               IN THE SUPREME COURT OF IOWA
                              No. 11–0657

                           Filed July 13, 2012


THE ESTATE OF ERIKA L. HERREN ANDERSON,
by and through its Duly Appointed Administrator,
Todd Herren; and TODD HERREN, Individually
and as Next Best Friend and Natural Father of
Ryan Herren, a Minor, and Brynn Herren, a Minor,

      Appellants,

vs.

IOWA DERMATOLOGY CLINIC, PLC, a Corporation;
CHARLES W. LOVE, an Individual; and PATHOLOGY
LABORATORY, P.C., a Corporation n/k/a
IOWA PATHOLOGY ASSOCIATES, P.C., a Corporation,

      Appellees.


      Appeal from the Iowa District Court for Polk County, Richard G.

Blane II, Judge.



      Plaintiffs appeal from district court’s granting of defendants’

motions for summary judgment, contending the statute of repose should
not bar their claims of medical negligence. AFFIRMED.



      Marc A. Humphrey of Humphrey Law Firm, P.C., Des Moines, and

Alan O. Olson of Olson Law Office, P.C., Des Moines, for appellants.



      Michael W. Ellwanger and Robert N. Stewart of Rawlings, Nieland,

Killinger, Ellwanger, Jacobs, Mohrhauser & Nelson, L.L.P., Sioux City, for

appellee Iowa Pathology Associates.
                                  2


     Steven K. Scharnberg and Eric G. Hoch of Finley, Alt, Smith,

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

Iowa Dermatology Clinic and Charles W. Love, M.D.
                                         3


HECHT, Justice.

      In this case, we are asked to review a summary judgment ruling

dismissing a wrongful death action because it was commenced later than

is allowed under Iowa Code section 614.1(9) (2011), a statute of repose

limiting the time allowed for commencing medical negligence cases. The

plaintiffs contend their case should not have been dismissed because the

defendants fraudulently concealed the fact that a tissue specimen

harvested from the plaintiffs’ decedent more than six years before the

filing of this action was not evaluated by a board-certified pathologist. In

the   alternative,   the   plaintiffs   contend   the   continuum-of-negligent-

treatment doctrine precludes the summary dismissal of this case

notwithstanding the statute of repose. For the reasons expressed below,

we affirm the district court’s grant of summary judgment.

      I. Factual and Procedural Background.

      When viewed most favorably to the plaintiffs, the summary

judgment record would support the following findings of fact.                In

September 1996, Erika Herren Anderson sought care from Dr. Charles

Love, a dermatologist employed by Iowa Dermatology Clinic, PLC, for the

treatment of various moles and skin lesions. Erika was first examined by

Dr. Love on September 18, 1996, when she presented for examination of

moles on the left side of her neck and her left mid-back region. Erika had

certain risk factors for melanoma, including her fair skin and the

presence of numerous moles. On that occasion, Dr. Love performed an

excisional biopsy of the mole on the left side of Erika’s neck and sent a

tissue sample to Iowa Pathology Associates for evaluation. Dr. Richard

Scupham, a board-certified pathologist practicing in the specialty of

dermatopathology at Iowa Pathology Associates, evaluated the specimen
                                               4


as “irritated, fibrotic epithelioid cell nevus.”                   Dr. Love interpreted

Dr. Scupham’s report as indicating the tissue sample evidenced benign

mole tissue.

       When Erika returned to Dr. Love’s office on January 2 and

February 15, 1997, Dr. Love’s examination revealed that pigmentation

had returned to the biopsied area. Dr. Love treated the area with liquid

nitrogen to freeze the tissue and remove the coloration. Erica returned to

Dr. Love’s office on June 3, 1997; July 8, 1997; and January 27, 1998,

each time complaining that the brown pigmentation had returned. Each

time, Dr. Love examined the area and applied liquid nitrogen.

