Fercenia v. Guiduli

Fercenia v. Guiduli (2002-451); 175 Vt. 541; 830 A.2d 55

2003 VT 50

[Filed 28-May-2003]

                                 ENTRY ORDER

                                 2003 VT 50

                      SUPREME COURT DOCKET NO. 2002-451

                              APRIL TERM, 2003

  Jean Fercenia	                       }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	Chittenden Superior Court
                                       }	
  Robert C. Guiduli, M.D. and	       }
  Guiduli Opthalmic Associates, Inc.   }	DOCKET NO. S0906-01 CnC

                                                Trial Judge: Mary Miles Teachout

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Defendants Dr. Robert Guiduli and Guiduli Opthamalic
  Associates, Inc., bring this interlocutory appeal from an order of the
  Chittenden Superior Court denying their motion for judgment on the
  pleadings.  Defendants contend that plaintiff Jean Fercenia's failure to
  comply with the requirements set forth in Vermont Rule of Civil Procedure 3
  and the waiver of service requirements set forth in Rule 4(l) resulted in
  the expiration of plaintiff's cause of action under the applicable statute
  of limitations.  The trial court, in denying defendants' motion, found that
  plaintiff's failure to comply with the requirements of the Rules did not
  prejudice defendants, and as a result, did not bar commencement of the
  action.  We hold that plaintiff's failure to timely file defendants' waiver
  of service with the court in accordance with V.R.C.P. 4(l)(5) constituted a
  failure to commence the action before expiration of the statute of
  limitations.  Accordingly, we reverse the trial court's denial of
  defendants' motion and dismiss plaintiff's case.

       ¶  2.  This appeal arises in the context of a medical malpractice
  action.  On July 27, 2001, plaintiff filed a five-count complaint in
  Chittenden County Superior Court, alleging negligence, "res ipsa loquitur,"
  breach of contract, and failure to obtain informed consent against
  defendant Guiduli, and liability under the doctrine of respondeat superior
  against defendant Guiduli Opthamalic Associates, Inc.  The basis for the
  complaint was a cataract surgery that defendant Guiduli performed on
  plaintiff's left eye on July 28, 1998.  According to the complaint, the
  surgery resulted in the improper placement of the lens in plaintiff's eye.  
        
       ¶  3.  On September 6, 2001, plaintiff's attorney David Lynch wrote
  to the attorney for defendants, David Spielman, requesting waiver of formal
  service of process pursuant to V.R.C.P. 4(l) and noting that plaintiff
  "must complete service of the complaint by September 27, 2001."  After
  obtaining Mr. Spielman's agreement to proceed pursuant to Rule 4(l), on
  September 20, 2001, plaintiff's attorney mailed Mr. Spielman two copies of
  a document entitled "Acceptance and Waiver of Service."  These documents,
  which defense counsel was to sign and return to Mr. Lynch, read in part
  that defendant "accepts service of the complaint [in the matter] . . . and
  waives any all other [sic] form of legal service of process."  Plaintiff's
  attorney, however, failed to include a copy of the complaint with these
  documents.  After telephone conversations on September 21 and September 24
  discussing Mr. Lynch's omission of the complaint, Mr. Spielman, by faxed
  letter dated September 25, requested that Mr. Lynch provide defense counsel
  with "a revised acceptance of service . . . and a copy of the complaint." 
  In a letter dated September 26, 2001, Mr. Lynch provided defense counsel
  with a revised acceptance and waiver of service form and requested that Mr.
  Spielman sign the form and return it by fax that day.  The letter indicated
  that Mr. Lynch would "have the complaint served tomorrow" if he did not
  receive a signed copy of the acceptance and waiver of service form later
  that day.  Mr. Spielman executed the document and returned it to Mr. Lynch
  via fax on the same day, September 26, 2001.   

       ¶  4.  A copy of the September 26 revised acceptance and waiver of
  service form was filed with the trial court on October 1, 2001.  On October
  11, 2001, defendant filed a motion to dismiss counts II and III of the
  complaint, which alleged respectively "res ipsa loquitur" and breach of
  contract.  The court ultimately granted this motion, finding that res ipsa
  loquitur is "a rule of evidence and not a separate cause of action," and
  that plaintiff's breach of contract claim was improper because the suit
  "[a]s a medical malpractice claim . . . is a tort action."  On November 28,
  2001, defendants filed their answer and asserted the statute of limitations
  as an affirmative defense.  The next day, defendants filed a motion for
  judgment on the pleadings pursuant to V.R.C.P. 12(c), alleging that
  plaintiff's action was barred by the applicable statute of limitations
  because plaintiff failed to file defendants' signed waiver of service with
  the trial court within sixty days from the date of filing the complaint, as
  required by the Vermont Rules of Civil Procedure.  The court denied
  defendants' motion, holding that:

