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2016 S.D. 33

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

BARRY THOMAS PITT-HART, MD, Plaintiff and Appellant,

v.

SANFORD USD MEDICAL CENTER, Defendant and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE DOUGLAS E. HOFFMAN

Judge

* * * *

N. DEAN NASSER, JR.

JAMES M. NASSER of

Nasser Law Offices, PC

Sioux Falls, South Dakota Attorneys for plaintiff and 

appellant.

MELISSA C. HINTON of

Evans, Haigh & Hinton, LLP

Sioux Falls, South Dakota Attorneys for defendant and 

appellee.

* * * *

CONSIDERED ON BRIEFS

ON MARCH 21, 2016

OPINION FILED 04/13/16
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GILBERTSON, Chief Justice

[¶1.] Barry Thomas Pitt-Hart appeals the circuit court’s order granting 

summary judgment to defendant Sanford USD Medical Center. Pitt-Hart argues 

that he commenced his action within the three-year statute of limitations applicable 

to general-negligence actions and that the court erred by determining his action was 

time barred. He also argues that even if a shorter statute of limitations applies, it 

should have been tolled. We affirm.

Facts and Procedural History

[¶2.] On November 10, 2009, Pitt-Hart underwent a knee-replacement 

surgery at Sanford. The day after surgery, while Pitt-Hart was still hospitalized at 

Sanford, he asked for assistance to get out of bed and travel to and from the 

restroom adjoining his hospital room. Mark Nygard, a patient-care technician 

employed by Sanford, assisted Pitt-Hart. While Nygard attempted to help Pitt-Hart 

return to his bed, Pitt-Hart fell. Pitt-Hart was discharged on November 13, 2009.

[¶3.] After being discharged, Pitt-Hart began inpatient rehabilitation at 

Avera Prince of Peace in Sioux Falls. Following that, Pitt-Hart underwent 

outpatient physical therapy at Prairie Rehabilitation until February 1, 2010. 

Neither Avera Prince of Peace nor Prairie Rehabilitation is affiliated with Sanford. 

In June 2010, Sanford agreed to provide outpatient physical therapy to Pitt-Hart at 

no charge because Medicare would not cover additional treatments at Prairie 

Rehabilitation. Pitt-Hart’s outpatient therapy with Sanford concluded on 

September 14, 2010. 
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[¶4.] Two years later, in September 2012, Pitt-Hart sought additional 

physical therapy for what he asserts were the continuing effects of the injury 

resulting from his fall. Sanford declined to pay for additional treatment, and PittHart commenced this action on September 14, 2012, by delivering a summons and 

complaint to the Minnehaha County Sheriff for service on Sanford. Sanford 

answered the complaint on October 5, 2012. Sanford later filed a motion for 

summary judgment, asserting that Pitt-Hart’s action was time barred under 

SDCL 15-2-14.11 as a medical-malpractice claim. The circuit court agreed and 

granted Sanford’s motion for summary judgment.

[¶5.] Pitt-Hart appeals, raising the following issue: Whether Pitt-Hart’s 

action was time barred by SDCL 15-2-14.1.

Standard of Review

[¶6.] “In reviewing a grant or a denial of summary judgment under 

SDCL 15-6-56(c), we must determine whether the moving party demonstrated the 

absence of any genuine issue of material fact and showed entitlement to judgment 

on the merits as a matter of law.” Gades v. Meyer Modernizing Co., 2015 S.D. 42, 

¶ 7, 865 N.W.2d 155, 157-58 (quoting Peters v. Great W. Bank, Inc., 2015 S.D. 4, ¶ 5, 

859 N.W.2d 618, 621). “We view the evidence ‘most favorably to the nonmoving 

 

1. SDCL 15-2-14.1 states, in part:

An action against a physician, surgeon, dentist, hospital, 

sanitarium, registered nurse, licensed practical nurse, 

chiropractor, or other practitioner of the healing arts for 

malpractice, error, mistake, or failure to cure, whether based 

upon contract or tort, can be commenced only within two years 

after the alleged malpractice, error, mistake, or failure to cure 

shall have occurred . . . .
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party and resolve reasonable doubts against the moving party.’” Id. ¶ 7, 

865 N.W.2d at 158 (quoting Peters, 2015 S.D. 4, ¶ 5, 859 N.W.2d at 621). 

[¶7.] “Statutory interpretation is a question of law reviewed de novo.” 

