Chalifoux v. RADIOLOGY ASSOCIATES

Present: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims
JJ., and Russell and Koontz, S.JJ.

ALYSSA CHALIFOUX OPINION BY
SENIOR JUSTICE LAWRENCE L. KOONTZ, JR.
v. Record No. 100052 April 21, 2011

RADIOLOGY ASSOCIATES
OF RICHMOND, INC.

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Clarence N. Jenkins, Jr., Judge

In this medical malpractice case, we consider whether

services rendered by a radiology group were single, isolated

acts or a part of the patient’s continuing treatment for the

purpose of determining when the statute of limitations began

to run.

BACKGROUND

In December 2002, Alyssa Chalifoux saw her family

physician, Dr. David Stein, after experiencing headaches and

other symptoms on the right side of her face. Dr. Stein

referred Chalifoux for a brain magnetic resonance imaging

(“MRI”) with Radiology Associates of Richmond, Inc.

(“Radiology Associates”) at Henrico Doctors’ Hospital.

The requested brain MRI was performed on December 23,

2002. Dr. Robert Y. Fidler, Jr., a radiologist at Radiology

Associates, interpreted the MRI and found no abnormalities.

On December 24, 2002, Dr. Fidler electronically signed a

report of his findings and issued the results to Dr. Stein.
 Dr. Stein thereafter referred Chalifoux to Dr. John D.

Blevins, a neurologist. Chalifoux saw Dr. Blevins on March 4,

2003 after experiencing severe pain on the right side of her

face. Dr. Blevins referred Chalifoux to Radiology Associates

for another brain MRI and a magnetic resonance angiography

(“MRA”) of the head.

The requested brain MRI and head MRA were performed on

March 9, 2003. Dr. A. John Kuta, a neuroradiologist at

Radiology Associates, read the images and reported no

abnormalities. Dr. Kuta electronically signed his reports and

issued the results to Dr. Blevins on March 10, 2003.

Dr. Blevins continued to care for Chalifoux. According

to Dr. Blevins’ records, Chalifoux experienced numbness on the

right side of her face on April 11, 2003 and July 21, 2003. 1

After the July visit, Dr. Blevins recommended another brain

MRI to evaluate Chalifoux’s symptoms. Dr. Blevins added that

if the tests were negative, Chalifoux could follow-up in six

months.

1
Additionally, Chalifoux saw Dr. Blevins on March 17,
2003 after developing additional pain in her joints and neck.
Dr. Blevins ordered an MRI of her cervical spine. Dr. Steven
M. Wiebe-King, a radiologist at Radiology Associates, read the
MRI and found some straightening of the cervical spine, a left
lateral disc protrusion, and a small central disc herniation.
Dr. Wiebe-King electronically signed a report of his findings
and issued the results to Dr. Blevins on March 10, 2003.

2
 On August 2, 2003, Chalifoux received another brain MRI

and an imaging of the skull. Dr. J. Keith Thompson, a

radiologist at Radiology Associates, read the images and

reported no abnormalities. Dr. Thompson electronically signed

his reports and issued the results to Dr. Blevins on August 2,

2003. Approximately six months later, Chalifoux received

another brain MRI. Dr. Thompson issued another brain MRI

report to Dr. Blevins on February 16, 2004. Again, Dr.

Thompson found no abnormalities.

Chalifoux saw Dr. Blevins again on October 17, 2005 for

her ongoing pain and numbness on the right side of her face.

Dr. Blevins ordered another brain MRI. On October 22, 2005,

Chalifoux received an MRI of the internal auditory canal.

This time, Dr. Kuta detected an “abnormality in the region of

the right cavernous sinus.” In his report, Dr. Kuta noted

that the abnormality “probably has been the cause of the

patient’s clinical symptoms and in retrospect is visible on

the previous exams dating to 12-23-02.” Dr. Kuta

electronically signed his report and issued the results to Dr.

Blevins on October 24, 2005.

Chalifoux filed suit against Radiology Associates on

October 12, 2007 in the Circuit Court of the City of Richmond.

