What Is The “Continuing Medical Treatment” Exception to the Statute of Limitations for Medical Malpractice?
A man in his mid-forties calls your office today. “I was just diagnosed with cancer,” he says. “Unfortunately, it has spread all over my body and my prognosis is poor.”
“I’m so sorry to hear that,” you reply. “What kind of cancer is it?”
“Testicular. I just found out that the tumor was present on an ultrasound in 2017, but nobody ever told me about it. My oncologist told me that if they had removed the testicle then, it is likely that I could have been completely cured. Now, he said there’s nothing he can do.”
You ask follow-up questions. You learn that his family doctor had ordered a pelvic ultrasound in 2017 for a possible hernia. The ultrasound came back negative for hernia but did show a small lesion in the left testicle. The radiologist who reviewed the ultrasound sent a report to the family doctor that described the concerning lesion, noted that the lesion might be malignant, and suggested prompt follow-up for evaluation with a urologist. Unfortunately, the family doctor did not order any follow-up and never told the patient about the finding.
In 2018, the family doctor retired, and the medical corporation that owned the family practice decided to close the practice and transfer all patients to another location of the same medical corporation. The client saw a different family doctor at the new office location for annual physicals in 2018 and 2019. Although the patient’s records were transferred from the former office location, these new doctors failed to review the medical history concerning his ultrasound study and the concerning testicular lesion.
Finally, in early 2020, further imaging studies demonstrated the metastatic spread of his cancer throughout his body.
As you begin to study the case further, you learn that your client had a particularly slow-growing form of cancer. You consult with an expert in oncology, who tells you that removal of the testicle in 2017 would have been curative, but that the chance of survival would have been less likely thereafter. By the time your client saw his new primary care physician in 2018, it was probably already too late.
Unlike other types of negligence cases, which are generally subject to a six-year statute of limitations, medical malpractice claims must be filed three years from when the action “accrues.” 24 M.R.S. § 2902. In the context of medical malpractice, a claim generally accrues on the date of negligence.
So, the question is this: Will your client be able to bring a claim for the negligence that occurred in 2017, now that it has been more than three years at the time this case comes across your desk?
The answer to this question turns on the breadth of “continuing negligent treatment,” a doctrine that was established by the Law Court in Baker v. Farrand, 2011 ME 91, 26 A.3d 806. Baker concerned malpractice of a primary care physician that took place over a decade. The physician defendant moved for summary judgment as to claims based on the care that occurred more than three years before the notice of claim was filed. The Superior Court granted partial summary judgment. However, the Law Court reversed, holding that “a plaintiff may bring a single action alleging continuing negligent treatment that arises from two or more related acts or omissions by a single health care provider or practitioner where each act or omission deviated from the applicable standard of care and, to at least some demonstrable degree, proximately caused the harm complained of, as long as at least one of the alleged negligent acts or omissions occurred within three years of the notice of claim.” Id. at ¶ 29 (emphasis added).
In your client’s case, we have acts of negligence inside and outside the past three years. But were the acts of negligence performed by “a single health care provider or practitioner”? In other words, does Baker apply only where the same individual was continually negligent, or does it apply to all agents of an incorporated health care organization? The viability of your client’s case turns on the answer to this question, which Baker leaves open.
For several reasons, we believe there is a strong case to be made that the “continuing negligent treatment” doctrine should apply to medical corporations, not just to individual providers.
The theory behind “continuing negligent treatment” is that, in many instances, medical care cannot be reduced to a static point in time. Some providers, like consulting specialists, may have duties that can be discretely defined to a single act or date. However, many other providers, like primary care physicians, assume a duty that is longitudinal, extending over time. When the duty naturally extends over time, such as the duty to coordinate the patient’s care, to obtain test results and reports from specialists, and to communicate with the patient and recommend a safe and reasonable approach to medical care and treatment, it would be arbitrary to limit the examination of whether such duty has been met to only those treatment dates within a three-year period. This is because the care provided within the three years is inextricably intertwined with, informed by, and assessed relative to the care that preceded it.
Moreover, although Baker v. Farrand involved an individual physician, limiting “continuing negligent treatment” to cases involving care provided by a single human would produce arbitrary and unfair results inconsistent with the reasoning of Baker.
Many of us remember a time when patients frequently treated with a given family doctor over their lifetimes. Not so long ago, most physicians were solo practitioners or partners in small groups. Primary care providers would go into hospitals to see their patients and would even occasionally visit patients in their homes.
That is not the way medicine is practiced today. Although some independent practices remain, most practices are now owned by large medical conglomerates. The corporation dictates the care relationships and how patient care will be provided. For example, the corporation may hire mid-level providers, in the form of nurse practitioners and physicians’ assistants, to perform much of the hands-on patient care. Likewise, patients may be shuttled from one doctor to another. In other words, the patient, through no choice of their own, may see numerous agents of their medical provider.
Additionally, where negligence occurs, the responsible individual may not be a doctor (or even mid-level provider) at all. For example, it may turn out in the example above, that the doctor in 2017 wrote an order for follow-up imaging and dictated a detailed letter to the patient describing the findings and his concern, but the medical assistant dropped the ball. The medical assistant, like the doctor, is an employee of the corporation, but is not considered a “medical provider.”
If Baker were construed to apply only to specific patient-doctor relationships, there would be numerous circumstances in which the corporate provider engaged in a continuing course of negligence, both before and after the three-year period, but that the patient would be precluded from alleging the earlier acts.
A rule that excuses corporate continuing negligence but punishes individual continuing negligence is also inconsistent with how the law generally applies to corporations. In general, we treat corporations as “persons” under the law, with the same rights and obligations as other persons. Indeed, corporations often request jury instructions reminding juries that “all persons, including corporations, are to be treated equal under the law.” Equal treatment under the law comes not only with privileges, but with responsibilities. Where a corporation provides continuing negligent care, both before and during the three-year statutory period, the corporation should be responsible for its agents’ negligent acts.