No. 87-511

INTHE SUPREME COURTOF THE STATE OF MONTANA
1988

HELENMAJOR, Individuallyand as PersonalRepresentative of the Estate of JUDITHM. EAYRS, and as Guardianand Conservator of theEstate of HALLIEJEAN EAYRS, aminor,JULIE SINA JOHNSONAND LEIGH JOHNSON, Plaintiffsand Appellants,-vsNORTH VALLEY HOSPITAL and DELB. COOLIDGE,M.D., Defendantsand Respondents.

APPEAL FROM: District Court of the Eleventh JudicialDistrict, Inand for the County of Flathead, TheHonorable RobertHolter,Judgepresiding.

COUNSELOF RECORD:

ForAppellant: Richard A. Reep; Datsopoulos,MacDonald & Lind, Missoula, Montana

For Respondent: StephenC. Berg; Warden, Christiansen, Johnson & Berg, Kalispell,Montana I. JamesHeckathorn;Murphy,Robinson, Heckathorn & Phillips, Kalispell,Montana

Submitted onBriefs: May 12, 1988 Decided: July 15, 1988 Filed: 

### m1151988'

ClerkMr. Justice R. C. McDonough delivered the Opinion of the Court.

Plaintiff Helen Major, individually and as Personal Representative of the Estate of JudithM. 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 inMaking Findings of Factupon Defendants' Motion for SummaryJudgment." 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 JudithEayrs." The facts canbe 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 informpersonnel 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 NorthValley Hospital. Upon arriving at the hospital emergency room,appellant learned that the nurse on duty had not yet contacted Judy'sdoctor, Dr. Ricker. The nurse logged a call to Dr. Ricker's clinic at 8:38 a.m. relayingJudy's complaintthat her throat felt like itwas 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 examinedby Dr. Coolidge,Judywas taken for chest X-rays and admitted to the general ward. At approximately 10:20 a.m., she lunged fromher 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 medicalmalpractice 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 anApplication 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 thepassing ofmore than threeyearsbetween 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 caseauthority from this Court that summary judgment is not tobe utilized as a substitute for trial of factual controversies. Appellant is correct that summary judgment is not a vehicle fordeciding factual issues. However, shehas 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 therebe no issue of material fact in order for summary judgment to issue. Inclusion of findingsof 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,andwe decline todo 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 forher argument. However, while the court's summary judgment order will operate to remove appellant from this action individuallyand aspersonal representative ofher 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 inher capacityasguardian. The most relevant basis for appellant's argument is the "law of the case" doctrine,which states that once an issuehas been judicially determined, that decision should put the issue to rest for the remainderof the case. Statev. Carden (1976),170Mont. 436,555 P.2d 738. However,the law of the

case doctrine does not apply when a separate issue is involved. InB.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 Courthad 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 themerits. The statute of limitations issue will be settled by the DistrictCourt'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-ngto prove the +actsofher case. Issue 11. Appellant asserts that the District Court erred in granting summary judgmenton the basis of the running of the statute of limitations. She again advances two arguments. First,sheargues that the statute did notbegin to rununtil she discovered the legal cause of her daughter's death. Second, she asserts that the statute was tolled by acts,

errorsor omissionsof the defendants. Under our interpretation of Rule 56,M.R.Civ.P., summary judgment isproperly 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 matterof 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 formedicalmalpractice 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 theplaintiff 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 therehas 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 tohim. 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 statuteof limitationsuntil 30 days after the panel renders its decision. Section 27-6-702, MCA. However,threeyears and 27 days elapsed between Judy's death and the filing of the application. The District Court found that the statutehad 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 factsproviding 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,givingher the opportunity tohave the records reviewed by an expert. We disagree. Appellant notes that this Court has not yet construed 5 27-2-205,MCA, and citesBennettv. DowChemicalCo., 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 [theparty] discovers the facts or learns of his rights under those facts." Bennett, 713 P.2d at 994. However,we also noted that in caseswhere the plaintiffwas prevented from knowing of his injuryby concealment or other circumstances, certainrecognized exceptionswould 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 representedby 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 tounderstand the causal relationship between an injury and the alleged wrongful act will not resuscitate a claim on which the statute of limitationshas 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 statutewas 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, appellantwas 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),164Mont. 23, 28, 518 P.2d 788, 790, (emphasis supplied). Appellant obviouslywas cognizant of the fact of the injury complained of here on the day her daughter died. As pointed out above,appellantwas also awareof the alleged wrongful acts complained of in this case on that day, and therefore "discovered"her cause of action onMarch 20, 1982.She was not prevented from doing so through acts of concealmentby 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 reviewwas 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 ofmaterial fact existed as to defendants' entitlement to summary judgment. We affirm the order of theDistrictCourt.

We Concur: 

### /

Justices

### Mr. Justice JohnC. Sheehy,dissenting:

I dissent to the interpretationput upon the statutory languageof 5 27-2-205(1), MCA,by themajority. One basis of my dissent is that the majority have changed the tolling language of the statute froma failureto disclose to one of fraudulent concealment of information. That interpretationis a severe limitationon the legislative act, for it constrictsthe tolling statuteto actual fraudby the medical person. Theword "fraud" appears nowhere in the statute. The time for filingan action formalpractice could as wellbe tolled for negligent concealmentas 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 themedical malpractice,or (3) 

### during theperiod 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 claimedmalpractice? When the issue is properly examined, one sees that a question of fact exists as towhen the statute began to run. The District Court,and now themajority, resolved that issuesummarily by holding that on the 

### --- date of death she should reasonably have known that the death was caused or acceleratedby malpractice. 

### Idisagree 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 judgmentby 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 foregoingdissent.