Taylor v. Phillips, 90-211

• Decision Date: 21 December 1990
• Docket Number: No. 90-211,90-211
• Citation: 304 Ark. 285,801 S.W.2d 303
• Parties: George W. TAYLOR, Appellant, v. James B. PHILLIPS, Appellee.
• Court: Arkansas Supreme Court

Page 303

801 S.W.2d 303

304 Ark. 285

George W. TAYLOR, Appellant, v. James B. PHILLIPS, Appellee.

No. 90-211.

Supreme Court of Arkansas.

Dec. 21, 1990.

Dick Jarboe, Walnut Ridge, for appellant.

Paul D. McNeill, Jonesboro, for appellee.

PRICE, Justice.

This is a medical malpractice case which was dismissed by the trial court because the two-year statute of limitations had run. Ark.Code Ann. § 16-114-203(a) (1987). The appellant, George W. Taylor, seeks reversal on the ground that he was undergoing "continuous treatment" during the statutory period. We agree and the judgment of dismissal is reversed.

Mr. Taylor's jaw was broken on September 7, 1987, when his face was struck by a trailer gate which had been kicked by a bull Taylor was loading into the trailer. On September 8, 1987, the appellee, James B. Phillips, an oral surgeon, performed surgery and placed Taylor's jaw in a brace which was screwed into the bone parts. On September 15, 1987, Taylor returned to Phillips' office for a follow-up visit. Phillips' notes indicate that the bone was healing but that the parts were slightly offset.

Taylor's next visit with Phillips was September 25, 1987, when an x-ray was made showing the slight offset. On that visit, Taylor complained to Phillips that the offset caused him to be unable to wear his false teeth. The x-ray made on that visit also revealed a lung tumor.

The next visit came on October 9, 1987, and on that date Phillips physically repositioned the bones. Phillips advised Taylor to wear the brace another eight to ten weeks.

The lung tumor was removed by another doctor on November 4, 1987. Phillips was consulted prior to that surgery about whether the brace would affect or be affected by tubes to be placed in Taylor's mouth. Phillips visited Taylor in the hospital on either November 4 or 5, 1987, and Taylor again complained about the jaw. Taylor was advised by Phillips that further surgery on the jaw was necessary and x-rays were made.

On December 8, 1987, Taylor returned to Phillips' office, and was seen, not by Phillips, but by another oral surgeon, Dr. Modelevsky, Phillips' partner, who observed that the bones were not healing properly. Modelevsky took x-rays and subsequently cut the brace in half and manually repositioned the jaw bones. On December 9, 1987, Phillips was consulted by Modelevsky, and agreed that further surgery in the form of a bone graft operation was indicated.

Suit was filed on October 16, 1989. The complaint alleged that Phillips "was negligent in his care and treatment" of Taylor, "including the failure ... to advise that he could have a substantial scar" and that Taylor's "jaw did not heal properly and the failure of the jaw to heal was due to the failure of [Dr. Phillips] to treat and care for the jaw according to accepted standards." The complaint did not allege negligence in the performance of the surgery on September 8, 1987.

The record reflects that Taylor remained Phillips' patient within the statutory period and that the brace Phillips had placed on Taylor remained in place until a time less than two years from the date the suit was filed.

This case presents a question about the continuous treatment doctrine, which we recognized and applied for the first, and only, time in Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988). Mrs. Lane contended that her former husband, Dr. Lane, had, over an eighteen-year period, prior to and during their marriage, given her certain injections which caused scarring and drug addiction. She sought damages for the injury she had suffered from the injections over the entire period. Dr. Lane contended she could not recover for negligent acts alleged to have occurred more than two years prior to the filing of the action. Some of the injections had been given within the two-year period, and we applied the continuing treatment doctrine to hold that damages could be recovered for the injury even though some of the allegedly negligent acts occurred outside the statutory period.

We quoted the following definition of "continuous treatment" from 1 D. Louisell and H. Williams, Medical Malpractice § 13.08 (1982) in Lane as follows:

[I]f 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 continuous 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. (Emphasis added.)

