Justice v. Natvig, 880077
| Decision Date | 09 June 1989 |
| Docket Number | No. 880077,880077 |
| Citation | 381 S.E.2d 8,238 Va. 178 |
| Parties | Harry L. JUSTICE v. Ralph A. NATVIG. Record |
| Court | Virginia Supreme Court |
James A. Eichner (Granville R. Patrick, Gary L. Denton, Beale, Wright, Denton, Balfour & Davidson, Richmond, on briefs), for appellant.
Robert S. Brewbaker, Jr. (Browder, Russell, Morris & Butcher, P.C., Richmond, on brief), for appellee.
Present: All the Justices.
In this medical malpractice action against a surgeon, we decide when the applicable two-year statute of limitations began to run on a claim for an allegedly negligent operation, when that operation was followed by eight years of non-negligent treatment by the same surgeon.
For the purposes of ruling upon the defendant's plea of the statute of limitations, the parties stipulated the following facts. On January 11, 1977, Dr. Ralph A. Natvig, a general surgeon, negligently severed Harry L. Justice's common bile duct, rather than his cystic bile duct, 1 in the surgical removal of Justice's gall bladder. On January 24, 1977, Dr. Natvig negligently inserted a U-tube 2 in treating complications resulting from the severance of the common bile duct. Thereafter, until May 15, 1985, Dr. Natvig treated Justice non-negligently for complications arising out of his operations of January 1977. The trial court sustained Dr. Natvig's plea of the statute of limitations, and we granted this appeal.
On February 24, 1986, Justice gave Dr. Natvig the written notice of his claim for medical malpractice required by Code § 8.01-581.2(A). Neither party requested a medical malpractice review panel and, on June 3, 1986, Justice filed this action against Dr. Natvig.
We have decided a number of cases involving the statute of limitations and a continuing professional relationship. Farley v. Goode, 219 Va. 969, 976, 252 S.E.2d 594, 599 (1979), was a dental malpractice case in which a dentist negligently failed to diagnose and treat a periodontal disease over a period of four years. In deciding when the statute of limitations began to run, we applied a "continuing treatment" rule in the following language:
We hold under these facts that when malpractice is claimed to have occurred during a continuous and substantially uninterrupted course of examination and treatment in which a particular illness or condition should have been diagnosed in the exercise of reasonable care, the date of injury occurs, the cause of action for that malpractice accrues, and the statute of limitations commences to run when the improper course of examination, and treatment if any, for the particular malady terminates.
We applied the continuing treatment rule in the medical malpractice case of Fenton v. Danaceau, 220 Va. 1, 4, 255 S.E.2d 349, 350 (1979). Then, in Keller v. Denny, 232 Va. 512, 519, 352 S.E.2d 327, 331 (1987), an attorney malpractice case, and Boone v. C. Arthur Weaver Company, 235 Va. 157, 163, 365 S.E.2d 764, 767 (1988), an accountant malpractice case, we applied a similar rule in the context of continuing professional services. Finally, in Grubbs v. Rawls, 235 Va. 607, 369 S.E.2d 683 (1988), a medical malpractice case, we applied the continuing treatment rule even though there was no negligence in the treatment following a negligently performed operation. Rejecting the doctor's argument that Farley applies only where the negligence has continued over the whole course of treatment, we held:
The rule of decision in [Farley and Fenton ] was not that the negligence of the defendant physician extended until the physician-patient relationship ended. Instead, the rule of decision was that if there existed a physician-patient relationship where the patient was treated for the same or related ailments over a continuous and uninterrupted course, then the plaintiff could wait until the end of that treatment to complain of any negligence which occurred during that treatment. Thus, within the confines of Farley, Fenton, and this opinion, Virginia has a true continuing treatment rule.
Grubbs, 235 Va. at 613, 369 S.E.2d at 687 (emphasis in original).
Dr. Natvig maintains that the continuing treatment rule should not be applied in this case for several reasons. First, he says more than two years elapsed between some of his treatments, as well as between his final treatment and notice of the malpractice claim....
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