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Statute of Limitations

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Montgomery v. South County Radiologists, Inc., No. ED77285 (Mo.App. E.D. 12/19/2000)

Guide to Montgomery v. South County Radiologists, Inc., No. ED77285 (Mo.App. E.D. 12-19-2000)

[1]      THE COURT COURT OF APPEALS OF THE STATE OF MISSOURI EASTERN DISTRICT

[2]      Case Number: ED77285

[3]      2000.MO.0043756 <http://www.versuslaw.com>

[4]      December 19, 2000

[5]      EVAN M. MONTGOMERY AND JUDITH A. MONTGOMERY, APPELLANT, V. SOUTH COUNTY RADIOLOGISTS, INC., AND EDWARD SZOKO, M.D., ET AL., RESPONDENT.

[6]      Counsel for Appellant: Edward M. Roth Counsel for Respondent: Kevin F. O'Malley

[7]      The opinion of the court was delivered by: George W. Draper III, Judge

[8]      Appeal From: Circuit Court of the City of St. Louis, Hon. Michael B. Calvin

[9]      Opinion Vote: REVERSED AND REMANDED. Gaertner, Sr., P.J. concurs; Crahan, J., dissents in separate opinion.

[10]     Opinion:

[11]     This is a medical malpractice action brought by Evan and Judith Montgomery (hereinafter, collectively, "Montgomery") against South County Radiologists, Inc. (hereinafter, "SCR") and Edward Szoko, M.D. (hereinafter, "Dr. Szoko"). The trial court granted partial summary judgment in favor of SCR and summary judgment in favor of Dr. Szoko on the grounds that the action was barred by the statute of limitations in Section 516.105 RSMo (1994) *fn1 and that the continuing care exception did not apply. Montgomery appeals. We reverse and remand.

[12]     In review of summary judgment, we review the record in the light most favorable to the party against whom the judgment was entered. ITT Commercial Finance v. Mid-America Marine, 854 S.W.2d 371, 376 (Mo. banc 1993). We accord the party against whom summary judgment was entered the benefit of every doubt. Green v. Washington University Medical Center, 761 S.W.2d 688, 689 (Mo. App. E.D. 1988). Summary judgment is intended to move the parties beyond the petition's allegations and determine if a material fact for trial exists. Martin v. City of Washington, 848 S.W.2d 487, 491 (Mo. banc 1993). Appellate review of the grant of summary judgment is purely a question of law and, hence, employs the same criteria as imposed by the trial court in its initial determination of the propriety of the motion. ITT Commercial Finance, 854 S.W.2d at 376.

[13]     Summary judgment will be granted as a matter of law to the moving party when there is no genuine issue as to any material fact. Rule 74.04(c)(3). The moving party bears the burden of establishing a right to judgment as a matter of law. Following the moving party's prima facie showing, summary judgment will be granted if the responding party fails to reply with specific facts showing a genuine issue of material fact exists for trial or with a demonstration that judgment as a matter of law is incorrect. Rule 74.04(e).

[14]     Once the moving party has established a right to judgment as a matter of law, the nonmoving party's only recourse is to show that there is a genuine dispute of a material fact by offering affidavits, depositions, answers to interrogatories, or admissions. ITT Commercial Finance, 854 S.W.2d at 381. Any evidence presented that demonstrates a genuine issue of material fact will defeat the moving party's prima facie showing. Landes v. State Farm Fire and Casualty Co., 907 S.W.2d 349, 353 (Mo. App. W.D. 1995). A "genuine issue" exists where the record contains competent materials that evidence two plausible, but contradictory, accounts of the essential facts. ITT Commercial Finance, 854 S.W.2d at 381. If a genuine issue of fact exists, summary judgment cannot be granted. Rule 74.04(c)(3).

[15]     When viewing the facts for the purpose of our summary judgment review, *fn2 we find that: Montgomery suffered from lower back pain. During 1995, he sought treatment from a neurosurgeon at St. Anthony's Medical Center. In order to diagnose and alleviate Montgomery's distress, the surgeon sent him for radiological services. SCR performed the radiological services requested by the surgeon. SCR is the exclusive provider of radiological services for St. Anthony's Medical Center.

[16]     Montgomery underwent a series of three treatments of radiological services at SCR. *fn3 It is SCR's practice to employ medical doctors specializing in radiology. When a patient is referred to SCR for radiology services, its services are provided on a random basis by one of its doctors, depending upon who is reviewing the films on a given day. Each patient has a jacket in which the radiological films are placed. The jacket also contains the written diagnosis made by the medical doctor who reviewed the films. Further, when a patient is referred continually to SCR for a discrete medical condition, the reviewing medical doctor is expected to refer to previous notations and films in the jacket for a proper diagnosis of the patient's ailment.

[17]     On each of Montgomery's treatments at SCR, his films were interpreted by a different doctor pursuant to SCR's rotation system. Each of those physicians failed to diagnose the presence of a cancerous tumor on Montgomery's spine from the radiological services which it performed. On November 16, 1995, Montgomery consulted with a radiologist not associated with SCR. That consultation resulted in the immediate detection of the tumor in his lower back and Montgomery's termination of the care and treatment from SCR.

[18]     Montgomery filed suit on May 23, 1997, against the three doctors, including Dr. Szoko, who interpreted his radiological films and SCR for medical negligence in failing to diagnose the cancerous tissue mass. Dr. Szoko moved for summary judgment on May 29, 1998. SCR filed its motion for partial summary judgment on February 17, 1999. Both motions averred that with respect to the radiological services provided on February 14, 1995 Montgomery failed to file his suit for medical negligence within the two-year statute of limitations and that the continuing care exception did not apply. The trial court granted summary judgment in favor of Dr. Szoko on March 8, 1999, and partial summary judgment to SCR on June 2, 1999.

[19]     The trial court's judgment found that Montgomery's claim was barred by the statute of limitations for medical malpractice claims. The trial court excluded Montgomery's claim regarding any negligence based upon the February 14, 1995, radiological services as being outside the statute of limitations. Section 516.105. The statute provides in pertinent part:

[20]     All actions against physicians, hospitals, dentists, registered or licensed practical nurses, optometrists, podiatrists, pharmacists, chiropractors, professional physical therapists, and any other entity providing health care services and all employees of any of the foregoing acting in the course and scope of their employment, for damages for malpractice, negligence, error or mistake related to health care shall be brought within two years from the date of occurrence of the act of neglect complained of....

[21]     The trial court further stated that the continuing care exception to Section 516.105, known as the Thatcher rule, was not applicable to either Dr. Szoko or SCR.

[22]     Following the trial court's rulings, to create a final judgment, Montgomery dismissed his remaining claims in December 1999 without prejudice and timely brought this appeal. Montgomery raises two points on appeal in that the trial court erred in its grant of summary judgment in favor of Dr. Szoko and partial summary judgment in favor of SCR. Montgomery alleges there is a genuine issue of material fact as to the applicability of the continuing care exception. Dr. Szoko and SCR claim they exclusively provide discrete intermittent services which do not rise to the level of providing care to a patient. SCR further claims that as an entity it is shielded from liability.

