                                                                                              11/28/2017


                                          DA 17-0075
                                                                                          Case Number: DA 17-0075

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 290



YVONNE WILSON,

              Plaintiff and Appellant,

         v.

RODNEY D. BRANDT, M.D., and FLATHEAD VALLEY
ORTHOPEDIC CENTER, P.C.,

              Defendants and Appellees.



APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause No. DV 15-938C
                        Honorable Heidi Ulbricht, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        James G. Hunt, Hunt Law Firm, Helena, Montana

                For Appellees:

                        Sean Goicoechea, Chris Di Lorenzo, Moore, Cockrell, Goicoechea &
                        Johnson, P.C., Kalispell, Montana



                                                   Submitted on Briefs: October 4, 2017

                                                              Decided: November 28, 2017


Filed:

                        __________________________________________
                                          Clerk
Justice Beth Baker delivered the Opinion of the Court.

¶1      Dr. Rodney D. Brandt performed surgery to repair Yvonne Wilson’s torn ACL in

February 2008. She began to experience new and excruciating knee pain shortly after

surgery. On November 5, 2012, Wilson filed a claim with the District Court asserting

that Dr. Brandt negligently performed surgery on her knee. The District Court granted

summary judgment to Dr. Brandt, holding that Wilson’s claim was filed after the three-

year statute of limitations had run. Wilson appeals, arguing the District Court erred in

concluding as a matter of law that her claims were barred by the applicable statute of

limitations. We reverse.

                  PROCEDURAL AND FACTUAL BACKGROUND

¶2      On October 30, 2007, Wilson twisted her left knee while removing a pool cover at

work.    An MRI showed a medial meniscus tear of her left knee.            Dr. Brandt, an

orthopedic surgeon at Flathead Valley Orthopedic Center, P.C. (FVOC), performed a

medial meniscus resection on December 13, 2007, to repair the tear. During surgery, Dr.

Brandt discovered that Wilson’s ACL was partially torn, but did not repair the tear,

noting that the chance of needing additional surgery was less than 50 percent. Wilson’s

symptoms of knee instability and buckling continued, however, and Dr. Brandt

performed ACL reconstruction surgery on February 4, 2008. The ACL reconstruction

procedure involved drilling a hole through the tibia bone, known as a “tibial tunnel.”

¶3      In follow-up appointments from March through May 2008, Dr. Brandt noted that

Wilson was “doing absolutely fabulous,” “extremely well,” and was “approaching

maximum medical improvement.” His notes after the May 2008 appointment indicate


                                             2
that Wilson was having “some pes anserinus pain.” The pes anserinus refers to the area

where three tendons insert into the tibia bone located at the inner part of the knee. Dr.

Brandt gave her a local injection of cortisone to help ease the pain.

¶4     Contrary to Dr. Brandt’s impressions, Wilson testified that in the weeks following

surgery, she experienced new and excruciating pain at the site of the tibial tunnel, as well

as popping and cracking and continued knee buckling. She testified that during this time

she “didn’t know” if the “pain . . . was related to the hole that had been drilled in [her]

knee,” and that she did not ask why she was having the new pain because she had had

“two different types of surgeries, one was more aggressive than the other, like the ACL is

more aggressive than the meniscus. And so [she] thought it all joined together.” During

her deposition, in response to the question whether she thought there was something new

wrong, she said she was “concerned” and that she “knew there was something wrong”

with her knee during this time. In July 2008, Dr. Brandt performed a third knee surgery

on Wilson after she fell and reinjured her left knee meniscus.

¶5     Dr. Brandt’s notes from a September 2008 appointment state that Wilson was

“starting to have some nerve type pain.” The notes go on to say that he told Wilson that

she would “get better and the nerve pain will burn out.” At Wilson’s appointment on

October 8, 2008, Dr. Brandt noted that Wilson “continue[d] to struggle” and that “I have

discussed with the patient that I am really not certain what is going on” and that she was

“not within the bell curve of normalcy” for recovery after an ACL surgery. He ordered

an MRI to rule out “internal derangement.” In his notes reviewing the October 2008

MRI, Dr. Brandt stated that he “continue[d] to diagnose this as complex regional pain


                                             3
syndrome”—also known as reflex sympathetic dystrophy (RSD)—that “will eventually

burn out.” Wilson testified that sometime during this period Dr. Brandt told her that RSD

developed because “he did too many surgeries in a short period of time.”

