                IN THE SUPREME COURT OF IOWA
                               No. 06–0641

                        Filed December 5, 2008


MARTI WILKINS, as Executor of the
Estate of JERALD C. WILKINS,

      Appellant,

vs.

MARSHALLTOWN MEDICAL AND SURGICAL
CENTER, ERIC J. STENBERG, D.O., DAVID L.
THOMAS, M.D., LANCE M. VAN GUNDY, M.D.,
and MCFARLAND CLINIC, P.C.,

      Appellees.



      Appeal from the Iowa District Court for Marshall County, Dale E.

Ruigh, Judge.



      Plaintiff appeals the district court’s grant of summary judgment in

a medical malpractice action. REVERSED AND REMANDED.



      Erik A. Luthens of Luthens Law Offices, P.C., West Des Moines, for
appellant.



      Hayward L. Draper and John T. Clendenin of Nyemaster, Goode,

West, Hansell & O’Brien, P.C., Des Moines, for appellee Marshalltown

Medical and Surgical Center.

      Steven K. Scharnberg and Thomas J. Joensen of Finley, Alt, Smith,

Scharnberg, Craig, Hilmes & Gaffney, P.C., Des Moines, for appellees

Stenberg, Thomas, Van Gundy, and McFarland Clinic.
                                      2

APPEL, Justice.

      This case presents a question regarding the proper application of

the statute of limitations in a medical malpractice action where the

plaintiff’s claim is based on an alleged failure to timely diagnose prostate

cancer. The district court granted the defendants’ motion for summary

judgment, concluding the claim was filed after the expiration of the

applicable statute of limitations. In light of recent decisions, we reverse
and remand this case for further proceedings.

      I. Factual and Procedural Background.

      Jerald Wilkins was a roving utility pole inspector who resided at a

motel in Marshalltown, Iowa. He did not have health insurance and did

not have a regular, primary care physician after 1982.          Like many

uninsured persons, Wilkins occasionally sought medical treatment at the

emergency room of a local hospital.

      On September 23, 2001, Wilkins appeared at the Marshalltown

Medical and Surgical Center (MMSC) emergency room complaining of

vague abdominal pain, blood in his urine, and expectoration of blood

from his respiratory tract. Dr. Lance Van Gundy examined Wilkins and

ordered a chest x-ray. Van Gundy determined that the x-ray showed no
change from a prior x-ray taken one month earlier.           Van Gundy’s

impression was that Wilkins suffered from a number of difficulties,

including inflammation of the kidneys, presence of protein in his urine,

expectoration of blood from the respiratory tract, urinary tract infection,

elevated liver function, abdominal pain consistent with gastritis induced

by heavy alcohol consumption, and tobacco abuse. Van Gundy’s plan

included urgent follow up at the University of Iowa Hospitals and Clinics

(UIHC).   Wilkins was discharged from the emergency room later that

same day.
                                        3

        The next day, September 24, Dr. Kraig Kirkpatrick, a radiologist,

reviewed Wilkins’s chest x-ray.         Kirkpatrick compared an x-ray of

Wilkins’s chest taken more than five years earlier in May 1996 with his

current image. In doing so, Kirkpatrick observed a “diffuse increase in

the density of a midthoracic vertebral body.”      Kirkpatrick noted that

diagnostic possibilities for this change included, but were not limited to

“Paget’s disease, lymphoma and sclerotic metastasis.”        According to
Kirkpatrick, the most common source of sclerotic metastasis in Wilkins’s

age group would be prostate cancer.         Kirkpatrick’s x-ray report was

approved by Dr. Mitchell Erickson and made part of Wilkins’s file.

        Also on September 24, Wilkins returned to the MMSC emergency

room.        He now complained of “increasing upper abdominal pain.”

Wilkins was seen by Dr. Eric Stenberg. Stenberg ordered a computed

tomography (CT) scan of Wilkins’s chest, abdomen, and pelvis.         Dr.

