#25420-a-SLZ

2010 S.D. 76

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA

                                  * * * *

ANNE SCHMIEDT and
DARIN SCHMIEDT,                                  Plaintiffs and Appellants,

     v.

NATHAN H. LOEWEN, M.D.,                          Defendant and Appellee.

                                  * * * *

                      APPEAL FROM THE CIRCUIT COURT
                       OF THE THIRD JUDICIAL CIRCUIT
                      BEADLE COUNTY, SOUTH DAKOTA

                                  * * * *

                       HONORABLE JON R. ERICKSON
                                Judge

                                  * * * *

ROGER R. GERLACH
Salem, South Dakota

MICHAEL E. UNKE                                   Attorneys for plaintiffs
Salem, South Dakota                               and appellants.

JEFF L. BRATKIEWICZ
KATHRYN J. HOSKINS of
Siegel, Barnett & Schutz                          Attorneys for defendant
Sioux Falls, South Dakota                         and appellee.

                                  * * * *
                                            ARGUED ON APRIL 28, 2010

                                            OPINION FILED 09/22/10
#25420

ZINTER, Justice

[¶1.]        Anne and Darin Schmiedt sued Dr. Nathan Loewen for medical

malpractice arising out of complications following the placement of an intrauterine

device (IUD). Dr. Loewen moved for summary judgment, arguing that the statute

of limitations had expired. Schmiedts argued that their action was timely because:

the IUD was a “foreign object”; their claim fell within the continuing tort doctrine;

and under the continuing tort doctrine, the statute of limitations did not begin to

run until the IUD was removed. The circuit court granted summary judgment in

favor of Dr. Loewen, concluding that the continuing tort doctrine was inapplicable.

We affirm the circuit court’s judgment, but we do so for a different reason. We

conclude that the continuing tort doctrine applied. Nevertheless, Schmiedts’ cause

of action was barred because they acquired actual knowledge of the foreign object

yet failed to commence their action within two years of their discovery.

                            Facts and Procedural History

[¶2.]        The material facts are undisputed. To the extent other facts are

disputed, we restate them in a light most favorable to Schmiedts. Dr. Loewen, a

family practitioner, implanted Anne’s IUD on July 27, 2004. According to the

literature that Dr. Loewen provided to Anne, migration of an IUD was a known

risk. The literature warned that if the IUD migrated from the endometrial cavity,

it would not protect against pregnancy and should be removed. The literature also

warned that if the IUD migrated and perforated the uterine wall, infection,

scarring, and other damage to organs could occur.




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[¶3.]         On October 22, 2004, Anne returned to Dr. Loewen, advising him that

she could no longer feel the threads attached to the IUD, an indication of possible

migration. Dr. Loewen performed a pelvic exam. He could not locate the IUD and

was concerned that it may have fallen out or moved. Dr. Loewen performed a

transvaginal ultrasound and ordered a pelvic x-ray. The x-ray revealed that the

IUD was still in Anne’s endometrial cavity, but it had moved and become deformed.

For purposes of summary judgment, Dr. Loewen conceded that he did not report

these findings to Anne. 1 Dr. Loewen only disclosed that if Anne wanted more

children, the IUD would have to be surgically removed.

[¶4.]         Anne saw Dr. Loewen four additional times from February 2005

through January 2006. During those visits, she complained of cramping, heavy

menstruation, and abdominal pain. Although Anne asked Dr. Loewen about the

IUD, he did not disclose the abnormal findings. He further indicated that the IUD

was doing its job. 2

[¶5.]         On March 30, 2006, a home pregnancy test indicated that Anne was

pregnant, and on April 3, 2006, she returned to Dr. Loewen. Dr. Loewen performed



1.      At his deposition, Dr. Loewen described a different version of what occurred.
        He testified that during the October 22, 2004 visit, he disclosed that the IUD
        “was not ideally placed.” He also testified that he discussed the possibility of
        removing the IUD. He testified that after their discussion “the decision that
        was decided” was not to surgically remove the IUD at that time. He
        conceded, however, that this discussion was not documented in his medical
        notes. For purposes of summary judgment, we accept Schmiedts’ version of
        Dr. Loewen’s disclosures.

2.      During the June 21, 2005 visit, Dr. Loewen ordered an abdominal
        ultrasound. He did not disclose its findings to Anne.


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a transvaginal ultrasound, but could not locate the IUD. Anne did not return to Dr.

Loewen after the April 3, 2006 visit.

