Two-Year Medical Malpractice Repose Means Two Calendar Years Ending the Day Before the Anniversary: Paulsen v. Avera McKennan

Two-Year Medical Malpractice Repose Means Two Calendar Years Ending the Day Before the Anniversary: Paulsen v. Avera McKennan

Introduction

In Paulsen v. Avera McKennan, 2025 S.D. 37, the South Dakota Supreme Court affirmed summary judgment against a patient who alleged a non-consensual hysterectomy following childbirth. The central issue on appeal was whether her suit—filed on December 15, 2023—was timely under the two-year statute of repose for medical malpractice claims in SDCL 15-2-14.1. The Court used this case to articulate a clear counting rule: the two-year repose period is measured in calendar years, not in fixed day counts, and it expires the day before the second anniversary of the start date, regardless of leap years. The Court also rejected the plaintiff’s attempt to invoke the continuing-tort doctrine and found no abuse of discretion in the circuit court’s refusal to delay summary judgment for additional discovery.

The parties: Plaintiff and appellant Jessica Paulsen underwent two emergency surgeries on December 14, 2021, performed by defendant-appellee Dr. Amber Saloum at Avera McKennan Hospital. Paulsen alleged she never consented to a hysterectomy and sued the hospital, Dr. Saloum, and unnamed defendants on December 15, 2023. The circuit court granted summary judgment based on the statute of repose, and Paulsen appealed.

Summary of the Opinion

The Court affirmed, holding that:

  • SDCL 15-2-14.1 establishes a two-year statute of repose measured in calendar years. A “year” is a “calendar year” under SDCL 2-14-2(36) and must be computed by the “anniversary” method: the period runs from the start date until the moment that date reappears on the calendar for the second time. The last day to sue is the day before the anniversary date. Thus, a period commencing December 15, 2021, expired on December 14, 2023. Filing on December 15, 2023, was one day late.
  • The continuing-tort doctrine did not apply because the alleged wrong was a discrete act (a non-consensual hysterectomy) rather than cumulative negligent treatment. The post-operative insertion and removal of a Jackson-Pratt (JP) drain, without additional allegations of wrongdoing, did not transform the case into a continuing tort.
  • The circuit court did not abuse its discretion by granting summary judgment without postponing for further discovery. Under SDCL 15-6-56(f), the plaintiff did not identify essential, probable facts unavailable to her that would defeat summary judgment; speculation is insufficient, particularly where medical records were provided weeks before the hearing.

Analysis

Precedents Cited and Their Role

  • Pitt-Hart v. Sanford USD Medical Center, 2016 S.D. 33, 878 N.W.2d 406:
    • Confirms SDCL 15-2-14.1 is a statute of repose, not of limitation. A repose period runs from the last culpable act or omission and is not tolled by estoppel or tolling doctrines.
    • Explains the continuing-tort doctrine in medical malpractice applies only when harm stems from the cumulative effect of several related treatments; it does not apply where a discrete negligent act can be identified.
  • CTS Corp. v. Waldburger, 573 U.S. 1 (2014): Distinguishes statutes of repose from statutes of limitations—repose is keyed to the defendant’s last culpable act and is not subject to equitable tolling.
  • Toben v. Jeske, 2006 S.D. 57, 718 N.W.2d 32:
    • Illustrates the “anniversary” computation approach by recognizing that a period beginning July 3, 2001 ended July 2, 2004.
    • Paulsen builds on Toben by expressly anchoring the computation in the statutory definition of “year” as “calendar year” and addressing leap-year concerns.
  • Jackson v. Canyon Place Homeowner’s Ass’n, Inc., 2007 S.D. 37, 731 N.W.2d 210: Authorizes the use of dictionary definitions to discern ordinary meaning when statutes do not define a term.
  • Stern Oil Co. v. Border States Paving, Inc., 2014 S.D. 28, 848 N.W.2d 273:
    • Sets the bar for Rule 56(f) relief: the nonmovant must identify the essential facts not available, the steps taken to obtain them, and how additional time would enable opposition to summary judgment. Mere speculation is insufficient.
  • Harvieux v. Progressive Northern Ins. Co., 2018 S.D. 52, 915 N.W.2d 697: Denial of additional discovery before ruling on summary judgment is reviewed for abuse of discretion.
  • Karst v. Shur-Co., 2016 S.D. 35, 878 N.W.2d 604; Ries v. JM Custom Homes, LLC, 2022 S.D. 52, 980 N.W.2d 217; Estate of Zoss v. S.D. Dep’t of Revenue, 2001 S.D. 124, 635 N.W.2d 553; Hayes v. North Hills Gen. Hosp., 1999 S.D. 28, 590 N.W.2d 243:
    • These authorities supply the de novo standard for summary judgment and the evidentiary requirements for opposing summary judgment, emphasizing that legal questions are amenable to summary disposition.

