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IN THE COURT OF APPEALS OF IOWA

No. 3-304 / 02-1673

Filed January 14, 2004

CINDY L. AUKES and SCOTT D. AUKES,

Plaintiffs-Appellants,

vs.

ROLANDO CREAGH-LARRAMENDI M.D.,

Defendant-Appellee.

Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.

The plaintiffs in a medical malpractice action appeal from the district court’s grant of the defendant’s summary judgment motion. AFFIRMED.

John Gajdel and Peter Berger of Berger & Gajdel, P.C., Urbandale, for appellant.

Chester Woodburn, III of Hansen, McClintock & Riley, Des Moines, for appellee.

Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.


MILLER, J.

Plaintiffs Cindy and Scott Aukes appeal from the district court’s grant of a summary judgment motion made by defendant Roland Creagh-Larramendi, M.D., which dismissed their medical malpractice petition. The court concluded the Aukeses’ action was barred by the applicable statute of limitations. We affirm.

Background Facts and Proceedings. The undisputed facts at the time of the summary judgment motion revealed the following. In March 1997 Cindy Aukes sought treatment from Dr. Roland Creagh-Larramendi (Dr. Creagh) regarding a persistent heartburn condition. Dr. Creagh diagnosed Cindy with a pyloric channel ulcer and gastroesophageal reflux disease, Savary-Mallory Type V with Barrett’s esophagus with dysplasia. Dr. Creagh recommended, and on April 17, 1997 performed, two surgical procedures. The first, a truncal vagotomy and pyloroplasty, involves severing the vagal nerve, which controls portions of the stomach and gallbladder. The second, a Nissen fundoplication, is intended to tighten the sphincter between the esophagus and the stomach.

Dr. Creagh saw Cindy post-operatively on six occasions: April 23, 1997, June 4, 1997, July 2, 1997, January 12, 1998, February 4, 1998, and February 18, 1998. Cindy informed Dr. Creagh that she was experiencing a number of symptoms, including weight loss, pain, cramping, and diarrhea, which she had not experienced prior to the surgery. According to Cindy, Dr. Creagh repeatedly assured her that she was experiencing normal postoperative symptoms, which would dissipate with time. However, Cindy’s symptoms did not subside. At the February 18, 1998 visit, Cindy was upset with Dr. Creagh, and felt he had somehow acted improperly in severing the nerve to her stomach. She decided to terminate her relationship with Dr. Creagh, and did not thereafter seek consultation or treatment from him.

In August 1998 Cindy was hospitalized for abdominal pain. She was diagnosed with acute calculus cholecystitis, or gallstones. Cindy’s gallbladder was surgically removed on August 20, 1998. Cindy continued to experience difficulties, and in August 2000 was seen by Dr. Allen Zagoren. In an August 23, 2000 letter, Dr. Zagoren questioned whether the truncal vagotomy and pyloroplasty were necessary, and noted they had resulted in “a paralyzed stomach . . . with a wide open pylorus . . . .” Dr. Zagoren performed another surgical procedure on Cindy, a Roux-en-Y gastrojejunostomy, aimed at alleviating her gastric problems.

On April 13, 2001, Cindy and her husband Scott filed a medical malpractice action against Dr. Creagh, based on the two April 1997 surgical procedures.[1] The Aukeses’ experts had opined that Dr. Creagh should not have performed either the truncal vagotomy and pyloroplasty or the Nissen fundoplication, and that one or both of those surgical procedures were the underlying cause of Cindy’s subsequent problems, including her need for gallbladder surgery. Dr. Creagh moved for summary judgment, alleging the claims were barred by the applicable two year statute of limitations.

The district court determined the Aukeses’ causes of actions accrued on or before February 18, 1998, over three years prior to when the petition was filed. Accordingly, the district court granted Dr. Creagh’s summary judgment motion, and dismissed the petition. The Aukeses appeal, asserting their claims did not accrue until August 23, 2000, less than a year prior to the filing of their petition.