¶6    Over the next several months, Wilson met with Ann Ingraham, a nurse practitioner

at FVOC, and continued to report knee pain to her. On January 13, 2009, Ingraham

ordered another MRI to investigate the pain. Upon review of the MRI, Dr. Brandt noted

that Wilson continued to report a “significant amount of nerve pain,” but he saw “no

interval change” since the last MRI. He believed additional surgical intervention would

be inappropriate based on what he saw in the MRI. Wilson, meanwhile, continued to

report pain to her healthcare providers. After another MRI on June 25, 2009, Dr. Brandt

repeated his recommendation that further surgical intervention would be inappropriate.

In September 2009, Wilson’s workers’ compensation insurance stopped authorizing

further treatment from FVOC providers. She was referred from FVOC to Montana

Center for Wellness & Pain Management on November 3, 2009, to manage her pain.

¶7    In June 2010, providers at the Montana Center referred Wilson to Dr. James

Blasingame, an orthopedic surgeon with Northwest Orthopedics and Sports Medicine, for

a second opinion about her continuing knee pain. Dr. Blasingame wrote in his notes from

her initial appointment that he did not think Wilson had RSD and ordered another MRI.

At the July 26, 2010 appointment to discuss the results of the MRI, Dr. Blasingame noted

“a somewhat unusual tibial tunnel” and a possible need for surgical intervention. After

gathering other opinions, Dr. Blasingame met with Wilson again on September 10, 2010,

and recommended surgical intervention to bone graft the tibial tunnel. He noted he was


                                           4
“unclear as to the exact reason for her knee discomfort. Certainly, the patient’s study is

quite abnormal with the course of the graft and the subchondral support being

compromised by the graft.”       On December 7, 2010, he noted: “The thought of bone

grafting [the tibial tunnel] was an effort to decrease her pain, obviously, but the pain may

well be multifactorial as fully outlined in the chart.”

¶8     The Montana State Fund sent Wilson to get another opinion from Dr. Michael J.

Schutte on January 25, 2011. Upon review of her MRI and medical records, Dr. Schutte

noted an “anterior impingement of ACL graft tissue related to aberrant tunnel placement”

and suggested a two-stage surgical intervention. Wilson attested in an affidavit: “I did

not know that Dr. Brandt messed up my surgery until I met with Dr. Schutte.” Dr.

Blasingame agreed with Dr. Schutte’s recommendation for a two-stage procedure and

performed the first stage of the surgical intervention in April 2011.

¶9     On May 7, 2012, Wilson filed her complaint with the Montana Medical Legal

Panel (MMLP), claiming that Dr. Brandt negligently performed surgery on her knee on

February 4, 2008, by drilling a tibial tunnel in the wrong location. The MMLP issued its

decision on August 21, 2012, and Wilson filed her complaint with the District Court on

November 5, 2012. Dr. Brandt moved for summary judgment, arguing that Wilson’s

claims were barred by the three-year statute of limitations contained in § 27-2-205, MCA.

¶10    The District Court reviewed the evidence submitted and held that Wilson

discovered the fact that she was injured and tied that injury to Dr. Brandt’s ACL surgery




                                              5
within two months of the February 2008 surgery.1 The District Court held that the injury

was not self-concealing, citing Wilson’s testimony that she experienced new pain in the

place where she knew Dr. Brandt had drilled a hole in her bone, as well as other new

symptoms, shortly after her ACL surgery. The court emphasized further that Wilson said

she “knew there was something wrong.” The District Court entered summary judgment

in favor of Dr. Brandt.

                                 STANDARD OF REVIEW

¶11    We review a district court’s grant of summary judgment de novo. Dvorak v.

Mont. State Fund, 2013 MT 210, ¶ 15, 371 Mont. 175, 305 P.3d 873. We apply the

criteria of M. R. Civ. P. 56(c)(3) to determine whether there is a “genuine issue as to any

material fact” and whether “the movant is entitled to judgment as a matter of law.”

M. R. Civ. P. 56(c)(3); see also Dvorak, ¶ 15. In evaluating a motion for summary

judgment, we review the record independently and afford no deference to the district

court’s decision. Siebken v. Voderberg, 2012 MT 291, ¶ 20, 367 Mont. 344, 291 P.3d

572. We view the evidence in the light most favorable to the non-moving party and draw

all reasonable inferences from the evidence in favor of the party opposing summary

judgment. Siebken, ¶ 20.