Chalifoux later filed an amended complaint increasing the ad

damnum. In her amended complaint, Chalifoux alleged that she

3
“exhibited symptoms on the right side of her face consistent

with a tumor in the trigemenial region of her brain” from

December 2002 through October 2005, and that Radiology

Associates negligently read and interpreted various

radiological studies that would have shown this tumor as early

as December 2002.

Radiology Associates filed a plea of the statute of

limitations and requested an evidentiary hearing. After

receiving written memoranda and exhibits, the circuit court

conducted the hearing on August 13, 2009. Radiology

Associates asserted that Chalifoux’s suit was time-barred by

the two-year statute of limitations for personal injuries, and

that the so-called “continuing treatment rule” does not apply

in this instance because the care she received from the

radiologists was episodic. Chalifoux admitted that Radiology

Associates’ reading and reporting of the October 22, 2005 MRI

by Dr. Kuta was not negligent. She nonetheless maintained

that her suit was timely under the continuing treatment rule

because she filed her suit within two years of when the

physician-patient relationship ended. In support of their

positions, both parties presented testimony by experts in the

field of radiology.

Radiology Associates’ expert witness, Dr. Karsten F.

Konerding, testified that radiology is a consulting practice.

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Dr. Konerding considers a radiologist’s care episodic in

nature, and that, in the majority of cases, radiologists do

not have a continuing relationship with a patient who has come

for a single examination or even a series of examinations.

Dr. Konerding added that a radiologist rarely, if ever,

interacts directly with the patient, and that a radiologist’s

findings are reported to the referring physician, rather than

the patient. Dr. Konerding acknowledged that “if prior

examinations are available, good practice may require

comparison with previous examinations.” The reason for this

practice, according to Dr. Konerding, is to determine if any

current abnormalities are present on the prior studies and, if

so, to discern the significance of those abnormalities. Dr.

Konerding reiterated that a radiologist’s relationship with

the patient ends when the radiologist delivers the report and

interpretation of the images to the referring physician.

Chalifoux’s expert witness, Dr. Maurice H. Lipper,

testified that there was a continuum of care in this case

because “the patient had presented to the same practice with

the same symptoms and the same problems.” Dr. Lipper relied

on several factors when making this determination, including

the fact that all of Chalifoux’s studies were filed in the

same place, Radiology Associates billed Chalifoux directly for

the services it provided, and Chalifoux’s referring physicians

5
referred her to Radiology Associates each time they wanted

additional imaging studies. Dr. Lipper added that when a

radiologist reads a patient’s image, the radiologist will pull

up the patient’s file and review the patient’s previous

examinations to see if there are any examinations relevant to

the one the radiologist is reading.

Chalifoux also submitted into evidence the deposition

transcript of Dr. Howard F. Faunce, the president and

corporate designee of Radiology Associates. Dr. Faunce

testified that Radiology Associates performs its services at

Henrico Doctors’ Hospital under a contract with the hospital.

Pursuant to that contract, radiology technologists employed by

the hospital perform the medical imaging on the patient, while

radiologists employed by Radiology Associates interpret the

image and report the results to the ordering physician. Dr.

Faunce testified that typically the patient’s “history” is

communicated to Radiology Associates with each request for an

image study. Dr. Faunce explained that the “history” is the

information about the patient’s symptoms provided by the

patient and/or the physician ordering the procedure. Dr.

Faunce added that all of Radiology Associates’ imaging studies

are stored in a computerized storage system in the same file

under the patient’s name and are available to the radiologists

for review.

6
 At the conclusion of the hearing, the circuit court took

the matter under advisement. At a hearing on August 17, 2009,

the court sustained Radiology Associates’ plea of the statute

of limitations. By letter opinion dated October 1, 2009, the

circuit court ruled that Chalifoux’s treatments were “single,

isolated acts which do not toll the statute of limitations

under the continuous treatment rule.” The court found that

the comparison of test results by Radiology Associates

suggests adherence to appropriate diagnostic procedure, rather

than an assumption of ongoing treatment. The court further

found that the treatment rendered by the radiologists was

terminated after Radiology Associates produced their reports

and sent them to Chalifoux’s clinical physicians.