[23]     Thus, the question is whether the two-year statute of limitations commenced running on February 14, 1995, when individual radiological services were provided, or whether the running of this period of limitation was tolled by the continuing treatment of Montgomery until he terminated his relationship on November 16, 1995. If Montgomery's care continued until he terminated his relationship on November 16, 1995, the action was filed within two years and is not barred. Section 516.105

[24]     Missouri courts consistently have limited "all actions" against health care providers and relating to health care to the shorter two-year statute of limitation in Section 516.105 rather than the longer contractual statute of limitations. "Giving the words of the statute their plain and ordinary meaning, we believe Section 516.105 encompasses those actions where the consumer of health services seeks damages for injuries resulting from some improper, wrongful, or careless acts or omissions on the part of a health care provider in the delivery of health care to the consumer." Rowland v. Skaggs Companies, Inc., 666 S.W.2d 770, 772-73 (Mo. banc 1984). The statute was created carefully by the legislature with an intent to protect health care providers against stale claims from health care consumers. Id. at 773.

[25]     However, the Missouri Supreme Court recognized an exception to the statute of limitations in cases where there is a continuing relationship between the patient and the health care provider. Thatcher v. De Tar, 173 S.W.2d 760 (Mo. 1943). In Thatcher, the patient employed defendant-doctor who operated upon patient for an appendicitis and negligently left a surgical needle in patient's body cavity. Id. at 761. Following the operation, patient continued to have pain and sought further treatment from doctor. Id. Patient continued his relationship with doctor for more than two years after submitting to the operation; patient then terminated the relationship and began a new relationship with other physicians who discovered the needle. Id. Patient filed his action against the first doctor more than two years after the original operation. Id. at 761. The trial court dismissed patient's cause of action as barred by the two-year statute of limitations. Id. at 760.

[26]     Upon review, the Court stated: "[t]aking a common sense view of the situation, and one in harmony with justice, the conclusion seems apparent that the statute of limitation did not begin to run against plaintiff until treatment by the [doctor] ceased." Id. at 762. Additionally, the Court examined cases from other jurisdictions addressing the continuing care issue and concluded that the overwhelming weight of authority holds that "the statute of limitations does not begin to run until the treatment of plaintiff's ailment by the defendant ceases." *fn4 Id. at 763.

[27]     The underlying rationale of the Thatcher rule and the continuing care exception from other jurisdictions *fn5 is "based upon the concept that [the exception] stems primarily from the nature of the relationship and that the obligation and treatment be considered as a 'whole' until it ceases and the obligations arising therefrom should not be conceptually fragmented." Shaw v. Clough, 597 S.W.2d 212, 215-16 (Mo. App. W.D. 1980).

[28]     The Thatcher rule also recognizes the fundamental relationship between a doctor and patient. This relationship is viewed as a "highly personal and close one, encompassing on the part of the patient a basic confidence and reliance upon the skills and judgment of the doctor with a reasonable expectation that such will be met by a deep sense of obligation and proper exercise by the doctor of his incomparable superior knowledge and the dedicated use of his best talents and judgment." RCA Mut. Ins. Co. v. Sanborn, 918 S.W.2d 893, 897 (Mo. App. S.D. 1996)(quoting Shaw v. Clough, 597 S.W.2d 212, 215 (Mo. App. W.D. 1980)). When a patient is under the doctor's continuing care and the doctor is under the duty to treat the patient, then the statute does not begin to run until the doctor-patient relationship is terminated. Thatcher, 173 S.W.2d at 762. By tolling the statute of limitations until the termination of the relationship, the doctor is given every opportunity to diagnose and treat the patient. This exception promotes honesty and open communication within the doctor-patient relationship. In turn, this allows doctors to explore the full panoply of diagnostic treatments without fear of patients bringing a medical malpractice suit at the onset of each procedure within their course of treatment.

[29]     It is well established in Missouri that the doctor-patient relationship continues until it is ended by: (1) mutual consent of the parties, (2) reasonable notice and withdrawal by the physician, (3) patient dismissal of the physician, or (4) cessation of the necessity that gave rise to the relationship. Weiss v. Rojanasathit, 975 S.W.2d 113, 119-120 (Mo. banc 1998). See also, Reed v. Laughlin, 58 S.W.2d 440, 442 (Mo. 1933); Cazzell v. Schofield, 8 S.W.2d 580, 587 (Mo. 1928). "Absent good cause to the contrary, where the doctor knows or should know that a condition exists that requires further medical attention to prevent injurious consequences, the doctor must render such attention or must see to it that some other competent person does so until termination of the physician-patient relationship." Weiss, 975 S.W.2d at 120.

[30]     Missouri courts apply and recognize the Thatcher rule, allowing patients to toll the two-year statute of limitations in cases of continuing care. See Lorsbach v. Plastic Surgery Consultants, Ltd., 745 S.W.2d 220 (Mo. App. E.D. 1987)(statute is tolled when patient receives post-operative care for the original procedure); Green, 761 S.W.2d at 688 (continuing care does not apply when the petition is filed over two years after the last date of treatment and does not allege any facts indicating continuing treatment); Shroyer v. McCarthy, 769 S.W.2d 156 (Mo. App. W.D. 1989)(no tolling of the statute of limitations while a patient attempts to discover the identity of an allegedly negligent treating physician); Shah v. Lehman, 953 S.W.2d 955 (Mo. App. E.D. 1997)(a nine-year gap between a patient's treatment and contact with a hospital does not constitute continuing care); Dunagan By and Through Dunagan v. Shalom Geriatric Center, 967 S.W.2d 285 (Mo. App. W.D. 1998)(continuing care not applicable to a nursing home for patient's fractures when the nursing home was treating the patient not for fractures, but for Alzheimer's disease).

[31]     In Shaw, 597 S.W.2d at 214, the patient employed doctor in January 1975 for treatment of a cervical injury. The patient submitted to an operation in February 1975. Id. Patient was readmitted to the hospital and another surgery was performed in March 1975, and remained in outpatient care of doctor following discharge. Id. During the March 1975 surgery, doctor obtained bone plugs from patient's right leg which developed into an entrapped nerve in the leg. Id. Patient was readmitted to hospital in August 1975 for treatment regarding the continuing problems with his right leg, the location from which the bone plugs were obtained, and again, was discharged as an outpatient in doctor's care. Id. Patient filed suit against doctor in April 1977 alleging negligence stemming from the March 1975 operation. Id. The trial court granted summary judgment to the defendant-doctor based upon the two-year statute of limitations. Id. at 213. Upon appeal, the Western District reversed and remanded finding that viewing the entire history of the patient's care as a "whole" under the Thatcher rule *fn6 these facts "...should not form the basis for invoking the drastic remedy of summary judgment...." Id. at 216.

