Opinion
No. 3-867 / 03-0546
Filed February 27, 2004
Appeal from the Iowa District Court for Dubuque County, Alan L. Pearson, Judge.
Julia VonAh appeals the dismissal of her medical negligence action as barred by the statute of repose. AFFIRMED.
James H. Cook of Dutton, Braun, Staack Hellman, P.L.C., Waterloo, for appellant.
Connie Alt, Nancy J. Penner and Patricia Hoffman-Simanek of Shuttleworth Ingersoll, P.L.C., Cedar Rapids, for appellee.
Considered by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
On October 4, 1994, Julia VonAh sought medical treatment for a knee injury. Almost seven years later, the knee was found to be cancerous. VonAh filed a medical malpractice action against the doctors and clinic that examined her in 1994. One of the physicians, Dr. Terence Alexander, moved to dismiss the action, arguing that VonAh's claim was barred by Iowa Code section 614.1(9)(a) (2001) (setting forth limitations and repose periods for medical malpractice actions). The district court granted the motion and this appeal followed.
We review a district court's ruling on a motion to dismiss for errors of law, accepting as true the facts alleged in the pleading sought to be dismissed. Albrecht v. General Motors Corp., 648 N.W.2d 87, 89 (Iowa 2002). A statute of repose defense is properly raised in a motion to dismiss only when the necessary facts appear on the face of the petition. Id.
Iowa Code section 614.1(9)(a) prescribes a two year statute of limitations but states that "in 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. . . ." This clause functions as a statute of repose. Albrecht, 648 N.W.2d at 92. Its purpose is "to close the door after six years on belatedly-discovered claims. . . ." Koppes v. Pearson, 384 N.W.2d 381, 387 (Iowa 1986). In effect, "the mere passage of time" prevents the "legal right from ever arising." Bob McKiness Excavating Grading, Inc. v. Morton Bldg., Inc., 507 N.W.2d 405, 408 (Iowa 1993).
In pertinent part, VonAh pled the following:
Mrs. VonAh was seen by Dr. Alexander on 10/4/94 for injuries to her left knee and right hand after a fall while running. X-rays of her left knee revealed stippling within the shaft of the distal diaphysis of her left femur, which was felt most likely to be an enchondroma. This was not mentioned to Julia, and no follow up was scheduled or recommended.
Dr. Alexander asserted that this paragraph alleged an act of negligence on October 4, 1994, well outside the six-year statute of repose. The district court agreed. VonAh takes issue with the ruling, claiming "she expects to be able to develop during the discovery of this case that the standard of care applicable to such a situation requires that, once an enchondroma is detected, annual monitoring of such a neoplasm be performed, as there is a risk that it will transform into a malignant chondrosarcoma." The petition, however, does not allege that Dr. Alexander had a duty to annually monitor VonAh's condition. It states only that on October 4, 1994, the enchondroma "was not mentioned to Julia, and no follow up was scheduled or recommended." On its face, therefore, the petition alleges an act outside the six-year statute of repose. The district court did not err in granting the motion to dismiss. AFFIRMED.
We conclude VonAh failed to preserve error on her remaining challenges to the court's ruling.
Vogel, P.J., concurs; Hecht, J., dissents.
I respectfully dissent. A motion to dismiss should be sustained only when it appears to a certainty that the plaintiff would not be entitled to relief under any state of facts that could be proved in support of the claims asserted. Albrecht v. General Motors Corp., 648 N.W.2d 87, 89 (Iowa 2002). When ruling on a motion to dismiss, we accept as true the facts alleged in the pleading sought to be dismissed. Id. It is a rare case which will not survive a motion to dismiss for failure to state a claim upon which any relief can be granted. Smith v. Smith, 513 N.W.2d 728, 730 (Iowa 1994).
VonAh argues the medical evidence will prove the existence of a known risk that an enchondroma will transform into a potentially life-threatening malignant chondrosarcoma. She further contends that because of the gravity of this risk, the evidence will establish that the applicable standard of care required Dr. Alexander to diagnose the condition, disclose it, and exercise reasonable care to monitor it at least annually thereafter. Accordingly, she contends Dr. Alexander owed and breached a duty not only to diagnose and disclose the condition in October 1994, but also to exercise reasonable care to monitor it annually thereafter in the years 1995 through 2000. Thus, VonAh alleges she will establish that Dr. Alexander committed at least five omissions within the time limit imposed by the statute of repose which proximately caused the injury she suffered.
I would hold the district court erred in sustaining the motion to dismiss because it does not appear to a certainty that VonAh would be denied relief under any state of facts that could be proved in support of the claims asserted. At the core of the dispute appears to be a fact question to be resolved by the medical evidence to be adduced. VonAh asserts she will be able, because of the risk than an enchondroma will become cancerous and deadly, to prove a standard of care requiring Dr. Alexander to schedule at least annual checkups to monitor the condition. At this stage of the proceedings, I believe it is inappropriate to presume either that she will, or that she will not, be able to produce expert testimony tending to prove the standard of care requires a physician under the circumstances of this case to schedule at least annual checkups to monitor an enchondroma. It is sufficient at this stage for VonAh to assert, as she has, that the applicable standard did require Dr. Alexander to exercise reasonable care to schedule and perform annual checkups to monitor the condition during the six years prior to the filing of this lawsuit. Whether she will actually be able to generate a fact question on her construction of the standard of care is a question that should be resolved with the assistance of expert testimony in further proceedings in the district court. Because I cannot conclude, as a matter of law, that VonAh would not be entitled to relief under any state of facts which could be proved in support of her medical negligence claim, I would reverse and remand for further proceedings.
Although the majority correctly notes that the petition does not expressly allege that Alexander had a duty to schedule annual checkups to monitor the condition, I would hold that the allegations of the petition, when viewed in concert with VonAh's resistance to the motion to dismiss, adequately informed the court of the duty allegedly breached in this case.
I cannot conclude it inconceivable that VonAh could produce expert testimony tending to prove that because of the gravity of the risk that the enchondroma would progress to a lethal malignancy, the standard of care required Dr. Alexander to diagnose and disclose the condition to his patient in October of 1994, and to schedule a follow-up check-up for no later than October of 1995. And if, after examining VonAh in October of 1995, Dr. Alexander found no progression of the condition, it is not inconceivable that the applicable standard of care might require him to schedule the next check-up for no later than October of 1996 and to continue such annual monitoring thereafter at least until an annual examination demonstrated such progression of the condition as to require other treatment.