Virginia Legal Trends and More: Brain-Scan Suit Still Timely Under 'Continuing Treatment' Rule

Charlottesville Personal Injury Lawyer

Brain-Scan Suit Timely Under ‘Continuing Treatment’ Rule

By Deborah Elkins
Published: April 25, 2011

Tags: Justice Lawrence L. Koontz Jr., Medical Malpractice, Supreme Court of Virginia

The Supreme Court of Virginia applies the “continuing treatment” rule and says a woman who had seven brain scans performed and interpreted by defendant radiology practice group from 2002 through 2005 for pain and numbness in the right side of her face can sue the group in 2007 for medical malpractice; the Supreme Court of Virginia reverses dismissal of the suit as time-barred.

Med-mal actions are governed by the two-year statute of limitations for personal injuries, in Va. Code § 8.01-243(A). Code § 8.01-230 provides that the right of action shall be deemed to accrue and the prescribed limitation period shall begin to run from the date the injury is sustained in the case of injury to the person. Thus, it is well established that the statute of limitations begins to run when the plaintiff is injured, not when the plaintiff discovers the injury. The continuing treatment rule operates as an exception. Under that rule, the statute begins to run at the conclusion of the course of treatment for a particular disease or condition.

The dispositive issue in this case is whether a “continuous and substantially uninterrupted course of examination and treatment” existed between Chalifoux and Radiology Associates (RA), or whether RA’s treatment of Chalifoux was a series of single, isolated acts. Plaintiff Chalifoux maintains that the sheer fact she repeatedly returned to RA for brain studies with the same or similar symptoms is indicative of a continuing course of examination and diagnosis. She maintains her suit filed Oct. 12, 2007 was within the two-year statute of limitations.

RA contends the last arguable date for Chalifoux’s medical malpractice action to accrue was Feb.16, 2004, the date of the last brain MRI which she claims was negligently reported and interpreted.

While we have not previously considered whether the continuing treatment rule applies to radiologists, other jurisdictions have addressed the issue. The facts in this case are similar to those in iiiMontgomery v. South County Radiologists,iii 49 S.W. 3d 191 (Mo. 2001).

Between December 2002 and October 2005, plaintiff’s treating physicians referred her to RA on six occasions for diagnostic radiology studies. During that time, RA studied and interpreted seven scans of plaintiff’s brain and head. Each study related to the same or similar symptoms: the pain and numbness on the right side of plaintiff’s face. There is evidence that RA was aware of plaintiff’s ongoing symptoms because all the studies were kept in one file under plaintiff’s name, and both experts in this case testified that radiologists frequently review previous examinations, especially when they relate to the same symptoms.

Under these facts, we find a “continuous and substantially uninterrupted course of examination and treatment” existed between plaintiff and RA. We hold the circuit court erred in not applying the continuing treatment rule to the facts of this case. The statute of limitations began to run on Oct. 24, 2005, the day the physician-patient relationship between RA and Chalifoux ended. Her suit brought on Oct. 12, 2007, was within the applicable two-year statute of limitations.

The circuit court erred 062, in sustaining RA’s plea of the statute of limitations. We will reverse the judgment and remand the case.

Reversed and remanded.

Dissent

Russell, S.J., joined by Goodwyn, J.: Undoubtedly, radiologists frequently act as treating physicians, but there is no evidence that they ever did so in the present case. The circuit court made no finding of fact from the evidence that the radiologists did not assume a duty of providing treatment to plaintiff. Rather, the court found the radiologists assumed a duty to adhere to “appropriate diagnostic procedures.” We are bound by that finding.

The evidence, in my view, fully supports the circuit court finding that the radiologists’ relationship with the plaintiff was episodic, not continuing care, and that they were not her treating physicians to whom the continuing treatment rule would apply.

Because I consider the majority opinion to be an extension of the continuing treatment exception unwarranted by these facts, I respectfully dissent.

Chalifoux v. Radiology Associates of Richmond Inc. (Koontz) No. 100052, April 21, 2011; Richmond Cir.Ct. (Jenkins) Philip S. Marstiller Jr. for appellant; Brewster S. Rawls, Sandra M. Holleran for appellee. VLW 011-6-062, 20 pp.