Erickson, the same physician who approved Kirkpatrick’s report

indicating Wilkins may be suffering from prostate cancer, read the CT

scan. Erickson noted that there are “no comparison studies” and made

no reference to Kirkpatrick’s report.

        Wilkins was transferred to UIHC that same day for follow-up
studies.      While eighteen pages of medical records were forwarded to

UIHC, the Kirkpatrick report indicating that Wilkins may have prostate

cancer was not included.      Wilkins was subsequently discharged from

UIHC two days later “without any symptomatic complaints.” In a letter

dated October 10, Dr. Lisa Antes informed Van Gundy that Wilkins’s

condition had improved at UIHC and that his pain had “completely

resolved” by the end of his stay.       Her diagnosis was alcohol-induced

gastritis.
                                      4

      After his discharge from UIHC, Wilkins next presented himself to

the MMSC emergency room on February 27, 2002. At that time, Wilkins

complained of “difficulty with urination, frequency, urgency and burning

as well as some chills and a headache over the course of the past three

or four days.” MMSC’s records indicate Wilkins experienced pain in his

“bladder area.” The diagnosis by physician’s assistant, Larry Conley, and

his supervisor, Stenberg, was “[u]rinary tract infection by history and
physical.”   They prescribed an antibiotic for the infection.     They also

advised Wilkins to increase his fluids and follow up with the provider of

his choice should there be no improvement over the next forty-eight

hours. Wilkins did not follow up with a provider, however, stating that

his condition did seem to improve over the next couple of days.

      Wilkins returned again to the MMSC emergency room on

March 25, June 19, July 6, July 7, and August 9. On these occasions,

he was seen by Stenberg, Van Gundy, and Dr. David Thomas.               His

complaints included low back pain, neck pain, and difficulty urinating.

The physicians assessed Wilkins as having low back, cervical, or lumbar

strain and provided him with prescriptions for pain relief and muscle

relaxation. On August 9, MMSC medical records show that Wilkins was
advised that he would not receive further injections of pain relief

medicine or samples “because he had failed to follow up” with other

medical providers.   Van Gundy recommended that Wilkins “follow up”

with the Primary Health Clinic in the immediate future to seek a

potential pain clinic referral to UIHC.

      On August 14, Wilkins was brought to the MMSC emergency room

via ambulance. Wilkins could not feel or move his legs. MMSC’s records

indicate suspicion of prostate cancer with metastases to the lumbar

spine and secondary paralysis.     On that same day, Wilkins is, for the
                                     5

first time, informed of the possibility of prostate cancer. The physicians

recommend transfer to UIHC for a higher level of care.

      On February 27, 2004, Wilkins filed a petition against MMSC,

Stenberg, Thomas, and Van Gundy alleging negligent medical care from

February 27, 2002 onward. Thereafter, plaintiff successfully moved to

amend the petition to name McFarland Clinic, P.C. as a co-defendant.

The petition was later amended to substitute Wilkins’s wife as executor of
Wilkins’s estate upon his death.

      All defendants denied liability and moved for summary judgment.

Each asserted that Wilkins’s claims were barred by the relevant statute

of limitations.   MMSC additionally asserted that it had no legal

responsibility for the actions of the emergency room physicians as they

were employees of McFarland and not the hospital.

      The district court granted summary judgment to the defendants on

statute-of-limitations grounds.    The district court determined that the

relevant inquiry was whether Wilkins knew or should have known of his

injury, which the court defined as the worsening physical symptoms of

prostate cancer, more than two years prior to the filing of the lawsuit on

February 27, 2004. The court determined that Wilkins “knew or should
have known” of his worsening cancer symptoms prior to February 27,

2002—more than two years before the commencement of this action.

      In granting summary judgment on the medical negligence claim,

the district court emphasized that the allegations in the petition and the

opinions offered by plaintiff’s expert witnesses did not draw distinctions

among the actions of the individual physicians, but rather asserted that

they were collectively negligent in failing to timely diagnose Wilkins’s

prostate cancer. Thus it was immaterial that some of the individual acts
                                           6

of negligence were not barred by the statute of limitations.1 In reaching
its decision, the district court further rejected the plaintiff’s claim for

fraudulent concealment and applicability of the continuous treatment

doctrine.