The circuit court thereafter denied a motion for

reconsideration by Chalifoux and dismissed the case. We

awarded Chalifoux this appeal.

DISCUSSION

Chalifoux assigns error to the circuit court’s failure to

apply the continuing treatment rule to the facts of this case.

Because this issue presents a mixed question of law and fact,

we conduct a de novo review. Luria v. Board of Dirs. of

Westbriar Condo. Unit Owners Ass’n, 277 Va. 359, 365, 672

S.E.2d 837, 840 (2009). In our review of the circuit court’s

application of the law to the facts, we give deference to the

7
circuit court’s factual findings and view the facts in the

light most favorable to Radiology Associates, the prevailing

party below. Id.

Medical malpractice actions are governed by the two-year

statute of limitations for personal injuries. Code § 8.01-

243(A). 2 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 in Virginia that the statute of limitations begins

to run when the plaintiff is injured, not when the plaintiff

discovers the injury. See Hawks v. DeHart, 206 Va. 810, 813,

2
Code § 8.01-243(C)(3) provides that the two-year period
specified in subsection (A) is tolled in the following
circumstance:

In a claim for the negligent failure to diagnose a
malignant tumor or cancer, for a period of one year
from the date the diagnosis of a malignant tumor or
cancer is communicated to the patient by a health
care provider, provided the health care provider's
underlying act or omission was on or after July 1,
2008. Claims under this section for the negligent
failure to diagnose a malignant tumor or cancer,
where the health care provider's underlying act or
omission occurred prior to July 1, 2008, shall be
governed by the statute of limitations that existed
prior to July 1, 2008.

Chalifoux has not alleged that Radiology Associates
failed to diagnose a malignant tumor or cancer. Even if
she had, her claims are based on alleged acts of
negligence that occurred prior to July 1, 2008.
Accordingly, this case is governed by the statute of
limitations found in Code § 8.01-243(A).

8
146 S.E.2d 187, 189 (1966); see also Van Dam v. Gay, 280 Va.

457, 460 n.2, 699 S.E.2d 480, 481 n.2 (2010) (noting that the

Virginia General Assembly has consistently declined to adopt

such a “discovery rule”). The continuing treatment rule

operates as an exception. Under the continuing treatment

rule, the statute of limitations begins to run at the

conclusion of the course of treatment for a particular disease

or condition. Harris v. K & K Insurance Agency, Inc., 249 Va.

157, 162, 453 S.E.2d 284, 286 (1995).

We first applied the continuing treatment rule in the

context of healthcare treatment in Farley v. Goode, 219 Va.

969, 252 S.E.2d 594 (1979). That case involved a dentist’s

failure to diagnose and treat the plaintiff’s periodontal

disease over the course of several years. Id. at 971-73, 252

S.E.2d at 595-97. In deciding when the statute of limitations

began to run on the plaintiff’s claim of negligent diagnosis

and treatment, we held:

[W]hen malpractice is claimed to have occurred
during a continuous and substantially uninterrupted
course of examination and treatment in which a
particular illness or condition should have been
diagnosed in the exercise of reasonable care, the
date of injury occurs, the cause of action for that
malpractice accrues, and the statute of limitations
commences to run when the improper course of
examination, and treatment if any, for the
particular malady terminates.

9
Id. at 976, 252 S.E.2d at 599. In applying these principles,

we found that “the duty with reference to an accurate

diagnosis persisted throughout the entire treatment because

upon each diagnosis rested the correctness of any future

conduct in respect to the periodontal disease,” therefore, the

statute of limitations began to run at the end of the dentist-

patient relationship. Id. at 976-77, 252 S.E.2d at 599. We

added, however, that the continuing treatment rule

“presupposes that a continuous course of improper examination

or treatment which is substantially uninterrupted is proved as

a matter of fact.” Id. at 980, 252 S.E.2d at 601. But

“[w]here the malpractice complained of constitutes a single,

isolated act,” the statute of limitations commences to run

from the date of the injury. Id.

