No. 87-511 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

HELEN MAJOR, Individually and as 

Personal Representative of the Estate 

of JUDITH M. EAYRS, and as Guardian and 

Conservator of the Estate of HALLIE JEAN 

EAYRS, a minor, JULIE SINA JOHNSON AND 

LEIGH JOHNSON, 

Plaintiffs and Appellants, 

-vsNORTH VALLEY HOSPITAL and DEL B. COOLIDGE, M.D., 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Robert Holter, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Richard A. Reep; Datsopoulos, MacDonald & Lind, 

Missoula, Montana 

For Respondent: 

Stephen C. Berg; Warden, Christiansen, Johnson & Berg, 

Kalispell, Montana 

I. James Heckathorn; Murphy, Robinson, Heckathorn & 

Phillips, Kalispell, Montana 

Submitted on Briefs: May 12, 1988 

Decided: July 15, 1988 

Filed: m115 1988' 

Clerk 
Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

Plaintiff Helen Major, individually and as Personal 

Representative of the Estate of Judith M. Eayrs, appeals from 

the summary judgment order of the District Court of the 

Eleventh Judicial District, Flathead County, declaring her 

claim barred by the applicable statute of limitations. We 

affirm. 

Appellant presents two issues for review: 

1. "Whether the District Court Erred in Making Findings 

of Fact upon Defendants' Motion for Summary Judgment." 

2. "Whether the District Court Erred in Finding as a 

Matter of Law that the Statute of Limitation Barred the 

Claims of Helen Major, individually and as Personal 

Representative of the Estate of Judith Eayrs." 

The facts can be summarized as follows: At approximately 

7:40 a.m. on March 20, 1982, appellant received a telephone 

call from her daughter, Judith Eayrs (Judy). Judy told 

appellant that she was suffering from an extremely sore 

throat and needed medical attention. Appellant drove to her 

daughter's apartment, and at approximately 8:00 a.m., called 

North Valley Hospital in Whitefish to inform personnel there 

of Judy's condition and imminent arrival. While both 

appellant and her daughter lived in Kalispell, they decided 

it would be best to travel to Whitefish because Judy's 

treating physician and medical records were located there. 

Judy suffered from systemic lupus erythematosis, a disease 

with multiple symptoms including episodes of swelling in the 

throat with attendant breathing difficulty, and had been 

treated several times at North Valley Hospital. 

Upon arriving at the hospital emergency room, appellant 

learned that the nurse on duty had not yet contacted Judy's 
doctor, Dr. Ricker. The nurse logged a call to Dr. Ricker's 

clinic at 8:38 a.m. relaying Judy's complaint that her throat 

felt like it was closing shut. Dr. Ricker was not available 

that day, and the call was taken by his partner, Dr. 

Coolidge. The nurse called Coolidge again at approximately 

9:00 a.m., and he arrived at the emergency room at 

approximately 9:20 a.m. 

After being examined by Dr. Coolidge, Judy was taken for 

chest X-rays and admitted to the general ward. At 

approximately 10:20 a.m., she lunged from her bed toward the 

window and collapsed on the floor of her room. A code blue 

was sounded, but those attending Judy could not revive her, 

and she died of respiratory arrest. 

In May of 1982, appellant sought legal assistance 

concerning a possible medical malpractice action arising out 

of Judy's death. On advice of counsel, she requested access 

to Judy's hospital records in July of 1982, but did not take 

possession of copies of those records until October of 1984. 

On April 17, 1985, appellant filed an Application for Review 

with the Medical-Legal Panel concerning the treatment 

received by Judy. This malpractice action was filed on 

August 9, 1985. The defendants moved for summary judgment 

based on the passing of more than three years between Judy's 

death and the filing of the Application for Review by the 

Medical-Legal Panel. The District Court granted the motion 

and entered its order of summary judgment on December 22, 

1986. The order was certified as a final judgment on July 

27, 1987, in order to facilitate an appeal to this Court. 

Issue I 

Appellant presents essentially two arguments regarding 

the District Court's alleged error in making findings of 

fact. She first contends that the mere presence of findings 

in the court's order was error. Appellant cites case 
authority from this Court that summary judgment is not to be 

utilized as a substitute for trial of factual controversies. 

Appellant is correct that summary judgment is not a 

vehicle for deciding factual issues. However, she has failed 

to offer any authority for her assertion that including 

findings of fact in an order granting summary judgment is 

reversible error. As we have previously held, facts simply 

are not decided when summary judgment is granted. Rule 56, 

M.R.Civ.P., requires that there be no issue of material fact 

in order for summary judgment to issue. Inclusion of 

findings of fact in an order of summary judgment is therefore 

unnecessary and redundant. Boise Cascade Corp. v. First 

Security Bank of Anaconda (1979), 183 Mont. 378, 385, 600 

P.2d 173, 178. In Boise, we held that the failure of the 

appellant to assign error to the findings of fact in the 

court's summary judgment order had no effect on the appeal. 

We did not hold the inclusion of the findings to be 

reversible error, and we decline to do so in this case. 