Wheeler v. Cinna Bakers LLC, 2015 S.D. 25, ¶ 4, 864 N.W.2d 17, 19. 

Analysis and Decision

[¶8.] Pitt-Hart argues that summary judgment was inappropriate for a 

number of reasons. First, he contends that the circuit court erred by treating his 

case as a direct-liability case instead of a vicarious-liability case. According to PittHart, the circuit court should have treated his action as if it were brought against 

Nygard for purposes of determining whether the action was time barred by 

SDCL 15-2-14.1. Pitt-Hart also contends that even if SDCL 15-2-14.1 applies, the 

running of its two-year period was tolled because of Sanford’s alleged, inequitable 

conduct. Finally, Pitt-Hart contends that the two-year period was tolled under the 

continuous-treatment rule because he continued to receive treatment until 

September 14, 2010.

[¶9.] Pitt-Hart first argues that SDCL 15-2-14.1 does not apply to this 

action. Pitt-Hart contends that “[s]uing only the master does not turn a respondent 

superior claim into a direct liability claim for statute of limitations purposes.” 

Because Pitt-Hart concludes that SDCL 15-2-14.1 does not apply to Nygard, PittHart also concludes that it does not apply to Sanford in this case. According to PittHart, “[a]lthough a hospital is vicariously liable for the torts of its ministerial 

employees committed within the scope of employment, the ministerial tortious acts 

of the employees do not become the torts of the hospital.” Therefore, Pitt-Hart 
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concludes that SDCL 15-2-14.1 bars claims only for malpractice directly performed 

by those persons listed in that statute. In essence, Pitt-Hart asks us to replace the 

word against in SDCL 15-2-14.1 and to read that statute to address only “an action 

[based on an injury caused by (rather than against)] a physician, surgeon, dentist, 

hospital, sanitarium, registered nurse, licensed practical nurse, chiropractor, or 

other practitioner of the healing arts.”

[¶10.] Pitt-Hart’s argument that SDCL 15-2-14.1 applies to “direct” claims 

but not vicarious claims is untenable, and we decline his invitation to insert 

language into SDCL 15-2-14.1. “When interpreting a statute, we ‘begin with the 

plain language and structure of the statute.’” Magellan Pipeline Co., LP v. S.D. 

Dep’t of Revenue & Reg., 2013 S.D. 68, ¶ 9, 837 N.W.2d 402, 404 (quoting In re 

Pooled Advocate Tr., 2012 S.D. 24, ¶ 32, 813 N.W.2d 130, 141). “Words used [in the 

South Dakota Codified Laws] are to be understood in their ordinary sense . . . .” 

SDCL 2-14-1. SDCL 15-2-14.1 applies simply to an action. An action is “[a] civil or 

criminal judicial proceeding.” Black’s Law Dictionary 35 (10th ed. 2014). The only 

qualifiers on the type of action contemplated by SDCL 15-2-14.1 are the type of 

defendant sued (i.e., “a physician, surgeon, dentist, hospital, sanitarium, registered 

nurse, licensed practical nurse, chiropractor, or other practitioner of the healing 

arts”) and the type of conduct alleged (i.e., “malpractice, error, mistake, or failure to 

cure”). SDCL 15-2-14.1. Thus, according to its plain language, SDCL 15-2-14.1

broadly applies to any action meeting these criteria.2 While direct and vicarious 

 

2. Pitt-Hart contends that “[i]f the Legislature intended SDCL 15-2-14.1 to 

include vicarious liability, it could have easily said so[.]” SDCL 15-2-14.1 is 

(continued . . .)
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theories of liability are distinct legal concepts, SDCL 15-2-14.1 makes no distinction 

between the two, nor does it appear that this Court has ever recognized such a 

distinction.

[¶11.] The question then becomes simply whether SDCL 15-2-14.1 applies to 

Pitt-Hart’s action against Sanford. First, we must determine whether the type of 

defendant in this case is among those enumerated in SDCL 15-2-14.1. Although 

Pitt-Hart contends that the statute is inapplicable because Nygard is not a 

practitioner of the healing arts, our past cases establish that in vicarious-liability 

cases, the employee’s negligence is treated as the employer’s negligence. See Lewis 

v. Sanford Med. Ctr., 2013 S.D. 80, ¶ 1, 840 N.W.2d 662, 663; Burgard v. 

