This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat.§ 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-96-1269

Mildred A. Nelson,

Appellant,

vs.

Reuben S. Thorbus, M.D.,

Respondent.

Filed December 24, 1996

Reversed and Remanded

Kalitowski, Judge

Norman County District Court

File No. C89484

Todd A. Schwarz, Frith, Schwarz & Steffan, 609 Fourth Avenue, P.O. Box 1045, Devils Lake, ND 58301 (for Appellant)

Gunder Gunhus, Gunhus, Grinnell, Klinger, Swenson & Guy, Ltd., 215 30th Street North, P.O. Box 1077, Moorhead, MN 56561-1077 (for Respondent)

Considered and decided by Crippen, Presiding Judge, Kalitowski, Judge, and Harten, Judge.

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

KALITOWSKI, Judge

Appellant Mildred A. Nelson contends the district court erred in granting summary judgment dismissing her medical malpractice action on the ground that as a matter of law Nelson's treatment ceased more than two years before commencement of the action. We reverse and remand.

D E C I S I O N

On appeal from summary judgment, we ask whether there is a genuine issue of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). On appeal, the 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).

Medical malpractice actions in Minnesota must be commenced within two years after the cause of action accrues. Minn. Stat. SSSS 541.01, 541.07, subd. 1 (1996). The cause of action generally accrues when treatment ceases. Haberle v. Buchwald, 480 N.W.2d 351, 354 (Minn. App. 1992), review denied (Minn. Aug. 4, 1992). A practical reason for the termination of treatment rule is that actionable treatment does not ordinarily consist of a single act with an easily determined precise time of occurrence. Id. at 354-55.

Under the termination of treatment rule, three factors must be considered in determining when a patient's treatment by his or her physician ceases: (1) whether a relationship continues between the physician and the patient as to the particular injury or malady that the physician is employed to cure; (2) whether the physician continues to attend and examine the patient in relation thereto; and (3) whether there is something more to be done by the physician to effect a cure. Schmit v. Esser, 183 Minn. 354, 358, 236 N.W. 622, 625 (1931). Termination of treatment does not necessarily depend on the termination of the relation of physician and patient; treatment for a particular ailment or injury might readily terminate, but the physician and patient relationship continues. Id. The question of whether an action is barred is a question of fact for the jury. Id.

Nelson commenced her cause of action on August 26, 1992, alleging respondent Reuben S. Thorbus, M.D., inappropriately prescribed methotrexate to treat her chronic psoriasis. Among other things, Nelson claims Thorbus: (1) treated her psoriasis with methotrexate, a potentially toxic drug that sometimes causes severe liver damage; (2) ran liver function tests while Nelson was on methotrexate but subsequently failed to monitor the effects of methotrexate properly; (3) advised her to stop taking methotrexate when he became concerned that Nelson's mouth sores indicated methotrexate toxicity; and (4) continued to treat her for the effects of methotrexate in August and September of 1990. She claims the applicable statute of limitations does not bar the cause of action because Thorbus treated her for the effects of allegedly inappropriate methotrexate medication less than two years before commencement of the action.

Thorbus argues that treatment for a particular injury or disease ceases when treatment expressly directed at effecting a cure for that particular condition ceases. He contends he was employed to treat Nelson's psoriasis, and he ceased to provide any medical care for psoriasis no later than January 4, 1990, more than two years before commencement of the action.

We conclude Nelson has raised a fact question for the jury as to whether Thorbus's follow-up care for the potential effects of methotrexate toxicity constitutes continuing treatment of Nelson's psoriasis. If the jury answers yes to this question, the jury must then determine whether any actions of Thorbus, including the following, constitute continuing treatment of Nelson: (1) liver function tests ordered by Thorbus during Nelson's hospitalization because of a choking incident; (2) Thorbus's referral of Nelson to an outside specialist on August 27, 1990; and (3) Thorbus's September 1990 office visit and consultation with Nelson.

We conclude summary judgment was inappropriate because, viewing the evidence in the light most favorable to appellant, factual questions exist as to whether continuing treatment of Nelson by Thorbus ceased more than two years prior to commencement of the action.

Reversed and remanded.