1
  The statute of limitations is tolled from the filing of an application with the MMLP until 30
days after the panel renders its decision. Section 27-6-702, MCA. Wilson’s statute of
limitations was tolled from May 7, 2012, to August 21, 2012, plus 30 days. Taking this tolled
period into account, the applicable three-year statute of limitations for Wilson’s complaint filed
on November 5, 2012, bars recovery for any injury discovered before June 20, 2009.


                                                6
                                     DISCUSSION

¶12    Wilson argues that the District Court erred in granting summary judgment because

the date on which she discovered or reasonably should have discovered her injury

involves disputed issues of material fact. She argues that the District Court ignored facts

that demonstrate genuine issues for trial, such as Dr. Brandt’s diagnosis of RSD to

explain her pain. She argues that under Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 136,

345 Mont. 12, 192 P.3d 186, “questions of fact may be determined as a matter of law on

summary judgment if ‘reasonable minds could reach but one conclusion’ on the issue.”

(quoting Seeley v. Davis, 284 Mont. 517, 523, 946 P.2d 119, 122 (1997)). Wilson

maintains that reasonable minds could reach different conclusions about when she

discovered or reasonably should have discovered her injury.

¶13    Dr. Brandt counters that the statute of limitations begins to run when a plaintiff

discovers or through reasonable diligence should discover (1) her injury, and (2) that the

injury “may have been caused” by the defendant medical provider. Wisher v. Higgs,

257 Mont. 132, 144, 849 P.2d 152, 159 (1993), overruled on other grounds by Blackburn

v. Blue Mt. Women’s Clinic, 286 Mont. 60, 75, 951 P.2d 1, 10 (1997). He argues that the

disputed facts that Wilson raises are irrelevant to this determination, because her

testimony and the testimony from two of her friends establish that within a few months of

her ACL surgery Wilson discovered (1) her injury, and (2) that it may have been caused

by Dr. Brandt’s actions—more than three years before she filed her claim with the

District Court.




                                            7
¶14    Since 1971, the limitations period for medical malpractice has been governed by

its own statute, separate from the general statute of limitations for other torts.

1971 Mont. Laws ch. 328, § 1. In adopting § 27-2-205, MCA, the Legislature codified

language from this Court’s discovery doctrine case law. Compare 1971 Mont. Laws

ch. 328, § 1 (tolling the statute of limitations until “the plaintiff discovers, or through the

use of reasonable diligence should have discovered, the injury”); with Johnson v. St.

Patrick’s Hosp., 148 Mont. 125, 132, 417 P.2d 469, 473 (1966) (holding that, when a

surgeon negligently leaves a foreign object in a patient’s body, the statute of limitations is

tolled “until the patient learns of, or in exercise of reasonable care and diligence should

have learned of the presence of such foreign object in his body”). Section 27-2-205,

MCA (2007)—the statute in effect at the time of Wilson’s ACL reconstruction surgery in

2008—provides, in relevant part, that actions for medical malpractice “must . . . be

commenced within 3 years after the date of injury or within 3 years after the plaintiff

discovers or through the use of reasonable diligence should have discovered the injury,

whichever occurs last.” (Emphasis added.)2

¶15    Our jurisprudence around the medical malpractice statute of limitations borrows

both from prior case law and from the general tort statute of limitations.

Section 27-2-205, MCA, codified a specific version of the discovery doctrine for medical

malpractice cases. Some of our prior decisions applying § 27-2-205, MCA, rely on cases

that are not governed by § 27-2-205, MCA, to interpret the statute. The parties repeat


2
  In 2015, the Legislature amended § 27-2-205, MCA, from 3 years to 2 years. See 2015 Mont.
Laws ch. 368, § 21.


                                              8
this framework of analysis in their briefing on appeal, discussing at length whether

Wilson’s injury was “concealed or self-concealing.” But when the Legislature amended

the general statute of limitations for torts, it adopted different language for the discovery

doctrine applicable to torts other than medical malpractice.         See 1987 Mont. Laws

ch. 441, § 1; § 27-2-102(3), MCA. By adopting different statutes, the Legislature has

made clear that, for purposes of tolling the statute of limitations, medical malpractice is

treated differently from other torts.        See § 27-2-102(4), MCA (“Subsection (3)

[prescribing the discovery doctrine exceptions to the general tort statute of limitations]

does not apply to actions involving the limitations contained in 27-2-205 [the medical

malpractice statute of limitations].”); Gregg v. Whitefish City Council, 2004 MT 262,

¶ 38, 323 Mont. 109, 99 P.3d 151 (“Different language is to be given different

construction.”). Here, we apply to the facts of this case the language of § 27-2-205,

MCA, in the context of the Legislature’s adoption of somewhat different language when

it later codified the discovery doctrine in § 27-2-102(3), MCA, for all other torts.

