Lane v. Lane

Decision Date06 June 1988
Docket NumberNo. 87-293,87-293
Citation752 S.W.2d 25,295 Ark. 671
PartiesWalter H. LANE, M.D., Appellant, v. Maxine Payton LANE, Appellee.
CourtArkansas Supreme Court

Tom Tatum, Danville, for appellant.

Richard L. Peel, Russellville, for appellee.

HAYS, Justice.

In this medical malpractice case the only question on appeal pertains to the statute of limitations.

Appellant, Walter Lane, a physician, began treating Maxine Lane, appellee, for migraine headaches in 1966 and continued treating her until 1984. The two were married in 1974 and divorced in 1985. Mrs. Lane sued Dr. Lane in May 1985 for malpractice for injuries received as a result of his treatment. Prior to trial, Dr. Lane moved for summary judgment claiming the action was barred by the statute of limitations. The motion was denied. At the close of the evidence, Dr. Lane moved for a directed verdict and asked the court to reconsider summary judgment based on the statute of limitations. The court denied both motions and a jury awarded Mrs. Lane $44,000.

After the verdict, Dr. Lane moved for judgment NOV, seeking a reduction to $13,000 to conform with the evidence of damages by Mrs. Lane. Mrs. Lane objected to a remittitur and elected to have a new trial. By this appeal Dr. Lane challenges the denial of summary judgment and directed verdict on the issue of statute of limitations.

Dr. Lane's treatment of Mrs. Lane's migraine headaches from 1966 to 1984 included regular injections of narcotics of one type or another. Mrs. Lane alleged the treatment was injurious, causing fibrosis of the shoulder, loss of motion of her arm, extensive scarring of her back, arms, and shoulders, drug addiction, drug dependency, drug abuse, depression and loss of ability to carry on a normal lifestyle.

Our statute of limitations for medical malpratice, Ark.Code Ann. § 16-114-203 (1987) [Ark.Stat.Ann. § 34-2616 (Repl.1962) ] provides that:

(a) All actions for medical injury shall be commenced within two years after the cause of action accrues. (b) The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time ...

Ark.Code Ann. § 16-114-201(3) (1987) [Ark.Stat.Ann. § 34-2613(C) (Repl.1962) ] defines "medical injury":

"Medical injury or injury" means any adverse consequence arising out of or sustained in the course of the professional services being rendered by a medical care provider, whether resulting from negligence, error or omission in the performance of such services; or from rendition of such services without informed consent or in breach of warranty or in violation of contract; or from failure to diagnose; or from premature abandonment of a patient or of a course of treatment; or from failure to properly maintain equipment or appliances necessary to the rendition of such services; or otherwise arising out of or sustained in the course of such services.

Dr. Lane maintains the evidence shows that Mrs. Lane's drug addiction and scarring began by 1978 and therefore the action is barred by the statute of limitations. Mrs. Lane counters the argument with the "continuing course of treatment" theory. The trial court ruled against Dr. Lane on this issue, finding that the action fell within the statute of limitations.

The theory of "continuous treatment" is defined: in

If the treatment by the doctor is a continuing course and the patient's illness, injury or condition is of such a nature as to impose on the doctor a duty of continuing treatment and care, the statute does not commence running until treatment by the doctor for the particular disease or condition involved has terminated unless during treatment the patient learns or should learn of negligence, in which case the statute runs from the time of discovery, actual or constructive.

1 D. Louisell and H. Williams Wachsman, Medical Malpractice § 13.08 (1982)--(footnotes omitted). 1

"Continuous treatment" is distinguishable from a "continuing tort." See Williams v. Edmondson & Ward, 257 Ark. 837, 520 S.W.2d 260 (1975); Owen v. Wilson, 260 Ark. 21, 537 S.W.2d 543 (1976); Treat v. Kreutzer, 290 Ark. 532, 720 S.W.2d 716 (1986). In Owen and Treat, the appellants argued that a single negligent act of a physician, a misdiagnosis for example, was a continuing wrong and the statute of limitations would not begin to run until the error was discovered, on the premise that the effect of the wrong was continuous. We declined to adopt that theory, holding the cause of action to accrue at the time of the wrongful act, reasoning that the proposed theory, a public policy issue, should be addressed by the legislature.

