How continuous treatment rules can make lawsuits thrive

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In general terms, a malpractice action accrues on the date of the wrongful act of the health care provider. When the wrong is one single act, such as a wrong-site surgical procedure, it is easy to identify the accrual date and calculate the statute of limitations. Where, however, the wrong is actually a course of treatment over time, some states provide that the statute of limitations can be tolled where there is evidence of a certain course of “continuous treatment.”

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In New York, this toll is prescribed by law that states, “An action for medical, dental or podiatric malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure…” [boldface added for emphasis].

Next: "What does this mean for urologists?"

Case study: Laparoscopic nephrectomy

So what does this mean for urologists? Take the following case:

A patient consults with a urologist for back, bladder, testicular, and abdominal pain in 2004. A hernia is discovered and treated operatively, but the symptoms persist. In May 2006, a computed tomography scan reveals a mass indicative of renal cell carcinoma. The patient undergoes right laparoscopic nephrectomy in July 2006.

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The patient returns to the urologist for a 1-week post-op visit and 6-month check-up in January 2007. He canceled his 8-month follow-up and was a no-show for two additional visits in June and July of 2007. The patient’s primary care physician refers him to an oncologist for follow-up, who finds the patient to be doing well with an excellent chance of cure.

In October 2008, the oncologist orders an abdominal ultrasound, which shows a new mass on the patient’s right renal fossa. The patient returns to the urologist’s office in November 2008, where the possibility of a recurrence is discussed. A phone call is documented in December 2008 between the urologist and patient that surgery is the recommended course of treatment, followed by chemotherapy and radiation.

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The plaintiff brings a claim of medical malpractice against the urologist in April 2010-nearly 4 years after the nephrectomy. If the New York statute did not provide for a toll in the statute of limitations, this patient’s claim would have been barred since it was brought more than 2 years and 6 months after the surgery. However, this claim thrived because the court found that there was a continuous course of treatment with the urologist, despite a significant gap in treatment by the urologist.

Next: Factors the court identified as supportive of continuing treatment

A few factors the court identified as supportive of continuing treatment:

• The patient never expressed an intention to abandon care and treatment with the urologist.

• The patient had scheduled follow-up visits, even though he did not attend them.

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• The oncologist copied the urologist on his medical notes.

• The urologist’s telephone note from December 2008 indicated an intent to continue to monitor the patient, even though the patient never returned.

• The patient identified the urologist as “his doctor” at his deposition.

Next: Continued trend toward state and federal acceptance

Of the aforementioned factors, the urologist only had control over one of them-the documentation of a telephone conversation. This case provides a clear example of how patients, and even other providers, can play a part in a court’s decision as to whether continuous treatment existed between you, the urologist, and your patient.

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Because of the associated policy considerations, there has been a continued trend toward state and federal acceptance of a continuous treatment rule. The rule is viewed as promoting the physician-patient relationship by allowing a patient the opportunity to challenge the physician’s care after treatment has ended. There is then no need to interrupt care in order to avoid running a statute of limitations.

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The rule is also viewed as logical and fair in a circumstance where a prolonged course of treatment leads to injury, but a patient is unable to determine precisely when the harm occurred.

Next: Application of rule varies by state

Application of rule varies by state

Different states apply this rule differently. In some states, like New York, the law was created by the legislature. In other states, such as Connecticut and Missouri, the rule is adopted by the judiciary through case law. Some states even distinguish between continuous treatment and continuous negligent treatment.

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Whether the rule will apply to a case will be driven by the facts of the case and typically involves complex legal analysis. What is most important is that as a provider, you know whether the rule exists in the state where you practice and the permutations of the rule that might affect the way you practice, document, or run your office.

An easy “gimme” for a plaintiff’s attorney will be that an inactive medication is carried forward through the electronic medical record, lending to an argument that the patient was treated for a particular condition, when perhaps the medication was prescribed once for a finite period of time. Asking a patient: “Have any of your medications changed?” is likely to lead to a less accurate account than, “Are you still using X medication?”

Providers are encouraged to contact the appropriate legal counsel for their business or organization to better understand the rule in their jurisdiction and put practices in place to prevent an inappropriate extension or tolling of the statute of limitations.

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