When Does the Continuing Treatment Rule Apply?

A s physicians, we think about the health of our patients and treat them with the hope, if not the expectation, of a mutually satisfactory result. The last thing that we want to think about in treating a patient is the possibility of litigation resulting from our action or inaction, and even farther from our thoughts, usually, is how long after treatment might we be faced with such possible liability? When we think of the statute of limitations on liability when caring for our patients, if we think of it at all, there are so many variables that apply. It is confusing to keep track of it all, and when another specialist enters the picture, things can get even more unclear. Take the following case, for example. In 2000, a dermatologist performed a biopsy of a pigmented lesion on the left foot and sends it to a dermatopathologist who sends a report back to the dermatologist that reads “congenital nevus-benign-no further surgery is necessary. The dermatologist sees the patient for skin cancer screening in 2001, 2002, 2003 and 2004. The lesion persisted at the site but did not grow that much beyond the extent of the original lesion. The patient sees another dermatologist in 2005 who rebiopsied the site and a melanoma is noted by a dermatopathologist different from the original dermatopathologist. The new dermatopathologist reviews the 2000 biopsy and reads that as a melanoma as well. A systemic work up reveals metastatic melanoma with no evidence of a primary melanoma besides that on the left foot. The patient sued the original dermatologist and dermatopathologist. The original dermatopathologist moved to be removed from the action based on fact that the statue of limitations, which is 2 and a half years had run. The court granted the dermatopathologist’s motion. The first dermatologist moved to be removed because the statute of limitations has run and that he relied on the professional opinion of the original dermatopathologist. The court refused this motion and allowed the case to proceed against the dermatologist stating that the continuing treatment rule applies to the dermatologist as he had examined the patient within 2 and a half years of the case being put into suit. The case then turned on whether the dermatologist had adhered to the standard of care of a dermatologist in not rebiopsying the pigmented lesion on the left foot. At the end of this article, I will explain the outcome of this legal action. But first, I want to share some of the basics of the continuing treatment rule — why it exists and what its content and implications are. This article is based in large part on an excellent summary made available on the Web site of Med League Support Services Inc.1 Why This Rule Exists The continuing treatment rule exists to prevent the situation of an ill or injured patient with a chronic condition that is either untreated or inadequately treated, who does not question physician’s conduct, actions and advice (while treatment is undertaken). Under this rule, when a patient suffers injuries that arise from a course of treatment that has run continuously and is related to the same original condition or complaint, the statute of limitations does not begin to run until the patient terminates treatment (the statute is “tolled” or does not “begin to run”).1 A Court has explained this rule stating: “The continuous treatment exception is premised upon the doctrinal assumption that a patient who has placed his trust and confidence in a hospital's medical staff and is hence in no position to question his physician's techniques, has a right to rely upon the doctor's professional skill without the necessity of interrupting a continuous course of treatment by instituting suit. The exception thus provides the patient with an opportunity to seek corrective treatment from the doctor as well as affording the physician a reasonable chance to identify and correct errors made at a prior stage of treatment.”2 In addition, under the continuing treatment rule, a patient is not expected to discover that the doctor’s acts were malpractice. This is so because the negligent doctor might conceal important information and the patient might be reluctant to question the care the physician provided. The patient might think that it is against his own interest to disrupt the course of treatment by suing his physician. Notably, consultation with an attorney does not necessarily break the continuing treatment and commence the running of the statute while actual knowledge of an act of malpractice does result in the statute of limitations starting to run. The continuing treatment rule also reflects that during an ongoing relationship, it may be impossible to pinpoint the exact date of a particular negligence or omission. Moreover, the negligence or omission may have been a series of acts or omissions. Thus, it is appropriate to allow the course of treatment to terminate before the statute of limitations starts to run, rather than having doctor and patient dispute when the action or inaction that gave rise to the patient’s eventual claim started. The Definition of This Rule The definition of continuing treatment requires further explanation. Typically, it involves unnecessary exposure to X-ray radiation or the administration of medication over a span of years. It can also involve the failure to discover that a condition exists, in particular when an outside consultant is involved to clarify or confirm a complaint. The continuing treatment rule has three considerations: 1. the treatment for a particular condition 2. the duration of the physician-patient relationship 3. the continuing nature of negligence. The continuing treatment exception to the statute of limitations typically applies only when the physician’s involvement with the patient following the alleged malpractice involves similar or related medical care, and not merely a general continuing professional relationship. Confining the continuing treatment exception to treatment for a particular condition highlights that the rule avoids a requirement that the patient interrupt treatment in order to sue the doctor and recognizes that a patient often seeks treatment from one doctor for a variety of conditions. The