[¶6.]        The following day, April 4, 2006, Anne saw Dr. Nedved, a gynecologist.

Dr. Nedved performed an ultrasound. After getting a second opinion from another

gynecologist, both doctors concluded that the IUD had penetrated the uterine wall

and migrated into Anne’s abdomen.

[¶7.]        There is no dispute that the IUD needed to be removed. Dr. Nedved,

however, indicated that it should be left in place until the end of Anne’s pregnancy

because of the risk of miscarriage or injury to the unborn child. Anne delivered her

baby on November 28, 2006. Although the surgery to remove the IUD was

scheduled to occur immediately after the birth, a difficult delivery further postponed

the procedure. On January 31, 2007, approximately one month before the

rescheduled surgery, Anne passed the IUD rectally.

[¶8.]        On August 18, 2008, more than two years after the gynecologists

informed Anne that the IUD had migrated into her abdomen and needed to be

removed, Schmiedts sued Dr. Loewen for malpractice. Schmiedts alleged that Dr.

Loewen was negligent in failing to inform Anne of her test results and in failing to

remove the IUD or to recognize that the IUD had migrated. Dr. Loewen moved for

summary judgment based on SDCL 15-2-14.1, a two-year statute of limitations.

The circuit court granted summary judgment, concluding that the continuing tort

doctrine was inapplicable because “the negligence was not the failure to remove the

IUD, but rather [its] placement.”




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                                       Decision

[¶9.]        Schmiedts argue that the circuit court erred in focusing on the time of

Dr. Loewen’s placement of the IUD. Schmiedts contend the IUD became a foreign

object that should have been disclosed or removed when its movement was

discovered by Dr. Loewen. They further contend that because the migrated IUD

was not disclosed or removed, Anne suffered a continuing tort that delayed the

running of the statute of limitations until the IUD’s passage on January 31, 2007.

Dr. Loewen contends that the IUD’s status as a foreign object is irrelevant because

the continuing treatment doctrine controls. Under the continuing treatment

doctrine, Dr. Loewen contends that Schmiedts’ cause of action began to run when

the doctor-patient relationship ended on April 3, 2006.

[¶10.]       “Summary judgment is proper on statute of limitations issues only

when application of the law is in question, and not when there are remaining issues

of material fact.” Greene v. Morgan, Theeler, Cogley, and Petersen, 1998 S.D. 16, ¶

6, 575 N.W.2d 457, 459. Although there are disputes of fact regarding Dr. Loewen’s

disclosures, disposition of this case involves legal questions regarding application of

the statute of limitations. We review such legal issues de novo.

[¶11.]       South Dakota’s medical malpractice statute of limitations provides in

relevant part: “An action against a physician . . . 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[.]” SDCL 15-2-14.1. This is an “occurrence rule.” The cause of action

accrues when the alleged negligence occurs, even if the actual injury or harm has


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not been discovered. Beckel v. Gerber, 1998 S.D. 48, ¶ 9, 578 N.W.2d 574, 576. If,

however, the negligence involves a continuing tort involving a continuing injury, the

statute of limitations does not begin to run until “the wrong terminates.” Alberts v.

Giebink, 299 N.W.2d 454, 456 (S.D. 1980).

[¶12.]       In Alberts, the plaintiff brought suit in 1979 for medical services

provided in 1968. A pin had been inserted in the plaintiff’s knee in November 1968

and was scheduled to be removed the next month. Although the wires attached to

the pin were removed, the plaintiff was not informed that the pin was left in his

knee. In January 1979, the plaintiff visited another doctor who informed the

plaintiff of the pin in his knee. The pin was immediately removed, and the plaintiff

filed suit one year later for failure to remove the pin or inform the plaintiff of its

existence. This Court concluded that the action was not barred by the two-year

statute of limitations because the negligence was not the physician’s insertion of the

pin, but rather the failure to inform the patient of the pin’s existence and the failure

to remove it when it was reasonably and medically necessary to do so. We

explained:

             The alleged misconduct here is defendants’ failure to remove the
             . . . pin (which assumes that it was reasonably and medically
             necessary to do so), and failure to inform plaintiff of its
             existence. If proven, this failure would constitute a continuing
             tort. Generally, when a tort involves a continuing injury, the
             cause of action accrues and the statute of limitations commences
             when the wrong terminates.

Id. (emphasis added).

