Tullock v. Eck

• Decision Date: 25 January 1993
• Docket Number: No. 92-340,92-340
• Citation: 845 S.W.2d 517,311 Ark. 564
• Parties: Betty D. TULLOCK, Appellant, v. Gareth ECK, M.D., et al., Appellee.
• Court: Arkansas Supreme Court

Page 517

845 S.W.2d 517

311 Ark. 564

Betty D. TULLOCK, Appellant, v. Gareth ECK, M.D., et al., Appellee.

No. 92-340.

Supreme Court of Arkansas.

Jan. 25, 1993.

F. Lewis Steenken, Fayetteville, William H. Walters, Portland, OR, for appellant.

Kelly Carithers, Fayetteville, for appellee.

NEWBERN, Justice.

This is a medical malpractice case. The appellant, Betty Tullock, sued the appellee, Dr. Gareth Eck, along with another physician and the medical center in which they work. Ms. Tullock contended Dr. Eck negligently prescribed estrogen on November 30, 1987, and that her taking of the drug contributed to her advanced state of breast cancer diagnosed in March 1990. Dr. Eck was awarded summary judgment on the ground that the two-year statute of limitations had expired. Ms. Tullock argued that her taking the medication prescribed by Dr. Eck constituted a continuous course of treatment and the last allegedly negligent act occurred when she finished taking the medication in May 1989, less than two years before suit was filed. The summary judgment order has been properly certified as final pursuant to Ark.R.Civ.P. 54(b). We agree with the Trial Court's conclusion that the continuous treatment doctrine did not toll the statute of limitations, and thus summary judgment in favor of Dr. Eck was proper.

Affidavits, discovery documents, pleadings, and exhibits revealed these facts. Dr. Eck performed gall bladder surgery on Ms. Tullock November 2, 1987. On November 10, 1987, Ms. Tullock, in the course of a post-operative examination, reported to Dr. Eck a mass in her breast. Dr. Eck recommended a mammogram and biopsy, and a mammogram was performed. The mammogram report confirmed the mass but did not show the presence of cancerous cells.

According to Dr. Eck, when Ms. Tullock returned for a second post-operative visit November 30, 1987, he informed her that the mammogram was essentially negative but repeated that a biopsy of the mass was indicated. Ms. Tullock declined to have a biopsy and denies having been fully informed of the risks and alternatives concerning her choice with respect to a biopsy in 1987.

A subsequent post-operative visit was scheduled for December 14, 1987. Dr. Eck states it was his intention to discuss further with Ms. Tullock the need for a biopsy at that meeting. His office records show that Ms. Tullock called to cancel the appointment and did not reschedule it. While Ms. Tullock acknowledges she was to return, she states she did not do so because she had been told her gall bladder situation was healed, and she had been led to believe the breast mass was benign.

At the November 30, 1987, visit Dr. Eck wrote a prescription for Ms. Tullock for the drug Premarin, an estrogen supplement, which Ms. Tullock filled that day. Hospital records compiled subsequently when Ms. Tullock underwent a mastectomy showed she had been taking estrogen since 1973. Dr. Eck's prescription permitted refills for one year. She refilled the prescription on June 9, 1988, and November 10, 1988, thus providing sufficient medication to last into May 1989, well within the two years of the filing of this suit on December 11, 1990. A pharmacist called Dr. Eck's office for authorization of an additional refill on May 9, 1989, and it was refused.

In June 1989 Ms. Tullock visited another doctor who did not perform diagnostic treatment on the breast mass but continued her estrogen therapy. The same doctor diagnosed a malignant infiltrating ductal cell breast cancer in March 1990. Ms. Tullock's next direct contact with Dr. Eck occurred on March 30, 1990, when after that diagnosis, she returned to him for the biopsy.

In the process of treatment, the cancer was found to be estrogen dependent, and Ms. Tullock argued that Dr. Eck's prescription of estrogen in the face of the undiagnosed mass presenting at the time of the examination was negligence. She alleged Dr. Eck was also negligent in his acts and omissions related to the diagnosis and treatment of her cancer, thus contributing to the loss of an opportunity for a cure and significantly shortening her life expectancy.