Benedictine Living Cmtys., 2004 S.D. 58, ¶¶ 1-3, 680 N.W.2d 296, 297-98. More 

importantly, Sanford—not Nygard—is the named defendant in this case. There is 

no dispute that Sanford is a hospital. Therefore, under the plain language of 

SDCL 15-2-14.1, the defendant in this action is of a type enumerated by that 

statute.

[¶12.] Next, we must also determine whether the conduct alleged is of a type 

contemplated by SDCL 15-2-14.1. Pitt-Hart cites several cases holding that certain 

conduct of hospital employees does not fall within the ambit of medical malpractice. 

See Moore v. Louis Smith Mem’l Hosp., Inc., 454 S.E.2d 190, 191 (Ga. Ct. App. 1995)

________________________

(. . . continued)

worded inclusively—it broadly applies to an action. This inclusive statement 

is explicitly limited in only two ways. When the Legislature uses inclusive 

language indicating a broad range of conduct, it is not required to anticipate 

and individually address each subdivision of that conduct a party might 

imagine. Thus, the better view is that if the Legislature intended SDCL 15-

2-14.1 to exclude vicarious liability, it could have easily said so.
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(nursing-home resident fell while nursing assistant attempted to help the resident 

move from her wheelchair to her bed); Brown v. Durden, 393 S.E.2d 450, 451 (Ga. 

Ct. App. 1990) (patient suffering from seizures fell off examination table at doctor’s 

office); Candler Gen. Hosp., Inc. v. McNorrill, 354 S.E.2d 872, 873 (Ga. Ct. App. 

1987) (hospital patient fell while orderly attempted to remove patient from a 

stretcher); Landes v. Women’s Christian Ass’n, 504 N.W.2d 139, 140 (Iowa Ct. App. 

1993) (hospital patient fell in restroom after staff failed to accompany him); Papa v. 

Brunswick Gen. Hosp., 517 N.Y.S.2d 762, 763 (N.Y. App. Div. 1987) (hospital 

patient fell out of bed); Coursen v. N.Y. Hosp.–Cornell Med. Ctr., 499 N.Y.S.2d 52, 

53 (N.Y. App. Div. 1986) (hospital patient fainted in restroom, unattended by 

nurse’s aide); Toledo v. Mercy Hosp. of Buffalo, 994 N.Y.S.2d 298, 299 (N.Y. Sup. Ct. 

2014) (hospital patient slipped on urine while walking to restroom); Dawkins v. 

Union Hosp. Dist., 758 S.E.2d 501, 502 (S.C. 2014) (emergency-room patient fell in 

hospital restroom after staff failed to accompany her); Peete v. Shelby Cty. Health 

Care Corp., 938 S.W.2d 693, 694 (Tenn. Ct. App. 1996) (hospital patient injured 

after hospital technician caused an orthopedic suspension bar to fall on her); 

Franklin v. Collins Chapel Connectional Hosp., 696 S.W.2d 16, 17 (Tenn. Ct. App. 

1985) (nursing-home resident suffered burns after orderly placed him in a hot bath). 

[¶13.] The majority of the foregoing authorities do not discuss the distinction 

between malpractice and negligence in the context of timing requirements for filing 

an action; instead, they address the question whether expert testimony is required 

in cases where a medical professional is negligent in some ordinary way. More 

importantly, each of the foregoing cases discusses only what constitutes 
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malpractice. In contrast, SDCL 15-2-14.1 applies to “[a]n action . . . for malpractice, 

error, mistake, or failure to cure[.]” SDCL 15-2-14.1 (emphasis added). This is true 

regardless of “whether [the action is] based upon contract or tort[.]” Id. (emphasis 

added). “[W]e assume that the Legislature intended that no part of its statutory 

scheme be rendered mere surplusage . . . .” Peters, 2015 S.D. 4, ¶ 8, 859 N.W.2d 

at 622 (quoting Faircloth v. Raven Indus., Inc., 2000 S.D. 158, ¶ 6, 620 N.W.2d 198, 

201). Therefore, the phrase malpractice, error, mistake, or failure to cure

necessarily has a broader meaning than the term malpractice alone. Even if we 

accept Pitt-Hart’s authorities, then, they offer little guidance on the application of 

SDCL 15-2-14.1 to the facts of this case. 