rule applies to continuing treatment and not a mere renewal of treatment following past medical care that was discrete and complete. Malpractice is a continuing tort, and the statute of limitations of continuing torts does not begin to run until the end of the period in which the tort continues. Therefore, the continuing treatment rule covers only negligent treatment with no reason for an exception to the general statute of limitations. Some courts, however, require that treatment not only be continuing, but that it continue to be negligent. What Is Needed to Support a Finding of Continuing Treatment To support a finding of continuing treatment, the plaintiff must show: 1. that there was a continuous and unbroken course of treatment 2. that the treatment was so related as to constitute one continuing wrong. Furthermore, there must be evidence of the breach of a duty that remained in existence after the original negligent act. Continuing treatment that is not negligent treatment might not suspend (toll) the statute of limitations from running. Some courts recognize a “single act” exception to the continuous treatment doctrine: if there is a single act of malpractice, a physician’s subsequent effort over time to merely remedy or cure the injury does not constitute continuous treatment that suspends the running of the statute of limitations. The rationale is that patients can identify a single act of alleged malpractice. Some courts hold that when the plaintiff knows of malpractice prior to the running of the statute, the continuing treatment rule will not permit the patient to extend the time for filing. Some courts will allow continuing treatment to toll the statute even though there has been discovery of the injury and the defendant’s possible negligence. The statute would run from the later of the two events, the discovery or the end of the continuous treatment. The suspension of the statute of limitations for minors starts not from the termination of a period of continuous treatment, but from the time of the act of malpractice. This is because they can not be expected to know the difference between malpractice and good treatment. The continuing treatment rule has been applied to toll the statute against members of a group practice in an action arising out of claims against other members or against the group and against a hospital arising out of a claim against continuing treating and attending physicians. When someone other than the negligent physician provides continuing treatment, there must be some agency or similar relationship between the two health care providers for the rule to apply. The mere affiliation of a physician with a hospital, or mere common ownership of two hospitals by the same corporate entity, is not sufficient to create this relationship. Contemporaneous treatment by other physicians for other conditions or the same condition does not interrupt the continuity of treatment. However, the patient’s own decision to continue a medication, without the advice of the physician, lacks continuing treatment rule coverage. Determining Whether Treatment Is Continuous Assessment of whether treatment is continuous is an issue of fact for the jury unless the court decides that a jury could not find any other way, in which case it is a question of law. Under the continuous treatment doctrine, the statute of limitations is not necessarily tolled until cessation of the physician-patient relationship. Such cessation often is later than termination of treatment for the condition involving negligence. This limitation of the continuing treatment rule is based upon the idea that the “air of trustfulness” between a patient and the physician no longer exists after termination of treatment and patients should then make timely claims. This result appears fair when there is a gap in contact between the patient and the physician from the last examination and the next contact is a request for medical records. No particular amount of time must pass before there is a break in the continuity that prevents the use of the continuing treatment rule. Gaps longer than the statute of limitations period do not necessarily break continuity. The continuing treatment rule presupposes that physician and patient anticipated further treatment as indicated by periodic and regularly scheduled appointments. Case law suggests that the determination as to whether the gap is too long to support continuity is fixed upon “timeliness” by the patient which in essence is “fairness” to the physician. The determination of whether treatment has ended is more difficult when the physician instructs the patient to set up an appointment but the patient fails to do so. Courts have held that there is no continuing treatment in such cases. When a patient appears without an appointment and did not stay to be examined, the continuing treatment rule has been held not to apply. However, it has been held that where the physician requested that the patient schedule an appointment and the patient said she would but did not, the limitations period did not start to run until sometime after the conversations about scheduling appointments. When the last contact was a telephone conversation in which the patient requested that the physician write a note stating that he released the patient from his care on an earlier date, the courts hold that the continuing treatment rule could not apply. A patient who is no longer being treated by the defendant physician may nonetheless be able to show that the physician breached a duty that remained in existence after the commission of the original wrong. Under the “continuing course of conduct” doctrine, the statute of limitations is tolled when the physician: 1. committed a wrong on the patient 2. owed a continuing duty to the patient that was related to the original wrong 3. breached that duty. The breach may consist of either affirmative misconduct or an act of omission. How Did the Dermatologist Fare? So whatever happened to the dermatologist I mentioned at the beginning of this article? In that case, although the continuous treatment rule allowed the case to proceed, the physician prevailed because his failure to perform another biopsy was not a breach of the standard of care.