[32]     As opposed to the patient in Kamerick v. Dorman, 907 S.W.2d 264, 265 (Mo. App. W.D. 1995) who filed her petition on November 13, 1989 alleging medical malpractice for treatment she received from her doctor. The trial court granted the doctor summary judgment based upon the statute of limitations in Section 516.105 because the patient's last medical services were rendered on June 30, 1987. The patient appealed claiming there was a genuine issue of material fact as to the date of the termination of the doctor-patient relationship. Id.

[33]     The patient accepted that the last date of medical services rendered to her by the doctor was June 30, 1987, but asserted that a telephone call made to the doctor in November 1987 would toll the statute of limitations. Id. at 266. The court found that a telephone conversation "does not rise to the level of medical care, services or treatment" which would trigger the continuing care exception. Id. Further, even if the last date of treatment was recognized with the telephone call, the patient still failed to file her petition within the two-year statute of limitation. Id.

[34]     In RCA Mut. Ins. Co. v. Sanborn, 918 S.W.2d 893, 894 (Mo. App. S.D. 1996), the patient appealed a declaratory judgment which limited patient's recovery to one payment from his doctor's insurance company in a settlement agreement rather than a separate payment for each negligent act. The patient there submitted to the care and treatment of his doctor for a pain in his right hip. Id. From February 1988 until September 1991, the patient followed the recommended course of treatment from his doctor including three surgeries attempting to cure his pain. Id. at 894-95. The doctor's insurance policy would pay for monies which the doctor was obligated to pay as damages due to injuries from "a medical incident." Id. at 895.

[35]     The Southern District stated that the patient was correctly allowed recovery for only one payment rather than three. Id. at 897. The patient clearly falls within the Thatcher rule; "his treatment must be considered as a 'whole' until it ceases and his continuing treatment cannot be conceptually fragmented as he seeks to do." Id.

[36]     The patient in Adams v. Lowe, 949 S.W.2d 109, 110 (Mo. App. E.D. 1997) *fn7 appealed the trial court's grant of summary judgment in favor of his dentist claiming there were genuine issues of material fact as to whether the dentist's continuing treatment tolled the statute of limitations. The patient in Lowe received dental treatment from dentist for three years. Id. Dentist performed root canal therapy on three teeth in May 1990 and April 1993. Id. Dentist informed patient the teeth would be tender and patient continued to complain of tenderness in November 1993. Id. Dentist requested patient to make another appointment during the next month to determine what further problems existed. Id. Patient made the appointment but failed to keep it as he sought a second opinion from another dentist. Id.

[37]     Dentist filed for, and the trial court granted, summary judgment claiming patient's claim was barred by the statute of limitations. Id. On appeal, patient claimed that the statute of limitations did not begin to run until the treatment by the dentist ceased. Id. at 111. This Court recognized the continuing care exception to the statute of limitations noting that "[t]he treatment and history of care should be considered as a whole" when it is necessary for the patient's recovery. Id. Taking the facts in the light most favorable to the patient, this Court reversed and remanded the summary judgment because dentist continued to treat patient for the root canal therapy and his subsequent problems; the petition was filed timely. Id.

[38]     In 1998, the Missouri Supreme Court addressed as a question of law the applicability of Section 516.105 to medical malpractice claims in Weiss, 975 S.W.2d at 113. There a female patient brought a medical malpractice action against her gynecologist who failed to inform her of the abnormal results of a diagnostic test indicating a cancerous or pre-cancerous condition in 1991. The patient visited another gynecological doctor in 1995 who discovered she had developed Stage IIb cancer of the endocervix. Id. at 116. In 1996, the patient filed suit against her first doctor. The doctor filed a motion for summary judgment claiming that the patient's claim was barred by the statute of limitations in Section 516. 105. *fn8 Id.

[39]     The Court elucidated the history and rationale of Laughlin v. Forgrave, 432 S.W.2d 308 (Mo. banc 1968) and its connection to the statute of limitations in Section 516.105. Weiss, 975 S.W.2d at 117. In cases where the petitioner claims the act of neglect stems from the introduction of a foreign object into the body of a living person and the subsequent failure to remove the foreign object, "the statute commences to run from the date of discovery." Id. All other medical negligence cases are limited to the two-year statue of limitations in Section 516.105. Id.

[40]     However, the Court further addressed the applicability of Thatcher to non-discovery based medical negligence cases. Id. at 119. When a patient receives treatment from a doctor and that treatment charges the doctor with the duty of continuing care and treatment which is essential to the patient's recovery, the statute of limitations does not begin to run until the doctor-patient relationship terminates. Id. The obligation continues so long as required unless the relationship is ended in one of four ways: (1) mutual consent of the parties, (2) reasonable notice and withdrawal by the physician, (3) patient dismissal of the physician, or (4) cessation of the necessity that gave rise to the relationship. Id. at 119-120. "Absent good cause to the contrary, where the doctor knows or should know that a condition exists that requires further medical attention to prevent injurious consequences, the doctor must render such attention or must see to it that some other competent person does so until termination of the physician-patient relationship." Id. at 120.(emphasis added).

[41]     The Court had ample opportunity to reconcile and/or explicitly overrule the holdings in either Laughlin or Thatcher; yet, it choose not to do so. Each of the cases promulgates procedure and explains the statute of limitations for different lines of medical malpractice cases. Laughlin deals with foreign objects and Thatcher contemplates continuing care of a medical conundrum.

[42]     In Brickey v. Concerned Care of Midwest, Inc., 988 S.W.2d 592, 594 (Mo App. E.D. 1999), the surviving daughters and personal representative of patient brought suit against defendant nursing home for claims of breach of contract for negligent care of patient, wrongful death, and medical malpractice. The plaintiffs claimed the trial court improperly granted summary judgment for defendant on the medical malpractice claims regarding patient's leg fractures based upon the two-year statute of limitations. Id. at 597.

[43]     This Court reiterated that the continuing care exception tolls the statute of limitations until treatment of the injury caused by the act of neglect ceases and that there must be facts to support continuing care in order to defeat a summary judgment motion. *fn9 Id. at 598. Since plaintiffs did not allege facts to indicate there was continuing care, the trial court properly granted summary judgment. Id.

[44]     Other jurisdictions have addressed the issue of whether diagnostic services are considered treatment in order to prevent the running of the statute of limitations, thus constituting continuing care or continuing treatment; and addressed the issue of whether this is a question of law or of fact. As in Montgomery's case, these cases look at the relationship of the patient to a provider of health care services which is not the patient's primary care physician. The services rendered are of such underlying importance to the treating doctor, that the continuing care can be imputed to the service provider as a matter of law, or allegations by the patient of continuing care by the service provider defeat summary judgment as an issue of fact for the jury to decide.