[¶13.]       Schmiedts rely on Alberts, arguing that the IUD was a foreign object

causing a continuing tort, which delayed the running of the statute of limitations


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until the wrong terminated. They further argue that the wrong did not terminate

until the IUD passed on January 31, 2007. Dr. Loewen responds that the

continuing tort doctrine is “one in the same” and “interchangeable” with the

continuing treatment doctrine. Dr. Loewen points out that under the continuing

treatment doctrine, although the statute of limitations does not generally run while

the patient continues to receive treatment, the statute begins to run when the

doctor-patient relationship ends. See Beckel, 1998 S.D. 48, ¶ 10, 578 N.W.2d at

576. Dr. Loewen argues that the statute of limitations expired in this case because

the doctor-patient relationship ended on April 3, 2006, more than two years before

Schmiedts brought suit.

[¶14.]       We do not agree that the continuing tort and continuing treatment

doctrines are interchangeable such that the statute of limitations begins to run

under both when the doctor-patient relationship terminates. Our analysis in Beckel

reflects that they are separate doctrines involving potentially different dates upon

which the statute of limitations begins to run. In Beckel, we stated that the

continuing tort theory is “one exception,” under which the statute of limitations

does not begin to run until the wrong terminates. Id. We then observed that “[t]he

‘continuing tort’ theory was extended to provide for another exception known as the

‘continuing treatment’ rule.” Id. (emphasis added). And, under that additional

exception, the statute of limitations does not begin to run as long as there is “an ‘on-

going, continuous, developing and dependent relationship.’” Id (citing Bruske v.

Hill, 1997 SD 108, ¶ 15, 567 N.W.2d. 872, 877). Our subsequent, separate

application of each doctrine confirmed that the continuing tort and continuing


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treatment doctrines are not interchangeable for purposes of determining when a

statute of limitations commences to run. We first concluded that the doctor-patient

relationship had terminated precluding application of the continuing treatment

doctrine. Nevertheless, we also considered whether the action could be timely

under the continuing tort doctrine. Thus, the statute of limitations does not

necessarily begin to run under both doctrines when the patient-physician

relationship terminates. Dr. Loewen’s point that the doctor-patient relationship

terminated more than two years before filing suit is not dispositive.

[¶15.]       Schmeidts’ cause of action concerns Dr. Loewen’s alleged “failure to

remove the . . . [IUD] . . . and failure to inform [Anne] of its [migration].” See

Alberts, 299 N.W.2d at 456; see also Beckel, 1998 S.D. 48, ¶ 10, 578 N.W.2d at 576.

To determine when the statute of limitations began to run, we must first determine

whether the IUD was a foreign object that triggered the continuing tort doctrine.

See Beckel, 1998 S.D. 48, ¶ 14, 578 N.W.2d at 577. If it was, we then must

determine how long the continuing tort doctrine delayed the commencement of the

statute of limitations.

[¶16.]       In Beckel we considered whether a hemoclip was a foreign object

triggering the continuing tort doctrine, thereby delaying the commencement of the

statute of limitations. We adopted “[t]he general consensus . . . that objects

intentionally placed within a body, and with the intention that they remain therein,

do not qualify as ‘foreign objects’ so as to [delay the commencement of] the statute of

limitations.” Beckel, 1998 S.D. 48, ¶ 17, 578 N.W.2d at 577 (concluding that “[a]

fixation device . . . intentionally placed in the body and not left there in the course of


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some later procedure in which it should have been removed, does not constitute a

‘foreign object’”) (citing Rockefeller v. Moront, 81 N.Y.2d 560, 601 N.Y.S.2d 86, 89,

618 N.E.2d 119, 122 (1993)). We concluded that “whether the [object] was to be

removed is relevant and is a critical distinction.” Id.

[¶17.]       An IUD’s status as a foreign object is not readily apparent because an

IUD is intentionally placed in a woman’s body but is removed when its birth control

function is no longer desired or it becomes medically necessary. Therefore,

“[n]ormally, an I.U.D. in situ, will not be considered a foreign object.” Ogle v. De

Sano, 107 Idaho 872, 876, 693 P.2d 1074, 1078 (Ct.App. 1984). On the other hand,

             If an I.U.D. is negligently left in the body, after the surgeon
             represents to the patient that it has been removed, the I.U.D. is
             no longer deliberately or intentionally within the body. It is
             inadvertently or unintentionally left in the body. . . . Under
             these circumstances . . . the I.U.D. then becomes a foreign
             object[.]