We subsequently explained in Grubbs v. Rawls, 235 Va.

607, 611-12, 369 S.E.2d 683, 686 (1988) the rationale behind

the continuing treatment rule:

Part of our rationale in Farley was that as long as
the physician-patient relationship continued as to a
particular malady or injury, then it could not be
said that treatment had ceased. Another part of our
rationale in Farley was that unless a patient could
properly wait to the end of treatment before being
required to sue his or her physician, suits might
have to be brought while the physician was in the
midst of effecting a cure. We noted further that
permitting a patient to wait until the termination
of treatment before being required to file suit was
conducive to mutual confidence between physician and
patient because it gave the physician all reasonable

10
 time and opportunity to correct mistakes made at the
beginning of a course of treatment.

We further explained that Virginia has a true continuing

treatment rule in that “if there existed a physician-patient

relationship where the patient was treated for the same or

related ailments over a continuous and uninterrupted course,

then the plaintiff could wait until the end of that treatment

to complain of any negligence which occurred during that

treatment.” Id. at 613, 369 S.E.2d at 687.

In this case, it is undisputed that Radiology Associates

and Chalifoux had a physician-patient relationship. Thus, the

dispositive issue is whether “a continuous and substantially

uninterrupted course of examination and treatment” existed

between Chalifoux and Radiology Associates, or whether

Radiology Associates’ treatment of Chalifoux was a series of

“single, isolated act[s].” Farley, 219 Va. at 976, 980, 252

S.E.2d at 599, 601.

Chalifoux contends that the circuit court erred in

failing to properly apply the continuing treatment rule when

it sustained Radiology Associates’ plea of the statute of

limitations. Chalifoux maintains that the sheer fact she

repeatedly returned to Radiology Associates for brain studies

with the same or similar symptoms is indicative of a

continuing course of examination and diagnosis. Chalifoux

11
asserts that this continuing course of examination and

diagnosis terminated on October 24, 2005 when Radiology

Associates properly diagnosed and reported her tumor for the

first time. Chalifoux therefore maintains that her suit filed

on October 12, 2007 was within the two-year statute of

limitations.

Radiology Associates responds that the statute of

limitations has run on Chalifoux’s medical malpractice action,

and that the circuit court correctly ruled the continuing

treatment rule did not apply. According to Radiology

Associates, the last arguable date for Chalifoux’s medical

malpractice action to accrue was February 16, 2004, the date

of the last brain MRI which she claims was negligently

reported and interpreted. Radiology Associates maintains the

court made a correct factual determination, based on the

evidence before it, that the role of the radiologists in this

case consisted of single, isolated acts and not continuing

care.

While we have not previously considered whether the

continuing treatment rule applies to radiologists, other

jurisdictions have addressed this issue. For instance, the

circuit court relied on Baker v. Radiology Associates, P.A.,

35 S.W.3d 354 (Ark. Ct. App. 2000). In that case, the

plaintiff received nine annual mammogram screenings over a

12
period of ten years from a radiology group. Id. at 355.

After a cancerous mass was detected in the plaintiff’s left

breast, she filed a medical malpractice action against the

radiology group and the radiologists for failing to detect the

irregularity in previous mammograms. Id. at 355. The

plaintiff maintained that her complaint was timely under the

“continuous course of treatment doctrine,” but the trial court

disagreed. Id. at 355-56. The Court of Appeals of Arkansas

held that “the trial court did not err in concluding that the

continuous course of treatment [doctrine] did not apply to the

diagnoses rendered by the radiologists” since “the mammograms

were conducted for screening purposes only” and “there [was]

no indication that the radiologists were engaged in any active

consultation with the gynecologist or in the ongoing treatment

of appellant for any specific condition.” Id. at 359.