To hold otherwise would mean in effect that we would apply the "discovery of injury rule" 2 to our malpractice statute, which would change the time of the accrual of a cause of action from the time of the act to the date of discovery of the injury. This is contrary to the legislative intent plainly expressed in our statute. The limitation begins to run from the "date of the wrongful act complained of and no other time." Ark.Code Ann. § 16-114-203 (1987).

In contrast to the so-called continuing tort theory, based on a single negligent act, the continuous treatment doctrine becomes relevant when the medical negligence consists of a series of negligent acts, or a continuing course of improper treatment. The basis for the doctrine is sound.

The so-called "continuous treatment" rule has been defended on the grounds of fairness as well as on the basis of logic. Certainly it would not be equitable to bar a plaintiff, who for example, has been subjected to a series of radiation treatments in which the radiologist negligently and repeatedly administered an overdosage, simply because the plaintiff is unable to identify the one treatment that produced his injury. Indeed, in such a situation no single treatment did cause the harm; rather it was the result of several treatments, a cumulative effect. From the point of view of the physician, it would seem reasonable that if he had made a mistake, a misdiagnosis for example, he is entitled to the opportunity to correct the error before harm ensues. And, as one court has put it, "It would be absurd to require a wronged patient to interrupt corrective efforts by serving a summons on the physician.

D. Louisell & H. Williams supra.

Since 1940, there has been a steady trend toward judicial acceptance of the continuing treatment approach. D. Louisell & H. Williams supra; 2 Pegalis and Wachsman, American Law of Medical Malpractice § 6:7 (1981), gives this summary:

This circumstance is usually dealt with in each state by the so-called 'continuous course of treatment' doctrine. Generally, the cause of action would accrue at the end of a continuous course of medical treatment for the same or related condition even if the negligent act or omission has long since ended.

Jurisdictions adopting the doctrine include Metzger v. Kalke, 709 P.2d 414 (Wyo.1985); Skoglund v. Blandkenship, 134 Ill.App.3d 628, 481 N.E.2d 47 (1985); Vinklarek v. Cane, 691 S.W.2d 108 (Tex.Civ.App.1985); Sheldon v. Sisters of Mercy Health Corp., 102 Mich.App. 91, 300 N.W.2d 746 (1980); Tamminen v. Aetna Casualty & Surety Co., 109 Wis.2d 536, 327 N.W.2d 55 (1982); Lynch v. Foster, 376 So.2d 342 (La.App.1979); Farley v. Goode, 219 Va. 969, 252 S.E.2d 594 (1979); Samuelson v. Freeman, 75 Wash.2d 904, 454 P.2d 406 (1969); Frazor v. Osborne, 57 Tenn.App. 10, 414 S.W.2d 118 (1966); Waldman v. Rohrbaugh, 241 Md. 137, 215 A.2d 825 (1966); Borgia v. City of New York, 12 N.Y.2d 151, 187 N.E.2d 777, 237 N.Y.S.2d 319 (1962); Hundley v. St. Francis Hospital, 161 Cal.App.2d 800, 327 P.2d 131 (1958); Thatcher v. De Tar, 351 Mo. 603, 173 S.W.2d 760 (1943); Hotelling v. Walther, 169 Or. 559, 130 P.2d 944 (1942); Williams v. Elias, 140 Neb. 656, 1 N.W.2d 121 (1941); Schmit v. Esser, 183 Minn. 354, 236 N.W. 622 (1931).

Even a jurisdiction which has adhered to the "time of injury rule" for the...

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