Id. (second emphasis added). Other courts follow this analysis when removal is

medically necessary. See Beatman v. Gates, 36 Ohio App. 3d 114, 116, 521 N.E.2d

521, 523 (1987) (concluding that summary judgment was inappropriate because the

IUD could become a foreign object if it repositioned itself within the body and the

physician failed to inform the patient of that occurrence). Beatman noted that at

that point, an IUD has no further function to perform and no longer belongs in the

patient’s body. Id. “Certainly the device [is] not performing any birth control

chemistry in the appellant’s abdominal cavity[.]” Id. See also Newberry v. Tarvin,

594 S.W.2d 204, 206 (Tex.Civ.App. 1980) (concluding that an IUD, which became

lost in the patient’s body necessitating surgery to locate and remove, was considered

a foreign object). But see Rodriguez v. Manhattan Med. Group, 155 A.D.2d 114, 115-

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16, 552 N.Y.S.2d 947, 948 (App.Div. 1990) (concluding that a “fixation device,” such

as an IUD, is not transformed into a “foreign object” when a physician fails to

remove it after being retained to do so).

[¶18.]       In this case, the IUD allegedly deformed and migrated into Anne's

abdomen while she was in Dr. Loewen’s care. Schmiedts’ complaint alleges that Dr.

Loewen failed to inform them of the migration so that informed decisions could be

made regarding its removal. We agree with those authorities concluding that once

it becomes known that it is reasonably and medically necessary to remove an IUD,

its character changes. Under those circumstances, an IUD is no longer

intentionally in the body and the IUD becomes a foreign object. See Ogle, 107 Idaho

at 876, 693 P.2d at 1078.

[¶19.]       This leaves us with the final question: when does the statute of

limitations begin to run in a case involving a foreign object causing a continuing

injury? There is no dispute that in April 2006, Schmiedts were informed of the

IUD’s migration and the need for its removal. There is also no dispute that

Schmiedts failed to commence suit within two years of that disclosure. Schmiedts

contend that the disclosure is irrelevant because the continuing tort doctrine

generally delays the commencement of the statute until the wrong terminates. See

Alberts, 299 N.W.2d at 455. Schmiedts further contend that the wrong did not

terminate until the IUD passed in January 2007.

[¶20.]       In describing the nature of the continuing wrong in Alberts, we

explained “that the negligence is not the insertion of the [object], but rather the

failure to remove [it] when it [is] reasonably and medically necessary to do so, or to


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gain plaintiff’s informed consent to leave it in [the patient’s body].” 3 299 N.W.2d at

456. In other words, the continuing wrong is the failure to remove the foreign object

or to inform the patient of its existence. In this case Schmiedts were informed of

the foreign object’s existence in April 2006. Therefore, the statute of limitations

began to run at that time.

[¶21.]         A Georgia Court of Appeals decision explained why, in continuing tort

cases, the continuing wrong terminates and the statute of limitations begins to run

when the foreign object is removed or the patient learns of its existence:

               When the doctor placed the steel arterial clamp in the plaintiff’s
               abdomen, he did so with her permission and he therefore did no
               wrong. Thus the placing of the arterial clamp was no completed
               wrong for there was no wrong at all. When, however, the doctor
               left the clamp in his patient’s abdomen and closed the wound, he
               commenced a wrong by imposing on the patient’s physical being
               the harboring of a foreign body which could cause her discomfort
               or pain or be deleterious to her health. This wrong is not a
               completed wrong. This invasion was not transitory but
               constant. It is a wrong which continued to be an unlawful
               invasion of the patient’s rights for as long as the clamp
               remained in its improper place. Until somehow recognized, this
               wrong existed in a suspended state of oblivion but exist it
               did. In this state of limbo the statute did not run. As to this
               type [of] wrong the statute can only begin to run from the time
               the patient has knowledge, or through the exercise of ordinary
               care could have learned, of the existence of the continuing tort.




3.       For this reason, the circuit court erroneously granted summary judgment on
         the basis that “the negligence was not the failure to remove the IUD, but
         rather [its] placement.” (Emphasis added.) Although Schmiedts initially
         pleaded negligent placement, they did not pursue that claim at the summary
         judgment hearing or on appeal. Instead, they pursued an Alberts claim for
         failure to disclose or remove a foreign object. Nevertheless, “[a] trial court
         may still be upheld if it reached the right result for the wrong reason.”
         Flugge v. Flugge, 2004 S.D. 76, ¶ 35, 681 N.W.2d 837, 846 (citing
         Sommervold v. Grevlos, 518 N.W.2d 733, 740 (S.D. 1994)).