A similar result was reached in Grey v. Stamford Health

System, Inc., 924 A.2d 831 (Conn. 2007). As in Baker, the

allegedly negligent conduct occurred during the course of a

series of routine breast cancer diagnostic examinations. Id.

at 842. In deciding not to apply the “continuous treatment

doctrine,” the Supreme Court of Connecticut observed that

“[t]he plaintiff had no suspicious symptoms and was not

receiving ongoing treatment from any physician for any

particular breast condition.” Id. The court reasoned:

13
 Because routine periodic treatment, by its very
nature, has no natural termination point and cannot
culminate in a cure, it does not implicate the
public policy in favor of allowing the plaintiff to
terminate a course of treatment before [commencing]
the statute of limitations in order to avoid
disputes over the date of the negligent conduct and
to protect the doctor-patient relationship until a
cure is achieved.

Id. at 842-43. The court noted, however, that among the

courts that have applied the continuous treatment doctrine to

services provided by “consultative diagnostic practitioners,”

many have held that there must be some evidence that the

plaintiff “was being treated or monitored continuously for a

particular, existing medical condition and that he or she

reasonably anticipated ongoing diagnostic tests in connection

with such treatment.” Id. at 843 n.11.

For example, in Montgomery v. South County Radiologists,

Inc., 49 S.W.3d 191, 192-93 (Mo. 2001) the plaintiff’s

neurosurgeon referred him for diagnostic radiological services

in order to determine the cause of his chronic lower back

pain. On three occasions in a nine-month period, radiologists

from a radiology group interpreted x-rays and MRIs, but failed

to diagnose a cancerous tumor on the plaintiff’s spine. Id.

at 193. The trial court ruled that the plaintiff’s suit for

medical negligence against the radiology group was time-barred

by the two-year statute of limitations. Id. On appeal, the

radiology group maintained that each interpretation of an x-

14
ray or MRI is a “discrete, intermittent service” so the

“continuing care” exception to the two-year statute of

limitations did not apply. Id. at 194. The Supreme Court of

Missouri disagreed, holding that while the radiology group’s

“obligations are not as comprehensive as the treating

physician’s, its services are of such a nature to charge it

with accurately interpreting and comparing x-rays and MRIs for

the same complaint by the same patient about the same part of

the body, three times within a nine-month period.” Id. at

195.

The facts of this case are similar to those in

Montgomery. Between December 2002 and October 2005,

Chalifoux’s treating physicians referred her to Radiology

Associates on six occasions for diagnostic radiology studies.

During that time, Radiology Associates studied and interpreted

seven scans of Chalifoux’s brain and head. Each study related

to the same or similar symptoms: the pain and numbness on the

right side of Chalifoux’s face. 3 There is evidence that

Radiology Associates was aware of Chalifoux’s ongoing symptoms

because all the studies were kept in one file under

Chalifoux’s name, and both experts in this case testified that

3
According to the reports generated by Radiology
Associates, Chalifoux exhibited symptoms such as right-sided
paresthesias, headaches, sensation disorder, facial pain, and
trigeminal neuralgia.

15
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 Chalifoux and Radiology Associates.

Farley, 219 Va. at 976, 252 S.E.2d at 599. We therefore hold

that the circuit court erred in not applying the continuing

treatment rule to the facts of this case. Accordingly, the

statute of limitations began to run on October 24, 2005, the

day the physician-patient relationship between Radiology

Associates and Chalifoux ended. Thus, her suit brought on

October 12, 2007 was within the applicable two-year statute of

limitations.

CONCLUSION

For these reasons, we hold that the circuit court erred

in sustaining Radiology Associates’ plea of the statute of

limitations. Therefore, we will reverse the judgment of the

circuit court and remand the case for further proceedings

consistent with this opinion. 4

Reversed and remanded.

SENIOR JUSTICE RUSSELL, with whom JUSTICE GOODWYN joins,
dissenting.

4
In light of our resolution of this appeal on the
application of the continuing treatment rule, we need not
address the remaining issue raised.

