Déjà vu all over again: Continuous treatment and the statute of limitations

These are essentially the facts of Chalifoux v Radiology Associates of Richmond, Inc., 708 S.E.2d 834; Va. Sup. Ct. (2011).

  • 12-12-02, the patient complained of right-sided facial pain and headaches to her general practitioner; referred to Radiology Associates of Richmond for magnetic resonance imaging (MRI) of the brain.

  • 12-23-02, MRI performed.

  • 12-24-02, MRI read; no abnormalities found; results sent to the referring doctor.

  • 03-04-03, the patient was referred to a neurologist after complaining again of right-sided facial pain; the neurologist ordered Radiology Associates of Richmond to perform an MRI of the brain and a magneticresonance angiograph the head.

  • 03-09-03, both scans performed.

  • 03-10-03, both scans read; no abnormalities found; results sent to the referring doctor.

  • 03-17-03, the patient returned to the neurologist complaining of pain in the cervical area and neck; the neurologist referred her to Radiology Associates of Richmond for an MRI of the cervical spine.

  • 03-18-03; Radiology Associates of Richmond reported the findings: small disc protrusion and herniation.

  • 04-11-03, the patient complained again to the neurologist about numbness on the right side of the face.

  • 07-21-03, the patient again complained of numbness on the right side of face; an MRI of the brain was prescribed.

  • 08-02-03, MRI performed; scan read; report sent to the neurologist; findings: no abnormalities.

  • 02-15-04, after the patient again complained of facial pain, another MRI was performed by Radiology Associates of Richmond.

  • 02-16-04, scan read; the report to the neurologist stated no abnormalities.

  • 10-17-05, the patient saw the neurologist again, complaining of right-sided facial pain and numbness; an MRI of the brain was prescribed.

  • 10-22-05, the MRI was performed.

  • 10-24-05, Radiology Associates of Richmond reported the following findings: abnormality in the right cavernous sinus area consistent with a tumor in the trigeminal region, probably the cause of the patient’s symptoms. In retrospect, the abnormality was present in the scan on 12-23-02.

  • 10-12-07, suit filed against Radiology Associates of Richmond, claiming negligence in reading MRIs going back to 12-02.

Radiology Associates of Richmond raised the affirmative defense that the case was time barred because the statute of limitations, the time within which a plaintiff has to file a claim, exceeded that statutory period of 2 years, 12-24-02 to 10-24-05. The plaintiff countered with the argument that the continuous-treatment doctrine should apply, thus extending an ongoing doctor-patient relationship until the correct diagnosis was made on 10-24-05. Since the suit was filed on 10-12-07, it fell within the 2-year period. The circuit court found for the defendant, and this appeal ensued.

Next came the battle of the experts regarding the practice of radiology. The expert for the plaintiff testified that, in this case, there was a continuum of care, since the patient went to the same radiologists with the same symptoms and the same problem. All of the scans were stored in the same place under the patient’s name and under the care of the defendants. The defendants billed the plaintiff directly for their services. The plaintiff’s doctors always referred her to the same place for all diagnostic imaging. And finally, the defendants are required in cases such as this to pull up the patient’s old films to see whether any changes have occurred from study to study.

The defendant’s expert noted that radiology is a consulting practice. A radiologist’s care is episodic. Usually, radiologists do not have an ongoing relationship with patients, even if a sequential series of tests is ordered. Radiologists almost never directly interact with the patient but, instead, report their findings to the referring physician, who then decides what to tell the patient and what treatment is necessary.

So, I ask you, the reader, was the patient experiencing continuous treatment from Radiology Associates of Richmond or was it episodic? The reason that this question is important is that if each instance of negligently reading the scans was an episode unto itself, the 2-year period would apply from each date that the patient was seen. In this case, every negligent reading would have occurred much longer than 2 years since the filing of the claim. In fact, the only reading of the scans that was performed within 2 years of filing the suit was the one in October 2005, and that scan was correctly read. On the other hand, if treatment was continuous, it brings all scans and their negligent interpretations into play going back to the beginning in 2003; as long as the suit was filed within 2 years of the last appointment, the patient would still have legal standing to file suit.

