Christine Kostoglanis v. Leroy L. Yates and Diamond Medical Spa & Vein, P.C.

IN THE SUPREME COURT OF IOWA

No. 19–2078

Submitted February 16, 2021—Filed March 12, 2021

CHRISTINE KOSTOGLANIS,

Appellant,

vs.

LEROY L. YATES and DIAMOND MEDICAL SPA & VEIN, P.C.,

Appellees.

Appeal from the Iowa District Court for Scott County, Marlita A.

Greve, Judge.

The plaintiff appeals from a district court order granting summary

judgment and holding the plaintiff’s claims were barred by the statute of

limitations. AFFIRMED.

McDonald, J., delivered the opinion of the court, in which all

participating justices joined. Oxley, J., took no part in the consideration

or decision of the case.

Candy K. Pastrnak of Pastrnak Law Firm, P.C., Davenport, for

appellant.

Jennifer E. Rinden, Desirée A. Kilburg, and Vincent S. Geis of

Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for appellees.

2

McDONALD, Justice.

In June 2015, Dr. LeRoy Yates provided medical services to

Christine Kostoglanis at Diamond Medical Spa and Vein, including

liposuction and adipose derived mesenchymal stem cell transfer

procedures. Within days of the procedures, Kostoglanis contacted

Diamond Medical with concerns regarding the procedures, her wound, and

postoperative wound care. Unsatisfied with the response, Kostoglanis

sought a second opinion and began treating with a wound clinic in July.

Three years later, in June 2018, Kostoglanis filed this suit against Yates

and Diamond Medical, asserting claims for negligent misrepresentation,

fraudulent misrepresentation, and breach of contract. On the defendants’

motion for summary judgment, the district court held Kostoglanis’s causes

of action, however styled, arose out of patient care and were barred by the

two-year statute of limitations governing malpractice actions in Iowa Code

section 614.1(9) (2015). Kostoglanis timely filed this appeal.

The standards for granting summary judgment are well established

and need not be repeated in full herein. “We review summary judgment

rulings for correction of errors at law.” Deeds v. City of Marion,

914 N.W.2d 330, 339 (Iowa 2018). “Summary judgment is proper when

the movant establishes there is no genuine issue of material fact and it is

entitled to judgment as a matter of law.” Goodpaster v. Schwan’s Home

Serv., Inc., 849 N.W.2d 1, 6 (Iowa 2014). “We view the evidence in the light

most favorable to the nonmoving party.” Banwart v. 50th St. Sports, L.L.C.,

910 N.W.2d 540, 545 (Iowa 2018).

At issue is the statute of limitations applicable to Kostoglanis’s

claims for negligent misrepresentation, fraudulent misrepresentation, and

breach of contract. As relevant here, Iowa Code section 614.1 provides:

3

Actions may be brought within the times herein limited,

respectively, after their causes accrue, and not afterwards,

except when otherwise specially declared:

....

4. Unwritten contracts—injuries to property—fraud—

other actions. Those founded on unwritten contracts, those

brought for injuries to property, or for relief on the ground of

fraud in cases heretofore solely cognizable in a court of

chancery, and all other actions not otherwise provided for in

this respect, within five years, except as provided by

subsections 8 and 10.

5. Written contracts—judgments of courts not of record—

recovery of real property and rent.

a. Except as provided in paragraph “b”, those founded

on written contracts, or on judgments of any courts except

those provided for in subsection 6, and those brought for the

recovery of real property, within ten years.

....

9. Malpractice.

a. . . . those founded on injuries to the person . . .

against any physician and surgeon . . . arising out of patient

care, within two years after the date on which the claimant

knew, or through the use of reasonable diligence should have

known . . . the injury or death for which damages are sought

in the action . . . .

Iowa Code § 614.1. Kostoglanis argues the applicable limitation periods

are the five-year and ten-year periods in subsections (4) and (5). The

defendants contend, and the district court held, each of Kostoglanis’s

causes of action arises out of patient care and the applicable limitations

period is the two-year period in subsection (9).

“When disagreement arises as to which of the several periods of

limitation contained in Iowa Code section 614.1 is applicable, we must

determine . . . which of the types of actions described in the statute most

nearly characterizes the action before the court.” Scott v. City of Sioux City,

432 N.W.2d 144, 147 (Iowa 1988). In making that determination, we look

4

to “[t]he actual nature of the action.” Venard v. Winter, 524 N.W.2d 163,

165 (Iowa 1994). The question “turns on the nature of the right sued upon

and not on the elements of relief sought for the claim.” Id.

