## Facts

- Patricia Larsen was treated at a Minnesota hospital from June 27 to July 6, 1996, for bacterial endocarditis and was administered/prescribed gentamicin.
- She returned on July 19, 1996, was rehospitalized, and was diagnosed with gentamicin vestibular ototoxicity, attributed solely to taking gentamicin.
- During the July 1996 hospitalization, medical personnel discussed the condition, its expected effects, and that she might never completely recover.
- She was discharged on July 24, 1996, and returned for follow-up examinations in September 1996.
- The Larsens filed a diversity medical malpractice complaint in federal court on May 29, 1998.
- Plaintiffs twice mailed summons/complaints with an acknowledgment/waiver request to Mayo’s legal department in June 1998; Mayo received the mailings but refused to sign and return the forms.
- Plaintiffs later sent the amended summons and complaint to the county sheriff on September 4, 1998; the sheriff received them on September 8 and personally served Mayo on September 9, 1998.
- Mayo moved for summary judgment on statute-of-limitations grounds; the district court granted the motion, and plaintiffs appealed.

## Issues

1. When did Minnesota’s two-year statute of limitations for the alleged malpractice begin to run, including whether the “single act” exception applied?
2. In a diversity action, does state law or the Federal Rules determine when the action is “commenced” for state statute-of-limitations purposes?
3. Does a defendant’s refusal to waive service under Fed. R. Civ. P. 4(d) make mailed waiver materials effective service or otherwise render the suit timely?

## Decision

- The Eighth Circuit affirmed summary judgment for Mayo.
- The court held the malpractice claim accrued no later than July 24, 1996, because Larsen knew of the injury and its cause by that date and the alleged negligence was a discrete act.
- Applying Minnesota commencement rules for limitations purposes, the action was not commenced within two years because Mayo was not timely served; at the earliest, commencement occurred when the sheriff received process on September 8, 1998.
- The mailed Rule 4(d) waiver requests were not service of process; Mayo’s refusal to waive required plaintiffs to complete proper service, and federal rules did not extend the state limitations period.

## Legal Principles

- Under Minnesota law, medical malpractice claims generally accrue at the end of treatment, but the “single act” exception applies when the alleged negligence is complete at a discrete time and is not followed by negligent continuous treatment.
- In diversity cases, state law governs when an action is commenced for purposes of satisfying a state statute of limitations, even though Fed. R. Civ. P. 3 states that an action is commenced by filing.
- A request to waive service under Fed. R. Civ. P. 4(d) is not service; if the defendant does not waive, the plaintiff must effect service by the methods required under Rule 4 and applicable law.
- A defendant’s refusal to waive service does not convert mailed waiver materials into effective service or toll the state limitations period.

## Conclusion

The court held the claim accrued by July 24, 1996, and was time-barred because Minnesota’s service-based commencement rule controlled in diversity and the plaintiffs’ mailed waiver requests did not constitute service, making the September 1998 service untimely.


Larsen v. Mayo Med. Ctr., 218 F.3d 863 (8th Cir. 2000)