Scope and Standard of Review. Summary judgment rulings are reviewed for the correction of errors at law. Iowa R. App. P. 6.4; General Car & Truck Leasing Sys., Inc. v. Lane & Waterman, 557 N.W.2d 274, 276 (Iowa 1996). All facts are viewed in the light most favorable to the party opposing the motion. Bearshield v. John Morrell & Co., 570 N.W.2d 915, 917 (Iowa 1997). Where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. Iowa R. Civ. P. 1.981(3); City of West Branch v. Miller, 546 N.W.2d 598, 600 (Iowa 1996).

Statute of Limitations. Iowa Code section 614.1(9) (2001) provides that a medical malpractice action must be brought within two years of when the plaintiffs “knew, or through the use of reasonable diligence should have known . . . of, the injury . . . for which damages are sought . . . .” The statute begins to run even if the patient does not know the injury was caused by the negligence of the physician. Langner v. Simpson, 533 N.W.2d 511, 517 (Iowa 1995). All that is necessary is that the patient have sufficient knowledge to be placed on inquiry. Id. at 518. At that point,

[T]he person is charged with knowledge of facts that would have been disclosed by a reasonably diligent investigation. Moreover, once a person is aware that a problem exists, the person has a duty to investigate even though the person may not have knowledge of the nature of the problem that caused the injury.

Id.

The Aukeses contend the district court erred when it found Cindy had sufficient knowledge to place her on inquiry notice as of February 18, 1998, the day she last sought treatment from Dr. Creagh. In light of Dr. Creagh’s assurances that Cindy was experiencing only normal post-operative symptoms, and that those symptoms would diminish in time, we are uncertain as to whether Cindy was on inquiry notice as of the very date she last saw Dr. Creagh. We need not decide that question, however, as we conclude Cindy was on inquiry notice more than two years prior to the filing of the petition in this matter.

The Aukeses claim Cindy should not have known and in fact could not have known she had been injured by allegedly unnecessary procedures and their results, rather than simply experiencing normal post-operative symptoms, until Dr. Zagoren wrote his August 23, 2000 letter. Their argument presupposes that, in the three preceding years, Cindy never possessed sufficient facts to give rise to a duty to conduct a reasonably diligent investigation. However, our review of the record, viewing the facts in the light most favorable to the Aukeses, indicates that Cindy did possess such facts at least by the time she underwent gallbladder surgery, in August 1998.

At that point Cindy had experienced undiminishing post-operative symptoms for over one year. In addition, approximately six months had passed since she had terminated her relationship with Dr. Creagh; enough time to determine that any assurances she received from Dr. Creagh had not proved valid. Moreover, at that point she had evidence that, rather than improving, her gastric-related difficulties had worsened. While Cindy may not have known the specifics of her injury at that time, she did possess facts sufficient to place her on inquiry notice.[2] Because Cindy was on inquiry notice no later than August 20, 1998, over two and one half years prior to when the petition was filed, Iowa Code section 614.1(9) serves to bar the Aukeses’ claims. The district court did not err in granting Dr. Creagh’s motion for summary judgment.

AFFIRMED.

[1] Cindy alleged Dr. Creagh had breached the standard of care, failed to properly examine, diagnose and evaluate Cindy’s condition, and performed an unnecessary and outdated surgery. Scott alleged a loss of consortium.

[2] The Aukeses contend that, even if Cindy were on inquiry notice in August 1998, that notice served to bar only a claim for any injury caused by the truncal vagotomy and pyloroplasty, and not a claim for any injury caused by the Nissen fundoplication. They rely on the fact Cindy stated she believed her gastric problems were caused by the cutting of nerves to her stomach, but never referred to concerns related to the tightening of her esophageal sphincter. We cannot agree with this reasoning. The question is whether Cindy would have discovered her injury or injuries, whatever their cause, through a reasonably diligent investigation. There is nothing in the record from which it can be concluded that such an inquiry would have revealed any injury caused by the truncal vagotomy and pyloroplasty, but not any injury caused by the Nissen fundoplication. We find no basis upon which to differentiate the claims.