§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).