Malpractice Statute of Limitations Continuous Care Definitions

The Case

A 65-year-old woman was referred by her family physician to a free-standing radiology facility for screening mammography. The findings on the mammograms were interpreted by a radiologist as normal except for "mild fibrocystic changes." One year later, the physician again referred the woman to the same radiology facility for screening mammography. On this occasion, the same radiologist interpreted the findings as normal except for "mild fibrocystic changes, unchanged since previous mammography 1 year ago."

Eight months later, the woman consulted her family physician because she noticed a lump in her left breast that appeared soon after her husband had accidentally struck her on the breast with a golf club. The physician examined the woman's left breast and found a lump, which he believed was due to the golf club incident. Nonetheless, the physician ordered a mammogram. The same radiologist who had interpreted findings on the woman's two previous mammograms as normal now interpreted the findings on the new mammograms as revealing microcalcifications in the left breast that were suspicious for carcinoma. The report was communicated to the family physician by telephone and in writing. However, the physician failed to inform the patient of the suspicious findings.

Eight months later the patient, noticing that the lump was growing, again consulted her physician. A biopsy, quickly obtained, disclosed infiltrating ductal carcinoma. Despite aggressive treatment that included surgery, radiation, and chemotherapy, the patient died 16 months after the diagnosis was established.

Three days before the patient's death, the woman and her family filed a malpractice lawsuit against the family physician and the radiologist. The lawsuit charged the family physician with negligence for failing to advise her that the findings on the mammogram obtained after the golf club injury had been suspicious for carcinoma, resulting in an 8-month delay in the cancer diagnosis. The lawsuit charged the radiologist with negligence for misinterpreting the patient's second screening mammogram—the one that had been obtained 16 months before the diagnosis of breast cancer had been established.

The family physician and the radiologist had separate professional liability insurance carriers and defense attorneys. I will focus on the allegation of malpractice directed at the defendant radiologist and on the unique medical—legal issue it raised, the doctrine of continuum of care. In the documents outlining the details of the alleged malpractice, the attorney for the plaintiff included an affidavit executed by an expert radiology witness that stated that the patient's second screening mammogram, the one that had been interpreted as normal "except for fibrocystic changes unchanged since previous mammography of 1 year ago" had been "grossly" misinterpreted. The affidavit claimed that the carcinoma that had later been diagnosed was clearly evident on the patient's second mammogram and that, contrary to the defendant radiologist's report, the second mammogram had shown "marked changes" when compared with the patient's first screening mammogram that had been obtained 1 year before.

After carefully reviewing the medical records and relevant legal documents, the defense attorney concluded that the malpractice lawsuit against the defendant radiologist was not valid because it was filed more than 2 years after the alleged mamographic misinterpretation. The state's statute of limitations, the law that sets forth the period of time during which a legal claim for malpractice must be filed, was 2 years after the alleged incident of malpractice. This particular lawsuit was filed 2 years 8 months after the alleged act of malpractice and, in the opinion of the defense attorney, would be barred by the court. Consequently, the defense attorney filed a motion with the court to dismiss the malpractice lawsuit against the defendant radiologist. On receipt of this motion, the judge ordered that written arguments be prepared by the respective attorneys and oral arguments be scheduled.

At the scheduled hearing, the attorney for the plaintiff argued that the 2-year period during which the malpractice action could be filed did not begin with the date of interpretation of the patient's second mammogram but, rather, on the date on which the defendant radiologist interpreted the last mammogram, the one interpreted as suspicious for cancer. The plaintiff's attorney contended that because all three mammograms obtained were interpreted by the same radiologist, the three examinations constituted a "continuum of care," not three separate and unrelated medical acts. The plaintiff's attorney also added that because the standard of radiologic care required the radiologist to reinterpret all previous mammograms at the same time that he interpreted the new mammograms, all three mammograms constituted "a single episode of continuing care related to the early detection of breast cancer."

The attorney defending the radiologist countered that the three mammograms were individually complete, separate, and unrelated and that therefore the doctrine of continuum of medical care did not apply.