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Parker v. Vaughan, 124 Ga.App. 300, 302, 183 S.E.2d 605, 606 (1971). Other courts,

whether applying the continuing tort doctrine under occurrence, discovery, foreign

object, or accrual statutes of limitation, also conclude that the statute begins to run

no later than when the patient discovers or should have discovered the

malpractice. 4

[¶22.]         In this case, Schmiedts learned of the IUD’s migration and the need for

its removal in April 2006. At that time, Schmiedts had two years to commence their

action. 5 Because they did not, their claim is barred.6




4.       Courts that apply a discovery rule under occurrence statutes of limitation
         include: Agnew v. Larson, 82 Cal.App.2d 176, 185 P.2d 851 (Dist.Ct.App.
         1947); Puro v. Henry, 32 Conn.Supp. 118, 342 A.2d 65 (Super.Ct. 1975); Hepp
         v. Pierce, 460 N.E.2d 186 (Ind.Ct.App. 1984); Spath v. Morrow, 174 Neb. 38,
         43, 115 N.W.2d 581 (1962); Flanagan v. Mount Eden Gen. Hosp., 24 N.Y.2d
         427, 248 N.E.2d 871 (1969); Melendez v. Beal, 683 S.W.2d 869 (Tex.Ct.App.
         1984). Courts that apply a discovery rule under discovery statutes include:
         Allen v. A.H. Robins Co., Inc., 752 F.2d 1365 (9thCir. 1985); Bayonne v.
         Hartford Ins. Co., 353 So.2d 1051 (La.Ct.App. 1977). Courts that apply a
         discovery rule under foreign object statutes include: Ashworth v. Mem’l Hosp.,
         206 Cal.App.3d 1046, 254 Cal.Rptr. 104 (Dist.Ct.App. 1988); Cutsinger v.
         Cullinan, 72 Ill.App.3d 527, 391 N.E.2d 177 (1979); Ross v. Kansas City Gen.
         Hosp. and Med. Ctr., 608 S.W.2d 397 (Mo. 1980); Polichetti v. Cohen, 702
         N.Y.S.2d 85, 268 A.D.2d 417 (App.Div. 2000). Finally, courts that apply a
         common-law discovery rule under accrual statutes include: Shillady v. Elliot
         Cmty. Hosp., 114 N.H. 321, 320 A.2d 637 (1974); Rothman v. Silber, 83 N.J.
         Super. 192, 199 A.2d 86 (1964). See also 70 A.L.R.3d 7, §§ 5[a], [b] for a
         collection of cases in which courts have determined that the statute of
         limitations begins to run when the patient discovers or should have
         discovered the presence of the foreign object.

5.       Although Anne’s pregnancy delayed removal of the IUD until it passed in
         January 2007, Schmiedts still had over a year to bring a timely claim.

6.       Schmiedts’ reliance on Jumper v. Healthone Corp., 699 F.Supp. 220 (D.S.D.
         1988) is misplaced. In that case, a drain was placed to drain a wound after
         surgery. The drain was inadvertently left in the patient, and the occurrence
                                                                    (continued . . .)
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[¶23.]         Affirmed.

[¶24.]         GILBERTSON, Chief Justice, and KONENKAMP, MEIERHENRY,

and SEVERSON, Justices, concur.




_________________________
(. . . continued)
         statute of limitations had run before the patient discovered the negligence.
         Like Alberts, the district court in Jumper concluded: “Any negligence
         involved was the result not of the placement of the drain, but rather the
         failure to remove the drain.” Id. at 222. Although the district court quoted
         Alberts for the proposition that if removal of the foreign object was intended,
         “it cannot really be said that the treatment is completed until such time as
         the object is removed,” the plaintiff in Jumper commenced suit within two
         years after discovering that removal was necessary. Id. at 221.

         We also note that, even under discovery statutes of limitation, Schmiedts’
         interpretation of “when the wrong terminates” is inconsistent with South
         Dakota law. In Strassburg v. Citizens State Bank, 1998 S.D. 72, 581 N.W.2d
         510, we observed that discovery of the cause of action precludes delaying the
         commencement of the statute of limitations until such time as a plaintiff
         discovers all of his or her injuries. We specifically stated that “[l]imitations
         periods will not abide indefinitely while those aggrieved discover all their
         damages.” Id. ¶ 11, 581 N.W.2d at 515.

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