This opinion will be unpublished and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

C0-97-1223

Judith Purcell-Auge and Gregory Auge,

Appellants,

vs.

Metro Family Physicians, a Minnesota corporation,

f/k/a Metro Family Physicians, P.A.,

d/b/a as Rice Street Clinic, and Dr. Timothy Lane,

Respondents.

Filed January 27, 1998

Affirmed

Crippen, Judge

Ramsey County District Court

File No. C697136

Terry Wade, Robins, Kaplan, Miller & Ciresi, LLP, 2800 LaSalle Plaza, 800 LaSalle Ave., Minneapolis, MN 55402 (for appellants)

James R. Gowling, Geraghty, O'Loughlin, & Kennedy, 1400 Capitol Centre, 386 N. Wabasha St., St. Paul, MN 55102-1308 (for respondents)

Considered and decided by Schumacher, Presiding Judge, Crippen, Judge, and Holtan, Judge. **

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

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

CRIPPEN, Judge

Appellants Judith Purcell-Auge and Gregory Auge, who allege the malpractice of respondent physician due to a failure to diagnose Purcell-Auge's cancerous condition, contend that he engaged in a continuing course of treatment during the period of time when the condition remained undiagnosed. We affirm the trial court's grant of summary judgment for respondents.

FACTS

Appellant Purcell-Auge first complained of a lump in her armpit during a routine visit to her regular physician, respondent Timothy Lane, in 1991. She continued to complain about the lump during her annual physicals in 1992 and July 1994 and other appointments during this period, but her breast cancer was not diagnosed until October 1994, after a mammogram and biopsy. Her cancer was then treated with a mastectomy and chemotherapy and currently appears to be in remission. After appellants commenced a malpractice suit, the trial court granted summary judgment to respondents, the physician and his medical group, ruling that the limitations period had run because the complaint was filed more than two years after alleged diagnostic errors in 1991 and 1992.

Appellants claim that their cause of action is not barred by the two-year statute of limitations for medical malpractice claims. Minn. Stat. § 541.07(1) (1996). Alternatively, they contend that litigation of their claim should be held in abeyance to determine if they have been more severely injured by respondents' alleged negligence.

DECISION

On appeal from a summary judgment, we must determine whether the evidence raises any genuine issues of material fact and whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted. Cummings v. Koehnen, 568 N.W.2d 418, 420 (Minn. 1997).

1.

The statute of limitations for a medical malpractice action begins to run when treatment for a particular condition ceases. Fabio v. Bellomo, 504 N.W.2d 758, 762 (Minn. 1993); Berres v. Anderson, 561 N.W.2d 919, 922 (Minn. App. 1997), review denied (Minn. June 11, 1997). Under the continuing course of treatment doctrine, the limitations period is tolled while a doctor-patient relationship continues for treatment of the same condition. Fabio, 504 N.W.2d at 762.

The trial court concluded that respondent Lane's conduct prior to October 1994 did not constitute a continuing course of treatment because the physician did not "treat" any condition. Appellants contend that there is a continuing course of treatment in spite of a failure to diagnose as long as a physician-patient relationship continued on the same subject matter.

In circumstances like these, the supreme court has determined that treatment ceased when the failure to diagnose occurred. Id. The Fabio court rejected the dissenting views (a) that the diagnostic work continues so long as a patient-physician relationship continues in an ongoing search for the same disease or (b) that the continuing omission should toll the limitations time as a matter of fairness, which is the main consideration underlying the analysis of statutes of limitation. Id. We continue to follow Fabio.

The Fabio court upheld a judgment that the malpractice claim was time-barred because the action was commenced more than two years after the second, more recent failure to diagnose. The court stated that the physician's treatment of the patient's "condition" "ceased at the time he told her not to worry about it." Id. The early examinations, the court held, "were not part of a continuing course of treatment." Id.

Appellants argue that Fabio is distinguishable because this patient pointed out the mass to the doctor, whereas in Fabio the doctor noticed the lump but erroneously concluded that it was non-cancerous. These are factual differences, but they are not significant distinctions in determining the issue. In each case, the physician was aware of the lump, which was then diagnosed incorrectly. Both Fabio and the instant case involve medical evidence that the physician was negligent in failing to discover a cancerous condition.

2.

Noting the possibility of a still-undetected cancerous condition, appellants attempt to enlarge their claim by contending that it not only arose later than held but also that it has not yet arisen at all. With this proposition, appellants dispute application in these circumstances of the line of Minnesota cases refusing to recognize that a negligent treatment issue becomes actionable when the injury is discovered. See id.; Johnson v. Winthrop Lab. Div. of Sterling Drug, Inc., 291 Minn. 145, 151, 190 N.W.2d 77, 81 (1971); cf. Seale v. Gowans, 923 P.2d 1361 (Utah 1996) (permitting suit on spreading cancerous condition).

As appellants recognize, it has been previously determined that there is no present cause of action in Minnesota for increased future risk of illness. Fabio, 504 N.W.2d at 762-63. They think it fitting that there be a right to litigate their future prospective claim when and if additional, actual injuries are experienced. We conclude that appellants' actual injury claim is not before us and will arise only in the event the further condition is detected. See Seale, 923 P.2d 1361. And we will not speculate on the judicial response to a suit attempted on allegations that Purcell-Auge's cancerous condition has reoccurred with serious consequences.

Affirmed.