We stated in Lane that the doctrine's application in appropriate circumstances was proper. Since this court has only had one opportunity to consider the doctrine of continuing treatment, we will look to other jurisdictions to see under what circumstances it has been applied.

In Samuelson v. Freeman, 75 Wash.2d 894, 454 P.2d 406 (1969), the Washington Supreme Court applied the continuing treatment doctrine and stated:

In construing the statute of limitations concerning medical malpractice, we think it a sound rule that, if malpractice is claimed during a continuous and substantially uninterrupted course of treatment for a particular illness or condition, the statute does not begin to run until the treatment for that particular illness or condition has been terminated.

The patient in Samuelson had suffered a fractured femur, and the physician had performed surgery to reduce the fracture. He continued to observe and treat that particular condition for nearly three years following surgery.

In Farley v. Goode, 219 Va. 969, 252 S.E.2d 594 (1979), the appellant was treated by a dentist over a period of years. She alleged he was negligent in his diagnosis and treatment of her. The Supreme Court of Virginia held 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 cause of action accrues and the statute of limitations begins to run when the improper course of examination and treatment for the particular malady terminates.

The Texas Court of Appeals held in Vinklarek v. Cane, 691 S.W.2d 108 (Tex.Ct.App.1985), that the statute of limitations applicable to medical malpractice claims began to run at the end of the last treatment for the condition for which the patient initially saw the physician. The appellant was treated over a period of time by a physician for an infection following oral surgery.

The appellant brought his action against a physician in Waldman v. Rohrbaugh, 241 Md. 137, 215 A.2d 825 (1966), on the theory of continuing treatment. The Maryland Court of Appeals stated that where the facts show continuing medical or surgical treatment for a particular illness or condition in the course of which there is malpractice producing or aggravating harm, the patient's cause of action accrues at the end of the treatment for that particular illness, injury or condition, unless he knew sooner or reasonably should have known of the injury or harm, in which case the limitation starts to run with actual or constructive knowledge.

The Wyoming Supreme Court noted in Metzger v. Kalke, 709 P.2d 414 (Wyo.1985), that courts applying the doctrine uniformly hold that where the defendant physician has provided a continuing course of care for the same or related complaints, the cessation of treatment completes the "act" which starts the running of the statutory period for filing suit. The court held in that case the statute of limitations began to run with respect to the appellant's claims against the defendant physician on the date he last treated the appellant.

In this case, Taylor was clearly under a continuing course of treatment by Phillips, and so the statute did not begin to run until Taylor's treatment terminated on December 9, 1987. Taylor still had the brace screwed into his jaw bones on December 9 when Phillips and his partner agreed that Taylor needed further surgery on his jaw. Taylor's complaint against Phillips was filed on October 16, 1989, well within the statute of limitations.

To hold otherwise might require a plaintiff to bring suit against his or her physician before treatment is even terminated. This could conceivably afford the physician a defense that a patient left before treatment was terminated and before the physician had a chance to effectuate a proper result. Accordingly, the trial court erred in granting Phillips' motion to dismiss, and its judgment of dismissal is reversed.

Reversed and remanded.

NEWBERN, J., concurs.

DUDLEY and TURNER, JJ., concur in part and dissent in part.

HAYS, J., dissents.

NEWBERN, Justice, concurring.

In Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988), a course of treatment consisting of negligent acts in the form of improper injections continued until less than two years prior to the filing of the action. In this case the only treatment rendered by the doctor occurred more than two years before the action was filed unless it can be said that leaving the brace on Mr. Taylor constituted continuing treatment. I would be willing to join the court's opinion if it were limited to that simple conclusion. I am, however, able to concur only in the result because I believe the opinion may mislead future litigants.

The majority opinion quotes the description of the "continuous treatment" doctrine we applied in Lane v. Lane, supra. It then says we recognized it was to be applied in "appropriate circumstances." Then follows a series of citations to cases which have applied the doctrine. There is no stated recognition that the problem in this case is whether Dr. Phillips' inaction subsequent to placing the brace on Mr. Taylor constituted "treatment." That is the issue, and it is a close one...