After due consideration, the judge issued a written opinion denying the defendant radiologist's motion to dismiss, holding that the doctrine of continuum of care did apply and, therefore, the lawsuit against the defendant radiologist was not barred by the statute of limitations [1]. The judge explained his ruling by first acknowledging that...

...No action for the recovery of damages upon a claim against a health care provider for personal injury arising out of malpractice shall be brought after the expiration of 2 years from the date upon which such injury occurred....

The judge then continued:

[However], when there is a continuum of negligent medical care related to a single condition occasioned by negligence, over a finite period of time, [the continuum may be considered as a single occurrence]. [The second mammogram report] indicates that it was compared to the [earlier] mammogram...[and] refers to the rereading of the [earlier] mammogram.... Therefore, the test reports themselves establish a continuum.... The standard requires rereading the most recent prior mammogram as part of the interpretive process for the latest mammogram.

The allegation is that the [second] mammogram was misinterpreted when originally read. In addition, when reread 8 months later, according to the plaintiff, it was misinterpreted again. Thus, there are two negligent acts relating to one condition in a finite period of time. What is in dispute is whether the tests are separate and discrete as defendant claims or a continuum of negligent treatment as plaintiff claims.... [The patient] was tested by defendant three times in 2 years. Each test required not only its own analysis but also a comparison to the last prior test. The tests are designed to establish a benchmark and provide a basis for ongoing comparison.... [The plaintiff] has adequately pled a course of action for continuous negligent treatment.

After the judge's ruling, the defendant radiologist and the defendant family physician settled the lawsuit with the patient's family for an undisclosed payment.

Because of the belief that the passage of time makes defending lawsuits unreasonably burdensome, all states have passed legislation in the form of statutes that specify the period of time during which a medical malpractice lawsuit may be filed—in other words, that limit the filing of such lawsuits to a specified time period after the alleged act of malpractice has taken place [2]. These statutes of limitations vary from state to state, but generally, the time allowed for filing lawsuits ranges from 2 to 3 years and begins on the date of actual occurrence of the alleged act of malpractice or the date on which the patient should reasonably have been expected to discover that the negligent act has occurred [3]. Most states will extend, or "toll," the running time prescribed in the statute if the injured patient is a minor, legally or mentally incompetent, or incarcerated [4]. The fraudulent concealment by a physician of any medical acts or errors will also extend the statutory period during which malpractice suits can be filed [5, 6].

The reason that the statutory period in which lawsuits can be filed varies among the 50 states and the District of Columbia is that state legislatures have differing opinions about which time periods are desirable. A longer statute of limitations is perceived to be beneficial to the injured patient who otherwise might be unable to discover his or her injury quickly; it may also arguably deter physicians from committing malpractice to a greater degree by making them pay for negligent care no matter when it comes to light [7]. A shorter statute, on the other hand, is perceived as beneficial to the defendant physician, who may otherwise be inappropriately held liable on the basis of stale evidence and hindsight medical testimony. However, a shorter statute of limitations may also encourage concealment of negligent acts committed by physicians because the shorter time decreases the likelihood that evidence of malpractice will be discovered during that period. Nevertheless, some legal commentators believe that shortening the statute of limitations is advantageous because it encourages patients who are injured by malpractice to act decisively, rehabilitate themselves, and generally "get on with their lives" [7].

As I have indicated previously [8], for public policy reasons courts give persons alleging injury from medical malpractice considerable latitude as to the evidence required to allow these persons to initiate litigation against physicians suspected of having committed malpractice. As a result, courts are often reluctant to apply the statute of limitations too strictly for fear that doing so would have a chilling effect on an injured patient's access to the courtroom.

One theory the courts have devised to toll the statute of limitations is to postpone the commencement of the limitations period in situations in which a physician provides continuing care over a period of time to a particular patient for a specific injury or illness until the treatment of the condition has ended or the relationship between the doctor and physician is terminated, notwithstanding the actual time of occurrence of the alleged act of negligence. Referred to as the continuum of care doctrine, this legal concept is based on the premise that a physician has a continuing obligation to correct an error made during the course of treatment and that the failure to make such correction constitutes continuing negligence [4]. Under this doctrine, the period covered under the statute of limitations commences from the last day of treatment, regardless of when the malpractice occurred. Another basis for adoption of the continuum of care doctrine is the court's recognition of the patient's right to trust the physician and, accordingly, not to be pressured because of an approaching expiration of the filing deadline into bringing legal action against a physician while treatment is continuing [4].