¶16    Before the enactment of § 27-2-205, MCA, this Court had adopted the discovery

doctrine in medical malpractice cases. Johnson, 148 Mont. at 132, 417 P.2d at 473.

Under this doctrine, the statute of limitations was tolled “until the patient learns of, or in

exercise of reasonable care and diligence should have learned of,” his or her injury.

Johnson, 148 Mont. at 132, 417 P.2d at 473.           Making this determination required

“look[ing] carefully at the facts of each case presented, for the problems presented in

each is how and when the patient discovered the negligence.” Johnson, 148 Mont.

at 128, 417 P.2d at 470. The doctrine was based on equitable considerations of “giving


                                              9
full scope to the statute of limitations on the one hand and according a reasonable

measure of justice to the plaintiff on the other.” Grey v. Silver Bow Cnty., 149 Mont.

213, 217, 425 P.2d 819, 821 (1967) (quoting Owens v. White, 342 F.2d 817, 820 (9th Cir.

1965)). In summing up the development of the discovery doctrine in our early case law,

we explained in Bennett v. Dow Chem. Co. that the discovery doctrine allowed the statute

of limitations to be tolled until a plaintiff discovered that his injury “may have been

caused” by the defendant, but not “beyond discovery of the cause of an injury.” Bennett,

220 Mont. 117, 121, 713 P.2d 992, 995 (1986).

¶17    Between the 1971 enactment of § 27-2-205, MCA, and the 1987 amendment of

§ 27-2-102, MCA, this Court continued to use and develop the discovery doctrine outside

the medical malpractice context. See, e.g., Bennett, 220 Mont. at 121-22, 713 P.2d at 995

(discussing application of the discovery doctrine to negligence and products liability

claims). During this time, we clarified limitations on use of the discovery doctrine,

applying the doctrine only if the injury was self-concealing by its nature or if the

defendant concealed the facts of the injury from the injured party. See Monroe v. Harper,

164 Mont. 23, 27, 518 P.2d 788, 790 (1974), overruled on other grounds by Blackburn,

286 Mont. at 75, 951 P.2d at 10.          In 1987, the Legislature incorporated these

developments into the general statute of limitations for torts. 1987 Mont. Laws ch. 441,

§ 1. In enacting these amendments, the Legislature also changed the requirement from

discovery of the “injury” to discovery of “the facts constituting the claim,” after hearing

testimony that this was a better reflection of this Court’s discovery doctrine case law.

Senate Judiciary Committee Report, January 29, 1987, p. 8. Section 27-2-205, MCA,


                                            10
however, has not been amended to reflect these developments. Despite this, this Court

has relied on cases outside medical malpractice without distinction or clarification when

called on to interpret the medical malpractice statute of limitations in § 27-2-205, MCA.

See, e.g., Wisher, 257 Mont. at 140, 849 P.2d at 156-57.

¶18    Although it is not improper for us to look to these developments in the law to aid

our interpretation of the statute, we must do so with the role of the judge in mind. When

interpreting a statute, it is our role “simply to ascertain and declare what is in terms or in

substance contained therein, not to insert what has been omitted or to omit what has been

inserted.” Section 1-2-101, MCA.       The plain language of § 27-2-205, MCA, does not

call for a separate determination that an injury be “self-concealing” or that the defendant

took “action which prevents the injured party from discovering the injury or its cause” in

order to toll the statute of limitations. The express exclusion of medical malpractice from

the general discovery statute, § 27-2-102(4), MCA, reinforces this.           The terms of

§ 27-2-205, MCA, instead allow the tolling of medical malpractice claims until the time

that a plaintiff “discovers or through the use of reasonable diligence should have

discovered the injury.”