1. Summary Judgment

a. Standard of review

The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). All proof submitted must be viewed in a light most favorable to the party resisting the motion and any doubts and inferences must be resolved against the moving party.

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ark.R.Civ.P. 56(c). While there might well have been disputed issues of negligence had this case gone to trial, the only issue with which we are concerned is whether the statute of limitations was tolled by continuous treatment. As to the latter, there is no factual dispute. The question is thus whether Dr. Eck was entitled to judgment as a matter of law.

b. Statute of limitations

If a physician is negligent in treating a patient but the patient continues to be treated by the physician for the condition which was the object of the negligent act or treatment, the patient should not be required to interrupt the treatment to bring suit against the physician because a statute of limitations is about to run. That is the most often stated rationale for the "continuous treatment doctrine" which tolls the statute of limitations until treatment is discontinued. See, e.g., Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988); Rountree v. Hunsucker, 833 S.W.2d 103 (Tex.1992).

We have found no authority to support the conclusion that a patient's continued ingestion of medicine prescribed by a physician is enough to establish an on-going course of treatment for the purpose of applying the continuous treatment doctrine. We find only authority suggesting the contrary. See, Fleishman v. Richardson-Merrell, Inc., 94 N.J.Super. 90, 226 A.2d 843 (1967); Parrott v. Rand, 126 A.D.2d 621, 511 N.Y.S.2d 57 (2 Dept.1987); Bernardo v. Ayerest Laboratories, 99 A.D.2d 430, 470 N.Y.S.2d 395 (1 Dept.1984) and Millbaugh v. Gilmore, 30 Ohio St.2d 319, 285 N.E.2d 19 (1972); Rountree v. Hunsucker, supra.

All of these cases from other jurisdictions are distinguishable, some of them very significantly so. None of them is precisely like the case before us now combining (1) the allegedly negligent prescription of a drug which allegedly directly caused injury with (2) a very strict statute of limitations limiting action to two years from the date of a wrongful "act complained of and no other time." We have found no case just like this one where the question is whether the final "treatment" ("act") occurred the date the prescription was issued by the physician or the last time the medicine was taken by the patient under the aegis of that prescription. We thus find it necessary to go our own way, looking to the Arkansas statute and the two cases in which we have applied the continuous treatment doctrine in conjunction with it.

The statute is Ark.Code Ann. § 16-114-203 (1987). Here are its relevant words:

(a) Except as otherwise provided in this section, all actions for medical injury shall be commenced within two (2) 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....

Ms. Tullock argues that the actions of Dr. Eck in failing to biopsy the mass, prescribing estrogen, and failing to provide the requisite follow-up care fall within the continuous treatment doctrine. We recognized and applied the doctrine first in Lane v. Lane, supra., and again in Taylor v. Phillips, 304 Ark. 285, 801 S.W.2d 303 (1990).

In the Lane case, narcotic injections given by Dr. Lane to Ms. Lane, his wife, over a long period of time resulted in scarring and drug addiction. Dr. Lane pleaded the statute of limitations, and the Trial Court refused to bar the claim though the initial injurious behavior occurred more than two years before suit was filed. We affirmed, quoting a description of the continuous treatment doctrine from 1 D. Louisell and H. Williams, Medical Malpractice, § 13.08 (1982) (footnotes omitted), 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 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.

That description has two fundamental elements. There must be "treatment," which "is a continuing course." That requirement is stated conjunctively with the second element, "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." Without the former element, it might be thought that a physician's omission of treatment where there is a duty of care could toll the statute of limitations on the basis of continuation of negligence or tortious conduct. We were very careful, however, not to adopt, and to point out that we had specifically rejected, the so-called "continuing tort" theory of tolling the statute of limitations as inconsistent with the General Assembly's intent in stating that limitations begin to run "the date of the wrongful act complained of and no other time."

"Continuous treatment" is distinguishable from "continuing tort." The cases in which we rejected the continuing tort doctrine are Treat v. Kreutzer, 290 Ark. 532, 720 S.W.2d 716 (1986); Owen v. Wilson, 260 Ark. 21, ...