Jurisdictions that recognize the continuum of care doctrine include Alaska, Arkansas, Colorado, Connecticut, Delaware, Illinois, Maryland, Minnesota, Missouri, Nebraska, New York, North Carolina, Ohio, Pennsylvania, South Dakota, Texas, Virginia, Washington, Wisconsin, Wyoming, and the District of Columbia [9]. Although initially applicable only to primary care physicians and therefore not controversial, the continuum of care doctrine has engendered controversy by virtue of its being extended to include consulting physicians such as radiologists who although not providing direct continuing care to patients, nonetheless provide diagnostic opinions on which primary care physicians base patient treatment decisions. A review of recent state appeals court decisions suggests that a judicial trend is emerging that extends, or imputes, to radiologists the continuum of care doctrine.

I shall begin with a 1998 decision of the Supreme Court of Wyoming that tolled the statute of limitations in a medical malpractice lawsuit filed against a pathologist, although the court's reasoning could apply to radiologists. A pathologist misdiagnosed a soft-tissue mass removed from the knee of a patient as a benign neurilemmoma. Later, it was discovered that the mass was a malignant schwannoma, and as a result, a medical malpractice lawsuit was filed against the pathologist. However, the lawsuit was filed after the expiration of the 2-year statute of limitations. The defendant pathologist argued that the malpractice case should be barred, but the Supreme Court of Wyoming ruled that the lawsuit was viable because of what it called the doctrine of continuous course of treatment. The court stated [10]:

Wyoming's statute of limitations for medical malpractice actions begins to run at one of two alternative times: (1) the time of the alleged act, error, or omission giving rise to the plaintiff's claim or (2) the time of discovery of the alleged act, error, or omission.... [The defendants] assert that because plaintiff discovered the [alleged malpractice] within 2 years of its occurrence, the statute of limitations had run by the time [plaintiff] filed the lawsuit. [The plaintiff] argues that the statute did not begin to run until termination of [the attending physician's] continuous course of treatment...and that [the attending physician's] course of treatment should be imputed to the pathologists, because [the attending physician] continued to rely upon the missed diagnosis of the pathologists throughout his course of treatment. We agree that [the attending physician's] course of treatment should be imputed to [the pathologist].

It was not the error in the diagnosis originally made by defendant but its adherence thereto and course of treatment that brought about the injuries. In the present case, it was [the attending physician's] adherence to [the pathologist's] diagnosis which dictated the nature and duration of plaintiff's treatment.... Until the alleged misdiagnosis was corrected, or until [the attending physician] ceased to rely upon it, [the pathologist's] constructive involvement in that treatment was sufficient to...prevent the running of the statute of limitations. We conclude that, for purposes of the statute of limitations, [the attending physician's] course of treatment should be imputed to [the pathologist,] on the grounds of fairness as well as on the basis of logic.

The Supreme Court of South Dakota also ruled that the doctrine of continuum of medical care can toll the statute of limitations when pathologists are defendants. A pathologist was sued for misinterpreting a Pap smear, thereby delaying the diagnosis of carcinoma of the cervix. The court stated [11]:

The nature of a pathologist's work is such that he rarely, if ever, has a direct physician-patient relationship with an individual—in other words, he never treats patients in a conventional sense—but his work is often the basis upon which the nature of subsequent treatments to be given by the attending physician is determined.... Where the pathologist should have reasonably expected that his work would be relied on by other practitioners in determining the mode of treatment, we feel it appropriate to impute to that pathologist or diagnostician constructive participation in that treatment so long as it is continued. In this way, the practitioner guilty of the initial malpractice is subject to the same period of limitations as those who continued the malpractice as a...result of the initial wrong....

The likelihood that such reasoning would be equally applied to radiologists is obvious.