[¶14.] In determining the meaning of the terms error and mistake, we first 

examine their plain, ordinary meanings. SDCL 2-14-1; Magellan Pipeline Co. 

2013 S.D. 68, ¶ 9, 837 N.W.2d at 404. The term error means: “1. An act, an 

assertion, or a belief that unintentionally deviates from what is correct, right or 

true. 2. The condition of having incorrect or false knowledge. 3. The act or an 

instance of deviating from an accepted code of behavior. 4. A mistake.” The Am. 

Heritage Coll. Dictionary 467 (3d ed. 1997) (emphasis added). The term mistake

means: “1. An error or a fault resulting from defective judgment, deficient 

knowledge, or carelessness. 2. A misconception or misunderstanding.” Id. at 873

(emphasis added). Thus, while SDCL 15-2-14.1 applies to a personal injury 

resulting from medical care (i.e., “[a]n action against a physician . . . for 

malpractice . . . based upon . . . tort”), it also seems to apply to a variety of other 

conduct involving unlicensed hospital personnel, such as a dispute regarding a bill 
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for hospital services (i.e., “[a]n action against a . . . hospital . . . for . . . error . . . 

based upon contract”). 

[¶15.] In light of the broad range of conduct contemplated by SDCL 15-2-14.1, 

we conclude it applies to the action in the present case. Assuming for the purpose of 

summary judgment that Nygard dropped Pitt-Hart, such could easily be described 

as either a deviation from an accepted code of behavior (i.e., an error) or as a fault 

resulting from carelessness (i.e., a mistake). This decision does not require us to 

conclude that SDCL 15-2-14.1 applies to all negligence actions against a hospital. 

This is not a case of a nonpatient slipping on an icy sidewalk while walking past a 

hospital; instead, it involves a health-care technician who allegedly dropped a postoperative, knee-replacement patient contrary to standing orders that the patient 

required assistance to get out of bed. In other words, there is a nexus between the 

injury suffered by the plaintiff and the health care he received from the hospital. 

Therefore, Pitt-Hart’s action is one against a hospital for error or mistake based 

upon tort, and SDCL 15-2-14.1 applies.

[¶16.] Next, Pitt-Hart argues that even if SDCL 15-2-14.1 applies in this 

case, his action is not time barred by the statute’s two-year period. He argues:

The Doctrine of Estoppel may be applied to prevent a fraudulent 

or inequitable resort to a statute of limitations. The issue is 

whether the Plaintiff, by inequitable conduct on the part of the 

Defendant (usually fraud or misrepresentation), has been 

induced to alter his position to do that which he would not 

otherwise have done (i.e., refrained from commencing an action 

within the statutory period). 

Pitt-Hart further contends that if his argument is successful, the effect is that 

SDCL 15-2-14.1’s two-year period is tolled. This argument conflates principles of 

fraud, estoppel, and tolling. Additionally, both Pitt-Hart’s and Sanford’s references 
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to SDCL 15-2-14.1 as a “statute of limitation” require us to first address the nature 

of the two-year period defined in that statute. 

[¶17.] In Peterson ex rel. Peterson v. Burns, 2001 S.D. 126, ¶ 43, 635 N.W.2d 

556, 571, we explicitly held that SDCL 15-2-14.1 is a statute of repose and not a 

statute of limitation. Only two paragraphs later in the same decision, however, we 

reverted to referring to SDCL 15-2-14.1 as a statute of limitation. Peterson, 

2001 S.D. 126, ¶ 45, 635 N.W.2d at 571. This inconsistency has persisted in almost 

all of our decisions involving SDCL 15-2-14.1. See, e.g., Lewis, 2013 S.D. 80, ¶ 25, 

840 N.W.2d at 668 (referring to SDCL 15-2-14.1’s two-year period as a “limitations 

period”). Yet, we have previously recognized that “the differences between statutes 

of limitations and statutes of repose are substantive, not merely semantic.” Clark 

Cty. v. Sioux Equip. Corp., 2008 S.D. 60, ¶ 24, 753 N.W.2d 406, 415 (quoting 

Burlington N. & Santa Fe Ry. Co. v. Poole Chem. Co., 419 F.3d 355, 362 (5th Cir. 

