Medical Malpractice

Editor:
Deborah K. Dodge, Esquire

Continuing care tolling provision may extend past the patient’s last visit to the doctor if there is evidence of future treatment contemplated by the physician or patient and no evidence the relationship was terminated. Norman v. Lehman, M.D., No. 95661 (Mo. App. E.D., July 26, 2011), Ahrens, C.

Bradley Norman appeals summary judgment entered in favor of Dr. Richard Lehman finding that Norman’s medical negligence claim was filed outside the two-year statute of limitations.  On appeal, the Eastern District Court of Appeals addressed the issue of the statute of limitations being tolled based upon the “continuing care” exception. 

Dr. Lehman performed two surgeries on the Plaintiff’s left knee on September  22,  2006 and October 16, 2006.  Because problems continued, Plaintiff returned on November 7, 2006.  At that visit, Dr. Lehman stated in his medical records that the Plaintiff’s options included “bringing him back in the hospital to re-block him” and that “we need to work on his extension and work harder in therapy” and “bumping up his pain medication.”  Three days after the November visit, some unidentified person sought the advice of another orthopedic surgeon, Dr. Beyer.  Dr. Beyer ordered an MRI, x-ray and blood work for Mr. Norman.  Ordering these tests before evaluating the patient was common for Dr. Beyer’s practice as he wanted to have all information available to him at the first visit.  He did not believe he was “treating” Mr. Norman by ordering these tests.  On November 14, 2006, Dr. Beyer evaluated the Plaintiff and determined that the Anterior Cruciate Ligament (ACL) “cannot be salvaged.” 

The Plaintiff filed a medical negligence case against Dr. Lehman on November 12, 2008, two years and five days after Norman’s last visit with Dr. Lehman but two years and two days before Norman’s first visit with Dr. Beyer.  The trial court initially denied Defendant’s motion for summary judgment finding that Dr. Lehman’s conduct on November 7 demonstrated that Dr. Lehman was continuing to care for the Plaintiff by suggesting future treatment.  Dr. Lehman filed a second motion for summary judgment asserting additional facts alleging that after November 7, the Plaintiff did not return to him or request additional medical advice. Dr. Lehman asserted that because the Plaintiff took affirmative steps on  November 10 to establish a relationship with another doctor, the Plaintiff’s action was time barred and the continuing care exception did not extend to November 12, 2008 when the petition was filed. The Plaintiff responded by denying he contacted Dr. Beyer on November 10. Plaintiff asserted that he and Dr. Beyer were not in a doctor-patient relationship until “at earliest November 14, 2006.” The trial court granted Defendant’s second motion for summary judgment. The Plaintiff appealed from this judgment.

Held: Reversed and remanded.
  The Eastern District determined that material facts remained in dispute as to when the physician-patient relationship ended with Dr. Lehman.  Because Dr. Lehman’s November 7 notes reflected that both patient and physician contemplated future treatment and there was no evidence that Plaintiff contacted Dr. Beyer on November 10, material issues remained in dispute and as such, questions of fact regarding “continuing treatment” are only proper for the jury. 

Plaintiffs did not timely file suit against certain healthcare providers by naming “John Doe” or “Jane Doe” as Rule 55.33(c) requires the correct party to have notice of the action after the commencement of the lawsuit and that the petition failed to allege with enough particularity so as to put the correct party on notice.  State of Missouri ex. rel., et al. v. Schneider, No. 91434 (Mo. banc, July 19, 2011), Wolff, M.

Adult son filed a wrongful death action alleging medical negligence against named defendants John Doe, Jane Doe, and Washington University and/or Washington University Medical Center, among others.  After discovery, the son amended his petition by adding the names of certain doctors and BC Emergency Physicians, LLP, and dropping Jane and John Doe.  At the time of the amendment, the statute of limitations had run.  The newly named defendants filed a motion to dismiss the lawsuit as the statute of limitations had passed.  The adult son claimed that the amendment “related back” to the filing of the lawsuit.  The circuit court overruled the motion to dismiss.  Defendants filed a writ to prevent the lower court from proceeding on an action barred by the statute of limitations. The Supreme Court issued a preliminary writ.

Held
The preliminary writ was made permanent and the newly named defendants were dismissed with prejudice as plaintiffs were time barred from bringing suit.The Missouri Supreme Court looked both to Rule 55.33(c) and the common law principle of “misnomer” and determined that the addition of the new parties did not properly relate back to the initial filing.  Rule 55.33 (c) requires that the correct party have some kind of notice of the action within the statute of limitations and that the newly named party knew or should have known that but for the misidentification, the action would have been brought against the party.  The Missouri Supreme Court noted that the petition filed did not identify or describe with any particularity who these healthcare providers were or what they did in providing care to the son’s deceased’s mother.  Because the newly named parties did not have notice and the son failed to provide a detailed description so as to put the newly named defendants on notice, the amendment did not relate back.