       As the pigmentation in the residual tissue had not been

permanently eliminated from the biopsy site by the five previous liquid

nitrogen      treatments,      Dr.    Love    took     another      tissue    specimen       on

February 28, 1998.           Dr. Love sent this specimen to Iowa Pathology

Associates, but not for evaluation.                Instead, Iowa Pathology Associates

mounted the specimen on a slide and returned it to Dr. Love for his

analysis.     Dr. Love concluded this specimen, like the earlier one, was

noncancerous. It was thereafter inadvertently destroyed.

       Dr. Love took additional tissue specimens from the same area of

Erika’s neck on September 4, 1998; April 1, 1999; April 9, 1999; and

April 15, 1999, and sent them to Iowa Pathology Associates for

evaluation. Upon evaluation of the April 1 tissue sample, Dr. Scupham

observed “mitotic figures” 1 in the dermal component of the specimen.


       1Dr.  Scupham explained in his deposition testimony that “mitotic figures are a
histologic correlate to proliferative activity of the cells.” In order for cells to divide, they
undergo mitosis. Dr. Scupham’s concern about the April 1 and April 9 tissue
specimens was based on his belief that mitotic figures are uncommon in ordinary
benign-acquired mole tissue, and the lesion from which the sample had been extracted
was recurrent and could be melanoma.
                                     5


This finding caused Dr. Scupham to have heightened concern about the

possibility of cancer. Given this finding, Dr. Scupham recommended the

complete excision of the lesion. Dr. Scupham’s evaluation of the April 9

specimen again noted the presence of tissue that caused him concern,

and his pathology report to Dr. Love again recommended further excision

of the lesion.   This was undertaken by Dr. Love on April 15, 1999.

Dr. Scupham found no nevomelanocytic or other atypical cells present in

the April 15 specimen and reported as much to Dr. Love.

      Erika continued to consult Dr. Love for her dermatological concerns

after April 15, 1999. Dr. Love harvested additional tissue specimens from

parts of Erika’s body other than her neck on September 26, 2000;

September 10, 2002; March 15, 2004; June 14, 2006; and September 6,

2007. 2   Dr. Love did not send these specimens outside his office for

evaluation by a pathologist and instead evaluated them himself as benign

skin abnormalities of noncancerous origin. On the occasions of each of

these examinations from September 26, 2000, through June 14, 2006,

Dr. Love examined the left side of Erika’s neck from which the previous

biopsy specimens had been harvested.

      Erika discovered a lump on her chin in March 2008, and she

consulted an ear, nose, and throat physician at the Iowa Clinic.         The

lump was ultimately removed and evaluated by a pathologist.              The

pathologist diagnosed Erika with melanoma on August 19, 2008.

Following the diagnosis, pathologists evaluated each of the tissue samples

previously examined by Dr. Scupham. The evaluations revealed each of



      2Dr.  Love examined and treated Erika on April 23, 1999; July 19, 1999;
August 24, 1999; October 2, 1999; November 9, 1999; September 26, 2000;
September 10, 2002; March 15, 2004; September 15, 2004; June 14, 2006; and
September 6, 2007.
                                    6


the specimens harvested by Dr. Love on September 18, 1996; April 1,

1999; and April 9, 1999, contained microscopic evidence supporting a

diagnosis of melanoma.       The plaintiffs’ experts further opined the

February 28, 1998 specimen evaluated by Dr. Love before it was

inadvertently destroyed also would have shown microscopic evidence of

the presence of melanoma consistent with specimens taken before and

after that date.

      The cancer ultimately took Erika’s life in November 2009.        The

plaintiffs—Erika’s estate, her husband, and her children—brought this

medical malpractice action on August 11, 2010. The plaintiffs’ petition

alleged multiple specifications of negligence against Dr. Love, Iowa

Dermatology Clinic, and Iowa Pathology Associates.

      Dr. Love and Iowa Dermatology Clinic filed a motion for partial

summary judgment, and Iowa Pathology Associates filed a motion for

summary judgment. The motion of Dr. Love and Iowa Dermatology Clinic

asserted the statute of repose barred the plaintiffs’ claims of negligence

arising out of conduct occurring more than six years before the filing of

the petition on August 11, 2010.     The motion filed by Iowa Pathology

Associates claimed entitlement to summary judgment as to the entirety of

the plaintiffs’ claims because it provided no medical services or treatment

during the six years prior to the commencement of this action.

