§42.2 Continuing Medical Treatment Doctrine

The Case: Stanbury v. Bacardi , 953 S.W.2d 671 (Tenn. 1997).

The Basic Facts: Plaintiff sued podiatrist for operating on both feet when plaintiff allegedly had given permission for him to operate only on one. Defendant asserted the statute of limitations as a defense.

The Bottom Line:

  • "[T]he dispositive inquiry in this appeal is whether the common law continuing medical treatment doctrine has been abrogated by judicial and legislative adoption of the discovery rule in this State. We join the intermediate appellate court and conclude that the doctrine has been abrogated.FN7
    FN7 See also Housh v. Morris, [818 S.W.2d 39, 43-44 (Tenn. Ct. App. 1991)]."
    953 S.W.2d at 676.
  • "The common law doctrine has been described as follows:
    [I]f the facts show continuing medical or surgical treatment for a particular illness or condition in the course of which there is malpractice producing or aggravating harm, the cause of action of the patient accrues at the end of the treatment for that particular illness, injury or condition, unless the patient sooner knew or reasonably should have known of the injury or harm. . . .
    Hecht v. Resolution Trust Corp. , 635 A.2d 394, 401 (Md. 1994); Robinson v. Mount Sinai Medical Center, 402 N.W.2d 711, 716 (Wis. 1987). The rationale underlying the rule is that a patient must trust a physician to remain in his care and during that care, the patient is not likely to suspect negligent treatment. 'It is the trust relationship that may make discovery of a claim difficult.' Wheeler v. Schmid Laboratories, Inc., 451 N.W.2d 133, 138 (N.D. 1990)." Id. at 676.
  • "Considering the formulation of the doctrine, and the rationale upon which it is based, it is clear that the continuing medical treatment doctrine is merely a particularized application of the discovery rule. The rule presumes, for policy reasons, that a patient has not discovered an injury during the time medical treatment continues. If there is actual proof that the patient knows or reasonably should know of the injury or harm before termination of medical treatment, the statute of limitations is not tolled. The rule has outlived its necessity in light of the comprehensive medical malpractice statute of limitations which requires that suit be brought within one year of the negligent act or within one year of discovery. The statute contains explicit exceptions for fraudulent concealment and foreign objects which more often result in lengthy delays. Although the common law doctrine still is recognized in some jurisdictions, FN8 it has been judicially or legislatively abrogated in many states following adoption of the discovery rule.
    FN8 [Comment, When Your Doctor Says, "You Have Nothing to Worry About" Don't Be So Sure: The Effect of Fabio v. Bellomo on Medical Malpractice Actions in Minnesota , 78 Minn. L. Rev. 943, n.53 (April, 1994). Several of the jurisdictions which continue to apply the doctrine have not adopted the discovery rule. See e.g. Healy v. Langdon, 511 S.W.2d 498 (Neb. 1994); Aubin v. Burke, 434 N.W.2d 282 (Minn. Ct. App. 1989)."
    Id . at 676-77 (footnote omitted) (citations omitted).

Recent Cases: Range v. Sowell , No. M2006-02009-COA-R3-CV, 2009 WL 3518176 (Tenn. Ct. App. Oct. 29, 2009) (upholding summary judgment to defendant on basis of statute of limitations).

After an accident, many injury victims and their families want more information on the accident and their legal rights. Consequently, many of them have found their way to these pages. While we are happy you are here, please understand Day on Torts: Leading Cases in Tennessee Tort Law was written to be a quick, invaluable reference for Tennessee tort lawyers. While the book provides the leading case for more than 300 tort law subjects and thousands of related case citations, it is not a substitute for personalized legal advice from a qualified lawyer.

Rather than researching these legal issues alone, we urge you to contact one of our award-winning lawyers who can sit down with you, review your case, answer your questions and clearly explain your rights and your options in a no-cost, no-obligation consultation. Our experienced attorneys handle all personal injury and wrongful death cases on a contingency basis, so we only get paid if we win. If for any reason you are unable to come to our office, we will gladly come to you.

To schedule an appointment, contact us online or call us at 615-742-4880 or toll-free at 866-812-8787.



The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

To order a copy of the book, visit www.dayontortsbook.com. John also blogs regularly on key issues for tort lawyers. To subscribe to the Day on Torts blog, visit www.dayontorts.com.

Client Reviews
Everything was great. You guys are a great representative. I was satisfied with everything. Truly appreciate John Day and his hard-working staff.
★★★★★
We thought that you did an excellent job in representing us in our lawsuit. We would recommend you to anyone. Mitch Deese
★★★★★
The Law Offices of John Day is, without a doubt, the best in Nashville! They treated me with the utmost respect and tended to my every need. No question went unanswered. I was always kept informed of every step in the process. I received phenomenal results; I couldn't ask for more. I would definitely hire the Law Offices of John Day again. Anthony Santiago
★★★★★
I would definitely recommend to anyone to hire John Day's law firm because everyone was helpful, made everything clear and got the job done. I am satisfied with how my case was handled. June Keomahavong
★★★★★
It's been a long battle but this firm has been very efficient and has done a remarkable job for me! I highly recommend them to anyone needing legal assistance. Everyone has always been very kind and kept me informed of all actions promptly. Linda Bush
★★★★★
I had a great experience with the Law Offices of John Day. The staff was very accommodating, and my phone calls/emails were always responded to in a timely manner. They made the entire process very easy and stress-free for me, and I had confidence that my case was in good hands. I am very happy with the results, and I highly recommend! Casey Hutchinson
★★★★★