¶19    We have interpreted the statute of limitation provision contained in § 27-2-205,

MCA, on three occasions: Major v. N. Valley Hosp., 233 Mont 25, 759 P.2d 153 (1988),

overruled on other grounds by Blackburn, 286 Mont. at 75, 951 P.2d at 10; Wisher,

257 Mont. at 132, 849 P.2d at 152; and Runstrom v. Allen, 2008 MT 281, 345 Mont. 314,

191 P.3d 410. In these cases, we have held that the statute of limitations begins to run

when a plaintiff discovers or through reasonable diligence should have discovered both


                                             11
(1) the injury; and (2) that the injury “may have been caused” by the defendant medical

provider. Wisher, 257 Mont. at 144, 849 P.2d at 159; Major, 233 Mont. at 30, 759 P.2d

at 156. But the statute of limitations is not tolled until a plaintiff discovers her legal right

to bring an action for known injuries. Wisher, 257 Mont. at 140, 849 P.2d at 157; Major,

233 P.2d at 30, 759 P.2d at 156-57. Nor is the statute tolled until a plaintiff “learns the

facts out of which a known cause of action arose.” Wisher, 257 Mont. at 140, 849 P.2d

at 157.

¶20       In Major, the plaintiff’s daughter suffered from a form of lupus, which included

episodes of throat swelling and breathing difficulty. Major, 233 Mont. at 26-27, 759 P.2d

at 154. On the day of her daughter’s death in March 1982, the plaintiff called the hospital

to inform the staff that her daughter’s throat was closing and that she and her daughter

were en route from Kalispell to the hospital in Whitefish. Major, 233 Mont. at 26,

759 P.2d at 154. Upon their arrival, the hospital staff had not yet called the doctor.

Major, 233 Mont. at 27, 759 P.2d at 154. The plaintiff’s daughter died in the hospital

several hours later. Major, 233 Mont. at 27, 759 P.2d at 154. The plaintiff consulted

with an attorney shortly thereafter, who advised her she should acquire her daughter’s

medical records. Major, 233 Mont. at 27, 759 P.2d at 154. The plaintiff was unable to

acquire the records until October 1984. Major, 233 Mont. at 27, 759 P.2d at 154. She

filed her complaint in April 1985, more than three years after her daughter’s death.

Major, 233 Mont. at 27, 759 P.2d at 154. The district court granted summary judgment

on the statute of limitations, and we affirmed. The plaintiff argued on appeal that the

statute of limitations should have been tolled until she received the medical records and


                                              12
could thus discover the facts that provided “a causal connection between her daughter’s

death and the acts, errors, or omissions of her daughter’s health care provider.” Major,

233 Mont. at 30, 759 P.2d at 156. After reviewing the record, we rejected her argument

and held that the plaintiff’s testimony demonstrated that on the day of her daughter’s

death, the plaintiff thought her daughter’s treatment was inadequate. Major, 233 Mont.

at 30, 759 P.2d at 156. We held that under the circumstances, her lack of knowledge of

the facts contained in the medical record did not prevent her from discovering the injury

at issue in the case. Major, 233 Mont. at 30, 759 P.2d at 157.

¶21    In Wisher, the plaintiff underwent left facial nerve decompression surgery to treat

Bell’s palsy. Wisher, 257 Mont. at 135, 849 P.2d at 153-54. Immediately after surgery

she began to have new symptoms of pain, nausea, dizziness, loss of equilibrium,

vomiting, and buzzing in her left ear. Wisher, 257 Mont. at 135, 849 P.2d at 154. Her

surgeon attributed these symptoms to the side effects of anesthesia and a condition called

post-operative labyrinthitis. Wisher, 257 Mont. at 135, 849 P.2d at 154. The plaintiff’s

initial symptoms seemed to improve for about two years, but she continued to have

problems both related and unrelated to the surgery over the ensuing years. Wisher,

257 Mont. at 143, 849 P.2d at 159. Several years and multiple diagnoses later, another

doctor discovered that the surgeon had perforated the plaintiff’s inner ear during the

nerve decompression surgery. Wisher, 257 Mont. at 137-38, 849 P.2d at 155. We held

that there was no evidence that the plaintiff knew or suspected that she suffered from an

injury as a result of her surgery or that she could have discovered this through the use of

due diligence. Wisher, 257 Mont. at 143-44, 849 P.2d at 159. We relied on Johnson and


                                            13
Grey, the cases in which we first enunciated the doctrine of discovery. We distinguished

Major, holding that in Major the wrongful act “was easily identifiable and the injury

simultaneous and obvious.” Wisher, 257 Mont. at 140, 849 P.2d at 157. We held that

substantial evidence did not support the jury verdict that the statute of limitations had run.

