Minnesota Reports
FABIO v. BELLOMO, 504 N.W.2d 758 (Minn. 1993) Delores
FABIO, petitioner, Appellant, v. James BELLOMO, M.D.,
Respondent. No. C6-91-2542. Supreme Court of Minnesota.
August 20, 1993.
Appeal from the Ramsey County District Court, Allan R.
Markert, J. Page 759
[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Page 760
Syllabus by the Court
1. Whether to grant a motion to amend a complaint is
committed to the discretion of the trial court and the
trial court’s determination will not be over-turned absent
an abuse of that discretion.
2. The statute of limitations barred a claim for medical
malpractise for failing to diagnose a cancerous condition
because the alleged failure to diagnose occurred more than
two years before a complaint was filed and was not part of
a continuing course of treatment. Minn.Stat. §
541.07(1) (1992).
3. Because the statute of limitations barred the claim
which appellant sought to amend to her complaint, the trial
court did not abuse its discretion by denying the motion to
amend the complaint.
4. Summary judgement against appellant was appropriate
when appellant failed to present sufficient proof of
causation and damages.
Peter J. Frieser, Susan F.K. Bieniek, Minneapolis, for
appellant.
Phillip A. Cole, Kay Nord Hunt, Minneapolis, for
respondent.
Terry L. Wade, Anne Workman, St. Paul, for amicus curiae
Minnesota Trial Lawyer’s Assoc.
Suzanne M. Veenhuis, Minneapolis, for amicus curiae,
Minnesota Medical Assoc.
Heard, considered, and decided by the court en banc.
TOMLJANOVICH, Justice.
This case arises upon the affirmance by the Minnesota
Court of Appeals of a dismissal of appellant’s complaint by
Ramsey County District Court. We affirm.
Respondent Dr. James Bellomo was the primary care
physician for Appellant Delores Fabio from 1977 until he
retired in 1986. Fabio alleges that on at least two
occasions during this period Dr. Bellomo noticed a lump in
her left breast, but told her not to worry about it because
it was a “fibrous mass.” These visits occurred once between
1982 and 1984, and on March 10, 1986. Each time Dr. Bellomo
allegedly noticed this mass, Fabio had gone to see him for
an unrelated ailment.
After Dr. Bellomo’s retirement, Fabio went to Dr. Keith
Chilgren, complaining of ailments unrelated to breast
cancer. During the course of Dr. Chilgren’s examination, he
noticed the lump in Fabio’s breast and ordered that a
mammogram be performed on her. The mammogram showed two
2-centimeter tumors. A biopsy determined that the mass was
cancerous, and that the cancer had metastasized to four
lymph nodes. The tumor was subsequently excised, and Fabio
underwent chemotherapy treatment.
Fabio then sued Dr. Bellomo, alleging that he committed
medical malpractice when he failed to palpate the lump or
order a mammogram when he noticed it on March 10, 1986.
Prior to trial, Fabio sought to amend her complaint to
include charges of malpractice against Dr. Bellomo for
failing to properly treat her when he previously noticed
the lump between 1982 and 1984. Fabio offered the testimony
of Page 761 Dr. Chilgren that a reasonably careful
physician, under similar circumstances, would have ordered
a mammogram.
She also offered her oncologist, Dr. Caldwell, as an
expert witness to establish causation and damages. If
allowed to testify, Dr. Caldwell would give his opinion, to
a reasonable degree of medical certainty, that it is more
probable than not that Fabio’s cancer spread from her
breast tumor to the lymph nodes between 1984 and 1987. Dr.
Caldwell would also testify that, in his opinion and to a
reasonable degree of medical certainty, that it is more
probable than not that additional lymph nodes became
involved between March 10, 1986, the date of the last
examination by Dr. Bellomo, and June 1, 1987, when Fabio
saw Dr. Chilgren.
Fabio argued three forms of damage: First, she argued that
the delay in treatment resulting from Dr. Bellomo’s failure
to diagnose her cancer caused her to undergo chemotherapy;
second, that the delay resulted in a “loss of chance” of
life expectancy and a greater risk of recurrence of cancer;
third, that the delay negligently aggravated her
preexisting cancerous condition.
After briefs were submitted and depositions taken, the
trial court dismissed Fabio’s complaint at a pre-trial
conference. The trial court ruled, as a matter of law, that
no cause of action existed for loss of chance or negligent
aggravation of a preexisting condition. The trial court
also dismissed her motion to amend her complaint, ruling
that any malpractice occurring in the examinations during
1982-1984 was barred by the statute of limitations.
