This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Margaret MacRae,
trustee for the next of kin of Roderick MacRae,


Group Health Plan, Inc., et al.,


Filed August 28, 2007


Stoneburner, Judge


Hennepin County District Court

File No. 27CV068385


Kay Nord Hunt, Stephen C. Rathke, Lommen, Abdo, Cole, King & Stageberg, P.A., 2000 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for appellant)


Rebecca Egge Moos, Charles E. Lundberg, Paula M. Semrow, Bassford Remele, P.A., Suite 3800, 33 South Sixth Street, Minneapolis, MN 55402 (for respondents)


            Considered and decided by Toussaint, Chief Judge; Stoneburner, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N




            Appellant challenges the district court’s grant of summary judgment to respondents, dismissing appellant’s wrongful-death action as barred by Minn. Stat. § 541.076 (2006), the statute of limitations for medical-malpractice actions.  Based on existing caselaw, we conclude that the district court did not err in holding that appellant’s cause of action accrued on the date of misdiagnosis and is therefore barred by the statute of limitations, and we affirm.



            The relevant facts in this case are undisputed.  Respondent Michael Kelly, M.D., an employee of respondent Group Health Plan, Inc. d/b/a/ respondent HealthPartners, Inc. (HealthPartners), performed a biopsy of a lesion on Roderick MacRae’s left leg.  Respondent Amar Subramanian, M.D., a pathologist also employed by HealthPartners, interpreted the biopsy slides on January 17, 2001, and misdiagnosed the lesion as a non-malignant compound nevus.

            In December 2002, Dr. Kelly performed an unrelated preoperative examination of MacRae for which the standard of care requires the examiner to palpate both inguinal lymph nodes.  Dr. Kelly did not note any abnormalities of these lymph nodes in his preoperative report.  In September 2004, MacRae reported to Dr. Kelly that he had a swollen left leg and groin with “some pain” in the left leg.  He was referred to Dr. Mestitz, a surgeon, who diagnosed a left groin adenopathy and ordered a pelvic-lymph-node biopsy, which revealed that MacRae had metastatic-malignant melanoma.  A consulting radiation oncologist, Dr. Kurt Nisi, opined that the “large nevus resected from the left leg in 2001 . . . seems to be the most likely source of his disease.”

            MacRae questioned the accuracy of the 2001 biopsy report and was informed in November 2004 that “on further review of his original biopsy done from his left lower leg in 2001, it was determined that he indeed had a malignant melanoma” and that “[m]ost likely, this is the primary melanoma that now he has metastatic disease as a result of.”  MacRae died on August 26, 2005, from extensive metastatic-malignant melanoma.

            On February 20, 2006, appellant Margaret MacRae, as trustee for MacRae’s next of kin, sued respondents HealthPartners, Dr. Subramanian, and Dr. Kelly for wrongful death as a result of medical malpractice, specifically, failure to correctly diagnose MacRae’s malignant melanoma in 2001.  Respondents moved for summary judgment, asserting that the action is barred by the four-year statute of limitations that applies to wrongful-death actions based on medical malpractice. 

            In opposition to the motion, appellant presented the expert affidavit of Arkadiusz Dudek, M.D., who opined, in relevant part, that because the preoperative examination performed by Dr. Kelly in December 2002 did not reveal pathology in either inguinal lymph node, it is more likely than not that the melanoma had not metastasized by that date to a point that was palpable.  Dr. Dudek further opined that MacRae would more likely than not have survived if the melanoma had been properly diagnosed and treated in December 2002.  Appellant argued that, under applicable caselaw, MacRae would not have been able to establish damages from misdiagnoses of a malignancy until the time that it was more likely than not that he would not survive his cancer, so that his medical-malpractice action did not accrue until sometime after December 2002, which was within four years of the date that the wrongful-death action was brought.

            Citing Molloy v. Meier,679 N.W.2d 711, 722 (Minn. 2004), the district court relied on the “longstanding principle that malpractice actions based on failures to diagnose generally accrue at the time of the misdiagnosis, because some damage generally occurs at that time.”  Based onthat principle, the district court held that MacRae’s medical-malpractice cause of action accrued in January 2001 and that appellant’s claim is therefore time-barred.  This appeal followed.



            This court reviews a grant of summary judgment to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law.  Wallin v. Letourneau, 534 N.W.2d 712, 715 (Minn. 1995); see also Minn. R. Civ. P. 56.03 (stating summary-judgment standard).  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), review denied (Minn. July 15, 2003).

            The statute of limitations applicable to wrongful-death actions provides, in relevant part: “An action to recover damages for a death caused by the alleged professional negligence of a physician, surgeon, dentist, hospital or sanitarium . . . 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 (2006).  Minn. Stat. § 541.076(b) (2006), provides that a medical-malpractice action “must be commenced within four years from the date the cause of action accrued.”  A cause of action accrues when it may be brought without dismissal under Minn. R. Civ. P. 12.02(e) for failure to state a claim.  Molloy v. Meier,679 N.W.2d 711, 720 (Minn. 2004).