Wisher, 257 Mont. at 144, 849 P.2d at 159.

¶22    In Runstrom, the plaintiff’s sixteen-year-old son broke his femur in an all-terrain

vehicle accident and died the next day in the hospital. Runstrom, ¶ 7. The day of his

son’s death, the plaintiff requested an autopsy and confronted the doctor because,

“[in t]oday’s time, you know, people don’t usually die from a broken leg.” Runstrom,

¶¶ 7, 33. Within weeks, he obtained his son’s autopsy report and medical records and

consulted with an attorney, but no suit was filed at that time. Runstrom, ¶ 7. Four years

later, the local paper ran an article reporting on administrative proceedings regarding the

doctor. Runstrom, ¶ 8. Although his son was not named in the article, the plaintiff

believed that his son was one of the unnamed patients discussed in the article. Runstrom,

¶ 8. Several months after the newspaper article was published, the plaintiff filed a

malpractice suit against the doctor. Runstrom, ¶ 9. The plaintiff argued that he did not

discover his son’s injury until he read the newspaper article. Runstrom, ¶ 34. We

rejected this argument because the newspaper article contained no new information.

Runstrom, ¶ 37. The autopsy report and medical records in his possession since shortly

after his son’s death contained all of the information upon which the plaintiff later based

his medical malpractice suit. Runstrom, ¶ 37.




                                             14
¶23    Some of these opinions borrowed language from the non-medical malpractice

context to interpret the language of § 27-2-205, MCA. But despite those references to

terms used in the general tort statute, we conclude that both § 27-2-205, MCA, and our

jurisprudence since its enactment accord with our prior medical malpractice case law

applying the discovery doctrine when the “patient does not know of his own

condition . . . until some time later when he learns of, or in the exercise of reasonable care

and diligence he should have learned of it.” Grey, 149 Mont. at 216, 425 P.2d at 820. As

we noted in Johnson, this may require “look[ing] carefully at the facts of each case

presented.” Johnson, 148 Mont. at 128, 417 P.2d at 470. Summary judgment is proper

only when there is no genuine issue of material fact. See M. R. Civ. P. 56(c)(3). When

reasonable minds can reach more than one conclusion on the accrual of a plaintiff’s

claim, a jury may consider the nature of the injury and other surrounding circumstances

in resolving the factual dispute over discovery.3

¶24    Our de novo review of the record reveals the following material facts:

¶25    Drilling a hole in Wilson’s bone was part of the ACL repair.                 Wilson was

informed of this and consented to it. Wilson testified in her deposition that she had new

pain after the ACL surgery. Wilson knew that Dr. Brandt drilled a hole in her knee and

that she had pain—a common occurrence after a surgery. She “didn’t know” if the

“pain . . . was related to the hole that had been drilled in [her] knee,” in the months after

3
   The second sentence of § 27-2-205, MCA, allows tolling “for any period during which there
has been a failure to disclose any act, error, or omission upon which an action is based.” We held
in a prior case that this sentence applies exclusively to toll the five-year statute of repose and
does not apply to the statute of limitations. Blackburn, 286 Mont. at 75, 951 P.2d at 10. This
language is thus inapplicable in the current case.


                                               15
surgery. She stated she did not ask why she was having the new pain because she had had

“two different types of surgeries, one was more aggressive than the other, like the ACL is

more aggressive than the meniscus. And so [she] thought it all joined together.” When

asked whether she thought there was something new wrong, she said she was

“concerned” and that she “knew there was something wrong” with her knee during this

time. She testified that Dr. Brandt attributed her pain to RSD. Dr. Brandt’s records

confirm his impression of RSD and his belief that more surgery was not needed. In

Wilson’s submitted affidavit, she attested that she did not know Dr. Brandt “messed up”

until meeting with Dr. Schutte. Even striking any possible hearsay statements from the

affidavit, Wilson’s claim of her own personal knowledge and impression after her

meeting with Dr. Schutte are consistent with her deposition testimony. 4

¶26    Tammy Munroe, a friend of Wilson, testified in a deposition that she knew about

only two of Wilson’s six knee surgeries. She testified that a month or two after the ACL

surgery Wilson told her that the “ACL just wasn’t working, and it hurt her a lot.”

Munroe said that after the second surgery, when discussing her pain, Wilson “didn’t tell

me different, but she described it different[ly]” from her pain before the ACL surgery.