Minn.Stat. § 541.07(1) (1992). These rulings were
affirmed by the court of appeals 489 N.W.2d 241.
Essentially, two issues are before this court. First, we
must determine whether the trial court abused its
discretion by denying Fabio’s motion to amend her complaint
to allege malpractice against Dr. Bellomo between 1982 and
1984. Second, we must determine whether Fabio has put forth
sufficient evidence of causation and damages against Dr.
Bellomo for his alleged malpractice.
When the trial court granted Dr. Bellomo’s motion to
dismiss, it considered matters outside the pleadings, e.g.,
the deposition of Dr. Caldwell, Fabio’s oncologist. When
matters outside the pleadings are presented to a court
considering a motion to dismiss, and those external matters
are not excluded by the court when it makes its
determination, the motion to dismiss shall be treated as
one for summary judgment. Minn.R.Civ.P. 12.02.
A motion for summary judgment shall be granted when the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue of material fact and
that either party is entitled to a judgment as a matter of
law. Minn.R.Civ.P. 56.03. On appeal, the reviewing court
must view the evidence in the light most favorable to the
party against whom judgment was granted. Abdallah, Inc. v.
Martin, 242 Minn. 416, 424, 65 N.W.2d 641, 646 (1954). For
purposes of this case, therefore, we must accept as true
the factual allegations made by Fabio.
Fabio argues that the trial court erred by not granting
her motion to amend her complaint. A party may amend a
pleading by leave of court, and amendments should be freely
granted, except where to do so would result in prejudice to
the other party. Minn.R.Civ.P. 15.01; Hughes v. Micka, 269
Minn. 268, 275, 130 N.W.2d 505, 510 (1964). The trial court
has wide discretion to grant or deny an amendment, and its
action will not be reversed absent a clear abuse of
discretion. LaSalle Cartage & Johnson Brothers Wholesale
Liquor, 302 Minn. 351, 357-58, 225 N.W.2d 233, 237-38
(1974).
The trial court denied Fabio’s motion to amend because it
found that “the proffered allegation of negligence in 1984
shows that Defendant’s ‘treatment’ of Plaintiff * * * was
terminated upon the Defendant’s determination that
Plaintiff had no condition of her breasts requiring further
treatment on his part.” Because it found that there was no
continuing course Page 762 of treatment, the trial court
denied Fabio’s motion to amend her complaint as barred by
the statute of limitations. Whether the trial court abused
its discretion by denying the amendment, therefore, turns
on whether it was correct that there was no continuing
course of treatment.
An action for medical malpractice is barred if not
commenced within two years of the date on which the cause
of action accrued. Minn.Stat. § 541.07(1).
Generally, the cause of action accrues when the physician’s
treatment for the particular condition ceases. Johnson v.
Winthrop Laboratories Division of Sterling Drug, Inc., 291
Minn. 145, 149, 190 N.W.2d 77, 80 (1971); Schmit v. Esser,
183 Minn. 354, 358, 236 N.W. 622, 624-25 (1931). The
statute of limitations will be extended when a doctor’s
negligence is part of a continuing course of treatment,
such as when a doctor consistently fails to properly treat
a fracture.
When Dr. Bellomo examined Fabio’s breast between 1982 and
1984, he did not recommend any further treatment. His
treatment of her condition ceased at the time he told her
not to worry about it. We therefore hold that the trial
court was correct to rule that Dr. Bellomo’s examinations
of Fabio’s breast that occurred between 1982 and 1984 are
barred by the statute of limitations, because these
examinations were not part of a continuing course of
treatment. Because these examinations were barred by the
statute of limitations, we also hold that the trial court
did not abuse its discretion by denying Fabio’s motion to
amend her complaint. Absent the amendment, therefore, Fabio
may recover in medical malpractice from Dr. Bellomo only if
she can prove damages attributable to his failure to
diagnose her breast cancer in 1986.
To establish a prima facie case of medical malpractice, a
plaintiff must introduce expert testimony demonstrating (1)
the standard of care recognized by the medical community
as applicable to the particular defendant, (2) that the
defendant departed from that standard, and (3) that the
defendant’s departure was a direct cause of the plaintiff’s
injuries. Plutshack v. University of Minnesota Hospitals,
316 N.W.2d 1, 5 (Minn. 1982). In this case, Fabio has
offered evidence by Dr. Chilgren that a reasonably careful
physician would have ordered a mammogram upon feeling a
lump like that described by Fabio. His testimony would
establish the standard of care and show Dr. Bellomo’s
breach of that standard. Fabio may recover from Dr.
