Opinion
No. 4-673 / 04-0031
Filed January 26, 2005
Appeal from the Iowa District Court for Black HawkCounty, Bruce B. Zager, Judge.
Plaintiff appeals the granting of defendant's motion for summary judgment on the ground the case is time barred. AFFIRMED.
Daniel Seufferlein of Dutton, Braun, Staack Hellman, P.L.C., Waterloo, for appellant.
Joseph Barron of Peddicord, Wharton, Spencer Hook, LLP, Des Moines, and Raymond Stefani of Gray, Stefani Mitvalsky, P.L.C., Cedar Rapids, for appellee.
Heard by Huitink, P.J., and Mahan, Miller, and Vaitheswaran, JJ., and Snell, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
This case is before us to review the district court's granting summary judgment to defendant Dr. Edwin D. King. Plaintiff, Warren R. Camp sued Dr. King, an oral surgeon, claiming negligence in dental treatment. Camp had been referred to Dr. King by Dr. Brent Ludens, a practicing dentist, for treatment relating to the repair and replacement of a dental implant system in Camp's lower jaw. Dr. King filed a motion for summary judgment, which the court granted. On appeal by Camp, we affirm.
The lawsuit was intitially commenced on November 13, 2001, against Dr. Ludens; Dr. King was added as a defendant on February 27, 2003. The injury for which damages are sought occurred on December 13, 1999, when Dr. King performed a surgical dental procedure on Camp. That procedure consisted of removing five abutments from Core-Vent implants in Camp's mouth. Camp asserts that a mistake was made constituting negligence in that only three abutments should have been removed.
Our standard of review of the summary judgment is for errors of law. Iowa R. App. P. 6.4; VandeKop v. McGill, 528 N.W.2d 609, 611 (Iowa 1995). The court granted summary judgment for defendant Dr. King based on our statute of limitations barring actions started more than two years after a personal injury. See Iowa Code § 614.1(9) (2003). Here, the time elapsed was three years and two months. The statute begins to run "when the patient knew, or through the use of reasonable diligence should have known, of the injury for which damages are sought." Langner v. Simpson, 533 N.W.2d 511, 517 (Iowa 1995).
Plaintiff Camp claims the statute does not bar his suit because he was not aware of any negligence by Dr. King until Dr. King's deposition was taken on September 12, 2002. In fact, due to a miscommunication between the doctors, five abutments were removed instead of three as Dr. Ludens intended.
Camp relies on the doctrine of inquiry notice. He asserts that it is only after he knew of the negligence of Dr. King in extracting more abutments than Dr. Ludens intended that the statutory time begins to run. As such, his lawsuit was commenced within two years of that date, being September 12, 2002.
Our supreme court has interpreted the limitations statute in Langner v. Simpson, 533 N.W.2d 511 (Iowa 1995). The court emphasized that the statute runs from when the patient knew, or through the use of reasonable diligence should have known, of the injury for which damages are sought. Langner, 533 N.W.2d at 517. The statute begins to run even though the patient does not know the physician or dentist had negligently caused the injury. Id.; see also Scholte v. Dawson, 676 N.W.2d 187, 193-94 (Iowa 2004).
The record shows the injury occurred when Dr. King operated on Camp, December 13, 1999. Camp not only then knew of the injury but even inquired of Dr. King whether he was supposed to extract more than two abutments. After checking, Dr. King affirmed to Camp that five extractions was correct, to which Camp assented. The court's analysis and ruling on this point was correct. Camp knew of the injury at the time it occurred.
Next, Camp claims the doctrine of fraudulent concealment applies. Under that rule, the statute of limitations is tolled when a doctor does not tell a patient of any problem, mistake, or any other fact that would put the patient on notice of potential malpractice.
On this issue, the Scholte case applies. In an earlier case, the supreme court held that to establish the fraudulent concealment doctrine, a plaintiff must show (1) that the defendant did some affirmative act to conceal the cause of action, and (2) the plaintiff must have exercised diligence to discover the cause of action. VanOverbike v. Youberg, 540 N.W.2d 273, 276 (Iowa 1995). Later, the court reassessed this requirement, holding that the defendant must have done some affirmative act to conceal the injury rather than the cause of action. Scholte, 676 N.W.2d at 195. Also, the Scholte court held that there must be a "temporal separation of the acts of negligence and the acts of alleged concealment; the concealment must take place after the alleged acts of negligence occurred." Id. (citation omitted).
In the instant case there was no concealment by Dr. King at all where plaintiff Camp was fully aware of the injury. Any possible concealment by the doctors of a lawsuit arising from the injury is irrelevant. The law established by the Scholte case is fatal to Camp's claim. We affirm the district court on this issue.
We have considered all other arguments put forth by plaintiff Camp and find them inapposite in light of our analysis and holding.