Appeal from the District Court of Laramie County The Honorable Peter G. Arnold, Judge.
Representing Appellant: Donald J. Sullivan, Sullivan Law Offices, PC, Cheyenne, Wyoming.
Representing Appellees: Matthew C. Miller and Traci L. Van Pelt, McConnell Fleischner Houghtaling, LLC, Denver, Colorado. Argument by Ms. Van Pelt.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.
[¶1] In this medical malpractice case, the district court granted summary judgment against Appellant, Ted Nobles, and in favor of Appellees (Hospital), after determining that Mr. Nobles did not present his claim within the time specified in the applicable statute of limitations. Mr. Nobles appealed. We will reverse.
[¶2] The parties present three issues:
1. Whether the district court erred by failing to apply the continuous treatment rule?
2. Whether the single act exception to the continuous treatment rule is recognized in Wyoming, and if so, whether it applies in this case.
3. Whether the district court erred in granting summary judgment to the Hospital.
[¶3] Mr. Nobles, a resident of the State of Washington, was travelling with his "significant other, " Dr. Janet Arnold,  when he became ill in Rawlins, Wyoming, on December 21, 2007. He experienced respiratory difficulty, vomited, and passed out. He was taken to the emergency room of the Rawlins Hospital where he was intubated to relieve the respiratory distress, sedated, and stabilized with intravenous medication. He was then transported by ambulance to Cheyenne.
[¶4] Mr. Nobles was admitted to the intensive care unit of the hospital in Cheyenne, with a diagnosis of acute respiratory failure with bilateral pulmonary edema resulting from pneumonia. He remained intubated, and at some point also needed mechanical ventilation. He eventually received a tracheotomy. While in the intensive care unit, he also developed renal failure. He was placed on continuous renal replacement therapy, and later on hemodialysis. He also experienced complications relating to his diabetes.
[¶5] While in the intensive care unit, Mr. Nobles also began complaining of pain in his right shoulder. On February 10, 2008, he told his hospitalist that the shoulder "may have been injured while he was being moved." On February 13, 2008, the hospitalist's notes indicate that Mr. Nobles said his "shoulder hurts since a fall in ICU." On February17, 2008, the doctor noted right shoulder pain and reduced mobility, and said Mr. Nobles "Relates it to being tugged at in the ICU." X-rays of the shoulder "showed mild subluxation without any fracture evident." An MRI was ordered, but not done immediately because of Mr. Nobles' claustrophobia.
[¶6] Mr. Nobles responded favorably to therapy and treatment, and on February 19, 2008, he was transferred to the hospital's transitional care unit, located in a separate building from the intensive care unit. However, he continued to complain of pain in his right shoulder and arm. A consulting physician who reviewed Mr. Nobles' case on February 20, 2008 wrote that Mr. Nobles:
reports that while in the ICU someone pulled on his arm and twisted in order to try and pull him up in the bed and he, at that time, felt pain in his arm and shortly thereafter noted dysfunction of the right upper arm. His wife, who is a family practice physician notes that he does have a history of some mild osteoarthritis in bilateral shoulders but otherwise had totally normal arm and shoulder function prior to this incident. Mr. Nobles notes that at this point at rest he does not have much pain but he has pain with attempted movement. He has essentially no flexion of the biceps. He is unable to forward flex or abduct his arm whatsoever although he does have triceps extension and wrist flexion and extension and some limited weak pronation and supination. Apparently he had x-rays while at [the hospital] and per his wife, they showed a subluxation but no true dislocation and no fractures.
The consulting physician questioned whether there might be a "rotator cuff tear versus brachial plexus injury versus cervical nerve root injury or some combination of the three." He recommended an MRI, an electromyogram, and nerve conduction velocity studies.
[¶7] According to affidavits submitted by Mr. Nobles and Dr. Arnold, as Mr. Nobles continued experiencing pain and dysfunction in his right shoulder and arm, the doctors said they thought the problems might be the result of a stroke. An MRI of the brain was conducted, but apparently did not indicate that Mr. Nobles had suffered a stroke. Throughout his stay in the transitional care unit, Mr. Nobles was given a program of physical and occupational therapy to improve the function and condition of his hand, arm, and shoulder.
[¶8] Mr. Nobles was discharged from the hospital on March 15, 2008. His attending physician wrote:
When he arrived here he was hardly able to move at all, even his extremities. . . . Within the first week, however, he had started moving his extremities. He was sitting up. He was transferring. Unfortunately he was not able to move his right shoulder at all. He was able to move his right hand a little bit. We did obtain an MRI that showed complete denervation of the right shoulder. We did have neurology consultation and they concurred with this diagnosis and this was going to be an ongoing difficulty over the next several months that will need close follow up with a neurologist in his home town.
Mr. Nobles did follow up with further medical treatment when he got home. There, his doctors diagnosed a brachial plexus injury to his right shoulder and arm.
[¶9] On March 11, 2010, Mr. Nobles presented his claim to the Hospital as required by the Wyoming Governmental Claims Act, Wyo. Stat. Ann. § 1-39-113(a). The same day, he filed a notice of claim against the Hospital with the Wyoming Medical Review Panel.The Hospital waived review and the Panel entered an order authorizing Mr. Nobles to file suit against the Hospital. Mr. Nobles filed his complaint on June 11, 2010, alleging that he had "sustained serious injury and damage to his right (dominant) arm, shoulder and brachial plexus." He further alleged that this injury was the result of the Hospital's negligence in allowing a single staff member to move or attempt to move him in the hospital bed, in failing to provide adequate staff and personnel to move him in the hospital bed safely, and in "[m]oving and/or attempting to move the patient in the hospital bed by pulling and yanking on the patient's arm."
[¶10] The Hospital responded with a motion to dismiss, or, in the alternative, a motion for summary judgment, claiming that Mr. Nobles had not filed his suit within the time period specified in the applicable statute of limitations. Because the Hospital had supported its motion with portions of Mr. Nobles' medical records, the district court treated the motion as one for summary judgment, and provided Mr. Nobles an opportunity to respond with evidence in opposition to the motion. Mr. Nobles filed affidavits from Dr. Arnold and himself. After hearing arguments and considering the motion, the district court granted summary judgment in favor of the Hospital. Mr. Nobles challenges that decision in this appeal.
STANDARD OF REVIEW
[¶11] We review a district court's decision to grant or deny summary judgment using the following standard of review:
Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. W.R.C.P. 56(c); Metz Beverage Co. v. Wyoming Beverages, Inc., 2002 WY 21, ¶ 9, 39 P.3d 1051, 1055 (Wyo. 2002). "A genuine issue of material fact exists when a disputed fact, if it were proven, would establish or refute an essential element of a cause of action or a defense that the parties have asserted." Id. Because summary judgment involves a purely legal determination, we undertake de novo review of a trial court's summary judgment decision. Glenn v. Union Pacific R.R. Co., 2008 WY 16, ¶ 6, 176 P.3d 640, 642 (Wyo. 2008).
Jacobs Ranch Coal Co. v. Thunder Basin Coal Co., LLC, 2008 WY 101, ¶ 8, 191 P.3d 125, 128-29 (Wyo. 2008). In performing our de novo review, we "view the record in the light most favorable to the party opposing summary judgment, giving that party the benefit of all favorable inferences reasonably drawn from the record. Any doubts about the existence of a genuine issue of material fact must be resolved against the party seeking ...