2005)). Thus, we take this opportunity to reexamine and clarify the operation of 

SDCL 15-2-14.1. 

[¶18.] There can be little doubt that Peterson correctly held that SDCL 15-2-

14.1 is properly considered a statute of repose and not one of limitation. “[A] 

statute of limitations creates ‘a time limit for suing in a civil case, based on the date 

when the claim accrued.’” CTS Corp. v. Waldburger, ___ U.S. ___, ___, 134 S. Ct. 

2175, 2182, 189 L. Ed. 2d 62 (2014) (quoting Black’s Law Dictionary 1546 (9th ed. 

2009)); Peterson, 2001 S.D. 126, ¶ 41, 635 N.W.2d at 570. “A statute of repose, on 

the other hand, . . . is measured not from the date on which the claim accrues but 

instead from the date of the last culpable act or omission of the defendant.” CTS 
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Corp., ___ U.S. at ___, 134 S. Ct. at 2182. The two-year period expressed in 

SDCL 15-2-14.1 does not begin when a cause of action accrues; it begins when the 

“alleged malpractice, error, mistake, or failure to cure shall have occurred[.]” 

SDCL 15-2-14.1. Therefore, as we held in Peterson, the two-year period expressed 

in SDCL 15-2-14.1 is a period of repose. Compare SDCL 15-2-14.1 (“An action . . . 

can be commenced only within two years after the alleged malpractice, error, 

mistake, or failure to cure shall have occurred . . . .”), with SDCL 15-2-14(3) (“[An 

action for personal injury] can be commenced only within three years after the 

cause of action shall have accrued . . . .”).

[¶19.] This conclusion is reinforced by our treatment of SDCL 15-2-14.1. 

Even while incorrectly referring to SDCL 15-2-14.1 as a statute of limitation, we 

have preserved its function as a statute of repose in one important way. “We have 

consistently held that [SDCL 15-2-14.1] is an occurrence rule, which begins to run 

when the alleged negligent act occurs, not when it is discovered.” Beckel v. Gerber, 

1998 S.D. 48, ¶ 9, 578 N.W.2d 574, 576. The reason SDCL 15-2-14.1 is an 

occurrence rule, however, is simply because it is a statute of repose, which by 

definition begins running upon the occurrence of a specified event rather than the 

discovery of a cause of action. 

[¶20.] While concluding that SDCL 15-2-14.1 is a statute of repose rather 

than a statute of limitation does not change the basic question of determining when 

the two-year period has expired in any given action, there are important differences 

in the subsequent analysis. For the present action, the “critical distinction is that a 

repose period is fixed and its expiration will not be delayed by estoppel or tolling[.]” 
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CTS Corp., ___ U.S. at ___, 134 S. Ct. at 2183 (emphasis added). Likewise, 

fraudulent concealment does not toll a period of repose. First United Methodist 

Church of Hyattsville v. U.S. Gypsum Co., 882 F.2d 862, 866 (4th Cir. 1989), cert. 

denied, 493 U.S. 1070, 110 S. Ct. 1113, 107 L. Ed. 2d 1020 (1990). “[A]fter the 

legislatively determined period of time, . . . liability will no longer exist and will not 

be tolled for any reason.” 54 C.J.S. Limitations of Actions § 7 (2015) (emphasis 

added).

[¶21.] The reason for this critical distinction lies in the different policy 

objectives underlying both types of statutes. “Statutes of limitations require 

plaintiffs to pursue ‘diligent prosecution of known claims.’” CTS Corp., ___ U.S. 

at ___, 134 S. Ct. at 2183 (quoting Black’s Law Dictionary 1546 (9th ed. 2009)). 

“[W]hen an ‘extraordinary circumstance prevents [a plaintiff] from bringing a timely 

action,’ the restriction imposed by the statute of limitations does not further the 

statute’s purpose.” Id. (quoting Lozano v. Montoya Alvarez, ___ U.S. ___, ___, 

134 S. Ct. 1224, 1231-32, 188 L. Ed. 2d 200 (2014)). In contrast, “[s]tatutes of 

repose effect a legislative judgment that a defendant should ‘be free from liability 

after the legislatively determined period of time.’” Id. (quoting 54 C.J.S. 