       II. Standard of Review.

       We review a district court’s ruling on a motion for summary

judgment for correction of errors at law. Schlote v. Dawson, 676 N.W.2d

187, 188 (Iowa 2004).         Summary judgment is appropriate only “if the

pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no genuine

issue of material fact and the moving party is entitled to a judgment as a

matter of law.” Iowa R. Civ. P. 1.981(3); accord Ratcliff v. Graether, 697

N.W.2d 119, 123 (Iowa 2005). A genuine issue of material fact exists if

the evidence is such that a reasonable jury could return a verdict for the

nonmoving party. Baratta v. Polk Co. Health Serv., 588 N.W.2d 107, 109

(Iowa 1999).

       III. Discussion.

       A. Statute of Limitations. The outcome of this case is controlled

by our decision in Rock v. Warhank, 757 N.W.2d 670 (Iowa 2008). In

Rock, we held that in a medical misdiagnosis case involving cancer, the

earliest possible triggering date for the statute of limitations under Iowa

Code section 614.1(9) is when the patient is properly diagnosed with

        1Due to the disposition of this case, we do not reach the question of collective

versus individual acts of negligence or whether a second misdiagnosis by the same
doctor or the same medical team constitutes a separate actionable injury or is merely a
continuation of the first. We do note, however, that jurisdictions have split on this
latter question. Compare King v. Sullivan, 961 S.W.2d 287, 292 (Tex. Ct. App. 1997)
(holding that second misdiagnosis constituted a separate tort where the statute of
limitations was triggered by the occurrence of the malfeasance), with Kaminer v. Canas,
653 S.E.2d 691, 695 (Ga. 2007) (holding that while the second misdiagnosis may
constitute a separate act of professional negligence it does not “restart” statute of
limitations because no new injury has occurred).
                                           7

cancer.     Rock, 757 N.W.2d at 675.             In this case, Wilkins was not

informed that he had cancer until sometime after August 14, 2002. That

date is well within two years of the commencement of the present action.

Wilkins’s claim is thus not barred as a matter of law by the governing

statute of limitations.2
       The defendants also assert that Wilkins’s claim is barred as a

matter of law by the statute of limitations due to his failure to seek

follow-up care. They rely in part upon a form that Wilkins signed after

his emergency room visits which declared, among other things, that the

patient was examined and treated “on an emergency basis only” and that

“[i]n most cases you must let your doctor check you again.”

       We hold that Wilkins’s alleged failure to follow-up with other

physicians after his emergency room visits does not provide a basis for

summary judgment on statute-of-limitations grounds.                  Nothing in the

paperwork or instructions cited by the defendants puts Wilkins on notice

of either his injury or its cause. The defendants’ argument is not really

based upon the statute of limitations, but instead involves issues related

to the scope of its duty to Wilkins and issues of comparative fault. The

statute of limitations does not form a basis for summary judgment for

these types of arguments.

       B. Vicarious Liability. MMSC also asserts that it is entitled to

summary judgment because Wilkins has failed to generate a genuine

issue of material fact as to whether it is legally liable for the actions of

the McFarland doctors who staffed the MMSC emergency room.                         The

undisputed record shows that the individual physicians were not

employees of the hospital. Instead McFarland contracted with MMSC to

       2Our resolution of this issue in favor of Wilkins makes it unnecessary to address
his claims that the district court erred in failing to adopt the continuous treatment
doctrine and in rejecting his assertion of fraudulent concealment.
                                           8

staff and direct the operations of the hospital’s emergency room.