      The plaintiffs resisted the motions, asserting the defendants were

equitably estopped from asserting the statute of repose as a defense

under the doctrine of fraudulent concealment.      The plaintiffs asserted

Erika and her husband had a right to know a pathologist did not evaluate

the February 28, 1998 slide and that the defendants concealed this

material fact. The plaintiffs also urged the district court to overrule the
                                    7


defendants’    motions   pursuant   to   the   continuum-of-negligent-care

doctrine.

      The district court granted the motions for summary judgment. The

court rejected the plaintiffs’ fraudulent-concealment argument because,

in its view, the summary judgment record did not contain evidence

tending to prove the defendants failed to disclose to Erika that the

February 28, 1998 tissue sample was not evaluated by a pathologist. The

court further concluded the defendants did not have a duty to inform

Erika that the slide was being evaluated by a dermatologist rather than a

pathologist.   The court also rejected the plaintiffs’ argument that the

continuum-of-negligent-treatment doctrine precluded summary judgment

in favor of Dr. Love and Iowa Dermatology Clinic, PLC. The district court

declined to apply the doctrine, reasoning that it would be “more prudent

and judicially economical” for the question to be answered by this court

on appeal.     The district court then revealed that if the doctrine were

recognized under Iowa law the court would hold it inapplicable in this

instance because (1) the doctrine tolled only statutes of limitation, not

statutes of repose; and (2) the undisputed facts in the summary judgment

record reveal there was no continuing and unbroken course of negligent

treatment by any defendant.

      II. Standard of Review.

      Summary judgment is appropriate

      if the pleadings, depositions, answers to interrogatories, and
      admissions on file, together with the affidavits, if any, show
      that there is no genuine issue as to any material fact and
      that the moving party is entitled to a judgment as a matter of
      law.

Iowa R. Civ. P. 1.981(3); Christy v. Miulli, 692 N.W.2d 694, 699 (Iowa

2005). A fact question exists “if reasonable minds can differ on how the
                                    8


issue should be resolved.” Walker v. Gribble, 689 N.W.2d 104, 108 (Iowa

2004). The district court’s ruling on a motion for summary judgment is

reviewed for correction of errors of law. Christy, 692 N.W.2d at 699.

      III. Discussion.

      The issues before us on appeal revolve around Iowa’s statute of

repose for medical malpractice claims.

      [I]n no event shall any action be brought more than six years
      after the date on which occurred the act or omission or
      occurrence alleged in the action to have been the cause of
      the injury or death unless a foreign object unintentionally
      left in the body caused the injury or death.

Iowa Code § 614.1(9)(a). Unlike the statute of limitations, under which a

claim accrues for injuries caused by medical negligence when the plaintiff

knew, or through the use of reasonable diligence should have known, of

the injury, a statute of repose runs from the occurrence of the act causing

the injury. Albrecht v. Gen. Motors Corp., 648 N.W.2d 87, 92 (Iowa 2002).

Because the period of repose begins running when the injury-causing act

occurs, the statute of repose can in some cases prevent a claim for

medical negligence from arising before the patient even knows or should

know she has been injured. Id.; Bob McKiness Excavating & Grading, Inc.
v. Morton Bldgs., Inc., 507 N.W.2d 405, 408 (Iowa 1993).       In the case

before us, the plaintiffs seek to avoid the statute of repose under two

theories: the doctrine of fraudulent concealment and the continuum-of-

negligent-treatment doctrine.

      A. Fraudulent-Concealment Doctrine. The common law doctrine

of fraudulent concealment became a part of Iowa jurisprudence over a

century ago in District Township of Boomer v. French, 40 Iowa 601, 603–

04 (1875).   The doctrine developed to “prevent a party from benefiting

from ‘the protection of a limitations statute when by his own fraud he has
                                        9


prevented the other party from seeking redress within the period of

limitations.’ ” Christy, 692 N.W.2d at 702 (quoting Borderlon v. Peck, 661

S.W.2d 907, 909 (Tex. 1983)). The doctrine is a form of equitable estoppel

that estops a party from raising a statute of limitations defense in certain

circumstances.    Id. at 701.     We previously held that the “venerable”

doctrine survived codification of the statute of repose found in Iowa Code

section 614.1(9). Koppes v. Pearson, 384 N.W.2d 381, 387 (Iowa 1986),

abrogated   on    other   grounds      by   Christy,   692   N.W.2d      at   701.