[45]     The case of Fonda v. Paulsen, 46 A.D.2d 540, 363 N.Y.S.2d 841 (N.Y. App. Div. 1975) involved a patient whose biopsies were read by an independent pathologist on two occasions thirty-two months apart. The court held:

[46]     [W]e are of the opinion that to hold [defendant pathologist] as having "treated" plaintiff only at the times of his biopsy diagnoses is to take a view of the case which is analogous to the outworn theories under which privity of contract was required before liability could ensue. The nature of a pathologist's work is such that he rarely, if ever, has a direct physician-patient relationship with an individual--in other words, he never treats patients in the conventional sense--but his work is often the basis upon which the nature of subsequent treatments to be given by the attending physician is determined. Such is what appears to have occurred in the case at bar. In the somewhat unique circumstances presented in the case at bar, where the pathologist should have reasonably expected that his work would be relied on by other practitioners in determining the mode of treatment, we feel it appropriate to impute to that pathologist or diagnostician constructive participation in that treatment so long as it continued. In this way, the practitioner guilty of the initial malpractice is subject to the same period of limitations as those who continued the malpractice as a reasonably foreseeable result of the initial wrong. Of course, there may have come a point where continuation of a course of treatment was negligent in and of itself irrespective of the original erroneous diagnosis; at that point, the diagnostician's constructive continuance in the treatment would have ceased. But the determination of such a question is one of fact based upon medical evidence, which can only be decided by the jury.

[47]     The Supreme Court of Wyoming came to a similar conclusion in Sharsmith v. Hill, 764 P.2d 667 (Wyo. 1988). Sharsmith sued physicians and a hospital for medical malpractice in connection with the removal of a tumor from her knee. Sharsmith contacted her primary physician about a lump behind her knee. Id. at 668. After running tests and determining that the lump was benign, no action was taken until the mass enlarged and required surgery to remove it in 1982. Id. After removing the mass, it was transported in three parts to the hospital's pathology department, where two pathologists, Hill and Fogarty, examined it. Id. Hill examined the mass first and determined it was benign. Id. He informed Sharsmith's physician of his findings. Id. Several days later Fogarty examined the mass and issued a written report finding that the mass was benign as well. Id.

[48]     Sharsmith experienced complications at the operative site and sought further treatment from her doctor. Id. He performed a physical exam, but could not make a definite diagnosis. Id. He sent a letter to Fogarty, asking him to review the slides and obtain consultation if appropriate. Id. Fogarty personally assured Sharsmith that the diagnosis was correct and the mass was benign. Id. Sharsmith returned to her doctor in 1983, who discovered two additional masses at or near the operative site, which upon removal, were determined to be malignant. Id. at 669. The original slides were reevaluated; the original mass removed was malignant, not benign, as originally reported. Id. Sharsmith eventually elected to have her leg amputated above the knee. Id.

[49]     Sharsmith filed suit in 1985 claiming that Hill was negligent in either failing to perform a microscopic analysis or failing to report or preserve his findings in connection with the analysis, and Fogarty was negligent in failing to refer the pathological slides to a soft tissue tumor specialist. Id. The trial court granted summary judgment in favor of Hill and Fogarty. Id.

[50]     The pathologists claimed on appeal that the alleged acts of negligence occurred when they made their initial diagnosis in 1982, and since Sharsmith discovered these acts within two years of their occurrence, the statute of limitations had run by the time Sharsmith filed her claim in 1985. Id. Sharsmith claimed the statute of limitations did not begin to run until the termination of her doctor's continuous course of treatment, which occurred in 1983 when she was referred to a second doctor.

[51]     The Wyoming Supreme Court discussed the continuing treatment doctrine and stated, "the continuous treatment of a patient ceased when the treating practitioner referred the patient to another practitioner and no longer assisted in the patient's treatment or associated with the doctors thereafter treating the patient." Id. The court recognized Sharsmith's claims were not against her doctor, but rather were against the pathologists and the hospital. Sharsmith argued that her doctor's course of treatment should be imputed to the pathologists and hospital because her doctor continued to rely upon the misdiagnosis of the pathologists throughout the course of her treatment. Id. at 670.

[52]     The court agreed with Sharsmith, finding that her doctor's course of treatment should be imputed to both Fogarty and Hill. The court recognized, "It cannot be said that Dr. Fogarty no longer assisted in treating Ms. Sharsmith after making his diagnosis, or that he no longer associated with [her doctor]." Id. at 670. The court held, based "on the grounds of fairness as well as basic logic," that until the alleged misdiagnosis was corrected, or until Sharsmith's doctor ceased to rely on that diagnosis, Fogarty's constructive involvement in that treatment was sufficient to constitute the requisite assistance or association and prevent the running of the statute of limitations. Id. The court noted that this imputation was a bit more tenuous as to Hill, but concluded that his involvement was sufficiently unsettled so as to preclude summary judgment. Id.

[53]     In Sander v. Geib, Elston, Frost Professional Assn., 506 N.W.2d 107 (S.D. 1993), Sander brought a medical malpractice action against a clinical laboratory for alleged negligence in reading her pap smear slides. Sander received routine gynecological examinations from her general practitioner. As part of her examinations, her doctor would take pap smears and he did so in 1977, 1978, twice in 1980, and again in 1984, 1986, and 1987. All of these pap smears were submitted for evaluation to the Geib, Elston, Frost Professional Association, d/b/a Clinical Lab of the Black Hills (hereinafter, "Clinical Lab"). Id. at 110.

[54]     Clinical Lab had a process for analyzing each slide that was submitted. It would have a clerk assign a number to each slide, then a cytotechnologist would apply a stain to the slide and examine each slide under a microscope. Id. at 111. In the event abnormal cells were present, the slide was marked for later review by a pathologist. Id. All pap smears, whether or not viewed by a pathologist, were reported out over the signature of one of Clinical Lab's pathologists. Id. The report classified the cells discovered, and its pathologists made a recommendation to the patient's physician depending upon the classification. Id.

[55]     Clinical Lab's analysis of each of Sander's pap smears, except the last one, resulted in a finding of no abnormal or atypical cells. After Sander complained to her doctor about pelvic pain, erratic periods, and tiredness, he took another pap smear which revealed that Sander had squamous cell carcinoma. Upon reexamination of the slides from 1984, 1986, and 1987, it was discovered that Clinical Lab had misread the slides, which revealed that malignant cells were present as early as 1984. Id. at 112.

 

[56]     Sander brought suit in July 1988, after she had been diagnosed with an advanced stage of cancer. Her claims alleged the failure of Clinical Lab and its pathologists to detect and report the presence of cellular changes in routine pap smears in sufficient time to prevent the spread of her cancer. Id. Sander ultimately prevailed at trial and Clinical Lab appealed.

[57]     Clinical Lab claimed that it was error for the trial court to submit to the jury the negligence claims based upon the 1984 pap smear slide because the cause of action was filed in 1988, more than two years after the "inaccurate" 1984 interpretation. Id. at 113. The trial court determined that it was a question of fact for the jury to determine whether there was a continuing treatment relationship between Sander and Clinical Lab. Id. at 114. However, the trial court agreed with Clincal Lab's request not to submit this question to the jury and decided as a matter of law that there was a continuing treatment relationship between Sander and Clinical Lab. Id.