Limitations of Actions § 7 (2010)). “[They] are based on considerations of the 

economic best interests of the public as a whole and are substantive grants of 

immunity based on a legislative balance of the respective rights of potential 

plaintiffs and defendants struck by determining a time limit beyond which liability 

no longer exists.” First United Methodist Church, 882 F.2d at 866. Thus, while 

tolling a period of limitation or estopping a party from asserting it as a defense may 
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be proper, tolling a period of repose or estopping a party from raising it as a defense 

subverts this legislative objective. Therefore, principles of estoppel and tolling are 

inapplicable to a period of repose.

[¶22.] In Anson v. Star Brite Inn Motel, 2010 S.D. 73, 788 N.W.2d 822, 

although we stopped short of recognizing that SDCL 15-2-14.1 has been incorrectly 

treated as a statute of limitation, we touched on the problem of applying tolling 

principles to it. We recognized that “a very compelling argument can be made that 

equitable tolling cannot be recognized as a legal doctrine in South Dakota.” Id. ¶ 15 

n.2, 788 N.W.2d at 825 n.2. This recognition was based on the absolute language of 

the statute, which identifies it as a statute of repose. SDCL 15-2-14.1 (“An 

action . . . can be commenced only within two years after the alleged [actionable 

conduct] shall have occurred . . . .” (emphasis added)); CTS Corp., ___ U.S. at ___, 

134 S. Ct. at 2183; Peterson, 2001 S.D. 126, ¶ 41, 635 N.W.2d at 570. Our hesitancy 

to apply equitable tolling in Anson is easily explained as an unrealized recognition 

that SDCL 15-2-14.1 is a statute of repose and that, therefore, it is not subject to 

tolling. CTS Corp., ___ U.S. at ___, 134 S. Ct. at 2183; First United Methodist 

Church, 882 F.2d at 866.

[¶23.] Finally, Pitt-Hart argues that even if the two-year period of repose 

applies, his action is timely under the continuous-treatment rule. This Court, as 

well as other jurisdictions, has recognized two different versions of the continuoustreatment rule. Under one version, the limitation period on an accrued cause of 

action may be tolled when a “medical practitioner . . . continue[s] ‘to treat the 

patient for the particular disease or condition created by the original act of alleged
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negligence.’” Lewis, 2013 S.D. 80, ¶ 23, 840 N.W.2d at 667 (emphasis added) 

(quoting Liffengren v. Bendt, 2000 S.D. 91, ¶ 17, 612 N.W.2d 629, 633). This rule 

applies only when the plaintiff receives “continuous treatment . . . by the same

physician or clinic.” Liffengren, 2000 S.D. 91, ¶ 17, 612 N.W.2d at 633. The 

rationale behind this rule is “to prevent the refusal to seek or administer health 

care due to pending litigation when treatment may be desperately needed.” Bosse v. 

Quam, 537 N.W.2d 8, 10 (S.D. 1995); see also Wells v. Billars, 391 N.W.2d 668, 672 

n.1 (S.D. 1986). It also affords a medical provider “the opportunity to correct the 

error before harm ensues.” Wells, 391 N.W.2d at 672 n.1 (quoting 1 David W. 

Louisell & Harold Williams, Medical Malpractice § 13.08 (1981)).

[¶24.] Pitt-Hart’s action is not saved by the foregoing rule. The arguments 

against applying equitable tolling, estoppel, and fraudulent concealment to a period 

of repose apply with equal force to the tolling that would result from application of 

the continuous-treatment rule. See CTS Corp., ___ U.S. at ___, 134 S. Ct. at 2183; 

First United Methodist Church, 882 F.2d at 866; 54 C.J.S. Limitations of Actions § 7 

(2015). Thus, while the rule applies to a period of limitation, it does not apply to a 

period of repose like SDCL 15-2-14.1. Even if the rule did apply, it is undisputed 

that Pitt-Hart received treatment from two providers unaffiliated with Sanford—let 

alone the same physician or clinic—after his discharge from Sanford on November 

13, 2009. Therefore, the continuous-treatment rule cannot toll SDCL 15-2-14.1’s

two-year period of repose, nor should it under the facts of this case. 