Consequently, if proven, a party’s fraudulent concealment allows a

plaintiff to pursue a claim that would be otherwise time barred under the

statute of repose. See Koppes, 384 N.W.2d at 386.

      A   party   seeking    shelter   under    the    doctrine   of   fraudulent

concealment must plead and prove the following:

      (1) The defendant has made a false representation or has
      concealed material facts; (2) the plaintiff lacks knowledge of
      the true facts; (3) the defendant intended the plaintiff to act
      upon such representations; and (4) the plaintiff did in fact
      rely upon such representations to his prejudice.

Christy, 692 N.W.2d at 702 (citation and internal quotation marks

omitted). The party alleging fraudulent concealment must prove each of
the elements by “a clear and convincing preponderance of the evidence.”

Id.

      Ordinarily, the plaintiff must prove the defendant engaged in

affirmative conduct to conceal the plaintiff’s cause of action. Id.; Koppes,

384 N.W.2d at 386.        The affirmative conduct of concealment must be

independent of and subsequent to the liability-producing conduct.

Christy, 692 N.W.2d at 702.            However, our caselaw recognizes an

exception that relaxes the requirement of affirmative concealment when a

fiduciary or confidential relationship exists between the party concealing
                                   10


the cause of action and the party claiming fraudulent concealment.

Koppes, 384 N.W.2d at 386; see also Schlote v. Dawson, 676 N.W.2d 187,

195 (Iowa 2004); Langner v. Simpson, 533 N.W.2d 511, 522 (Iowa 1995).

“The close relationship of trust and confidence between patient and

physician gives rise to duties of disclosure which may obviate the need for

a patient to prove an affirmative act of concealment.”       Koppes, 384

N.W.2d at 386.

      The plaintiffs contend Dr. Love should have explained to Erika that

he was interpreting the February 28, 1998 slide himself rather than

having it examined by a board-certified pathologist.        The plaintiffs

contend a board-certified pathologist is the “best qualified person” to

interpret such specimens and that had Erika been informed that the

specimen would not be evaluated by a pathologist she would have

insisted that this be done. The plaintiffs further contend the fraudulent

concealment of this information by Dr. Love also precludes Iowa

Pathology Associates’ reliance on the statute of repose because it

participated in the “collective care” of Erika during the relevant time

periods.

      We conclude, as did the district court, that the plaintiffs’

resistances failed to produce admissible evidence tending to prove Erika

was not informed that Dr. Love evaluated that specimen.

Dr. Love’s uncontroverted deposition testimony indicated that it was his

common practice to inform his patients whether he would evaluate their

biopsy specimens himself or whether he was going to send the slide to a

pathologist for evaluation.

            Q. Did you ever have any discussions with Erika
      wherein you advised her that you were not sending tissue
      specimens out to a pathology lab for evaluation, but instead
                                    11

      that you were evaluating them in-house? A. Yes. That is
      my customary practice.
             Q. Tell me about that. What would you have said to
      her? A. I would have said that “I will check this biopsy for
      you personally,” and if I were going to send it to the
      pathology lab, I would say “I will have our pathologist check
      this for you.”
             Q. Okay, so it’s your testimony that both Erika and
      Todd—Was Todd ever present when you saw her? A. At this
      time, I don’t recall that he ever was present during a visit.
             Q. Okay. But it’s your testimony that at least Erika
      would have been aware of the distinction between you
      interpreting slides versus the pathologist at Pathology Labs,
      P.C. interpreting her slides? A. That’s correct . . . .

Further, Dr. Love testified that he regularly charges his patients an

additional fee when he interprets the slides in-house.

      The plaintiffs have offered no admissible evidence to rebut the

testimony of Dr. Love that he informed Erika that it was he who would

evaluate her tissue specimen from the February 28, 1998 biopsy.

