This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Joann V. Zenzen,

as trustee for the heirs and next-of-kin of Albin Zenzen, deceased,





Richard D. Eiser, M.D., et al.,



Filed January 18, 2005


Kalitowski, Judge


Douglas County District Court

File No. C8-02-1375


Mark Hallberg, Teresa Fariss McClain, Hallberg & McClain, P.A., 380 St. Peter Street, Suite 715, St. Paul, MN 55102 (for appellant)


Katherine A. McBride, William M. Hart, Rodger A. Hagen, Meagher & Geer, P.L.L.P., 33 South Sixth Street, Suite 4200, Minneapolis, MN 55402 (for respondents)


            Considered and decided by Kalitowski, Presiding Judge; Minge, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant trustee challenges the district court’s grant of summary judgment to respondent on the ground that this medical malpractice action was barred by the statute of limitations.  Appellant argues that (1) decedent’s treatment did not terminate until after the continuing course of treatment for decedent’s prostate condition was completed; and (2) appellant’s cause of action did not accrue until decedent had sustained legal damages as a result of respondents’ negligence, which occurred when decedent’s prognosis of survival fell below 50%.  We affirm.


            “A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted).  On appeal, if the underlying facts on which summary judgment is granted are undisputed, this court conducts a de novo review to determine the accrual of the cause of action and the running of the statute of limitations.  Broek v. Park Nicollet Health Servs., 660 N.W.2d 439, 441 (Minn. App. 2003) (citing Weeks v. Am. Family Mut. Ins. Co., 580 N.W.2d 24, 26 (Minn. 1998)).

            Minnesota’s wrongful death statute of limitations provides, in relevant part, that “[a]n action to recover damages for a death caused by the alleged professional negligence of a physician . . . shall be commenced within three years of the date of death, but in no event shall be commenced beyond the time set forth in section 541.076.”  Minn. Stat. § 573.02, subd. 1 (Supp. 2003).  Section 541.076 is the medical malpractice statute of limitations, and it provides that “an action by a . . . former patient against a health care provider alleging malpractice . . . must be commenced within four years from the date the cause of action accrued.”  Minn. Stat. § 541.076(b) (2002).  

            Accordingly, wrongful death claims in Minnesota must be brought within three years of the date of death, but can never be brought more than four years from the date that the medical malpractice cause of action accrued.  See Murphy v. Allina Health Sys., 668 N.W.2d 17, 21-22 (Minn. App. 2003) (noting that some wrongful death actions may be barred under the statute even if they are brought on the date of death), review denied (Minn. Nov. 18, 2003).  It follows then, that the statute of limitations for a wrongful death action based on medical malpractice begins running at the same time as the decedent’s medical malpractice claim.  Broek, 660 N.W.2d at 441 (citing DeRogatis v. Mayo Clinic, 390 N.W.2d 773, 776 (Minn. 1986)).  And, for the purposes of this analysis, the date that the decedent’s medical malpractice claim accrued is also the date on which appellant’s wrongful death action accrued. 


            It is well-settled in Minnesota that a cause of action for medical malpractice “will not accrue until the plaintiff ceases treatment with the defendant physician.”  Molloy v. Meier, 679 N.W.2d 711, 721 (Minn. 2004) (citing Grondahl v. Bulluck, 318 N.W.2d 240, 243 (Minn. 1982)).  This is known as the “termination of treatment rule.”  Id.  “This rule is intended to extend the statute of limitations by assuming that the negligent conduct of the physician occurred on the last day of treatment unless the plaintiff’s injury was caused by a discrete, identifiable act.”  Molloy, 679 N.W.2d at 721. 

            We reject appellant’s claim that the decedent’s treatment here did not terminate until his final check-up regarding his prostate surgery.  The decedent’s prostate problems were not related to his death.  And the decedent was never treated for the lung cancer that appellant now claims resulted in death because of respondents’ alleged misdiagnosis of a spot on his lung.  Rather, at the time of the alleged misdiagnosis, the decedent was being treated for urinary retention, caused by a problem with his prostate.  Thus, the district court properly determined that appellant’s wrongful death claim arose out of a single act of negligent conduct—a physician’s alleged misdiagnosis of the spot in decedent’s lung as a “calcified granuloma.”  See D’Amaro v. Joyce, 297 F.3d 768, 771 (8th Cir. 2002) (finding, based on the supreme court’s opinion in Fabio, that failure to inform the plaintiff of a potentially harmful heart defect was a single act of negligence where plaintiff was being treated for other, unrelated ailments).


            Appellant’s arguments regarding the accrual date of the underlying cause of action are directly contradicted by the Minnesota Supreme Court’s ruling in Fabio v. Bellomo, and several recent interpretations of that decision.  These cases indicate that, in Minnesota, where an alleged negligent failure to diagnose results in the subsequent progression of the plaintiff’s illness, the cause of action accrues (and the statute of limitations begins running) at the time of the failure to diagnose.  Compare Fabio, 504 N.W.2d 758, 762 (holding that cause of action accrued at time of misdiagnosis where doctor misdiagnosed breast cancer and the cancer progressed after the misdiagnosis) and D’Amaro, 297 F.3d at 771 (holding that cause of action accrued at time of failure to inform where x-ray results showed a pulmonary artery abnormality that became progressively worse with time), with Broek, 660 N.W.2d at 443 (holding that cause of action did not accrue until plaintiff’s heart attack, where there was no evidence that misdiagnosed heart condition changed or progressed in seven years after misdiagnosis) and Molloy, 679 N.W.2d at 722 (holding that, in an action for failure to diagnose a genetic disorder, the cause of action did not accrue until the mother became pregnant because the misdiagnosis did no damage until conception of another child).

            Here, appellant claims that the physician allegedly failed to diagnose a tumor in the decedent’s lung as cancerous and this misdiagnosis caused the decedent’s death.  Appellant argues that the supreme court’s decision in Molloy created an “ambiguity in the law” as to when the decedent’s medical malpractice claim accrued.  We disagree.  While distinguishing Fabio on its facts, the supreme court in Molloy stated that “[w]e reaffirm the long-standing principle that malpractice actions based on failures to diagnose generally accrue at the time of misdiagnosis, because some damage generally occurs at that time.”  679 N.W.2d at 722.  Thus, the law in Minnesota—as laid out in Fabio and reaffirmed in Molloy—provides that appellant’s malpractice claim accrued on the date of the alleged misdiagnosis, and therefore, appellant’s wrongful death cause of action accrued on the same day.  See Minn. Stat. § 573.02 (stating that wrongful death actions shall not be commenced beyond the time set forth in section 541.076); see also Minn. Stat. § 541.076(b) (stating that medical malpractice claims must be commenced within four years from the date the cause of action accrued).

Because under Minnesota law, appellant’s cause of action accrued on March 9, 1998, and the four-year statute of limitations had run by the time she filed this wrongful death action on December 6, 2002, the district court did not err in granting summary judgment in favor of respondents.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.