[58]     The South Dakota Supreme Court agreed, and defined the continuing treatment doctrine as being based upon an "on-going, continuous, developing, and dependent relationship". Id. The court found that the service provided by Clinical Lab was "critically important to the patient...[who] is completely dependent upon the professional to screen for [an insidious disease]." Id., citing Morgan v. Taylor, 451 N.W.2d 852, 858 (Mich. 1990). The court also rejected Clinical Lab's argument that information regarding deficiencies in its testing program had anything to do with Sander's level of trust. Sander, 506 N.W.2d at 114. The court, referring to Morgan, supra, stated, "Morgan did not find it significant that a patient may be 'served' rather than 'treated' by a health professional and neither do we." Id.

[59]     The court ultimately held that under these facts, there was a continuous treatment relationship between Sander and Clinical Lab and therefore, there was no trial court error in submitting to the jury the negligence claims based upon the 1984 pap smear. The court emphasized that Sander's primary physician relied upon Clinical Lab's classification system for detecting potential cancer and relied upon its reports to facilitate his choice of therapy or further work-up. Id. at 115. The court recognized that "[a]lthough not necessarily determinative of a course of treatment, we note Clinical Lab had an informal program to compare previous pap smears with a current abnormal smear and tried to correlate its pap smear observations with it biopsy observations." Id.(emphasis added).

[60]     The Superior Court of Delaware relied on Fonda in reaching a similar conclusion in Bissell v. Papastavros' Associates Med. Imaging, 626 A.2d 856 (Del. Super. Ct. 1993). In Bissell, the personal representative of the estate of the deceased patient brought a medical malpractice action against a radiologist, alleging negligence in reading and reporting the results of a series of three mammograms over a three-year period. Id. at 857. Bissell's doctor ordered diverse diagnostic tests that were conducted by different diagnostic laboratories, but one laboratory, the defendant in this case, performed the mammograms. Id. at 858. The mammograms occurred in 1987, 1988, and 1989. Id. Each mammogram was compared to determine if there was any change from the previous one, and each one ruled out the possibility of cancer. Id. However, Bissell was diagnosed with breast cancer in 1990 and died as a result of it in 1991. Id. at 859.

[61]     Bissell claimed he adequately pleaded continuous negligent treatment. The radiologist argued that there was not a continuum of negligent medical treatment, rather the mammograms were discrete, separate, and not continuous. Id. at 860. The court recognized that Bissell was not seeing the radiologist for treatment, but as part of a complete diagnostic approach under the direction of her doctor. Id. However, the court also noted the importance of the comparison between the current and previous mammograms which evidenced a "need for benchmark testing in a routine, ongoing diagnostic situation in order to have a basis for comparison." Id. at 863. The court also stated the test reports established a continuum themselves because the standard at the laboratory was to reread the most recent prior mammogram as part of the interpretative process for the latest mammogram. Id.

[62]     The court acknowledged the facts in the case were not in dispute, but what was in dispute was whether the tests were separate and discrete as the radiologist claimed, or a continuum of negligent treatment as Bissell claimed. Id. at 864. The court looked to and quoted the passage above from Fonda, and concluded the radiologist's motion for summary judgment must be denied because it raised a genuine issue of material fact on the question of whether the mammograms were discrete negligent acts or a continuous negligent act. Id. at 865.

[63]     In Mandel v. Herrman, 271 A.D.2d 661, 662, 706 N.Y.S.2d 195, 196 (N.Y. App. Div. 2000), the court held that although routine diagnostic treatments, even when conducted repeatedly over a period of time, do not constitute a course of treatment, diagnostic examinations which are specifically prescribed as part of ongoing care for an existing medical condition may be sufficient to invoke the continuous treatment toll. In that case, the court ruled that there was an issue of fact as to whether defendant monitored decedent's lung condition after receiving a computerized report that revealed abnormalities.

[64]     Montgomery presented himself for care based on the medical services and expertise of the professionals at St. Anthony's Medical Center. He placed his trust in his neurosurgeon and those health care professionals who were involved in his medical care. He had no reason to doubt that during the course of his care and treatment of his lower back pain, including the radiological services, he was receiving continuous care from all of the doctors who provided their services to him. The radiological services were an essential part of his care without which his neurosurgeon could not properly treat him. These were vital services which were part of Montgomery's continuing care and thereby, essential to his treatment and recovery.

[65]     Therefore, Montgomery established a continuing relationship with his medical team through November 16, 1995, when he terminated the relationship by seeking care from another. See Weiss, 975 S.W.2d at 119-20. During their relationship, Montgomery believed that the team of health care professionals was acting in such a manner as to efficiently, promptly, and professionally diagnose the cause of his pain. The Thatcher rule is "based upon the concept...that the obligation and treatment be considered as a 'whole' until it ceases and the obligations arising therefrom should not be conceptually fragmented." Thatcher, 107 S.W.2d at 762. Each individual part of Montgomery's diagnosis was essential to his overall recovery and treatment of him as a patient. Thatcher anticipates a continuum of care that is essential to a patient. The medical team had information before it which showed Montgomery had a pre-cancerous condition and that further procedures needed to be performed. Since a doctor-patient relationship existed between Montgomery and the medical team charged with the duty of maintaining his health, the medical team was charged with the duty to inform and treat him for this condition.

[66]     In our rapidly changing technological society, there are daily medical advancements and achievements. These medical advancements change the practice of health care and the quality of patients' lives. People expect expanding medical care for their wide range of ailments. With this expectation, the reasonable patient realizes that the manner in which health care in this country is provided is changing. No longer do patients go to one physician expecting total treatment (HMOs); they realize that one doctor is neither capable nor competent in providing every medical specialty. However, patients do expect that their primary doctor will refer, consult, and rely on a team of duly qualified health care professionals to maintain and treat medical conditions for their total health care needs.

[67]     With medical achievements, new and unique administrative demands are placed upon doctors. We live in a society of increasingly managed health care. Doctors must cope with competing pressures to provide total patient care and to maintain low overhead costs. Their expanding caseloads require assistance from other health care professionals for specialized care or treatment. Patients understand that doctors are no longer capable of providing every essential service or treatment, but believe they will be assisted and monitored by likewise professional health care providers--a team management approach to enhance medical care.

[68]     Yet, when medical specialists assisting the primary care provider make mistakes, there must be accountability for their actions. We do not wish to encourage primary care providers to attempt medical care outside their capabilities, and we do not want to immunize those providing specialist care from liability due to the fact they are providing a specialist treatment and/or diagnosis.

[69]     Montgomery's radiological services were part of his whole treatment. SCR's doctors knew they were providing continuing care to those patients who routinely returned for radiological services. Montgomery claims the doctors knew this and assisted in continuing care by carefully detailing their diagnoses in a patient's jacket. SCR's services and the manner in which their services were provided could be seen as essential treatment to Montgomery's care and treatment of his lower back aliments. SCR's policies anticipated its doctors providing continuing care to patients. Montgomery presented evidence which showed that the radiologists had a continuing duty to care.

