#27568-a-DG
2016 S.D. 33


                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA


                                    ****

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

      v.

SANFORD USD MEDICAL CENTER,                  Defendant and Appellee.


                                    ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE SECOND JUDICIAL CIRCUIT
                   MINNEHAHA COUNTY, SOUTH DAKOTA

                                    ****

                 THE HONORABLE DOUGLAS E. HOFFMAN
                               Judge

                                    ****


N. DEAN NASSER, JR.
JAMES M. NASSER of
Nasser Law Offices, PC
Sioux Falls, South Dakota                    Attorneys for plaintiff and
                                             appellant.


MELISSA C. HINTON of
Evans, Haigh & Hinton, LLP
Sioux Falls, South Dakota                    Attorneys for defendant and
                                             appellee.

                                    ****


                                             CONSIDERED ON BRIEFS
                                             ON MARCH 21, 2016
                                             OPINION FILED 04/13/16
#27568

GILBERTSON, Chief Justice

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

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

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

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

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

should have been tolled. We affirm.

                          Facts and Procedural History

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

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

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

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

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

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

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

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

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

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

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

no charge because Medicare would not cover additional treatments at Prairie

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

September 14, 2010.




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#27568

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

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

resulting from his fall. Sanford declined to pay for additional treatment, and Pitt-

Hart commenced this action on September 14, 2012, by delivering a summons and

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

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

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

SDCL 15-2-14.1 1 as a medical-malpractice claim. The circuit court agreed and

granted Sanford’s motion for summary judgment.

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

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

                                Standard of Review

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

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

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

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

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

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



1.      SDCL 15-2-14.1 states, in part:
              An action against a physician, surgeon, dentist, hospital,
              sanitarium, registered nurse, licensed practical nurse,
              chiropractor, or other practitioner of the healing arts for
              malpractice, error, mistake, or failure to cure, whether based
              upon contract or tort, can be commenced only within two years
              after the alleged malpractice, error, mistake, or failure to cure
              shall have occurred . . . .

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

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

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

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

                               Analysis and Decision

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

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

case as a direct-liability case instead of a vicarious-liability case. According to Pitt-

Hart, the circuit court should have treated his action as if it were brought against

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

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

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

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

continuous-treatment rule because he continued to receive treatment until

September 14, 2010.

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

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

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

Because Pitt-Hart concludes that SDCL 15-2-14.1 does not apply to Nygard, Pitt-

Hart also concludes that it does not apply to Sanford in this case. According to Pitt-

Hart, “[a]lthough a hospital is vicariously liable for the torts of its ministerial

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

of the employees do not become the torts of the hospital.” Therefore, Pitt-Hart


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concludes that SDCL 15-2-14.1 bars claims only for malpractice directly performed

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

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

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

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

other practitioner of the healing arts.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



2.       Pitt-Hart contends that “[i]f the Legislature intended SDCL 15-2-14.1 to
         include vicarious liability, it could have easily said so[.]” SDCL 15-2-14.1 is
                                                                 (continued . . .)
                                               -4-
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theories of liability are distinct legal concepts, SDCL 15-2-14.1 makes no distinction

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

distinction.

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

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

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

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

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

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

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

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

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

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

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

statute.

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

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

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

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

________________________
(. . . continued)
         worded inclusively—it broadly applies to an action. This inclusive statement
         is explicitly limited in only two ways. When the Legislature uses inclusive
         language indicating a broad range of conduct, it is not required to anticipate
         and individually address each subdivision of that conduct a party might
         imagine. Thus, the better view is that if the Legislature intended SDCL 15-
         2-14.1 to exclude vicarious liability, it could have easily said so.

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(nursing-home resident fell while nursing assistant attempted to help the resident

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

importantly, each of the foregoing cases discusses only what constitutes


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malpractice. In contrast, SDCL 15-2-14.1 applies to “[a]n action . . . for malpractice,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

conduct involving unlicensed hospital personnel, such as a dispute regarding a bill


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#27568

for hospital services (i.e., “[a]n action against a . . . hospital . . . for . . . error . . .

based upon contract”).

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

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

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

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

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

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

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

hospital; instead, it involves a health-care technician who allegedly dropped a post-

operative, knee-replacement patient contrary to standing orders that the patient

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

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

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

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

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

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

               The Doctrine of Estoppel may be applied to prevent a fraudulent
               or inequitable resort to a statute of limitations. The issue is
               whether the Plaintiff, by inequitable conduct on the part of the
               Defendant (usually fraud or misrepresentation), has been
               induced to alter his position to do that which he would not
               otherwise have done (i.e., refrained from commencing an action
               within the statutory period).

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

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

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

of the two-year period defined in that statute.

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

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

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

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

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

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

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

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

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

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

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

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

SDCL 15-2-14.1.

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

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

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

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

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

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

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

instead from the date of the last culpable act or omission of the defendant.” CTS


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Corp., ___ U.S. at ___, 134 S. Ct. at 2182. The two-year period expressed in

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

discovery of a cause of action.

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

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

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

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

repose period is fixed and its expiration will not be delayed by estoppel or tolling[.]”


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CTS Corp., ___ U.S. at ___, 134 S. Ct. at 2183 (emphasis added). Likewise,

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

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

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

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

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

added).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

tolling a period of limitation or estopping a party from asserting it as a defense may


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

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

inapplicable to a period of repose.

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

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

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

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

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

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

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

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

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

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

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

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

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

Church, 882 F.2d at 866.

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

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

well as other jurisdictions, has recognized two different versions of the continuous-

treatment rule. Under one version, the limitation period on an accrued cause of

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

patient for the particular disease or condition created by the original act of alleged


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negligence.’” Lewis, 2013 S.D. 80, ¶ 23, 840 N.W.2d at 667 (emphasis added)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

mislabeled application of the continuing-tort doctrine. “Generally, when a tort


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involves a continuing injury, the cause of action accrues and the statute of

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

resulted from a continuous and unbroken course of negligent conduct; rather, Pitt-

Hart’s complaint alleges his injury was caused solely by being dropped. Because

Pitt-Hart’s injury resulted from a single, identifiable act and not from a continuing


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course of negligent treatment, the tort alleged was complete on November 11, 2009.

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

year before he commenced this action.

                                       Conclusion

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

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

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

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

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

analysis of our previous malpractice cases remains largely undisturbed. Legal

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

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

both statutes of limitation and repose. 3 Even so, the Legislature’s creation of a two-

year period of repose in SDCL 15-2-14.1 essentially renders such tolling moot for

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

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


3.       In this case, it appears that the applicable statute of limitation is SDCL 15-2-
         14(3), which states that an action for a personal injury “can be commenced
         only within three years after the cause of action shall have accrued[.]”
         Because we reaffirm that SDCL 15-2-14.1 is a statute of repose, there is no
         conflict between it and SDCL 15-2-14(3). However, SDCL 15-2-14.1 would
         control even if it was a statute of limitation. “A rule of statutory construction
         is that the more specific statute governs the more general statute.” Peterson,
         2001 S.D. 126, ¶ 28, 635 N.W.2d at 567. “Another rule of statutory
         construction is that the more recent statute [supersedes] the older statute.”
         Id. ¶ 29, 635 N.W.2d at 567. Because SDCL 15-2-14.1 is both more specific
         and more recently modified than SDCL 15-2-14(3), SDCL 15-2-14.1’s two-
         year period would apply to Pitt-Hart’s action even if SDCL 15-2-14.1 was a
         statute of limitation.

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#27568

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

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

[¶28.]       We affirm.

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




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