Bellomo, therefore, if she can show that his failure to
order a mammogram was a direct cause of her damages.
To make out a prima facie case of causation in medical
malpractice against Dr. Bellomo, Fabio must present expert
testimony that establishes that it is more probable than
not that damages resulted from his malpractice. Harvey v.
Fridley Medical Center, 315 N.W.2d 225, 227 (Minn. 1982).
Fabio argues that Dr. Bellomo’s negligence caused her to
suffer three forms of damages: chemotherapy, “loss of
chance,” and “negligent aggravation of a preexisting
condition.”
Fabio’s first theory of recovery is for damages caused by
undergoing chemotherapy. At oral argument, however, Fabio
admitted that chemotherapy would have been necessary even
if Dr. Bellomo had diagnosed her cancer in 1986. Her
complaint, therefore, fails to establish that Dr. Bellomo’s
alleged malpractice was a direct cause of her need to
undergo chemotherapy, and we hold that summary judgment for
Dr. Bellomo was correct on this issue.
Fabio’s second theory of recovery is for “loss of chance.”
She argues that her increased chance of a recurrence of
cancer and her decreased chance of living another 20 years
are compensable injuries. We have never recognized loss of
chance in the context of a medical malpractice action, and
we decline to recognize it in this case. Fabio argues that
recoveries akin to loss of chance have been upheld in
traditional tort actions, but we find those recoveries
easily distinguishable; e.g., Mack v. McGrath, 276 Minn.
419, 423, Page 763 150 N.W.2d 681, 684 (1967) (holding
that recovery for risk of malfunction of remaining kidney
was “generous but not excessive” because it was “fair
comment with respect to the implications of * * * being
left with only one kidney”), Dunshee v. Douglas, 255 N.W.2d
42, 47 (Minn. 1977) (upholding recovery for risk of future
stroke resulting from accident causing scar formation in
carotid artery when stroke proven to be reasonably certain
to occur). In those cases, when we allowed damages for
potential ill effects from initial injuries caused by the
defendants, the future effects flowed directly from the
initial injuries, the initial injuries were the sole cause
of the future effects, and the probabilities of their
occurrence were proven with reasonable medical certainty.
In this case, however, Fabio’s initial “injury,” her
cancer, did not result from a misdiagnosis by Dr. Bellomo,
and a misdiagnosis by Dr. Bellomo could not have been the
sole cause of any future ill effects.
Further, we note that even if we were to adopt loss of
chance as a theory of recovery in medical malpractice
actions, it would not apply in this case because Fabio has
failed to present evidence either that it is more probable
than not that her cancer will recur or that she has a
diminished life expectancy. Dr. Caldwell, if allowed to
testify, would state that Fabio’s risk of cancer recurrence
is about 30 percent and that her prognosis to survive at
least 20 years is “at least 50-50.” In other words, if
allowed to testify, Dr. Caldwell essentially would testify
that it is more probable than not that her cancer would not
recur and that it is more probable than not that she will
survive at least 20 years. These are hardly the type of
damages envisioned by the court in Dunshee when it allowed
damages for the possibility of a future stroke when that
possibility was established with reasonable medical
certainty. We therefore hold that summary judgment against
Fabio was appropriate on the issue of loss of chance.
Fabio’s third theory of recovery is for “negligent
aggravation of a preexisting condition.” This theory was
recently rejected by this court, under very similar
circumstances. Leubner v. Sterner, 493 N.W.2d 119, 122
(Minn. 1992). We see no reason to reexamine Leubner at this
time, and hold that summary judgment against Fabio is
appropriate on the issue of negligent aggravation of a
pre-existing condition. Because we reject all three
theories of recovery argued by Fabio, we affirm the
judgment of the lower courts.
Affirmed.
GARDEBRING, Justice (dissenting).
This case involves two misdiagnoses made by Dr. Bellomo of
a malignant tumor in Delores Fabio. The first misdiagnosis
occurred sometime between 1982 and 1984, the second in
1986. The correctness of the trial court’s decision to
disallow amendment of Fabio’s complaint turns on whether
the statute of limitations for medical malpractice for the
1982-84 misdiagnosis was tolled until the 1986
misdiagnosis. Because I believe that the limitation period
was tolled until the second diagnosis, I must respectfully
dissent on this issue.