[70]     The continuing care exception to the statute of limitations cannot be mechanically applied. In the instant case, it cannot be determined as a matter of law that there was no continuing care relationship rising "to the level of medical care, services or treatment" which would foreclose Montgomery's claims. Kamerick, 907 S.W.2d at 266. Under the Thatcher rule, patient care should not be fragmented, but continues until either the treatment for the ailment is complete or the relationship between the doctors and the patient is terminated. Thatcher, 107 S.W.2d at 762. Hence, we believe that Montgomery presented sufficient evidence of continuing care by Dr. Szoko and SCR which was of such a nature as contemplated in Thatcher to present a genuine issue of material fact, and the trial court improperly foreclosed his opportunity to seek redress for his injuries.

[71]     Further, SCR claims it is not liable as an entity. SCR cites Shah v. Lehman, 953 S.W.2d 955 (Mo. App. E.D. 1997) to further its proposition. However, the facts in Lehman are distinguishable from the circumstances in the instant case. In Lehman, the patient sought recovery from the hospital for several treatments received for a medical procedure performed on the left hip. There was more than a nine-year gap between the patient's treatments and contact with the hospital. The Court stated that a nine-year "lapse between treatments does not constitute 'continuing care.'" Lehman, 953 S.W.2d at 957.

[72]     The only other instance where Missouri courts have declined to apply the exception to entities also is distinguishable. As cited earlier, in Shalom Geriatric Center, 967 S.W.2d at 290, the Western District stated that the continuing care exception was not applicable to Shalom as an entity. Shalom was not providing care and treatment to the plaintiff. The Western District recognized that the treatment of the plaintiff's fractures was unrelated to the treatment and recovery from the patient's Alzheimer's and thus, held the continuing care exception did not apply to Shalom as an entity. This differs from the care and treatment provided by SCR in this case; the injury complained of is the source of Montgomery's care and treatment by SCR.

[73]     In the instant case, Montgomery's treatment by SCR totaled nine months. SCR had policies and procedures regarding those patients who continually sought its care and treatment. Additionally, the legislature in drafting the medical negligence statute clearly contemplated that medical entities could be held liable. Section 516.105 lists health care professions who could be liable for negligence, including "any other entity providing health care services and all employees of any of the foregoing acting in the course and scope of their employment...."(emphasis added). Accordingly, SCR cannot be shielded from liability as an entity.

[74]     Therefore, we find that the trial court improperly granted partial summary judgment in favor of SCR and summary judgment in favor of Dr. Szoko. We must reverse the summary judgment motions and remand the case to the trial court.

[75]     Dissenting opinion by Lawrence G. Crahan, Judge:

[76]     I respectfully dissent.

[77]     This case comes before us by way of an appeal of summary judgment entered in favor of Dr. Szoko and partial summary judgment entered in favor of South County Radiologists, Inc. ("SCR").

[78]     The facts are essentially undisputed. It is the parties' characterizations of the facts that diverge. In February 1995, Evan Montgomery ("Plaintiff") *fn10 was referred to the radiology department of St. Anthony's Medical Center ("St. Anthony's") by his neurosurgeon, Dr. Kennedy. Dr. Kennedy ordered x-rays and an MRI in an attempt to determine the cause of Plaintiff's complaints of low back pain. The x-rays and MRI were conducted by technicians employed by St. Anthony's. On February 14, 1995, the x-ray films and MRI films produced by the technicians were interpreted by Dr. Szoko, a licensed radiologist and shareowner of SCR, which was the exclusive provider of radiological services for St. Anthony's.

[79]     The fact that the x-ray and MRI films were interpreted by Dr. Szoko as opposed to some other radiologist employed by SCR was purely a matter of chance. After films are prepared, they are placed in a cart and are viewed and interpreted by whatever radiologist happens to be assigned such duties at the time. Dr. Szoko's findings were as follows:

[80]     There is uniform bone marrow signal with the exception of apparent fatty infiltration in the lower sacral region. There is normal high signal on T2 weighted sequence emanating from the discs. There was a two to three millimeter left perimedian extrusion abutting the thecal sac [at the L5-S1 level]. Aside from this, no significant extradural defect is identified. No spinal stenosis or foraminal stenosis seen.

[81]     These findings were noted on the jacket in which the films were kept and included in a report Dr. Szoko dictated for Dr. Kennedy. Although Dr. Szoko knew that Dr. Kennedy sometimes referred patients for radiological evaluation at St. Anthony's, Dr. Szoko did not know where Dr. Kennedy's office was located. Dr. Szoko never met Plaintiff and there is no indication in the record that Dr. Szoko ever knew or had any reason to know what became of him until suit was filed.

[82]     According to the third amended petition, Dr. Kennedy ordered physical therapy and trigger point injections for a bulging disc. Then in June 1995, Dr. Kennedy referred Plaintiff for a CT scan which was interpreted by Dr. Farnham. From the materials in the record, it does not appear that Dr. Farnham is employed by SCR, nor is it clear where this test was performed. According to the petition, Plaintiff underwent lumbar microdiscectomy surgery on June 30, 1995.

[83]     Early in July 1995, Dr. Kennedy ordered x-rays and an MRI of the lumbar spine and again referred Plaintiff to St. Anthony's to have these tests performed. Technicians at St. Anthony's performed the tests ordered by Dr. Kennedy and placed the films in a cart to be read by a radiologist from SCR. On July 13, 1995, the x-ray and MRI films were read by Dr. Habert, a licensed radiologist and shareholder of SCR. Dr. Habert's assignment to review the films was purely random. Dr. Habert's normal practice would be to review the prior films and notations on the jacket in addition to reviewing the current films. After reviewing the current films, Dr. Habert dictated a report of his findings for Dr. Kennedy and noted them on the jacket. Dr. Habert never met Plaintiff and never spoke with Dr. Kennedy or anyone else in his office in connection with his review of Plaintiff's films. Neither Dr. Kennedy nor Dr. Farnham ever informed Dr. Habert that Plaintiff was later diagnosed as having a tumor in his sacrum. Nothing in the record indicates that Dr. Habert either knew or had any reason to know what became of Plaintiff after he dictated his report.

[84]     In November 1995, Dr. Kennedy ordered another MRI of Plaintiff's lumbar spine and referred him to St. Anthony's. As before, the tests were performed by technicians at St. Anthony's and the films were placed in the jacket with the previous films. The jacket was then placed on a cart in a reading room. On November 3, 1995, the films were interpreted by Dr. Judd, a licensed radiologist and shareholder of SCR. Dr. Judd reviewed the July films and Dr. Habert's notations but did not review the February 1995 films because they were taken before Plaintiff's operation. The assignment of Dr. Judd to interpret the films was purely random. Dr. Judd dictated a report for Dr. Kennedy and noted his findings on the jacket. Dr. Judd had no recollection of speaking with Dr. Kennedy either before or after reviewing the films. Dr. Judd never met Plaintiff and there is nothing in the record to indicate that Dr. Judd either knew or had any reason to know what became of Plaintiff after he dictated his report. Dr. Judd did not consider the diagnostic services he performed to be the provision of care. He further testified that he had no continuing duty to review or follow up after he rendered his report. He first learned that Plaintiff was later diagnosed as having a mass or tumor in his sacrum when he was served with Plaintiff's petition.