Although Erika’s husband averred in an affidavit that Dr. Love never told

him or Erika that not all of the slides would be interpreted by a board-

certified pathologist, he does not allege he was present with Erika during

any of her appointments with Dr. Love or that Dr. Love communicated

separately with him on any occasion.       The plaintiffs do not contend
Dr. Love had a separate obligation to inform Erika’s husband as to the

identity or qualifications of the person who evaluated the specimen in

question.   The plaintiffs have also not offered any evidence to rebut

Dr. Love’s claim that Erika would have received notice that he evaluated

that tissue specimen and others through bills for the service from his

office during the course of treatment.       Accordingly, with only the

testimony of Erika’s husband, which amounts to mere speculation that

Erika was not informed that Dr. Love performed the evaluation of the

February 28, 1998 specimen, we conclude the plaintiffs have not
                                    12


engendered a fact question on whether Dr. Love concealed the fact that

he, rather than a pathologist, evaluated the slide.

      The plaintiffs further assert that, even if Dr. Love told Erika that he

would personally evaluate the February 28, 1998 tissue specimen, he did

not explain to her the differences in qualifications and training between

himself and a board-certified pathologist.     The plaintiffs contend this

constituted a failure to disclose a material fact because, had Erika

known the difference in qualifications, she would have insisted a

pathologist review the slide.   The plaintiffs argue we should apply an

informed consent analysis to this determination—that a physician’s

failure to disclose a material risk in the context of informed consent

constitutes a concealment of a material fact that justifies application of

the fraudulent-concealment doctrine in this case.

      Under the informed consent doctrine, a physician must disclose

information material to a patient’s decision to consent to medical

treatment. Pauscher v. Iowa Methodist Med. Ctr., 408 N.W.2d 355, 360

(Iowa 1987).    In Pauscher, this court endorsed the “patient rule” in

determining the scope of a physician’s duty to disclose information before

a procedure or treatment begins. Id. at 359. Under the “patient rule,” the

physician’s duty to disclose is “measured by the patient’s need to have

access to all information material to making a truly informed and

intelligent decision concerning the proposed medical procedure.”          Id.

Specifically, the plaintiff must show that “[d]isclosure of the risk would

have led a reasonable patient in plaintiff’s position to reject the medical

procedure or choose a different course of treatment.” Id. at 360.

      Even assuming without deciding this test for materiality is applied

to the determination of whether a material fact has been withheld from
                                    13


the patient for fraudulent concealment purposes, we do not conclude the

plaintiffs have generated a genuine issue of material fact on this issue.

Although Erika’s husband averred that had Erika known some of her

slides were being interpreted by a dermatologist rather than a pathologist

he believes Erika would have insisted on having the slides interpreted by

a pathologist or sought care elsewhere, our informed consent caselaw

provides that

      the patient ordinarily will be required to present expert
      testimony relating to the nature of the risk and the likelihood
      of its occurrence, in order for the jury to determine, from the
      standpoint of the reasonable patient, whether the risk is in
      fact a material one.

Id. at 360. On this issue, the plaintiffs have offered only the affidavit of

Dr. Trueblood averring that “board certified pathologists . . . have

superior training . . . to recognize cellular abnormalities, including

melanoma, under a microscope than do dermatologists.”          Importantly,

Dr. Trueblood’s affidavit did not address the nature of the risk arising

from Dr. Love’s evaluation of the February 28, 1998 biopsy slide or the

likelihood of its occurrence.   The importance of such expert opinion

testimony at the summary judgment juncture in this case is heightened
by the deposition testimony of Dr. Scupham who testified that

approximately fifty percent of dermatologists evaluate biopsy slides

themselves without the aid of a pathologist.         Dr. Scupham further

testified that, although pathologists have more formal training than

dermatologists   in   diagnosing   skin   lesions,   dermatologists     derive

“powerful” informal training and education in the course of their clinical

practice aiding them in their diagnoses.       We therefore conclude the

evidence in the summary judgment record is insufficient to raise a

genuine issue of material fact as to whether Dr. Love’s failure to disclose
                                     14


the difference in qualifications between himself and a pathologist was a

failure to disclose a material fact for purposes of our application of the

fraudulent-concealment doctrine.