The common law imposed no limitation period on the
bringing of a claim; any limitation on the time in which an
action may be brought is statutory. R. Muscara, Note, Tort
Law — Federal Tort Claims Act — Accrual of
Medical Malpractice Action, United States v. Kubrick, 444
U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), 4
W.New.Eng.L.Rev. 155, 158 (1981). Statutes of limitation
are based on the public policy encouraging the quick
resolution of disputes. They are designed to “promote
justice by preventing surprises through the revival of
claims that have been allowed to slumber until evidence has
been lost, memories have faded, and witnesses have
disappeared.” Order of R.R. Telegraphers v. Railway Express
Agency, Inc., 321 U.S. 342, 348-49, 64 S.Ct. 582, 586, 88
L.Ed. 788 (1944). Clearly, the main consideration underlying
these statutes is one of fairness toward the defendant.
“There comes a time when [a defendant] ought to be secure
in his reasonable expectation that the slate has been wiped
clean of ancient obligations * * *.” Developments in the
Law — Statute Page 764 of Limitations, [hereinafter
Developments] 63 Harv.L.Rev. 1177, 1185 (1950).
Normally, a statute of limitation begins to run when the
cause of action accrues. Id. at 1200. Although it seems
obvious that a cause of action would accrue at the time a
suit could theoretically be maintained (i.e., at the time
tortious act occurred), courts have often delayed the
beginning of the statutory period until an event occurs
without which a suit would be impossible or improbable
(e.g., until the plaintiff learned of the wrong[fn1] or
substantial damage occurred). Id.
In many kinds of tort actions, the act alleged to cause
injury and the injury resulting therefrom occur
simultaneously and are known to the injured party
immediately. However, in medical malpractice cases, the
injury may be totally unknown to the injured party for
years after the tortious act occurs. The customary
application of the rule can result in unfairness if the
plaintiff does not know she has been harmed until the
limitations period has run.
There is an obvious injustice in holding a plaintiff with
a meritorious malpractice claim to a strict application of
the statute of limitations, i.e., that his cause [of
action] accrued at the time of the physician’s wrongful
act or omission. A patient, who places his trust in his
doctor, may know nothing of what is affecting him. He may
know only that he is not getting well. He may be treated
for years before learning that, initially, his case was
misdiagnosed, or that at the onset of his treatment he was
given the wrong drug, one which worsened rather than
bettered his condition.
D. Harney, Medical Malpractice, § 8.3 at 260 (1973).
The “continuing course of treatment” doctrine has evolved
as a compromise to ameliorate potential unfairness
resulting from delayed discovery of an injury.[fn2] Under
this doctrine, the statute of limitations is tolled until
treatment is ceased by the negligent physician for the
injury which formed the basis for the cause of action. The
rationale underlying the doctrine is to foster the
physician-patient relationship by allowing the patient to
seek corrective treatment while maintaining her legal
remedy,[fn3] thus affirming the trust and confidence a
patient has in her doctor.[fn4] In Page 765 Grondahl v.
Bulluck, 318 N.W.2d 240 (Minn. 1982) we stated that three
factors should be considered to determine when a continuing
course of treatment ceased:
(1) whether there is a relationship between physician and
patient with regard to the illness; (2) whether the
physician is attending and examining the patient; and (3)
whether there is something more to be done.
Id. at 243 (citing Schmit v. Esser, 183 Minn. 354, 358-59,
236 N.W. 622, 625 (1931)).
It is clear that the second factor was satisfied in this
case; Dr. Bellomo saw Fabio many times between 1982 and
1986. Further, the third factor was also met in this case;
it is obvious that accurate diagnosis and subsequent
treatment of Fabio’s cancer was required. Therefore, the
only relevant inquiry concerns the first factor.
The majority states that Dr. Bellomo “treated” Fabio’s
cancer when he told her “not to worry about it,” op. at
762, in effect, saying that the relationship between Dr.
Bellomo and Fabio as to Fabio’s cancer began and ended each
time he made a misdiagnosis. However, this view of the
relationship begs the question as to whether our
requirements for a continuing course of treatment are met.
Treatment by a physician must necessarily include
diagnosis. Proper treatment requires an accurate diagnosis
— which, of course, was not present in this case.
Once the admission is made by the majority that the
misdiagnosis constituted treatment, and that he so
“treated” her illness several times over the years, one
must ask why the requirement of Grondahl is not met. It can
only be that the majority implicitly affords less value to
the “diagnosis” phase of treatment than to other forms of
treatment.
Although it seems incongruous that subsequent treatment
can occur without affirmative action by the physician
since the term treatment connotes the presence of action,
in certain situations “treatment” can occur by omission.