Legal Reasoning

The Court’s analysis contains three key components: (1) the nature and computation of the statute of repose; (2) the inapplicability of the continuing-tort doctrine on the facts alleged; and (3) the denial of a Rule 56(f) continuance for discovery.

1) Statute of repose: “Two years” means two calendar years computed by the anniversary method

  • SDCL 15-2-14.1 permits malpractice actions against healthcare providers to be commenced “only within two years after the alleged malpractice, error, mistake, or failure to cure shall have occurred.” South Dakota characterizes this as a statute of repose (Pitt-Hart), which runs from the last culpable act and is not subject to equitable tolling.
  • Because SDCL 2-14-2(36) defines “year” as a “calendar year” and SDCL 2-14-4 applies definitions across the code unless a contrary intention appears, the Court employed the ordinary meaning of “calendar year,” using Black’s Law Dictionary to confirm that a year is measured as twelve months.
  • Applying this, the Court adopted the “anniversary method”: a “year” lasts from one date up to the moment that date reoccurs on the calendar, and “two years” lasts until the moment the date reoccurs the second time. The extra day in a leap year does not alter the end date under this method.
  • Here, the parties assumed for the appeal that the repose clock began December 15, 2021. Two calendar years ended as of the moment December 15, 2023 began; therefore, the last day to file was December 14, 2023. Filing on December 15, 2023 was one day late, and the claims were barred.
  • The Court emphasized that this approach “does not require any calculation” and aligns with Toben’s treatment of anniversary dates.

2) Continuing-tort doctrine does not rescue discrete, identifiable acts

  • While a statute of repose is not tolled, the continuing-tort doctrine can delay the start of the repose period until the last culpable act, but only when the harm is the cumulative effect of several related treatments amounting to a continuous course of negligent care (Pitt-Hart).
  • Where the patient can identify “the specific negligent treatment” that caused the injury, the continuing-tort doctrine does not apply (Pitt-Hart).
  • Paulsen’s complaint was grounded entirely in a discrete alleged wrong: a non-consensual hysterectomy on December 14, 2021. She did not contest consenting to exploratory surgery, and she did not plead any additional, actionable wrongs in post-operative care.
  • Her argument that a JP drain remained for several days does not make the case a continuing tort. A physician’s affidavit explained the drain was standard, would be used even absent a hysterectomy, and it was removed before discharge. Absent allegations of non-consent or independent negligence related to that device, its presence did not create a “continuous and unbroken course of negligent treatment” “so related as to constitute one continuing wrong.”

3) No abuse of discretion in denying a Rule 56(f) discovery continuance

  • To obtain relief under SDCL 15-6-56(f), the nonmovant must identify essential facts not available, steps taken to obtain them, and explain how more time would enable opposition.
  • Paulsen neither moved to compel discovery nor identified specific essential facts unavailable to her. She had been provided hospital records roughly six weeks before the hearing. Her speculation that discovery “may reveal” other non-consensual injections or devices was insufficient under Stern Oil; “mere speculation” cannot defeat summary judgment or justify a continuance.
  • Given the narrow dispositive issue—counting the repose period—further discovery would not have altered the legal analysis. The circuit court’s implicit refusal to delay the ruling was not an abuse of discretion (Harvieux).