       Accordingly, we affirm the district court’s grant of summary

judgment on this issue.

       B. Continuum-of-Negligent-Treatment Doctrine.         The plaintiffs

argue that a continuing course of negligent medical care tolls the statute

of repose found in Iowa Code section 614.1(9) until the last instance of

negligent treatment. In Langner, we stated that, if the doctrine applies,

the statute of limitations begins to run on the last date of negligent

treatment. 533 N.W.2d at 522. Although in Langner we entertained the

plaintiff’s   argument    under    the    continuum-of-negligent-treatment

doctrine, we did not explicitly endorse the doctrine because we concluded

it did not apply to the facts of the case. Id. at 519.

       The defendants urge us to reject the application of the continuum-

of-negligent-treatment doctrine to the statute of repose, and in the

alternative, if we conclude it does apply, the defendants contend the

plaintiffs have failed to establish genuine issues of material fact on the

elements of the doctrine.

       We begin by clarifying that the plaintiffs have not argued for the

application of the doctrine of continuous treatment but instead have

asserted only the application of the continuum-of-negligent-treatment

doctrine. The two doctrines are distinguishable. Under the continuing-

treatment doctrine,

       if the treatment by the doctor is a continuing course and the
       patient’s disease or condition is of such a nature as to
       impose on the doctor a duty of continuing treatment and
       care, the statute does not commence running until treatment
       by the [doctor] for the particular disease or condition
       involved has terminated.
                                    15


Ratcliff v. Graether, 697 N.W.2d 119, 124–25 (Iowa 2005) (citation and

internal quotation marks omitted). In contrast, under the continuum-of-

negligent-treatment doctrine, a plaintiff must establish “(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.”

Langner, 533 N.W.2d at 522 (emphasis added) (citation and internal

quotation marks omitted).

      Dr. Love treated Erika on three occasions within the six-year

statute of repose: September 15, 2004; June 14, 2006; and September 6,

2007. The motion for partial summary judgment filed by Dr. Love and

Iowa Dermatology requested summary judgment for claims based on

Dr. Love’s conduct prior to September 15, 2004. We therefore address

whether a genuine issue of material fact was engendered in the summary

judgment record as to whether Dr. Love’s care and treatment of Erika

before that date constituted “a continuous and unbroken course of

negligent treatment” that extended into the period of repose and whether

“the treatment was so related as to constitute one continuing wrong.”

See Langer, 533 N.W.2d at 522.

      The plaintiffs’ petition alleged Dr. Love and Iowa Dermatology were

“negligent and failed to comply with accepted standards of dermatological

practice” from September 18, 1996, through September 6, 2007.           The

plaintiffs further alleged that Dr. Love negligently failed to diagnose and

treat the melanoma in Erika’s body, failed to have a qualified pathologist

evaluate all of Erika’s tissue samples, and otherwise failed to exercise the

appropriate standard of care in his care and treatment of Erika.

      We believe the plaintiffs have engendered a fact question on

whether there was continuous treatment by Dr. Love of the site of the
                                    16


melanoma on Erika’s neck within the statute of repose. Specifically, the

summary judgment record indicates, in the medical records and

testimony of Dr. Love himself, that Dr. Love inspected Erika’s neck and

the site of the excised lesion twice in 2004, once in 2006, and once in

2007. Although some of these examinations were also directed at moles

or lesions on other parts of Erika’s body, the record clearly raises a fact

question that he regularly examined the side of Erika’s neck during the

repose period.

      However, we cannot conclude the record engenders a fact question

on whether the care that continued into the period of repose constituted

negligent care, even assuming without deciding that continuing negligent

care would overcome the statute of repose.       The summary judgment

record contains no evidence that any of the treatment provided by the

defendants after April 15, 1999, fell below the applicable standard of

care. Put another way, the plaintiffs have failed to provide any evidence

that the applicable standard of care required defendants to do something

after that date that they failed to do under the circumstances. Although

the record does include evidence tending to support a finding that

melanoma was detectable in the tissue samples removed from Erika’s

neck in 1996 through 1999, we find no expert testimony in this record

establishing that, under the applicable standard of care, the defendants

should have undertaken other diagnostic procedures or treatment

modalities after April 15, 1999, under the circumstances of this case.