This treatment by omission arises when a patient returns
to the treating physician complaining of problems in the
mistreated area but the physician disregards the
complaints. The significant factor is that even though the
physician may not have provided literal treatment to the
afflicted area, the patient, by returning to the
physician, has provided him with an opportunity to correct
his previous error. The patient’s return visit has not
only continued the physician-patient relationship, but it
has also continued “treatment” of the specific injury.
Dana David Peck, Comment, The Continuous Treatment Doctrine:
A Toll of the Statute of Limitations for Medical
Malpractice in New York, 49 Alb.L.Rev. 64, 79 (1984)
(citations omitted). If Dr. Bellomo, through his
physician/patient relationship with Fabio, was “treating”
her by examining the lump in her breast with an eye to
diagnosis, I can only conclude that there was a continuing
course of treatment during this time.
This court has never faced the question of whether
multiple misdiagnoses, acknowledged by the majority to
constitute “treatment,” are sufficient to toll the
limitations period. However, other jurisdictions have
reached this issue. In Fonda v. Paulsen, 46 A.D.2d 540, 363
N.Y.S.2d 841 (1975), the plaintiff underwent a biopsy in
May 1969. No evidence of cancer was found and the plaintiff
was so informed. The plaintiff saw the defendant doctor
five times during 1970 for injuries unrelated to the
cancer, but nevertheless complained about the spot from
which the biopsy was taken on at least two occasions. In
1972, the defendant referred the plaintiff to another
doctor for another biopsy which showed that a malignancy
had existed since 1969 in the spot previously examined, and
which should have been detected by the 1969 biopsy. Page
766
The plaintiff did not bring suit until 1974. The
physicians claimed the action was barred by the three-year
limitations period measured from the time of the negligent
diagnosis. The trial court dismissed the suit finding that
no treatment occurred after May 1969. In reversing the
trial court, the appellate court stated:
If a patient continues under post-operative observation
by his physician and is advised that his condition is
being cured, this is as much “treatment” as affirmative
acts such as surgery, therapy or prescription of
medicines. Any other view must be based on the erroneous
supposition that only acts of commission, but not acts of
omission, can constitute negligence; there would be
little chance for legal redress by a patient who has been
the victim of an alleged malpractice who is advised that
time is the only barrier to a complete cure, when in
reality, time is a barrier to a cause of action.
Id., 363 N.Y.S.2d at 844 (citation omitted).
In McDermott v. Torre, 452 N.Y.S.2d 351, 437 N.E.2d 1108,
in May 1974, the defendant physician examined a mole on
the plaintiff’s ankle, excised a portion of the mole and
sent it to a lab for a biopsy, which came back negative.
The plaintiff saw the defendant physician at least eight
times between May 1974 and September 1976 for various other
conditions, but also complained about continuing pain in
her ankle and the grayish color present in the area. Each
time she complained, the physician told her there was no
cause for concern. Eventually, the plaintiff learned that
the diagnosis was wrong and a malignant melanoma was
removed from the site of the mole.
On appeal from summary judgment in favor of the defendant
physician, the plaintiff argued that the continuing course
of treatment acted to toll the statute of limitations until
1976. In addressing that argument the court stated:
[A] complete discharge by a physician [does not] forever
[bar] a finding of continuing treatment. Included within
the scope of “continuous treatment” is a timely return
visit instigated by the patient to complain and seek
treatment for a matter related to initial treatment. Thus,
there will be continuing treatment when a patient,
instructed that he or she does not need further attention,
soon returns to a doctor because of continued pain in that
area for which medical attention was first sought.
Id. at 1111 (emphasis added). The rule that has evolved in
New York is that when a physician tells a patient there is
nothing more to be done for a particular injury, and the
patient returns to that doctor for other reasons, but also
complains about the earlier injury, as long as there is an
ongoing relationship with the physician, the physician’s
non-treatment is sufficient to toll the statute of
limitations.
In Shumway v. DeLaus, 152 A.D.2d 951, 543 N.Y.S.2d 777
(1989), motion for leave to appeal dismissed 75 N.Y.2d 946,
555 N.Y.S.2d 693, 554 N.E.2d 1281 (1990), the Appellate
Division of the Supreme Court of New York, Fourth
Department, refused to hold that a 2 1/2 year gap in
treatment, the length of the medical malpractice
limitations period in New York, barred the continuing
course of treatment doctrine as a matter of law. Instead of
adopting a rigid approach, it articulated the following
standard:
[W]e adhere to the principal that “where the physician
and patient reasonably intend the patient’s uninterrupted
reliance on the physician’s observation, directions,
concern, and responsibility for overseeing the patient’s
progress, the requirement of continuous treatment for the
purpose of the Statute of Limitations is certainly
satisfied.”