    Defendants were not prejudiced by the filing of the Waiver on
    October 1st when it was mailed on September 27, 2001.  Defendants
    knew of the suit well in advance of the September 25th actual due
    date.  Defendants could tell by Atty Lynch's correspondence that
    Attorney Lynch intended to effect personal service on September
    27th if the Waiver was not returned in time for filing on that
    date; and Defendants agreed to accept service, but did so on
    September 26th.  Under the circumstances, Defendants cannot take
    technical advantage of Plaintiff's attorney's unwitting error.

       ¶  5.  On August 26, 2002, defendants filed a motion for permission
  to appeal, which the trial court denied.  We granted defendants' motion for
  interlocutory appeal on October 30, 2002.  On appeal, defendants assert
  that the trial court erred in denying their motion for judgment on the
  pleadings because plaintiff's failure to file defendants' waiver of service
  with the trial court within sixty days of filing her complaint, as required
  by V.R.C.P. 3 and 4(l), resulted in the expiration of the applicable
  statute of limitations and therefore barred plaintiff's medical malpractice
  action.  We agree.
   
       ¶  6.  When reviewing a denial of a motion for judgment on the
  pleadings, the issue before the Court is whether the movant is entitled to
  judgment as a matter of law on the basis of the pleadings.  Sorge v. State,
  171 Vt. 171, 174, 762 A.2d 816, 818 (2000).  This Court considers as true
  all well-pleaded factual allegations in the pleadings of the nonmoving
  party and all reasonable inferences that can be drawn from them; contrary
  assertions made by the moving party are deemed false.  Knight v. Rower, 170
  Vt. 96, 98, 742 A.2d 1237, 1238 (1999). 

       ¶  7.  The issue in this appeal is whether plaintiff commenced her
  medical malpractice claim before expiration of the statute of limitations. 
  The statute of limitations applicable to plaintiff's claim is set forth in
  12 V.S.A. § 521, which provides that "actions to recover damages for
  injuries to the person arising out of any medical or surgical treatment or
  operation shall be brought within three years of the date of the incident
  or two years from the date the injury is or reasonably should have been
  discovered."  The surgical treatment or operation that plaintiff alleges
  resulted in medical malpractice occurred on July 28, 1998.  Plaintiff filed
  her complaint with the superior court on July 27, 2001.  Pursuant to
  V.R.C.P. 3, when an action is commenced by filing the complaint with the
  court, the summons and complaint must be served on the defendant within
  sixty days of the date of filing.  Computing the time as prescribed by
  V.R.C.P. 6(a), plaintiff was required to effect proper service on
  defendants by September 25, 2001 in order to properly commence her medical
  malpractice action. 

       ¶  8.  A plaintiff may accomplish service of process as required by
  Rule 3 by obtaining a waiver of service from a defendant in accordance with
  Rule 4(l) and filing that waiver with the court within sixty days of the
  date of filing the complaint.  See V.R.C.P. 4(l)(5) ("When the plaintiff
  files a waiver of service with the court, the action shall proceed . . . as
  if a summons and complaint had been served at the time of filing the
  waiver.").  The record establishes that plaintiff obtained a waiver from
  defendants, but did not do so until September 26, 2001.  More importantly,
  a copy of that waiver was not filed with the court until October 1, 2001. 
  Consequently, the sixty-day period required by Rule 3 to perfect service
  was not met. 

       ¶  9.  "[I]f the filing of a complaint is to be effective in tolling
  the statute of limitations as of that filing date, timely service under the
  Rules of Civil Procedure must be accomplished.  This has long been a
  requirement of our law."  Weisburgh v. McClure Newspapers, Inc., 136 Vt.
  594, 595, 396 A.2d 1388, 1389 (1979); cf. Cuocci v. Goetting, 812 F. Supp. 451, 452 (D. Vt. 1993) ("It is this 60 day period [in V.R.C.P. 3] which
  controls the tolling of the statute in diversity action.").  Under V.R.C.P.
  4(l)(5), the effective date of service for tolling the statute of
  limitations following the filing of a complaint pursuant to V.R.C.P. 3 is
  the time at which a plaintiff files the waiver of service with the trial
  court, and not the date on which a defendant signs that waiver.  See
  Reporter's Notes, 1996 Amendment, V.R.C.P. 4.   "If the waiver cannot be
  filed by the date required under Rule 3, the plaintiff should seek to serve
  process upon the defendant within that period."  Id.    
             
