APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BEADLE COUNTY, SOUTH DAKOTA, HONORABLE JON R. ERICKSON Judge.
The opinion of the court was delivered by: Zinter, Justice
[¶1.] Anne and Darin Schmiedt sued Dr. Nathan Loewen for medical malpractice arising out of complications following the placement of an intrauterine device (IUD). Dr. Loewen moved for summary judgment, arguing that the statute of limitations had expired. Schmiedts argued that their action was timely because: the IUD was a "foreign object"; their claim fell within the continuing tort doctrine; and under the continuing tort doctrine, the statute of limitations did not begin to run until the IUD was removed. The circuit court granted summary judgment in favor of Dr. Loewen, concluding that the continuing tort doctrine was inapplicable. We affirm the circuit court's judgment, but we do so for a different reason. We conclude that the continuing tort doctrine applied. Nevertheless, Schmiedts' cause of action was barred because they acquired actual knowledge of the foreign object yet failed to commence their action within two years of their discovery.
Facts and Procedural History
[¶2.] The material facts are undisputed. To the extent other facts are disputed, we restate them in a light most favorable to Schmiedts. Dr. Loewen, a family practitioner, implanted Anne's IUD on July 27, 2004. According to the literature that Dr. Loewen provided to Anne, migration of an IUD was a known risk. The literature warned that if the IUD migrated from the endometrial cavity, it would not protect against pregnancy and should be removed. The literature also warned that if the IUD migrated and perforated the uterine wall, infection, scarring, and other damage to organs could occur.
[¶3.] On October 22, 2004, Anne returned to Dr. Loewen, advising him that she could no longer feel the threads attached to the IUD, an indication of possible migration. Dr. Loewen performed a pelvic exam. He could not locate the IUD and was concerned that it may have fallen out or moved. Dr. Loewen performed a transvaginal ultrasound and ordered a pelvic x-ray. The x-ray revealed that the IUD was still in Anne's endometrial cavity, but it had moved and become deformed. For purposes of summary judgment, Dr. Loewen conceded that he did not report these findings to Anne.*fn1 Dr. Loewen only disclosed that if Anne wanted more children, the IUD would have to be surgically removed.
[¶4.] Anne saw Dr. Loewen four additional times from February 2005, through January 2006. During those visits, she complained of cramping, heavy menstruation, and abdominal pain. Although Anne asked Dr. Loewen about the IUD, he did not disclose the abnormal findings. He further indicated that the IUD was doing its job.*fn2
[¶5.] On March 30, 2006, a home pregnancy test indicated that Anne was pregnant, and on April 3, 2006, she returned to Dr. Loewen. Dr. Loewen performed a transvaginal ultrasound, but could not locate the IUD. Anne did not return to Dr. Loewen after the April 3, 2006 visit.
[¶6.] The following day, April 4, 2006, Anne saw Dr. Nedved, a gynecologist. Dr. Nedved performed an ultrasound. After getting a second opinion from another gynecologist, both doctors concluded that the IUD had penetrated the uterine wall and migrated into Anne's abdomen.
[¶7.] There is no dispute that the IUD needed to be removed. Dr. Nedved, however, indicated that it should be left in place until the end of Anne's pregnancy because of the risk of miscarriage or injury to the unborn child. Anne delivered her baby on November 28, 2006. Although the surgery to remove the IUD was scheduled to occur immediately after the birth, a difficult delivery further postponed the procedure. On January 31, 2007, approximately one month before the rescheduled surgery, Anne passed the IUD rectally.
[¶8.] On August 18, 2008, more than two years after the gynecologists informed Anne that the IUD had migrated into her abdomen and needed to be removed, Schmiedts sued Dr. Loewen for malpractice. Schmiedts alleged that Dr. Loewen was negligent in failing to inform Anne of her test results and in failing to remove the IUD or to recognize that the IUD had migrated. Dr. Loewen moved for summary judgment based on SDCL 15-2-14.1, a two-year statute of limitations. The circuit court granted summary judgment, concluding that the continuing tort doctrine was inapplicable because "the negligence was not the failure to remove the IUD, but rather [its] placement."
[¶9.] Schmiedts argue that the circuit court erred in focusing on the time of Dr. Loewen's placement of the IUD. Schmiedts contend the IUD became a foreign object that should have been disclosed or removed when its movement was discovered by Dr. Loewen. They further contend that because the migrated IUD was not disclosed or removed, Anne suffered a continuing tort that delayed the running of the statute of limitations until the IUD's passage on January 31, 2007. Dr. Loewen contends that the IUD's status as a foreign object is irrelevant because the continuing treatment doctrine controls. Under the continuing treatment doctrine, Dr. Loewen contends that Schmiedts' cause of action began to run when the doctor-patient relationship ended on April 3, 2006.
[¶10.] "Summary judgment is proper on statute of limitations issues only when application of the law is in question, and not when there are remaining issues of material fact." Greene v. Morgan, Theeler, Cogley, and Petersen , 1998 S.D. 16, ¶ 6, 575 N.W.2d 457, 459. Although there are disputes of fact regarding Dr. Loewen's disclosures, disposition of this case involves legal ...