Id. (quoting Richardson v. Orenteich, 64 N.Y.2d 896, 487
N.Y.S.2d 731, 477 N.E.2d 210 (1985).
Between 1982 and 1986, Fabio saw Bellomo approximately 60
times for various ailments. She saw no other doctor during
that time. She did not complain of continuing pain in the
area where Bellomo made the misdiagnosis, but the malignant
tumor, which Bellomo determined to be a fibrous Page 767
mass, was nevertheless brought to his attention by his own
examination. Surely, the only reason for requiring a patient
to complain about the area previously misdiagnosed is to
bring it to the attention of the physician. The key inquiry
must be whether the physician was put on notice, through
the actions of her patient or herself, that an abnormal
condition existed. Dr. Bellomo certainly possessed such
knowledge.
A physician’s diagnosis that nothing further is necessary
does not end “treatment” if the physician is subsequently
given notice within a reasonable time that the initial
diagnosis was wrong. Treatment by omission can toll the
statute of limitations if the subsequent misdiagnosis
occurred within a reasonable time after the initial
diagnosis, and there was a continuing relationship between
the physician and the patient.
I respectfully dissent from the majority opinion on the
issue of whether a continuing course of treatment existed,
so as to toll running of the statute of limitations until
1986.
[fn1] This is the so-called “discovery rule.” Historically
it has been used in cases involving fraud, mistake and
breach of fiduciary duty. Developments — Statute of
Limitations, 63 Harv.L.Rev. 1177, 1221-22 (1950).
[fn2] The other exceptions in the medical malpractice
context are the discovery rule, which tolls the limitations
period until a patient discovered or should have discovered
the injury; the fraudulent concealment exception, which
tolls the statute until the condition was discovered or
should have been discovered when a physician attempts to
conceal his or her negligence, and the foreign object
exception, which tolls the statute when a foreign object is
found inside the body of a patient. Of these three,
Minnesota recognizes only fraudulent concealment as a means
of tolling the two-year statute of limitations. Schmucking
v. Mayo, 183 Minn. 37, 235 N.W. 633 (1931); Couillard v.
Charles T. Miller Hospital, Inc., 253 Minn. 418, 92 N.W.2d
96 (1958). This court has never considered whether the
statute should be tolled when a foreign object is
discovered and it has explicitly declined to adopt the
discovery rule. Johnson v. Winthrop Laboratories Division
of Sterling Drug, Inc., 291 Minn. 145, 190 N.W.2d 77
(1971). As of early 1993, 41 states had adopted the
discovery rule in some fashion for medical malpractice
cases. Annotation, When Statute of Limitations Commences to
Run Against Malpractice Action Against Physician, Surgeon,
Dentist, or Similar Practitioner, 80 A.L.R.2d 368, 387
(1961), 79-80 A.L.R.2d (later case service) at 293 (1990 &
Supp. 1993).
[fn3] This rationale is well articulated in McDermott v.
Torre, 56 N.Y.2d 399, 452 N.Y.S.2d 351, 355, 437 N.E.2d
1108, 1112 (N Y 1982):
The policy underlying the continuous treatment doctrine
seeks to maintain the physician-patient relationship in the
belief that the most efficacious medical care will be
obtained when the attending physician remains on the case
from onset to cure. Implicit in the policy is the
recognition that the doctor not only is in a position to
identify and correct his or her malpractice, but is best
placed to do so. [citation omitted].
[fn4] This rationale was given in support of the rule by
this court in Swang v. Hauser, 288 Minn. 306, 309, 180
N.W.2d 187, 189-90 (1970):
The 2-year statute of limitations for medical malpractice
ordinarily does not commence to run until the termination
of the treatment for which the physician is retained. A
practical reason for this general rule is that; the
actionable treatment does not ordinarily consist of a
single act, or even if it does, it is most difficult to
determine the precise time of its occurrence. A policy
reason is that the patient must repose reliance upon his
physician in the completion of the course of curative
treatment, a relationship of trust which inhibits the
patient’s ability to discover acts of omission or
commission constituting malpractice.
(Emphasis added) (citations omitted).
WAHL, Justice (dissenting).
I join in the dissent of Justice Gardebring.
PAGE, Justice (dissenting).
I join in the dissent of Justice Gardebring.