Since it is patently unfair to hold doctors on the hook forever for any mistakes they might have made, every state has enacted a statute of limitations that specifies a certain time period during which the plaintiff must either bring suit or be time barred from doing so. The reasons for this are many, but the most common are that evidence tends to disappear after long periods of time, witnesses move away or die, and memories become faulty; well, you get the picture. There are essentially 2 schools of thought regarding statutes of limitations. Either the statute starts to run from the time the injury took place (the occurrence jurisdiction), or the time period starts to run from the time the injury was discovered or from when the patient should have reasonably discovered the injury (the discovery jurisdiction). The occurrence jurisdiction usually favors the doctor, whereas the discovery jurisdiction usually favors the patient. This is because most of the time you know when the injury or the negligent act occurred, although sometimes you don’t discover the negligence or injury for quite some time, such as in a case involving a negligent diagnosis of cancer. The various states impose different periods of time. Most states set the time period somewhere between 1 and 3 years from either occurrence or discovery. Okay, back to the case.

In Virginia, the Annotated Code, Sec. 8.01-243 (A), notes that the 2-year time period starts to run from “the date the injury is sustained” as opposed to when it is discovered. The continuous-treatment doctrine is a provision that essentially tolls or prevents the statutory period from running until the conclusion of the treatment for any disease or condition. The first time it was applied was in a dental malpractice claim in 1979 involving a dentist who failed to diagnose periodontal disease. In that case, the court stated the following.

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 the 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. (cit. omit.)

The rationale behind invoking the continuous treatment doctrine is based on the following considerations. First, as long as the doctor-patient relationship continues regarding a particular malady or injury, it cannot be said that treatment has ceased. If it has not ceased, then it is still ongoing; thus, statutorily, the period of time cannot commence. Second, if a patient were required to sue his or her doctor while still under treatment, it might significantly impact that doctor’s ability to effectuate a cure for the malady or injury. Waiting until the end of the doctor-patient relationship is conducive to the mutual confidence inherent in the doctor-patient relationship, which is necessary for the doctor to be able to address any errors in diagnosis, treatment, or judgment that might have occurred. Finally, the patient always has the right to file suit at a later date for any injuries sustained relating to the diagnosis or treatment rendered as long as a “continuous and uninterrupted course of treatment . . . for the same or related ailments” was occurring. In other words, if the acts were singular or isolated, rather than continuous or uninterrupted, there can be no application of the continuous-treatment doctrine. So, I ask you again, now that you understand the continuous-treatment doctrine, should the court decide that the statute of limitations began to run on 02-16-04, the date of the last incorrect reading, in which case the plaintiff’s claim would be time barred, since it was not filed until 2007? Or does the time period begin to run when the patient ended the doctor-patient relationship in October 2005, in which case the suit was filed in time, if just under the wire?

In fashioning its decision, the court noted that (1) during the treatment by her neurologist, the patient was referred to Radiology Associates of Richmond on 6 different occasions for the same diagnostic studies; (2) during that time, Radiology Associates of Richmond studied and interpreted all 7 scans (6 MRIs and 1 magnetic resonance angiograph); (3) each study was related to the same or similar symptoms; (4) the defendants were aware of all signs and symptoms, since they had all of the patient’s records filed together; and (5) Radiology Associates of Richmond frequently reviews the older scans for comparative studies particularly when they relate to the same symptoms. The court held that a continuous course of treatment did indeed exist and remanded the case back for determination based its holding. In other words, the court found substantial evidence to conclude that “the plaintiff was being treated or monitored continuously for a particular existing medical condition and that . . . she reasonably anticipated ongoing diagnostic tests in connection with such treatment.”


