holding there was no fact question as to whether the defendant dermatologist concealed the fact that he, rather than a pathologist, had evaluated the biopsy specimen when it was his customary practice to inform his patients whether he would evaluate the biopsy specimens himself, he had so informed the plaintiff, and he regularly charged an additional fee when he would evaluate the specimens in-house
How later courts described this case
- holding there was no fact question as to whether the defendant dermatologist concealed the fact that he, rather than a pathologist, had evaluated the biopsy specimen when it was his customary practice to inform his patients whether he would evaluate the biopsy specimens himself, he had so informed the plaintiff, and he regularly charged an additional fee when he would evaluate the specimens in-house
- explaining that “fraudulent concealment allows a plaintiff to pursue a claim that would be otherwise time barred under the statute of repose”
- noting that the doctrine of fraudulent concealment has been part of our jurisprudence for over a century and survived codification of the statute of repose in section 13 614.1(9)
- concluding a plaintiff filed an action beyond the statute of repose
Written by the judges who cited it.
The opinion
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.