[85]     On November 16, 1995, Plaintiff sought a second opinion from Dr. Farnham, who apparently reviewed the films interpreted by Dr. Judd. Dr. Farnham diagnosed a tumor at the S-1 level of Plaintiff's spine, which was later diagnosed as osteosarcoma. In May 1996, Plaintiff underwent surgery for this condition which resulted in further complications.

[86]     On May 23, 1997, Plaintiff filed suit against all of the physicians named above, the physicians who operated on him and SCR. Plaintiff claimed that Drs. Szoko, Habert, Judd and SCR were negligent in failing to diagnose his sacral tumor. Dr. Szoko and SCR moved for summary judgment and partial summary judgment, respectively, pointing out that the petition itself and Dr. Szoko's affidavit established that Dr. Szoko's only alleged act of negligence occurred more than two years before the suit was filed. The trial court sustained the motions. Plaintiff dismissed his remaining claims without prejudice and brought the instant appeal.

[87]     On appeal, Plaintiff does not dispute that the pleadings and Dr. Szoko's affidavit establish the existence of facts which would support a finding that the claim against Dr. Szoko is barred by the statute of limitations, specifically section 516.105 RSMo 1994. *fn11 Rather, Plaintiff claims that he is entitled to proceed under the "continuing care" exception to the statute of limitations first recognized in Thatcher v. De Tar, 173 S.W.2d 760 (Mo. 1943). As the party claiming exemption from the statute of limitations, Plaintiff bears the burden of establishing facts sufficient to establish that there is a genuine issue of material fact as to the applicability of the exemption. Kellog v. Kellog, 989 S.W.2d 681, 685 (Mo. App. 1999).

[88]     In Thatcher, the defendant had performed an appendectomy on the plaintiff and negligently left a surgical needle in plaintiff's body. 173 S.W.2d at 761. Following the surgery, the defendant continued to treat the plaintiff but failed to provide any relief. Id. The plaintiff later went to other doctors and submitted to another operation which led to discovery of the needle. Id. The plaintiff filed suit more than two years after the defendant performed the initial surgery but less than two years after the defendant last treated the plaintiff for his continuing pain. Id. The petition alleged that the defendant was negligent both in allowing the needle to remain in the plaintiff's body and in failing to discover the presence of the needle when treating him following the surgery. Id. Then, as now, the statute of limitations for medical malpractice required that the action be brought within two years of the date of the act of neglect complained of. Id. The trial court dismissed the action as barred by the statute of limitations. Id. at 760.

[89]     On appeal, the Missouri Supreme Court reversed. The court noted that the introductory section preceding the specific section applicable to malpractice, identical to what is now section 516.100, *fn12 provided that the limitations periods specified in the following sections were to begin to run only when the cause of action accrued and that a cause of action would be deemed to accrue only when the damage resulting from the act was sustained and capable of ascertainment. Id. Holding that this provision expressly modified the statute of limitations for malpractice, the court concluded that the legislature intended that the statute of limitations would not begin to run until the treatment by the defendant ceased. Id. at 762. The court further found that this conclusion was consistent with prevailing authority citing the following passage from 41 Am.Jur. 233, para. 123:

[90]     The general rule is not without exceptions. Thus, it has been held that the statute does not commence running until treatment by the physician or surgeon has terminated, where the treatment is continuing and of such a nature as to charge the medical man with the duty of continuing care and treatment which is essential to recovery until the relation ceases. . . . Id.

[91]     Applying this principle to the facts alleged, the court held that the statute of limitations did not begin to run until the defendant ceased treating the plaintiff. Id. at 763.

[92]     Although not essential to the disposition of the present appeal, it is important to note that much of the rationale for the rule announced in Thatcher was implicitly overruled by the Missouri Supreme Court en banc in Laughlin v. Forgrave, 432 S.W.2d 308 (Mo. banc 1968). In Laughlin, as in Thatcher, the petition alleged that the defendants negligently left a foreign object inside of the plaintiff during surgery. 432 S.W.2d at 310. This was not discovered until eleven years later, long after the defendants had ceased treating the plaintiff. Id. at 311. The court framed the issue as whether the statute of limitations began to run on "the date of the negligent act complained of" as provided in the predecessor to section 516.105 or on the date the resulting damage is "sustained and is capable of ascertainment" as provided in section 516.100. Although this precise question was presented and decided in Thatcher, and the court cited Thatcher as one of the cases that had been cited to it, the court did not discuss its earlier holding and instead embarked on a detailed examination of the legislative history of the two sections. Id. at 311-13. The court ultimately concluded that the two sections were in irreconcilable conflict. Id. at 313. Under such circumstances, the court held that the more specific provision, the predecessor to section 516.105, must prevail over the more general provision, section 516.100, and that section 516.100 could not be applied to toll the running of the statute. Thus, the court explicitly rejected the rationale articulated in Thatcher as to the legislature's intent.

[93]     Moreover, in Laughlin, the court quite pointedly admonished that the function of the appellate court is to interpret the law, not to disregard the law as written by the general assembly. Id at 314. If, as Laughlin holds, section 516.100 does not modify section 516.105 as to permit tolling of the statute, it is difficult to discern how recognition of a continuing care exception to toll the statute would not violate the Laughlin court's admonition. *fn13

[94]     The Missouri Supreme Court recently affirmed and followed its holding in Laughlin in Weiss v. Rojanasathit, 975 S.W.2d 113 (Mo. banc 1998), repeating the admonition discussed above about the function of the appellate courts. Id. at 117. Adding to the confusion, however, Weiss also evaluated the applicability of the continuing care exception recognized in Thatcher without discussing the explicit conflict between the reasoning of Laughlin and Thatcher. Id. at 119-20.

[95]     Although the foregoing analysis warrants caution in applying the continuing care exception pending further clarification by the Missouri Supreme Court, we need not solve the riddle posed by Thatcher, Laughlin and Weiss to resolve this case. That is because Plaintiff has not come forward with facts that would come within the continuing care exception recognized in Thatcher. Specifically, Plaintiff has failed to show that he was undergoing treatment by Dr. Szoko or SCR, let alone continuing treatment.

