This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-192

Kristine and Richard Patten,

wife and husband,

Appellants,

vs.

Azeem Shariff, et al.,

Respondents.

Filed November 19, 1996

Affirmed

Norton, Judge

Hennepin County District Court

File No. MP 95-010282

Reid G. Rischmiller, Rischmiller, Knippel & Aronson, 607 Marquette Avenue, Suite 302, Minneapolis, MN 55402 (for Appellants)

John M. Degnan, Charles E. Lundberg, Bassford, Lockhart, Truesdell & Briggs, P.A., 33 South Sixth Street, #3550, Minneapolis, MN 55402 (for Respondents)

Considered and decided by Schumacher, Presiding Judge, Norton, Judge, and Harten, Judge.

U N P U B L I S H E D O P I N I O N

NORTON, Judge

In this negligent diagnosis case, appellants contend the district court erred when it granted respondents partial summary judgment on the basis of an expired statute of limitations. The claim is time-barred, because the cause of action accrued at the time of the misdiagnosis in January 1991, and more than two years passed before appellants brought this action. We affirm.

FACTS

Appellant Kristine Patten underwent a routine pelvic exam and Pap smear in January 1991. On January 22, 1991, her doctor submitted the specimen for evaluation to respondent Methodist Hospital, doing business as PathWay Medical Laboratories. Respondent Azeem Shariff interpreted the test and reported that it was "normal." Two years later, Patten had a similar test and again received a "normal" report from respondents. On September 22, 1993, however, Dr. R.A. Nordlund diagnosed Patten with cervical cancer. On September 27, 1993, Patten underwent a radical hysterectomy and other surgical procedures to remove the cancer.

In January 1995, Patten and her husband brought a negligence action against the hospital, the lab, and the lab staff. The Pattens claimed that respondents' negligence resulted in a delayed diagnosis of Patten's cervical cancer and, consequently, resulted in her radical surgery, extensive radiation, and therapy. Patten claimed past and future pain, disability, disfigurement, embarrassment, emotional distress, and medical expenses; her husband claimed loss of consortium. Respondents moved for partial summary judgment on the claim arising from the January 1991 test and misdiagnosis.[1] The district court granted the motion on the basis of an expired statute of limitations. The Pattens appeal.

D E C I S I O N

On review of summary judgment, this court must determine whether any material issues of fact exist or whether the district court erred in its application of the law. See Wartnick v. Moss & Barnett, 490 N.W.2d 108, 112 (Minn. 1992). "[T]he reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted." Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

The Pattens' claim is based on the alleged misinterpretation of the 1991 Pap smear and the alleged failure to diagnose cancer. The Pattens claim a factual issue exists regarding when their cause of action accrued. The statute of limitations for malpractice actions gives a plaintiff two years after the cause of action accrues to bring suit. See Minn. Stat. § 541.07(1) (1994); Fabio, 504 N.W.2d at 762. A cause of action "accrues" when "the action can be brought without being subject to dismissal for failure to state a claim." Wittmer v. Ruegemer, 419 N.W.2d 493, 496 (Minn. 1988).

The Pattens contend their cause of action for negligence/medical malpractice accrued when Patten suffered "damage" by contracting cancer and having to undergo surgery in 1993. See Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 429 (Minn. 1988) (cause of action accrues when damage results from negligence); Peterson v. St. Cloud Hosp., 460 N.W.2d 635, 638 (Minn. App. 1990) ("[a] cause of action for negligence does not accrue until damage has resulted"). We agree that Patten, like Offerdahl and Peterson, sustained damages from surgery in 1993. Patten's damages, however, resulted after the alleged misdiagnosis when the cancer went undetected and metastasized. The Pattens, in effect, are asking the court to impose the discovery rule, which tolls the statute of limitations until the resulting damage is first discovered. Johnson v. Winthrop Lab. Div. of Sterling Drug, Inc., 291 Minn. 145, 151, 190 N.W.2d 77, 81 (1971). The Minnesota Supreme Court, however, has expressly declined to adopt the discovery rule. Id.

The Pattens also invoke the termination of treatment rule to keep their claim alive by arguing that Patten's course of treatment with Methodist Hospital continued through her second Pap smear in April 1993. See Grondahl v. Bulluck, 318 N.W.2d 240, 242-43 (Minn. 1982) (holding that, in malpractice actions, patient's cause of action accrues when physician's treatment of particular condition ceases). Patten had a patient-physician relationship with Shariff and the lab who prepared her report. See Peterson, 460 N.W.2d at 638 (patient-physician relationship exists between patient and pathologist who reads and interprets medical test results, even though patient had no direct contact with pathologist). This continuous course of treatment argument is not persuasive, however, because the only relationship Patten had with the lab was to have them read her slide; they had no contact between the 1991 and 1993 slide interpretations. That single task separated by two years' time does not establish a continuous course of treatment. See Fabio, 504 N.W.2d at 762 (concluding that treatment ceased when doctor examined patient and did not recommend further treatment; statute of limitations barred claims based on those examinations, because they "were not part of a continuing course of treatment"); see also Willette v. The Mayo Found., 458 N.W.2d 120, 121 (Minn. App. 1990) (patient who was diagnosed with cancer in 1987 sought to hold Mayo doctors liable for failing to diagnose the cancer after medical exam in 1983; court determined that patient's cause of action accrued at time treatment ceased when doctor failed to diagnose, rather than at time patient discovered he did indeed have cancer), review denied (Minn. Sept. 14, 1990).

Even if the lab work did constitute a continuous course of treatment, the 1991 alleged failure to diagnose would come under the single act exception, which allows the cause of action to accrue at the time of the negligent act rather than at the end of the course of treatment. Crenshaw v. St. Paul Ramsey Med. Ctr., 379 N.W.2d 720, 721 (Minn. App. 1986), review denied (Minn. Mar. 27, 1986). This exception applies when (1) a single act was (2) complete at a precise time, (3) no continued course of treatment could either cure or relieve the act, and (4) the plaintiff is "actually aware of the facts upon which the claim is based." Id.

The lab's alleged misinterpretation of the slide and failure to diagnose cancer was a single act that was complete when it sent the report to Patten in January 1991. The Pattens contend the doctors could have taken a course of treatment to cure or relieve the cancer, had they known about it. Although this argument is valid, it is misplaced here. This factor of the single act exception relates to what the negligent party, here the lab, could have done to cure or relieve the problem. The record does not show any way the lab could have done so here. Finally, the Pattens were aware that the lab was handling and interpreting the slide. See id. (focal point is whether plaintiff knew of facts upon which claim is based). Given these factors, the Pattens' claims would have accrued at the time of the single act, the 1991 alleged failure to diagnose.

Although the law mandates an affirmance, we acknowledge the unfairness to Patten, or any cancer victim, who, with proper lab work, could have been alerted to the presence of cancer cells long before the need for radical surgery. Current case law does not adequately protect these victims. Without adequate safeguards, patients are compelled to question every test result, positive or negative, in order to protect themselves in case the lab has made an error. Such an environment will inevitably diminish the trust necessary for a successful physician-patient relationship.

Affirmed.

[ ]1 The Pattens' negligence claim based on the 1993 misdiagnosis is proceeding to trial and is not at issue here.