            When the breach of duty is a single act occurring at an undisputed time, a cause of action for medical malpractice accrues when “the plaintiff has suffered some injury,” which usually coincides with the date of the defendant’s breach of duty.[1]  Molloy,679 N.W.2d at 721 (citing Dalton v. Dow Chem. Co., 280 Minn. 147, 153, 158 N.W.2d 580, 584 (1968)).  In Molloy,the Minnesota Supreme Court reaffirmed “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.” 722; see also Fabio v. Bellomo, 504 N.W.2d 758, 762 (Minn. 1993). 

            Appellant argues that despite the supreme court’s dictum in Molloy,other supreme court cases hold that a cause of action for misdiagnosis of a malignancy does not accrue until it is more likely than not that the patient will not survive the disease.  Appellant specifically relies on Leubner v. Sterner, 493 N.W.2d 119, 120 (Minn. 1992), in which the supreme court rejected a medical-malpractice claim for damages for negligent aggravation of a preexisting condition.  The Leubner court held that there is generally no medical-malpractice cause of action for negligent aggravation of a preexisting condition, and a plaintiff cannot establish that a misdiagnosis decreased the likelihood of survival until there is proof that it is more probable than not that the plaintiff will not survive the cancer.  Id. at 121-22.

            The defendant doctor in Leubner was alleged to have failed to order a biopsy that would have led to an earlier diagnosis of a malignant breast tumor.  Id. at 120.  After diagnosis, Leubner underwent several surgeries for recurrences of cancer and ultimately had a total mastectomy of the breast and removal of chest wall lesions.  Id.  Discussing causation, the supreme court reaffirmed the “more probable than not” standard for establishing causation in medical-malpractice claims.  Id. at 121.  The supreme court noted that Leubner’s claimed injury was “the enlarged, unchecked tumor” and “increased risks of recurrence and metastases,” with a “decreased likelihood of survival as a direct result of the tumor’s unchecked growth.”  Id. (quotation omitted).  The supreme court noted that the tumor had been removed, just as it would have been had it been discovered earlier, and “there is no proof it is more probable than not that plaintiff will not survive her cancer.”  Id. The supreme court also noted a lack of evidence that it is more probable than not that Leubner’s recurrence of cancer resulted from the alleged negligence.  Id. at 122.  The supreme court rejected this court’s reliance on a medical textbook for the assertion that “delay in diagnosis invariably results in a more serious prognosis.”  Id.(quotation omitted). 

            Based on Leubner, appellant argues that had MacRae sued respondents prior to December 2002, his action, like Leubner’s, would have been dismissed for lack of causation because, according to the expert opinion of Dr. Dudek, MacRae would more likely than not have survived had the melanoma been diagnosed at that time.  Appellant argues that because MacRae could not have successfully maintained a malpractice action prior to December 2002, the cause of action did not accrue before that date.

            Respondents argue that appellant has confused the standard for when a cause of action accrues with the standard for when a cause of action can withstand summary judgment.  Respondents assert that because the mere assertion of damages in a complaint alleging medical malpractice for misdiagnosis of a malignancy would defeat a motion for dismissal on the pleadings, MacRae’s medical-malpractice action accrued on the date of the misdiagnosis.  We agree. 

            Appellant correctly notes that neither Molloy nor Fabio holds that some damage occurs as a matter of law when the physician fails to make a correct diagnosis.  But the supreme court in Molloy stated that “[t]he misdiagnosis in Fabio caused the plaintiff immediate injury in the form of a continually growing cancer, which became more dangerous to the plaintiff each day it was left untreated.  The action accrued at the time of misdiagnosis because some damage occurred immediately.”  Molloy, 679 N.W.2d at 722.  Although dicta, these statements strongly imply that as a matter of law, a misdiagnosis of cancer causes some damage resulting in accrual of a medical-malpractice claim as of the date of misdiagnosis. 

            Because the district court did not err in concluding that some injury occurred at the time of misdiagnosis in this case, the district court did not err in concluding that an action for malpractice brought at that time would have withstood a Rule 12.02(e) motion for dismissal on the pleadings and therefore accrued at the time of misdiagnosis, notwithstanding the fact that, under Leubner, the action most probably would not have withstood a motion for summary judgment based on lack of causation.  493 N.W.2d at 122.  We are not insensitive to an apparent lack of anything other than a procedural rationale for this conclusion.


[1] When a doctor continues to treat a patient for a particular condition, a medical-malpractice action does not accrue until the end of treatment for that condition.  Schmit v. Esser, 183 Minn. 354, 358-59. 236 N.W. 622, 624-25 (1931).  Appellant argued before the district court that a material issue of fact existed concerning whether the continuing-treatment rule applies to this case, so that the breach of the standard of care occurred on the last day of treatment, which was within four years of the commencement of this action.  But appellant has not challenged on appeal the district court’s determination that there was no continuing course of treatment, so that the single-act rule applies, and appellant acknowledges that respondents’ negligent act occurred in January 2001, when the lesion on MacRae’s left leg was misdiagnosed as a benign condition rather than malignant melanoma.