[96]     Dr. Szoko and SCR provided radiological diagnostic services, not treatment. Although interpreting x-ray or MRI films may be essential to permit the treating physician to provide proper treatment of a patient's condition, it does not, in and of itself, in any way alleviate the condition for which the patient is seeking medical assistance. What, if anything, can or should be done to alleviate the condition of which the patient complains is a decision made by the treating physician, not the radiologists. As indicated by Dr. Szoko's report quoted above, he made no recommendation as to what, if any, treatment should be undertaken in response to his findings. That is not the function of the radiologist. *fn14

[97]     Plaintiff makes much of the statements in the case law that a doctor-patient relationship continues until ended by (1) mutual consent of the parties, (2) reasonable notice and withdrawal by the physician, (3) patient dismissal of the physician, or (4) cessation of the necessity that gave rise to the relationship. Weiss, 975 S.W.2d at 119-20. Plaintiff emphasizes that neither Dr. Szoko nor SCR ever gave him any notice they were terminating the relationship. Leaving aside the fact that Plaintiff never met anyone associated with SCR, Plaintiff's argument overlooks the fact that, in the context of radiological diagnostic services, the necessity that gave rise to the relation ceases to exist when the report interpreting what is viewed on the films is transmitted to the treating physician. That is the sole reason the "relationship" was established and that purpose is accomplished when the report is rendered.

[98]     Plaintiff offered no expert testimony suggesting that, under the standards of the radiologists' profession, either Dr. Szoko or SCR owed any continuing duty to Plaintiff to monitor his progress or treatment. Nor does the fact that Plaintiff was referred to SCR more than once for x-ray and MRI studies establish any sort of continuing care. *fn15 Dr. Kennedy, not Dr. Szoko nor anyone at SCR, was solely responsible for determining whether any additional x-ray or MRI studies should be performed as well as the type of studies to be performed. Although the services performed by Dr. Szoko and SCR provided essential information to his treating physician, neither Dr. Szoko nor SCR were ever consulted as to the proper course of treatment. Nor, so far as can be determined from the record, were they ever informed of what treatment was being contemplated.

[99]     Plaintiff makes much of his affidavit as to his belief that "each of the physicians at [SCR] who had provided [him] with medical services over the nine month period . . . were his radiologists who were working together to help in [his] low back pain." The evidence, however, does not justify such an assumption. It could not be predicated on anything anyone at SCR told him because he never met anyone at SCR. There is no evidence of any participation by anyone from SCR in any decisions about the proper course of treatment. Plaintiff offered no expert testimony suggesting that radiologists can or should undertake such a role.

[100]    Because Plaintiff failed to come forward with any evidence that Dr. Szoko or SCR were responsible for treating him, it is unnecessary to determine whether the continuing care exception may properly be applied to an entity such as SCR. I do observe, however, that there is not a scintilla of evidence in the record before us about the pace of medical advances, patients' expectations about HMO's or medical specialists, what patients understand doctors are capable of providing or how patient care is managed generally. Whatever knowledge appellate judges have about such subjects is purely anecdotal. That is why policy judgments about such subjects are best left to the legislature while appellate judges confine their judgments to the record before them.

[101]    For the foregoing reasons, I would affirm the judgments. Because the majority opinion applies the continuing care exception without any evidence that Dr. Szoko or SCR were engaged in any continuing treatment of Plaintiff, I further certify that the decision is contrary to Thatcher and order the cause transferred to the Missouri Supreme Court pursuant to Rule 83.03.

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  Opinion Footnotes

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[102]    *fn1 . All further statutory references are to RSMo (1994) unless otherwise noted.

[103]    *fn2 . The dissent fails to characterize the facts in the light most favorable to the party against whom summary judgment was issued. Further, the dissent admits the parties have diverging characterizations of the facts which should per se require a reversal of summary judgment.

[104]    *fn3 . The radiological services were rendered in 1995 on February 14, July 13, and November 3.

[105]    *fn4 . While not essential to the disposition of the instant appeal, the dissent notes that the rationale for the rule announced in Thatcher was implicitly overruled in Laughlin v. Forgrave, 432 S.W.2d 308 (Mo. banc 1968). We disagree.

[106]    *fn5 . The Thatcher court scrutinized decisions from California, Minnesota, New York, Ohio and Wisconsin. Our research shows that continuing care or continuing treatment currently is recognized by: Alaska, Arkansas, Colorado, Connecticut, Delaware, District of Columbia, Illinois, Maryland, Minnesota, Missouri, Nebraska, New York, North Carolina, Ohio, Pennsylvania, South Dakota, Texas, Virginia, Washington, Wisconsin, and Wyoming.

[107]    *fn6 . The court also noted: "Counsel have not cited, nor has independent research disclosed, any decision of the Supreme Court of Missouri overruling the principles of Thatcher, and the exception therein adopted is still viable law controlling on this court." Id. at 215.

[108]    *fn7 . We tangentially note that the dissenting judge concurred in this opinion without commenting or challenging the continuing care doctrine's validity.

[109]    *fn8 . Following Weiss, the General Assembly amended Section 516.105 to modify the statute of limitations in cases where the act of neglect is the negligent failure to inform the patient of medical test results. Section 516.105(2).

[110]    *fn9 . Prior to resolving the continuing care issue on other grounds, the Brickey court cites to Dunagan and Lehman for the proposition that entities have not been held liable under the continuing care doctrine. As we previously discussed, the entities in those cases were not held liable because the continuing care doctrine could not have applied in those circumstances.

[111]    *fn10 . Mrs. Montgomery also brought derivative consortium claims.

[112]    *fn11 . Section 516.105 RSMo 1994 provides in pertinent part: All actions against physicians, hospitals, dentists, registered or licensed practical nurses, optometrists, podiatrists, pharmacists, chiropractors, professional physical therapists, and any other entity providing health care services and all employees of any of the foregoing acting in the course and scope of their employment, for damages for malpractice, negligence, error or mistake related to health care shall be brought within two years from the date of occurrence of the act of neglect complained of.

[113]    *fn12 . Section 516.100 provides: 516.100. Period of limitation prescribed. Civil actions, other than those for the recovery of real property, can only be commenced within the periods prescribed in the following sections, after the causes of action shall have accrued; provided, that for the purposes of sections 516.100 to 516.370, the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained.

[114]    *fn13 . Note that this would not leave plaintiffs without any remedy in a continuing care situation. If, as the plaintiff alleged in Thatcher, the defendant was negligent in failing to detect and remedy the harm caused by the initial negligent act, the defendant would still be liable for the harm attributable to such negligence occurring within two years prior to the filing of the petition, even if the original negligent act was no longer actionable.

[115]    *fn14 . Radiologists may, of course, in other settings, provide interventional services, such as radiation therapy, which would constitute treatment.

[116]    *fn15 . Although there are apparently no Missouri cases addressing the issue, cases from other jurisdictions have recognized that purely diagnostic services are intermittent rather than continuous services. See, e.g., Ealy v. Sheppeck, 669 P.2d 259, 260 (N.M. App. 1983) (Radiologist is not a treating physician for purposes of continuing care doctrine); Davis v. City of New York, 342 N.E.2d 516, 517 (N.Y. App. 1975) (Sequential cancer screenings were intermittent and discrete, not continuing care).

 

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