In determining the appropriate statute of limitations for

a specific cause of action, the Code requires us to look to the

foundation of the action. This means that the appropriate

statute of limitations is to be ascertained by characterizing the

actual nature of the action.

Sandbulte v. Farm Bureau Mut. Ins., 343 N.W.2d 457, 462 (Iowa 1984)

(emphasis in original), overruled on other grounds by Langwith v. Am. Nat’l

Gen. Ins., 793 N.W.2d 215 (Iowa 2010), superseded by statute, 2011 Iowa

Acts ch. 70, § 45 (codified at Iowa Code § 522B.11(7) (2013)).

On only one occasion have we addressed the question of whether

causes of action not styled as medical malpractice claims should

nonetheless be subject to the medical malpractice statute of limitations.

In Langner v. Simpson, the plaintiff brought six different claims against a

psychiatrist and hospital for inappropriate statements the psychiatrist

allegedly made to the plaintiff during the course of treatment.

533 N.W.2d 511, 515–16 (Iowa 1995). “[The] claims include[d] psychiatric

malpractice, intentional infliction of emotional distress, slander per se,

slander, invasion of privacy, and breach of contract.” Id. at 516. We held

“section 614.1(9)—the malpractice statute of limitations—applie[d] to all of

the claims” against the psychiatrist and hospital. Id. We reasoned that

all of the claims “arose out of injuries allegedly suffered” while the plaintiff

was under the care of the psychiatrist and hospital. Id.

Our holding in Langner is consistent with the decisions of other

courts. It is widely accepted that a plaintiff cannot through artful pleading

evade the statute of limitations governing medical malpractice actions.

See, e.g., Larson v. UHS of Rancho Springs, Inc., 179 Cal. Rptr. 3d 161, 173

5

(Ct. App. 2014) (holding that the “self-serving characterizations are merely

attempts to avoid [the statute of limitations] impose[d] on all medical

malpractice claims”); Griffin v. Carson, 566 S.E.2d 36, 38

(Ga. Ct. App. 2002) (“Whether couched in terms of a tort or breach of

contract action, the two-year statute of limitation applies to malpractice

actions for injuries arising out of medical services.”); Lucas v. Awaad,

830 N.W.2d 141, 151–52 (Mich. Ct. App. 2013) (“In sum, Lucas’s allegation

of intentional infliction of emotional distress sounds in medical

malpractice because the alleged actions occurred during the course of a

professional relationship and the claim requires an examination of medical

expertise or medical judgment in order for Lucas to prevail.”); Simmons v.

Apex Drug Stores, Inc., 506 N.W.2d 562, 564 (Mich. Ct. App. 1993) (stating

the plaintiff’s “attempt to avoid the [statute of limitations’ bar] by

characterizing defendant’s alleged negligence as something other than

professional malpractice . . . will not succeed”), holding modified by

Patterson v. Kleiman, 526 N.W.2d 879 (Mich. 1994) (per curiam);

McMichael v. Howell, 919 So. 2d 18, 23 (Miss. 2005) (holding that plaintiff’s

“argument to support her ‘breach of contract’ claim is nothing more than

medical malpractice”); McCormick v. Centerpoint Med. Ctr. of Indep., LLC,

534 S.W.3d 273, 277–78 (Mo. Ct. App. 2017) (“It is clear that an action

that arises out of a doctor’s malpractice or negligence in providing health

care cannot avoid the application of [the statute of limitations] merely

because it is pled as a claim for fraud, misrepresentation, or breach of

contract.” (quoting Breeden v. Hueser, 273 S.W.3d 1, 7

(Mo. Ct. App. 2008))); Compton v. Jue, NO. 01–16–00412–CV,

2017 WL 3389644, at *4 (Tex. App. Aug. 8, 2017) (“It is well settled that a

health care liability claim cannot be recast as another cause of action to

avoid the requirements governing health care liability claims.”).