As indicated previously, courts in various states do disagree with each other, particularly when dealing with the question of whether the continuum of care doctrine tolls the statute of limitations. A recent decision of the Supreme Court of Missouri highlights these differences. There, too, a pathologist was sued for allegedly misinterpreting a Pap smear, and the lawsuit was filed beyond the expiration of the statute of limitations. The lawsuit was subsequently dismissed by the lower court, and the plaintiff appealed to the state's supreme court to reinstate the suit based on the doctrine of continuum of care. The supreme court rejected the plaintiff's argument and upheld the barring of the lawsuit. In its decision, the court first briefly reviewed the history of the state's statute of limitations [12]:

The statute provides in pertinent part: All actions against physicians...for damages for malpractice...shall be brought within 2 years from the date of occurrence of the act of neglect complained of, except that a minor...shall have until his 12th birthday to bring action, and except that in cases in which the act of neglect complained of is introducing and negligently permitting any foreign object to remain within the body of a living person, the action shall be brought within 2 years from the date of discovery of such alleged negligence.... [The plaintiff] contends that because she had no damages until the pre-cancerous condition [missed on the Pap smear] allegedly developed into a cancerous condition, the statute of limitations began to run [when the plaintiff's] condition developed into a cancerous condition.... Her argument is grounded in a continuing tort theory...that the statute of limitations does not commence to run against a plaintiff patient until treatment by the medical defendant ceases....

This court is constrained by the language of the statute from adopting any of the theories urged by [the plaintiff]... [The plaintiff's] argument is appealing and has some force, so far as justice is concerned; in that respect the conclusion we reach is distasteful to us. But, the legislative branch of government has determined the policy of the state and clearly fixed the time when the limitation period begins to run against actions for malpractice. This argument addressed to the court properly should be addressed to the general assembly. Our function is to interpret the law; it is not to disregard the law as written by the general assembly.

The question of whether the statute of limitations can be tolled under the continuum of care doctrine in malpractice lawsuits involving diagnostic radiologists was the subject of two quite recent court decisions issued 1 day apart in December 2000. The two courts reached contradictory conclusions.

The decision of the Court of Appeals of the State of Missouri that did toll the statute of limitations on radiologists dealt with a defendant radiologist who was accused of misinterpreting an MR image of the spine. The defendant radiologist's interpretation was that of an extruded L5-S1 disk, although it was later alleged that the radiologist missed a sarcoma of the sacrum. The lawsuit was filed after the statute of limitations had run, but the plaintiff had argued that the lawsuit should be allowed because of the continuum of care doctrine. In its decision, the court offered a far-reaching and thought-provoking commentary about the practice of medicine and radiology in the 21st century [9]:

The statute of limitations was created carefully by the legislature with an intent to protect health care providers against stale claims from health-care consumers.... However, the Missouri Supreme Court recognized an exception to the statute of limitations in cases where there is a continuous relationship between the patient and the healthcare provider.... The statute of limitations does not begin to run against plaintiff until treatment by the doctor ceases.... By tolling the statute of limitations until the termination of the relationship, the doctor is given every opportunity to diagnose and treat the patient. This exception promotes honesty and open communication within the doctor-patient relationship. In turn, this allows doctors to explore the full panoply of diagnostic treatments without the fear of patients bringing a medical malpractice suit at the onset of each procedure within their course of treatment....

Other jurisdictions have addressed the issue of whether diagnostic services are considered treatment in order to prevent the running of the statute of limitations, thus constituting continuing care or continuing treatment.... These cases look at the relationship of the patient to a provider of health care services which is not the patient's primary care physician. The services rendered are of such underlying importance to the treating doctor, that the continuing care can be imputed to the service provider as a matter of law.