Appellant's second argument is that the District Court 

made findings involving disputed issues of fact, and has 

thereby "precluded the Plaintiff from presenting certain 

proof at the time of trial." Appellant does not cite any 

authority that could give an indication of the basis for her 

argument. However, while the court's summary judgment order 

will operate to remove appellant from this action 

individually and as personal representative of her daughter's 

estate, she will remain a party as guardian of Hallie Jean 

Eayrs, Judy's minor daughter, and presumably will wish to 

enter factual proof in that capacity. We will therefore 

examine her argument in order to foreclose any doubts as to 

her ability to continue in her capacity as guardian. 

The most relevant basis for appellant's argument is the 

"law of the case" doctrine, which states that once an issue 
has been judicially determined, that decision should put the 

issue to rest for the remainder of the case. State v. Carden 

(1976), 170 Mont. 436, 555 P.2d 738. However, the law of the 

case doctrine does not apply when a separate issue is 

involved. In B.M. by Berger v. State (Mont. 1985), 698 P.2d 

399, 42 St.Rep. 272, we held that the doctrine did not 

preclude a district court from granting summary judgment, 

even though this Court had earlier reversed an order granting 

summary judgment to the same party in the same case. The 

later summary judgment was upheld because it was based on a 

different motion and grounded on different issues. Berger, 

698 P.2d at 401-02. The issue involved in this summary 

judgment is the running of the statute of limitations against 

appellant. The judge did not attempt to reach the merits of 

the malpractice claim. Conversely, the statute of 

limitations will not be an issue at the trial on the merits. 

The statute of limitations issue will be settled by the 

District Court's summary judgment order, but because it is an 

issue separate from the merits of this case, the summary 

judgment order cannot preclude appellant from attempti-ng to 

prove the +acts of her case. 

Issue 11. 

Appellant asserts that the District Court erred in 

granting summary judgment on the basis of the running of the 

statute of limitations. She again advances two arguments. 

First, she argues that the statute did not begin to run until 

she discovered the legal cause of her daughter's death. 

Second, she asserts that the statute was tolled by acts, 

errors or omissions of the defendants. 

Under our interpretation of Rule 56, M.R.Civ.P., summary 

judgment is properly granted if "there is no genuine issue as 

to any fact deemed material in light of the substantive 

principles that entitled the movant to judgment as a matter 
of law. " Flemming v. Flemming Farms, Inc. (Mont. 1986) , 717 

P.2d 1103, 1105-06, 43 St.Rep. 776, 779. The substantive 

principle involved here is the three-year statute of 

limitations for medical malpractice cases: 

Action in tort or contract for injury or death 

against a physician or surgeon, dentist, ... based 

upon alleged professional negligence or for 

rendering professional services without consent or 

for an act, error or omission, shall ... be 

commenced within 3 years after the date of injury 

or 3 years after the plaintiff discovers or through 

the use of reasonable diligence should have 

discovered the injury, whichever occurs last, ... However, this time limitation shall be tolled for 

any period during which there has been a failure to 

disclose any act, error, or omission upon which 

such action is based and which is known to him or 

through the use of reasonable diligence subsequent 

to said act, error, or omission would have been 

known to him. 

Section 27-2-205 (1) , MCA. 

Judy Eayrs died on March 20, 1982. On April 17, 1985, 

appellant filed an Application for Review with the 

Medical-Legal Panel, and initiated this action August 9, 

1985. Normally, filing an application with the panel tolls 

the running of the statute of limitations until 30 days after 

the panel renders its decision. Section 27-6-702, MCA. 

However, three years and 27 days elapsed between Judy's death 

and the filing of the application. The District Court found 

that the statute had run as to appellant, and defendants were 

therefore entitled to summary judgment. 

Appellant first asserts that the court's ruling was 

erroneous under the "discovery doctrine" incorporated in 5 

27-2-205 (1) , MCA, through the words "3 years after the 

plaintiff discovers or through the use of reasonable 

diligence should have discovered the injury". She argues the 

statute did not begin to run until she "discover[edl facts 
providing a causal connection between her daughter's death 

and the acts, errors or omissions of her daughter's health 

care provider." Appellant further argues that because 

Montana law requires expert testimony to prove malpractice, 

this "discovery" did not take place until she came into 

possession of her daughter's medical records in October of 

1984, giving her the opportunity to have the records reviewed 

by an expert. We disagree. 

Appellant notes that this Court has not yet construed 5 

27-2-205, MCA, and cites Bennett v. Dow Chemical Co., et al., 

(Mont. 1986), 713 P.2d 992, 43 St.Rep. 221, for guidance in 

the application of the discovery doctrine. In Bennett we 

stated, "the fact that a party with a cause of action has no 

knowledge of his rights, or even the facts out of which the 

cause arises, does not delay the running of the statute of 

limitations until [the party] discovers the facts or learns 

of his rights under those facts." Bennett, 713 P.2d at 994. 

However, we also noted that in cases where the plaintiff was 

prevented from knowing of his injury by concealment or other 

circumstances, certain recognized exceptions would operate to 

toll the statute of limitations. It is this discussion that 

appellant relies on for her interpretation of the discovery 

doctrine. 