6

Kostoglanis relies on Doe v. Cherwitz, 894 F. Supp. 344

(S.D. Iowa 1995), in support of her argument that the limitation period for

malpractice actions does not apply here. In that case, the plaintiff brought

multiple claims against a physician and clinic alleging the physician

forcibly had sexual intercourse with her against her will during a physical

examination. See Doe, 894 F. Supp. at 344–45. Relying on Langner, the

defendants argued the malpractice limitations period applied. See id. at

345. The district court distinguished Langner. See id. In Langner, the

district court reasoned, each of the plaintiff’s claims involved injuries

arising out of patient care. See id. (citing Langner, 533 N.W.2d at 516). In

contrast, while Doe’s claims arose in a clinical setting, her injuries did not

arise out of patient care within that setting. See id. The district court

explained:

I do not believe the Iowa Supreme Court meant to hold, or

would hold if this case were presented to it, that section

614.1(9) applies to willful non-treatment tortious activity by

the physician, simply because it occurred when the patient

was seeing the physician for medical reasons. Obviously, that

is not what the legislature intended in enacting the statute,

and its careful choice of language—“arising from patient

care”—clearly limits the protection of the statute to claims

resulting from patient care activity. Rape is not patient care

activity. I believe the Iowa Supreme Court would hold that

willful tortious activity outside the realm of patient care, such

as that alleged in this case, is not governed by the statute.

Id. at 345–46 (emphasis omitted).

The distinction drawn in Doe is a good one, but that case is not this

case. In this case, the undisputed allegations and facts in the summary

judgment record show each of Kostoglanis’s causes of action arise out of

patient care. To “arise out of” patient care means the injuries and causes

of action originate in, stem from, or result from patient care. See Arise,

Black’s Law Dictionary (11th ed. 2019). Plaintiff’s petition states that “[a]t

7

all relevant times hereto, Defendants had a doctor/provider-patient

relationship with Plaintiff.” The petition alleges the defendants

misrepresented that Yates was capable of performing the procedures, that

“he was professionally qualified to perform” the procedures, that “he

personally could safely perform” the procedures, and that he would “act

as a reasonable physician under the circumstances.” For the breach of

contract claim, the petition states the defendants breached the contract

for medical services by “fail[ing] to perform the services in a professional

manner.” For her fraudulent misrepresentation claims, Kostoglanis

alleges defendants falsely represented Yates “was fully qualified,

knowledgeable and licensed to provide the” procedures. Each of the

plaintiff’s allegations originate from the representations regarding patient

care and the patient care the defendants provided.

The remainder of the summary judgment record shows the same.

In her deposition, Kostoglanis confirmed her claims arose solely out the

medical procedures performed and not some other conduct unrelated to

patient care:

Q. And you claim in this case that [Yates] was not

qualified to perform the procedure; is that your claim?

A. Yes.

Q. And that he did not perform the procedure

competently? A. Right.

Q. And that that is the basis for your claim of breach

of contract? A. Yes.

Q. And your claims of misrepresentation? A. Yes.

Q. Anything else forming the basis of those claims? . . .

A. Right, yes.

Q. So that’s the basis of the claims? A. Yes.

Q. You don’t have anything to add to that as you sit

here today? A. No.

8

In her answers to interrogatories, Kostoglanis stated “the factual basis for

the liability relates to Dr. Yates and Diamond Medical Spa and Vein, P.C.

lack of qualifications to provide the services they contracted to provide to

Plaintiff.”

Kostoglanis is the master of her pleadings and may assert the causes

of action as she sees fit. Her right to bring causes of action for negligent

misrepresentation, fraudulent misrepresentation, and breach of contract

are not at issue in this case. What is at issue is the statute of limitations

applicable to each of the causes of action asserted. In answering that

question, we look to the substance and not the form of the causes of action.

Kostoglanis’s negligent misrepresentation, fraudulent misrepresentation,

and breach of contract claims are each predicated on injuries arising out

of the doctor–patient relationship and the patient care defendants provided

or allegedly failed to provide to her. Kostoglanis could not establish

liability for any of her claims without first establishing that Yates lacked

the qualifications to perform the procedures and that Yates failed to

perform the procedures within the accepted standard of care.

Kostoglanis’s claims are thus subject to the two-year statute of limitations

set forth in Iowa Code section 614.1(9) and are untimely. The district court

correctly granted the defendants’ motion for summary judgment.

AFFIRMED.

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