Notably, Dr. Trueblood’s affidavit did not address the standard of care

required of Dr. Love after April 15, 1999, in his care and treatment of

Erika, given the fact that the pathologist’s report upon which he relied

for the evaluation of the biopsy taken on that date was not positive for
                                          17


melanoma, nor did the affidavit state in what particulars Dr. Love’s

conduct after that date fell below that standard. 3                  The summary

judgment record is similarly devoid of evidence establishing the standard

of care against which the conduct of Iowa Pathology Associates, P.C.

should be measured by a fact finder during the six years prior to

August 11, 2010, when this defendant had no occasion to examine,

evaluate tissue samples, or otherwise treat Erika.                Although there is

clearly a fact question as to whether the defendants were negligent in

their care and treatment of Erika on and before April 15, 1999, the

continuum-of-negligent-treatment          doctrine     requires    proof   that    the

defendants were negligent in some particular after that date and within

the period of repose. See, e.g., Jones v. Dettro, 720 N.E.2d 343, 346–47

(Ill. App. Ct. 1999) (concluding plaintiff ordinarily must provide expert

testimony to establish a continuous course of negligent treatment in

order to avoid application of statute of repose); Baker v. Farrand, 26 A.3d

806, 814–15, 817 (Me. 2011) (adopting doctrine to delay running of

statute of limitations and concluding summary judgment improper when

plaintiff presented expert testimony that plaintiff suffered harm from

negligent acts occurring within the limitations period); Farley v. Goode,

252 S.E.2d 594, 599 (Va. 1979) (doctrine applied in denying summary

judgment when expert testimony in the record engendered fact question

as to whether defendant breached the applicable standard of care during

the period of repose); Caughell v. Group Health Co-op of Puget Sound, 876



       3The plaintiffs argue on appeal that Dr. Love should have been palpating Erika’s
lymph nodes each time she returned to see him, should have instructed Erika how to
palpate her own lymph nodes, and should have conducted further tests to check for
metastasis. However, the summary judgment record contains no evidence tending to
support this argument.
                                   18


P.2d 898, 907 (Wash. 1994) (concluding summary judgment improper in

case applying doctrine because plaintiff had engendered a fact question

whether the “subsequent care was negligent in its own right” with expert

testimony tending to establish that the defendants negligently failed to

monitor the plaintiff’s side effects of prescribed narcotics during the

relevant time frame); Forbes v. Stoekel, 735 N.W.2d 536, 541 (Wis. Ct.

App. 2007) (finding summary judgment improper because the plaintiff’s

expert testimony supported a finding that the defendant negligently

performed a root canal in furtherance of a misdiagnosis within the

applicable period of repose). Because we conclude the plaintiffs have not

presented evidence tending to establish any act or omission of the

defendants after April 15, 1999, fell below the applicable standard of

care, we conclude the district court properly granted the defendants’

motions for summary judgment on this issue.

      IV. Conclusion.

      We conclude by noting that our decision in this case evidences the

harsh consequences of statutes of repose that “reflect the legislative

conclusion that a point in time arrives beyond which a potential

defendant should be immune from liability for past conduct.” Albrecht,

648 N.W.2d at 91 (citation and internal quotation marks omitted). Iowa

Code section 614.1(9) operated in this case to “extinguish” Erika’s cause

of action even before she and her husband knew it had accrued. Id. at

90–91. At least under the circumstances presented here, the fraudulent-

concealment doctrine and the continuum-of-negligent-treatment doctrine

do not preserve the plaintiffs’ causes of action, and section 614.1(9)

denies the plaintiffs a remedy for negligent acts or omissions occurring

more than six years prior to the commencement of this action.
                              19


For the above reasons, we affirm the decision of the district court.

AFFIRMED.

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