[¶25.] The second version of the continuous-treatment rule is simply a 

mislabeled application of the continuing-tort doctrine. “Generally, when a tort 
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involves a continuing injury, the cause of action accrues and the statute of 

limitations commences when the wrong terminates.” Alberts v. Giebink, 

299 N.W.2d 454, 456 (S.D. 1980). In the context of medical malpractice, this 

doctrine applies when harm is the cumulative effect of several treatments rather 

than the result of a single act. Wells, 391 N.W.2d at 672 n.1. However, the doctrine 

does not apply when “a patient is able to identify the specific negligent treatment 

that caused [his or her] injury[.]” Roberts v. Francis, 128 F.3d 647, 651 (8th Cir. 

1997); Wells, 391 N.W.2d at 672 n.1; 70 C.J.S. Physicians & Surgeons § 141 (2015). 

[¶26.] While the continuous-treatment rule does not apply to a statute of 

repose, the continuing-tort doctrine does. “When the cumulative result[] of 

continued negligence is the cause of the injury, the statute of repose cannot start to 

run until the last date of negligent treatment.” Cunningham v. Huffman, 

609 N.E.2d 321, 325 (Ill. 1993); Wells, 391 N.W.2d at 672 n.1. This is true because 

the repose period “is measured . . . from the date of the last culpable act or omission 

of the defendant.” CTS Corp., ___ U.S. at ___, 134 S. Ct. at 2182. Thus, although a 

period of repose will not be tolled for any reason once commenced, id. at ___,

134 S. Ct. at 2183, such a period may be delayed from commencing if a plaintiff 

“demonstrate[s]: (1) that there was a continuous and unbroken course of negligent 

treatment, and (2) that the treatment was so related as to constitute one continuing 

wrong.” Cunningham, 609 N.E.2d at 325. Pitt-Hart does not allege his injury 

resulted from a continuous and unbroken course of negligent conduct; rather, PittHart’s complaint alleges his injury was caused solely by being dropped. Because 

Pitt-Hart’s injury resulted from a single, identifiable act and not from a continuing 
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course of negligent treatment, the tort alleged was complete on November 11, 2009. 

Therefore, Pitt-Hart’s action became time barred by SDCL 15-2-14.1 nearly one 

year before he commenced this action.

Conclusion

[¶27.] Pitt-Hart’s action against Sanford is one for error or mistake. 

Therefore, SDCL 15-2-14.1’s two-year period of repose applies. Today we correct the 

past practice of referring to SDCL 15-2-14.1 as a statute of limitation in 

contravention of its status as a statute of repose. See CTS Corp., ___ U.S. at ___, 

134 S. Ct. at 2182; Peterson, 2001 S.D. 126, ¶ 41, 635 N.W.2d at 570. However, the 

analysis of our previous malpractice cases remains largely undisturbed. Legal 

concepts such as fraudulent concealment, estoppel, and equitable tolling are still 

applicable to statutes of limitation, and the continuing-tort doctrine is applicable to 

both statutes of limitation and repose.3 Even so, the Legislature’s creation of a twoyear period of repose in SDCL 15-2-14.1 essentially renders such tolling moot for 

any limitation period of two years or longer. As we said in Peterson: “The policy of 

the Legislature is clearly to make SDCL 15-2-14.1 a statute of repose. . . . If the 

 

3. In this case, it appears that the applicable statute of limitation is SDCL 15-2-

14(3), which states that an action for a personal injury “can be commenced 

only within three years after the cause of action shall have accrued[.]” 

Because we reaffirm that SDCL 15-2-14.1 is a statute of repose, there is no 

conflict between it and SDCL 15-2-14(3). However, SDCL 15-2-14.1 would 

control even if it was a statute of limitation. “A rule of statutory construction 

is that the more specific statute governs the more general statute.” Peterson,

2001 S.D. 126, ¶ 28, 635 N.W.2d at 567. “Another rule of statutory 

construction is that the more recent statute [supersedes] the older statute.” 

Id. ¶ 29, 635 N.W.2d at 567. Because SDCL 15-2-14.1 is both more specific 

and more recently modified than SDCL 15-2-14(3), SDCL 15-2-14.1’s twoyear period would apply to Pitt-Hart’s action even if SDCL 15-2-14.1 was a 

statute of limitation.
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policy is to be changed, the Legislature, not this Court, should make the change.” 

2001 S.D. 126, ¶ 43, 635 N.W.2d at 571.

[¶28.] We affirm.

[¶29.] ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.