Impact

Paulsen is significant in three respects:

  • Clear, predictable deadline computation statewide. By anchoring “year” to “calendar year” and endorsing the anniversary method, the Court furnishes a bright-line rule for calculating not only SDCL 15-2-14.1’s medical malpractice repose, but potentially any South Dakota statute that measures time in “years” without a contrary definition. Practitioners should calendar the deadline as the day before the anniversary date and not rely on a fixed day count.
  • Leap years do not extend the time. The presence of a leap day between the start and end of a period does not add a filing day. The rule avoids counting complexities and prevents inadvertent “off-by-one” errors that sometimes occur with day-count methods.
  • Narrow application of the continuing-tort doctrine to informed-consent/battery claims. When a plaintiff’s theory targets a discrete, identifiable procedure (e.g., an allegedly non-consensual surgery), the continuing-tort doctrine will rarely apply. Post-operative standard care (like a JP drain) will not extend the repose period absent well-pleaded and supported allegations that such care was itself wrongful and part of a continuous, unified course of negligent treatment.
  • Summary judgment practice tightened under Rule 56(f). Litigants opposing repose-based summary judgment must present more than conjecture to delay a ruling for discovery. Courts will expect specificity about essential facts likely to be uncovered and why they matter to a legally dispositive issue such as the start and end of a repose period.

Complex Concepts Simplified

  • Statute of repose vs. statute of limitations:
    • Repose: Hard deadline measured from the defendant’s last culpable act or omission. It is not tolled by discovery of the injury or by equitable doctrines like estoppel; it is designed to provide finality and endpoint certainty.
    • Limitations: Typically measured from when a claim “accrues” (often when the injury is or should be discovered). Limitations can be tolled in some circumstances.
  • Calendar-year (anniversary) computation:
    • Start with the date the period begins; the period ends when that date appears on the calendar the requisite number of times, with the last day to file being the day before the anniversary date. Leap years do not change the end date.
  • Continuing-tort doctrine (medical context):
    • Applies when the injury results from a continuous, unbroken course of related negligent treatment, and the harm is cumulative. The repose period starts with the last negligent treatment in that continuous course.
    • Does not apply when the patient can pinpoint a discrete, specific negligent act (e.g., a single surgery alleged to be nonconsensual).
  • Rule 56(f) discovery continuance (SDCL 15-6-56(f)):
    • To delay summary judgment for discovery, the nonmovant must specify the essential facts they cannot present, the efforts taken to obtain them, and how more time will rebut the motion. Courts will not grant continuances based on speculation that “something might turn up.”

Conclusion

Paulsen v. Avera McKennan delivers a crisp and administrable rule for computing the two-year medical malpractice statute of repose: “two years” means two calendar years as measured by the anniversary method, and the last day to file is the day before the anniversary date. The Court’s reliance on SDCL 2-14-2(36), the statutory cross-application provision in SDCL 2-14-4, and Black’s Law Dictionary places this counting method on solid textual footing and harmonizes with earlier guidance in Toben. The opinion also reinforces two recurring themes in South Dakota malpractice litigation: (1) the continuing-tort doctrine is narrow and does not rescue claims premised on a single, identifiable procedure; and (2) Rule 56(f) requires concrete showings of essential facts to justify delaying summary judgment.

For practitioners, the takeaways are straightforward: calendar the repose deadline as the day before the second anniversary of the operative start date, do not count days, and be cautious about invoking continuing-tort theory without well-pleaded, fact-supported allegations of a continuous and related course of negligent care. Above all, when opposing a repose-based summary judgment motion, specificity—not speculation—will determine whether discovery can extend the life of a case.

Case Details

Year: 2025
Court: Supreme Court of South Dakota

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