In a dissenting opinion, 2 justices opined that Radiology Associates of Richmond was not the treating physician, and the services rendered were more akin to a laboratory that performs isolated or episodic blood or urine tests, having only the responsibility to report its findings to the treating physician. Thus, if Radiology Associates of Richmond is not rendering treatment, then there can be no ongoing doctor-patient relationship, and hence the time period within which to file suit commences from each individual negligent diagnosis, which in this case would have precluded the filing of the suit because the claim was not filed within 2 years of any of those occurrences.

I guess the real question is whether you believe that diagnosis constitutes or equates to treatment, and, if so, whether consistently negligent diagnoses are ongoing treatment or episodic in nature. In Florida, Chapter 466.003 of the Code defines the practice of dentistry as that portion of “the healing art which is concerned with the examination, diagnosis, treatment planning, and care of conditions within the human oral cavity and its adjacent tissues and structures. . . . The term ‘dentistry’ shall also include the following: . . . (f) Diagnosing, prescribing, or treating or professing to diagnose, prescribe, or treat disease, pain, deformity, deficiency, injury, or physical condition of the human teeth or jaws or oral-maxillofacial region.” Every state’s dental practice act has some similar definitions. Diagnosis is just as much the practice of dentistry as is the actual rendering of treatment.

How does any of this apply to orthodontics? The testimony has shown that you committed negligence in some manner and that the patient was injured as a result. Let’s say that it was undiagnosed periodontal disease that the patient discovered after treatment. Let’s also say that the patient completed treatment on x-y-z date. Thereafter, the patient was given a series of regularly scheduled appointments for retention observation including any necessary appliance adjustments over the next 2 years ending on a-b-c date. From the patient’s perspective, from a juror’s perspective, from a reasonably prudent person’s perspective (eg, a judge), was the patient’s orthodontic treatment uninterrupted, ongoing, and continuous, or were the retention visits isolated or episodic? Depending on when the lawsuit was filed and how that date relates to when treatment was completed, these might well determine whether the patient’s case will be allowed to proceed.

Remember, the statute of limitations is our friend. We want the clock to start running. We want the patient’s window of opportunity to close. We want to be safe from any negligent acts we might have committed in times gone by. For those of us practicing in occurrence jurisdictions, we need the time period to expire. One way to do that is to shorten the time period of “active retention” and make the remaining period of “passive retention” episodic: “on demand” as some of our practice management gurus tell us. This line of demarcation should be adequately noted in the patient’s record along with the fact that the patient was so informed.

For those of us practicing in discovery jurisdictions, we want the patient to “discover” any negligent acts we committed so that the time period can commence from that point going forward. One way to do this is to conduct a posttreatment consultation. During this appointment, we tell the patient all of the wonderful and beneficial things we were able to accomplish. We also inform him or her of any treatment goals we couldn’t accomplish as well as any “shortcomings or negative sequellae” that might now be present. This conference should be detailed and documented well. Remember, not achieving an ideal result, or encountering some degree of negative sequelae, limitation, or compromise is not in and of itself evidence of malpractice. A doctor is not a guarantor of the cure or of having obtained a perfect result. As long as you did all of the things you should have done all along, and engaged in effective communications with the patient, you’re probably still okay.

What am I talking about? I’m talking about things such as you should have taken good-quality diagnostic records. You should have performed an adequate clinical examination. You should have made a differential diagnosis. You should have defined specific treatment objectives. You should have explained to the patient before you started treatment what you expected to accomplish, what you might not accomplish, and what inherent risks, limitations, and shortcomings were associated with the patient’s treatment. You should have taken midtreatment radiographs to check on the patient’s periodontal status and for root resorption. You should have adequately documented ongoing treatment; if the case was not progressing normally and within an expected time frame, you should have evaluated why not. You should have made appropriate referrals, if necessary, during treatment and ensured follow-ups consistent with the findings of those referrals. You should have paid more attention to the patient’s complaints. You should have dismissed a uncooperative patient early. You should have modified your treatment goals, if appropriate.

You never want to have to say “If I could have, I would have”; the point is, you should have.

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Apr 8, 2017 | Posted by in Orthodontics | Comments Off on Déjà vu all over again: Continuous treatment and the statute of limitations
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