Nevertheless, Wilkins contends and the district court agreed that MMSC

is vicariously liable for any negligence through the doctrine of

“ostensible” agency, otherwise known as apparent authority.3
       Liability based on ostensible agency has been defined as:
       One who represents that another is his servant or other
       agent and thereby causes a third person justifiably to rely
       upon the care or skill of such apparent agent is subject to
       liability to the third person for harm caused by the lack of
       care or skill of the one appearing to be a servant or other
       agent as if he were such.
Restatement (Second) of Agency § 267 (1958).                  The existence of an

ostensible agency thus is determined by the principal’s actions, rather

than the acts of the agent. Waukon Auto Supply v. Farmers & Merchants

Sav. Bank, 440 N.W.2d 844, 847 (Iowa 1989). This determination is a

question of fact. Id.

       MMSC argues, however, that as a matter of law no ostensible

agency could have been created because (1) the emergency room doctors

were independent contractors, and (2) MMSC never represented the

emergency room doctors to be MMSC employees.

       First, in an ostensible agency the actual status of the agent is

immaterial.

       One who employs an independent contractor to perform
       services for another which are accepted in the reasonable
       belief that the services are being rendered by the employer or
       by his servants, is subject to liability for physical harm
       caused by the negligence of the contractor in supplying such
       services, to the same extent as though the employer were
       supplying them himself or by his servants.



       3Although  not presented in this appeal, other jurisdictions are split as to
whether a hospital can ever delegate its duty of care for its emergency room physicians.
Compare Simmons v. Tuomey Reg’l Med. Ctr., 533 S.E.2d 312, 322 (S.C. 2000) (finding a
nondelegable, but not absolute, duty), with Baptist Mem’l Hosp. Sys. v. Sampson, 969
S.W.2d 945, 948 (Tex. 1998) (rejecting imposition of a nondelegable duty).
                                     9

Restatement (Second) of Torts § 429 (1965). Thus, the mere fact that the

emergency room doctors were not MMSC employees is not dispositive.

      Second, although the record does not demonstrate that MMSC ever

expressly held out the emergency room doctors as employees, Wilkins

has put forth circumstantial evidence from which an agency relationship

can be inferred.   For instance, MMSC held itself out to the public as

maintaining a 24-hour emergency room. Such advertizing corresponds
with our previous observation “ ‘that an emergency-room patient looks to

the hospital for care, and not to the individual physician—the patient

goes to the emergency room for services, and accepts those services from

whichever physician is assigned his or her case.’ ” Wolbers v. The Finley

Hosp., 673 N.W.2d 728, 734 (Iowa 2003) (quoting 40A Am. Jur. 2d

Hospital & Asylums § 48, at 460 (1999)); see also Mehlman v. Powell, 378

A.2d 1121, 1124 (Md. 1977) (stating “all appearances suggest and all

ordinary expectations would be that the Hospital emergency room,

physically a part of the Hospital, was in fact an integral part of the

institution”); Arthur v. St. Peters Hosp., 405 A.2d 443, 447 (N.J. Super.

Ct. 1979) (noting that absent a situation where the patient is directed by

his own physician or where the patient makes an independent selection
as to which physicians he will use, it is the reputation of the hospital

itself upon which the patient relies). But see Latham v. Ohio State Univ.

Hosp., 594 N.E.2d 1077, 1080 (Ohio Ct. App. 1991) (“The existence of a

hospital alone does not constitute an inducement that all physicians

therein are acting under the hospital’s direction and control.”).

      MMSC did not take any affirmative steps to combat the natural

assumption that the emergency room doctors were hospital employees.

Additionally, patients were billed for emergency room services by MMSC

and not by the McFarland Clinic.         Under the facts of this case, a
                                    10

reasonable jury could, therefore, find that MMSC is vicariously liable for

the negligence of the emergency room doctors on a theory of apparent

authority or ostensible agency.    As a result, MMSC is not entitled to

summary judgment on the ground that it cannot be held vicariously

liable for the acts of the defendant physicians.

      IV. Conclusion.

      Because we hold that this case was not properly resolved by
summary judgment, we reverse and remand the case for further

proceedings.

      REVERSED AND REMANDED.

      All justices concur except Baker, J., who takes no part.