As we said in Bennett, the farthest reaches of the 

discovery doctrine in Montana are represented by the case of 

Hornung v. Richardson-Merrill, Inc. (D.Mont. 1970), 317 

F.Supp. 183. In Hornung, the court tolled the statute of 

limitations in a products liability case until the plaintiff 

discovered that his cataracts may -- have been caused by the 

defendant's drug. Appellant knew that her daughter's death 

may have been caused by medical malpractice on the day she 

died. She testified in deposition that on March 20, 1982, 
she thought Judy did not receive adequate treatment at the 

hospital, describing the events of the day as a "nightmare". 

Furthermore, we have held that failure to understand the 

causal relationship between an injury and the alleged 

wrongful act will not resuscitate a claim on which the 

statute of limitations has run. E.W. v. D.C.H. (Mont. 1988), 

754 P.2d 817, 820, 45 St.Rep. 778, 782-83, citing Mobley v. 

Hall (1983), 202 Mont. 227, 657 P.2d 604. Appellant's 

alleged lack of knowledge of the facts connecting her 

daughter's death to acts of the defendants did not prevent 

her from discovering the injury at issue in this case. 

Appellant also contends that the statute was tolled by 

the acts or omissions of the defendants, which concealed the 

cause of Judy's death. She points to the language in 5 

27-2-205, MCA, providing for such a toll for failure to 

disclose any act, error or omission upon which the action is 

based. According to her brief, appellant was stymied in her 

attempts to gain access to Judy's records, first by the 

failure of Dr. Coolidge to finalize the records and then by 

the refusal of the hospital to allow her access to them. 

The statutory language pointed to by appellant is the 

codification of the doctrine of fraudulent concealment. To 

toll the statute of limitations in a medical malpractice 

case, "It is the cause of action which must be fraudulently 

concealed by failing to disclose --- the fact of injury from 

malpractice, by diverting the patient from discovering the 

malpractice that is the basis of the action." Monroe v. 

Harper (1974), 164 Mont. 23, 28, 518 P.2d 788, 790, (emphasis 

supplied). Appellant obviously was cognizant of the fact of 

the injury complained of here on the day her daughter died. 

As pointed out above, appellant was also aware of the alleged 

wrongful acts complained of in this case on that day, and 

therefore "discovered" her cause of action on March 20, 1982. 
She was not prevented from doing so through acts of 

concealment by defendants. 

The District Court was correct in issuing its order 

granting summary judgment. The cause of action accrued on 

March 20, 1982, and the application for review was not filed 

with the Medical-Legal Panel until April 17, 1985. The 

statute of limitations had run against appellant, and there 

being no basis for tolling the statute, no issue of material 

fact existed as to defendants' entitlement to summary 

judgment. 

We affirm the order of the District Court. 

We Concur: / 

Justices 
Mr. Justice John C. Sheehy, dissenting: 

I dissent to the interpretation put upon the statutory 

language of 5 27-2-205(1), MCA, by the majority. 

One basis of my dissent is that the majority have 

changed the tolling language of the statute from a failure to 

disclose to one of fraudulent concealment of information. 

That interpretation is a severe limitation on the legislative 

act, for it constricts the tolling statute to actual fraud by 

the medical person. The word "fraud" appears nowhere in the 

statute. The time for filing an action for malpractice could 

as well be tolled for negligent concealment as for fraudulent 

or intentional concealment, if the statutes were properly 

construed. 

The second basis of my dissent is that fraudulent 

concealment is not involved in this case. What is involved 

is the issue when the plaintiff, through the use of 

reasonable diligence, could have discovered the claimed 

medical malpractice. The tolling statute, S 27-2-205(1), 

applies solely to malpractice cases. It has three distinct 

features : (1) the statute of limitations for medical 

malpractice is three years, but it is tolled (2) until the 

plaintiff discovers or by reasonable diligence should have 

discovered the medical malpractice, or (3) during the period 

when the medical person has failed to disclose the 

malpractice known to him or by reasonable diligence should 

have been known to him. Here the plaintiff's case falls in 

the second category : when did she discover through 

reasonable diligence the claimed malpractice? 

When the issue is properly examined, one sees that a 

question of fact exists as to when the statute began to run. 

The District Court, and now the majority, resolved that issue 
summarily by holding that on the --- date of death she should 

reasonably have known that the death was caused or 

accelerated by malpractice. I disagree with that conclusion. 

No lay person should be considered to have that degree of 

expertise about the treatment of lupus so as to impute as a 

matter of law knowledge of malpractice in the course of the 

treatment. I don't have that kind of expertise and neither 

does any member of this Court. The time for filing her 

action should be tolled in this case at least for the period 

required by reasonable diligence to find and consult with 

experts about the treatment of the decedent. That is a 

question of fact, not susceptible to summary judgment by any 

court. Undoubtedly the reasonable period would take more 

than 27 days, for which period the plaintiff is here denied 

her day in court. 

I would reverse the summary judgment and remand for 

further proceedings, including determination of the fact 

issue as to the tolling of the limitations statute. 

( 

Justice 

I join in the foregoing dissent.