[In this case, the patient] presented himself for care based on the medical services and expertise of the professionals at the hospital. He placed his trust in his neurosurgeon and those healthcare professionals who were involved in his medical care. He had no reason to doubt that during the course of his care and treatment of his back pain, including the radiological services, he was receiving continuous care from all of the doctors who provided their services to him. The radiological services were an essential part of his care without which his neurosurgeon could not properly treat him.... Therefore, [the patient] established a continuing relationship with his medical team...he believed that the team of healthcare professionals was acting in such a manner as to efficiently, promptly, and professionally diagnose the cause of his pain.... Since a doctor-patient relationship existed between [the patient] and the medical team charged with the duty of maintaining his health, the medical team was charged with the duty to inform and treat him for this condition. In our rapidly changing technological society, there are daily medical advancements and achievements. No longer do patients go to one physician expecting total treatment; they realize that one doctor is neither capable nor competent in providing every medical specialty. However, patients do expect that their primary doctor will refer, consult, and rely on a team of duly qualified healthcare professionals.... Patients understand that...they will be assisted and monitored by...a team management approach to enhance medical care.

Yet, when medical specialists assisting the primary care provider make mistakes, there must be accountability for their actions.... We do not want to immunize those providing specialist care from liability due to the fact they are providing a specialist treatment and/or diagnosis. [The patient's] radiological services were part of his whole treatment. [The radiologists] knew they were providing continuing care to those patients who routinely returned for radiological services.... The legislature in drafting the medical negligent statute clearly contemplated that medical entities could be held liable...for negligence, including any other entity providing health care services.... Accordingly, [radiologists] cannot be shielded from liability as an entity.

As an indication of the closeness of the court's decision relative to the role of the radiologist, there was a strong and intriguing dissenting opinion:

[The radiologist] never met plaintiff and there is no indication in the record that [the radiologist] ever knew or had any reason to know what became of him until suit was filed.... [The radiologist] did not consider the diagnostic services he performed to be the provision of care. He further testified that he had no continuing duty to review or follow up after he rendered his report. He first learned that plaintiff was later diagnosed as having a mass or tumor in his sacrum when he was served with plaintiff's petition....

[The radiologist's] only alleged act of negligence occurred more than 2 years before the suit was filed.... [The radiologist] provided radiological diagnostic services, not treatment. Although interpreting x-ray or MRI films may be essential to permit the treating physician to provide proper treatment of a patient's condition, it does not, in and of itself, in any way alleviate the condition for which the patient is seeking medical assistance. What, if anything, can or should be done to alleviate the condition of which the patient complains is a decision made by the treating physician, not the radiologist. As indicated by [the radiologist's] report quoted above, he made no recommendation as to what, if any, treatment should be undertaken in response to his findings. That is not the function of the radiologist....

In the context of radiological diagnostic services, the necessity that gave rise to the physician-patient relation ceases to exist when the report interpreting what is viewed on the films is transmitted to the treating physician. That is the sole reason the "relationship" was established and that purpose is accomplished when the report is rendered.... Although the services performed by [the radiologist] provided essential information to his treating physician, [radiologists] were never consulted as to the proper course of treatment. There is no evidence of any participation by [radiologists] in any decisions about the proper course of treatment.... Because plaintiff failed to come forward with any evidence that [radiologists] were responsible for treating him, the continuing care exception [cannot] be applied.

The dissenting judge then recommended that the Missouri Supreme Court review the decision. As this article is being written, the court has not announced further action in the matter.

A decision rendered 1 day later by the Court of Appeals of Arkansas reached a conclusion opposite to that of the Missouri court. In this case, a radiologist had interpreted annual mammograms obtained over a 6-year period in the same patient. After the patient was found to have breast carcinoma with lymph nodes positive for cancer, it was alleged that two sets of mammograms obtained more than 2 years earlier disclosed the carcinoma but had been misinterpreted. The defendant radiologist was sued, but the radiologist's attorney moved for dismissal of the lawsuit because it had been filed after the expiration of the statute of limitations. In response, the plaintiff maintained that the complaint was timely under the continuum of care doctrine. She contended that under this doctrine the statute of limitations did not begin running until the date on which her final mammogram was interpreted. She filed an affidavit from an expert radiology witness who stated that the standard of radiologic care requires that previous mammograms be reviewed with current mammograms to determine what is normal for the individual and to detect changes in the breast. The trial court ruled that the continuum of care exception did not apply to the facts of the case, and the plaintiff appealed.