       ¶  10.  Vermont Rule of Civil Procedure 4(l)(5) is virtually identical
  to Federal Rule 4(d)(4), and was amended in 1996 to conform with changes
  made to the analogous federal rule in 1993. (FN1)  See Reporter's Notes,
  1996 Amendment, V.R.C.P. 4.  The purpose of this rule is to clarify that,
  in situations such as the one presented in this case, where service of the
  summons and complaint is required for tolling of the statute of limitations
  under rule V.R.C.P. 3, "if the waiver is not returned and filed, the
  limitations period under such a law is not tolled and the action will not
  otherwise proceed until formal service of process is effected."  Advisory
  Committee Notes, 1993 Amendments, F.R.C.P. 4(d)(4); see also 4A C. Wright &
  A. Miller, Federal Practice and Procedure § 1092.1, at 505-06 (2002 & Supp.
  2003).                                                   

       ¶  11.   Therefore, plaintiff's failure to file defendants' waiver of
  service with the trial court within sixty days of filing her complaint
  resulted in a failure to commence the action before expiration of the
  statute of limitations.  The trial court, while acknowledging plaintiff's
  failures, considered them technical errors that did not prejudice
  defendants and therefore denied defendants' motion for judgment on the
  pleadings.  The trial court, however, was incorrect. 
 
       ¶  12.  That defendants had notice of plaintiff's claim is of no
  moment.  The issue here is not one of failure to give effective notice of
  plaintiff's claim, but instead whether plaintiff's failure to file
  defendants' waiver of service within the time required by the Rules
  constituted a failure to properly commence plaintiff's action and toll the
  applicable statute of limitations.  Cf. Eagle Energy, Inc. v. Dist. 17,
  United Mine Workers of America, 177 F.R.D. 357, 359 (S.D. W.Va. 1998)
  (under analogous federal rule, mailing of waiver of service was merely a
  request for waiver and failure to file that waiver resulted in expiration
  of statute of limitations).  And, although defendants were amenable to
  waiver of service, plaintiff's attorney failed to satisfy the rules of
  civil procedure.  Thus, through no fault of defendants, the statute of
  limitations expired.  See Brady v. Brauer, 148 Vt. 40, 44, 529 A.2d 159,
  161 (1987) ("[T]he responsibility for any failure to fulfill provisions of
  V.R.C.P. 4(d) and (e), if the opportunity was presented, must be borne by
  the plaintiff."); Weisburgh, 136 Vt. at 597, 396 A.2d  at 1390 ("V.R.C.P. 4
  places the responsibility for seeing to service squarely upon the
  plaintiff.").  In some circumstances, a defendant may be estopped from
  asserting the bar of the statute of limitations, but only so long as the
  plaintiff reasonably relied upon the defendant's representations as an
  excuse for not instituting the action.  See Longe v. Boise Cascade Corp.,
  171 Vt. 214, 226, 762 A.2d 1248, 1258 (2000) (if party seeking relief
  allows statute of limitations to expire, absent circumstances sufficient to
  invoke equitable estoppel or equitable tolling, party has no right to
  relief); McLaughlin v. Blake, 120 Vt. 174, 180, 136 A.2d 492, 496 (1957). 
  Here, there are no circumstances that would give rise to a claim of
  equitable tolling or equitable estoppel.  Plaintiff merely failed to comply
  with the Rules.  Prejudice or lack thereof to defendants is
  inconsequential.  See Morrisseau v. Estate of Fayette, 155 Vt. 371, 372,
  584 A.2d 1119, 1119 (1990) (holding that V.R.C.P. 3 does not require a
  showing of prejudice before dismissal of action after plaintiff failed to
  comply with the rule).

       ¶  13.  As a result, the three-year limitations period established by
  12 V.S.A. § 521 expired before plaintiff commenced her action.  We require
  plaintiffs to strictly comply with the Rules when expiration of the statute
  of limitations is an issue.  See Powers v. Chouinard, 138 Vt. 3, 4, 409 A.2d 598, 599 (1979) (action barred by three-year statute of limitations
  because plaintiff filed suit one day late).  Consequently, plaintiff's
  claim against defendants is time barred.       

