So, the other day, I was reading this case, and every other paragraph referred back to a 45 year-old case, which apparently is still legal precedent on the matter; so, I figured I would just go straight to the horse’s mouth. Farley vs Goode, 219 Va 969, (Sup Ct VA) 1979, is a good case if you want to understand the Continuing Treatment tolling provision to the Statute of Limitations.
Here are the facts. The plaintiff, a 30-year-old female, sought treatment from her general dentist between 1966 and 1969. I know, some of you reading this were not even born yet. Anyway, during this period, the defendant doctor examined or treated the patient on at least 20 different occasions. The facts reveal that the dentist
…took x-rays of her mouth, recommended root canals for several teeth, cleaned her teeth, filled some teeth, had at least one temporary tooth made for her, offered her a treatment plan for crown and bridge work, placed a temporary upper partial denture in her mouth, and performed necessary crown and bridge work during which 12 upper and 4 lower teeth were capped.
After all of the above was completed, the plaintiff did not see the defendant from September 1969 to June 1972, as, according to her, the dentist said her teeth would last a lifetime. The plaintiff also testified that she was told not to brush too hard to avoid wearing the plastic off the caps. She also testified that because she was led to believe that her restored dentition was now in good shape, she saw no reason to have her teeth cleaned. She returned to the dentist on June 14, 1972, for a routine cleaning and a cavity check. She then saw the defendant twice during 1973, complaining of bleeding gums and concern that the caps were wearing off and the gold was showing underneath. In January of 1974, x-rays were taken. She saw the defendant twice in November 1974 for bleeding gums. At that time, the dentist told her that “…the teeth in the lower right quadrant were loose, and that two teeth in the front were spreading apart.” The plaintiff was not treated in 1975. The plaintiff testified that in 1976, she saw the defendant a few times when her teeth were loose and that the defendant performed filling work. The plaintiff’s last visit with the defendant was on August 23, 1976. One tooth was very loose; the dentist took an x-ray and informed the plaintiff that she had some bone loss and that the tooth needed to be extracted. The plaintiff testified that when she asked what caused the bone loss, the defendant responded that her bite was probably off. During her trial testimony, the plaintiff stated that at no time during the entire 10 years that she was under the defendant’s care did he ever mention that she had periodontal disease.
She then sought treatment from another general dentist, who told her that her teeth on the right side of her mouth were very mobile as they had lost their attachment apparatus. The dentist referred her to a periodontist. The periodontist stated that the plaintiff experienced severe and advanced periodontal disease. The periodontist also testified that upon his review of the patient’s records, the active periodontal disease was present as early as 1971. In addition, he stated that the standard of care for adult patients, such as the plaintiff, was to examine them for periodontal disease when they came in for their routine dental work, and patients who had bridgework and the like should be instructed on how to brush and use dental floss to maintain the integrity of dentistry and the oral health of the supporting structures. The plaintiff testified that she was never instructed about this. Finally, the periodontist testified that the plaintiff’s periodontal condition could have been detected as early as 1971; had it been diagnosed, it could have been arrested and controlled, and the cost of treatment would have been around $700.00, as opposed to the $10,000.00 now required to restore the patient to optimal dental health. In addition, now the patient will require periodontal maintenance every 3-4 months for the remainder of her life.
The defendant moved to dismiss the case, claiming that the suit was brought well past the 2-year Statute of Limitations. The Trial Court granted the motion. The reasoning was that the periodontal disease existed before November 1974. As the plaintiff’s evidence clearly showed, the defendant breached the duty of care owed by failing to diagnose and treat the plaintiff’s periodontal disease at that time, which was more than 2 years from when the plaintiff discovered that she was mistreated and filed her lawsuit. The plaintiff appealed, claiming that the negligence of the defendant was continual in nature throughout the entire time that she was under the defendant’s care. The defendant argued that since the injury was noted to have happened as early as 1971, the suit was initiated way beyond 2 years from that date.
In its decision, the Supreme Court framed the question this way: “Does the right to bring a malpractice action in tort for personal injuries accrue at the inception of continuously negligent examination and treatment or at the end thereof?” The court then stated in answering the question:
We hold under these facts 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 date of injury occurs, the cause of action for that malpractice accrues, and the statute of limitations commences to run when the improper course of examination, and treatment if any, for the particular malady terminates.
The court noted that the whole treatment transaction was inherently negligent. As the records clearly showed, the doctor-patient relationship was terminated by the patient in August 1976, and since the suit was filed in November 1976, it was within the statutory time period. A key explanation was then proffered by the court. It read
So long as the relation of physician and patient continues as to the particular injury or malady which he is employed to cure, and the physician continues to attend and examine the patient in relation thereto, and there is something more to be done by the physician in order to effect a cure, it cannot be said that the treatment has ceased. That does not mean that there must be a formal discharge of the physician or any formal termination of his employment. If there is nothing more to be done by the physician as to the particular injury or malady which he was employed to treat, or if he ceases to attend the patient therefor, the treatment ordinarily ceases without any formality.
The court then paid heed to the idea that if there were no continuing treatment exception to the accrual date of a malpractice action, it could force a patient to initiate suit while still under treatment by a practitioner who was actively trying to effectuate the patient’s cure, even in the face of having made a diagnostic or treatment plan error. The court noted that the continuing treatment rule is conducive to the mutuality of confidences established and inherent in the doctor-patient relationship. Quoting the holding in another state, the Supreme Court reiterated that
…when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint, the `accrual’ comes only at the end of the treatment. (Cit. Omit.)
In other words, as long as the negligent treatment concerns the same related illness or injury, a patient’s cause of action accrues at the cessation of the continued negligent treatment, because throughout this period of continuing treatment, the doctor is still responsible for maintaining the appropriate standard of care. The distinction from the rule is when the complained-of malpractice constitutes a single, isolated act, as opposed to continual mistreatment of the same malady over extended periods of time. The ruling of the trial court was reversed, and the plaintiff was granted a new trial.
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