¶27    Another of Wilson’s friends, Shannon Penney, testified in a deposition on

November 10, 2016, about Wilson’s knee pain and surgeries. Penney testified that within


4
   Dr. Brandt argues that to the extent Wilson relies on her affidavit to argue that she was not
aware of her injury until meeting with Dr. Schutte, the affidavit is contrary to her sworn
deposition testimony. We disagree. She testified during her deposition that she experienced
“new” and “excruciating” pain after her surgery. She did not testify that she recognized that she
had been injured or that she believed any new injury may have been caused by Dr. Brandt’s
actions.


                                               16
six months to a year after the ACL surgery, Wilson told Penney that “[s]he knew there

just wasn’t something right with her knee after that surgery, and she’d go to doctors, and

then they’d send her to physical therapy. And she would constantly say, you know,

There’s something wrong. And she’d show me like her knee was indented really weird,

just it looked deformed, and it would ache.” When asked when Wilson first thought

about hiring an attorney, Penney stated “It’s—was it four years ago? Five years ago?”

When asked how soon after Dr. Brandt’s second surgery Wilson considered hiring an

attorney, Penney answered that Wilson was in a lot of pain right after surgery, but “I

guess I couldn’t give you an exact time frame, because I don’t know.”

¶28   Wilson’s medical records show that Wilson continued to report pain to her

medical providers, including Dr. Brandt, after the surgery. They show that Dr. Brandt

diagnosed Wilson with RSD and concluded that it explained the pain she was having. It

was not until Wilson’s June 2010 appointment with Dr. Blasingame that Wilson’s pain

was attributed to something besides RSD or nerve pain that would burn out.

¶29   Upon review of the full record, we conclude that the material facts are not

undisputed that, before June 20, 2009, Wilson both recognized that she was injured and

that her injuries may have been caused by Dr. Brandt or, alternatively, that through

reasonable diligence she should have discovered her injury and its cause. Rather, there is

more than one permissible inference that could be made based on Wilson’s testimony and

medical records. From the evidence, we conclude that the finder of fact reasonably could

infer that Wilson discovered her injury and that Dr. Brandt’s surgery may have been the

cause of that injury soon after the ACL surgery. As in Major, it could be inferred that


                                           17
Wilson’s lack of knowledge of the facts connecting her pain to the aberrant tibial tunnel

did not prevent her or should not have prevented her from discovering the injury at issue

because she knew that her pain was new and excruciating. But drawing all reasonable

inferences in favor of Wilson as the non-moving party, as required in considering a

summary judgment motion, we conclude that the finder of fact alternatively could infer

that she knew only that she was having pain from her surgeries, but not that the surgeries

had injured her or that any new injury may have been caused by Dr. Brandt’s actions. As

in Wisher, it could be inferred that Wilson did not and could not discover her injury

because pain can be expected after surgery and her symptoms were attributed to another

cause.

¶30      Thus, more than one inference could be drawn from this evidence about whether

Wilson discovered or should have discovered her injury and whether it may have been

connected to Dr. Brandt’s actions during this time. Objective evidence supports both

inferences.    Weighing this evidence and determining when Wilson discovered or

reasonably should have discovered her injury is an issue for the jury to decide. See

Nelson v. Nelson, 2002 MT 151, ¶ 24, 310 Mont. 329, 50 P.3d 139 (“The rule in

Montana, and in the majority of jurisdictions, is that when there is conflicting evidence as

to when a cause of action accrued, the question of whether an action is barred by the

statute of limitations is for the jury to decide.”). Based on our review of the record, we

conclude that there are questions of material fact about when Wilson was aware of—or

should have been aware of—sufficient facts to believe she was injured by Dr. Brandt’s

alleged actions during surgery.


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¶31   Just as in Siebken, “[w]e reverse the decision of the District Court not because we

conclude [Wilson] did file a timely action, but because we conclude the matter should not

have been decided on summary judgment.” Siebken, ¶ 20. Wilson is entitled to have a

jury decide when she discovered or through reasonable diligence should have discovered

her injury and that it may have been caused by Dr. Brandt.

                                    CONCLUSION

¶32   The District Court’s order granting summary judgment is reversed and the case is

remanded for further proceedings consistent with this Opinion.



                                                /S/ BETH BAKER


We Concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR
/S/ JAMES JEREMIAH SHEA




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