       ¶  14.  Plaintiff propounds an alternative argument in a effort to
  avoid expiration of the limitations period prescribed by 12 V.S.A. § 521. 
  In her brief to this Court, plaintiff contends that remand to the trial
  court is appropriate to enable her to amend her complaint to specifically
  allege fraudulent concealment of defendants' negligence.  Under § 521, the
  limitations period does not limit a plaintiff's ability to recover damages
  for injuries arising out of any medical or surgical treatment or operation
  "where fraudulent concealment has prevented the patient's discovery of the
  negligence."  Id.  "If properly pleaded, fraudulent concealment can vitiate
  the statutory bar of the limitations defense."  S. Burlington Sch. Dist. v.
  Goodrich, 135 Vt. 601, 606, 382 A.2d 220, 223 (1977), overruled on other
  grounds by Univ. of Vt. v. W.R. Grace & Co., 152 Vt. 287, 289-91, 565 A.2d 1354, 1356-57 (1989).  Allegations of fraud, however, must be plead with
  particularity.  V.R.C.P. 9; Silva v. Stevens, 156 Vt. 94, 106, 598 A.2d 852, 859 (1991) (fraud pled with particularity provides defendant with
  sufficient information to enable her to effectively prepare a response).  
               
       ¶  15.  In her complaint, plaintiff did not plead fraudulent
  concealment, but raised the issue for the first time in her responsive
  pleadings to defendants' motion for judgment on the pleadings.  In those
  pleadings, plaintiff argued that paragraphs 26 and 27 of count IV of her
  complaint, which specifically alleged "Failure to Obtain Informed Consent,"
  also alleged fraudulent concealment, and that this "fraudulent concealment
  of the complications and negligent treatment occurred through October
  1998," when plaintiff ended her treatment with defendants. (FN2)  Plaintiff
  also averred that "[b]ecause of the fiduciary nature of the relationship
  between doctor and patient, the failure to disclose is by its very nature
  fraudulent whether fraud is intended or implied from the actions of the
  defendant."  We are unpersuaded.  In count IV, plaintiff placed defendants
  on fair notice of a claim for lack of informed consent, but not one of
  fraudulent concealment.  See Lane v. Town of Grafton, 166 Vt. 148, 152-53,
  689 A.2d 455, 457 (1997) (pleading under V.R.C.P. 8 is sufficient if it
  gives defendant "fair notice of the claim and the grounds upon which it
  rests").  In effect, plaintiff is attempting to transform the negligence
  standard embodied in the concept of informed consent into one of fraud. 
  See 12 V.S.A. § 1909(a)(1) (lack of informed consent means failure to
  disclose to the patient treatment risks and alternatives "as a reasonable
  medical practitioner under similar circumstances would have disclosed");
  Small v Gifford Memorial Hosp., 133 Vt. 552, 558, 349 A.2d 703, 707 (1975)
  (physician's failure to furnish necessary information is negligence).  We
  decline to read the claim of negligence alleged in the complaint as one of
  intentional fraud.  Plaintiff has therefore failed to articulate a viable
  claim of fraudulent concealment in the pleadings, and consequently, failed
  to make "other allegations that . . . would toll the statute of
  limitations." Fortier v. Byrnes, 165 Vt. 189, 193, 678 A.2d 890, 892 (1996)
  (remanding for grant of leave to amend complaint where plaintiff made other
  allegations that, depending on facts not in the record, might toll the
  statute of limitations).  Had plaintiff intended to bring an action for
  fraudulent concealment, she could have done so before the statute of
  limitations expired.  This she did not do.  As such, we decline to remand,
  and plaintiff's action is dismissed.  

       Reversed, and the case is dismissed.    
                                                                  


                                       BY THE COURT:


                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice
  
                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.) 
                                       Specially Assigned


------------------------------------------------------------------------------
                                  Footnotes


FN1.  V.R.C.P. 4 does not, however, include a provision analogous to
  F.R.C.P. 4(m), which allows the court to extend the time limit for service
  of process if a plaintiff, after failing to properly serve a defendant,
  "shows good cause for the failure."  F.R.C.P. 4(m).  Consequently,
  plaintiff's argument that the trial court in this case granted a "good
  cause" extension in accordance with that provision of the federal rule is
  inapposite.

FN2.  These allegations read:

    26.  Defendant failed to fully inform Plaintiff of all her post
    operative options for treatment of post operative complications.
    27.  Defendants [sic] failure to fully inform Plaintiff of
    potential operative complications and post operative options for
    treatment induced Plaintiff into treatment she would have not
    otherwise sought  and caused her to forego post operative
    treatment, which because of the passage of time, is no longer a
    reasonable option for Plaintiff.