The Court of Appeals of Arkansas refused to impute the continuum of care doctrine to radiologists [13]:

If the treatment by the doctor...is of such a nature so as to impose on the doctor a duty of continuing treatment and care, the statute does not commence running until treatment by the doctor has terminated.... [In this case], the wrongs complained of are separate and distinct. [The plaintiff] contends that [the radiologist] committed malpractice in reading her mammograms [over several years]. The continuous treatment doctrine does not apply to single, isolated acts of alleged negligence. To set this case apart from that rule, [the plaintiff] contends that the doctrine should apply because current mammograms are viewed in conjunction with previous mammograms to determine if a change has occurred. We find this distinction unpersuasive under the circumstances of this case.... Where radiologists maintain no contact with a patient aside from the performance of the diagnosis, and the diagnosis is imparted directly to the treating physician, the performance of each diagnosis is complete and discrete and does not constitute continuous treatment, despite the fact that on successive occasions radiologists compared prior studies with the most recent ones.... A comparison of test results suggests adherence to appropriate diagnostic procedure, not a change in the [legal relationship] between patient and radiologist.

[The plaintiff] concedes that the mammograms were conducted for screening purposes only. As far as we can tell from the record, the reports made by the radiologist were sent to the [patient's] gynecologist, but there is no indication that the radiologist was engaged in any act of consultation. We affirm [the trial court's judgment that the malpractice complaint is barred by the statute of limitations].

Thus, state courts remain divided on the issue of whether the statute of limitations can be tolled because of the continuum of care doctrine when malpractice lawsuits are filed against physicians such as diagnostic radiologists who are not directly involved in patient care. The fact that radiologic standards call for comparison with previous studies whenever new radiologic studies are interpreted clouds the issue, because some courts have construed comparison to mean the same as reinterpretation. Under this reasoning courts could determine that the statute of limitations begins running not when the initial radiologic studies were obtained but rather when follow-up radiologic studies are interpreted.

In contrast to diagnostic radiologists, radiation oncologists and interventional radiologists whose involvement with a patient is episodic in nature or is characterized by continuing care or multiple follow-up visits over a period of time would probably fall directly under the continuum of care exception that tolls the statute of limitations.

Radiologists and other physicians can be sued for malpractice only within the period of time after the alleged act of malpractice that is prescribed in the statute of limitations of the state in which they practice. Certain conditions extend, or toll, the statute of limitations, such as fraudulent concealment, legal or mental incompetence of the patient, or minority age of the patient. These exceptions apply not only to medical malpractice but also to other civil litigation.

The continuum of care doctrine, the legal theory that tolls the statute of limitations in 40% of the states, is applicable to physicians who are involved in direct patient care. In certain states, the tolling of the statute of limitations due to the continuum of care doctrine can be extended, or imputed, to diagnostic radiologists by virtue of the fact that radiologists provide diagnostic consultations—consultations on which primary care physicians base ongoing patient treatment decisions. Some courts have held that because the standard of radiologic care requires radiologists to compare current radiographic studies with previous ones, radiologists are in essence reinterpreting all previous radiographs whenever they interpret new studies. Under this theory, the statute of limitations could begin running from the date on which radiologists interpret current radiologic studies rather than on the date on which initial studies were obtained.

The imputing to diagnostic radiologists of the continuum of care doctrine is a recent development in the judicial system, and its applicability to radiology continues to evolve. It is likely that state appeals courts will have considerably more to say on the subject in the future.

Traditionally, statute of limitations laws that require potential plaintiffs to initiate medical malpractice litigation within a specific period of time after an alleged act of malpractice have provided radiologists and other physicians protection, a safe harbor if the litigation has not commenced within the specified time. Because of the continuum of care doctrine, the boundaries of this safe harbor are no longer well delineated. Radiologists who are sued for malpractice should be cognizant of the statute of limitations law in the states in which they practice and should discuss with their legal counsel the question of whether the lawsuit may be barred if it is filed after the statute has run.

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Source: https://www.ajronline.org/doi/10.2214/ajr.177.5.1771011?mobileUi=0

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