acquired the name "single act" when what was intended is quite a different matter, termination of the episode of malpractice at an identifiable point in time.
Id. at 356-57. Thus, the "single act" was actually a course of treatment culminating with obvious damages at a time certain. Applying this analysis to Mr. Jauregui's situation, the "single act" was the course of treatment terminating in the second surgery on February 26, 1999. Again, the underlying action, filed by the Jauregui's on February 26, 2001, is timely.
CONCLUSION
[ ] The Jaureguis failed to file a notice of claim against the Hospital that was sworn to under penalty of perjury as required by the Wyoming Constitution. This failure deprived the district court of jurisdiction over the potential claim. The cause of action against the Hospital was correctly dismissed.
[ ] The district court erred, however, in granting summary judgment in favor of Dr. Oliver. The finding by the district court that the "act, error or omission" that triggers the running of the statute of limitation under § 1-3-107 was the first surgery when the sponge was left in Mr. Jauregui's shoulder ignores almost twenty years of precedent of this Court. This Court has clearly defined the "act, error or omission" under § 1-3-107 as being "the termination of the course of treatment for the same or related illnesses or injuries." In this case, the February 26, 1999, surgery was a direct continuation of the course of treatment begun by the initial January surgery. The Jaureguis' action, brought on February 26, 2001, is timely.
[ ] Affirmed in part and reversed in part. This case is remanded to the district court for further proceedings consistent with this opinion.
BURKE,District Judge, specially concurring.
[ ] I agree with the result reached by the majority. I write separately because I disagree with the rationale provided by the majority for dismissal of the Jaureguis' claim against the Hospital.
[ ] The majority dismisses the claim against the Hospital for failure to comply with the certification requirements of Article 16, § 7 of the Wyoming Constitution. This defense was not asserted by the Hospital. Such defense was waived. See my dissent in Wooster v. Carbon Co. School Dist. No. 1, 2005 WY 47, 109 P.3d 893 (Wyo. 2005).
[ ] I would affirm dismissal of the Jaureguis' cl
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