16
 Undoubtedly, radiologists frequently act as treating

physicians, but there is no evidence that they ever did so in

the present case. Indeed, the circuit court made a finding of

fact from the evidence that the radiologists did not assume a

duty of providing treatment to Alyssa Chalifoux. Rather, the

court found that the radiologists assumed a duty to adhere to

“appropriate diagnostic procedure.” We are bound by that

finding.

When an appeal presents a mixed question of law and fact,

the factual findings of the trial court are entitled to the

same weight as a jury verdict. Although conclusions of law

are reviewed de novo, the trial court’s findings of fact will

not be set aside unless they are plainly wrong or without

evidence to support them. Transcontinental Ins. Co. v. RBMW,

Inc., 262 Va. 502, 510, 551 S.E.2d 313, 317 (2001). We have

specifically held that standard of review applicable where a

trial court has heard evidence on a claim that the statute of

limitations has been tolled. Fines v. Kendrick, 219 Va. 1084,

1086-88, 254 S.E.2d 108, 110-11 (1979). The majority opinion

appears to have abandoned that well-settled standard of review

by finding, from the same evidence the circuit court heard and

weighed, that the radiologists undertook the duty of providing

a continuing course of care and treatment to the plaintiff.

17
 The “continuing treatment rule” was first applied in

Virginia in Farley v. Goode, 219 Va. 969, 976-77, 252 S.E.2d

594, 599-600 (1979). There, a dentist undertook the

continuing care and treatment of a patient’s teeth over a

period of four years, during which he failed to diagnose and

treat periodontal disease. We held that on those facts, “when

malpractice is claimed to have occurred during a continuous

and substantially uninterrupted course of examination and

treatment,” the cause of action accrues when the course of

treatment terminates. Id. at 976, 252 S.E.2d at 599. As the

majority opinion points out, the rationale for the continuing

treatment rule is threefold: (1) to prevent the injustice of

requiring the patient to sue the physician while the physician

is trying to effect a cure, (2) to acknowledge the importance

of maintaining mutual confidence between physician and patient

during the course of treatment, and (3) to give the physician

a reasonable time to correct any mistakes made at the

beginning of treatment. Those considerations apply

exclusively to a defendant who is a treating physician. We

made that abundantly clear in Farley, where we said: “We

observe . . . that by ‘continuous treatment’ we do not mean

mere continuity of a general physician-patient relationship;

we mean diagnosis and treatment for the same or related

illnesses or injuries, continuing after the alleged acts of

18
malpractice.” Id. at 979, 252 S.E.2d at 600 (citation and

quotation marks omitted) (emphasis added).

The dispositive question, therefore, is whether the

radiologists were treating physicians with respect to the

plaintiff in this case. The circuit court, after hearing the

evidence, found that they were not. That finding is not

plainly wrong and is fully supported by the evidence.

The plaintiff did not select the radiologists and had no

connection with them. She was sent to a local hospital by her

family doctor and treating neurologist, on five separate

occasions in 2002, 2003 and 2004, to obtain radiology imaging

studies. There, she was subjected to the studies selected by

her treating physicians. The studies were administered by

technicians employed by the hospital, using the hospital’s

equipment. The test results were later interpreted by the

defendant radiologists who made their reports directly to the

treating physicians, not to the plaintiff. The plaintiff did

not employ the radiologists to care for her, to prescribe

treatment for her, or to follow up on her future course of

treatment, and they never did so. They were selected only by

her treating physicians as diagnostic consultants and they

played no other role. Their position, vis-a-vis the

plaintiff, was analogous to that of a laboratory to which a

19
treating physician sends blood or urine samples for analysis

and reports.

That evidence, in my view, fully supports the circuit

court’s 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.

The circuit court found that the radiologists assumed

only the duty to adhere to appropriate diagnostic procedures

in this case. The plaintiff’s evidence was that the last

breach of that duty was in 2004. This action, filed in 2007,

was barred by the two-year statute of limitations unless the

continuing treatment exception applies. Code § 8.01-243(A).

Because I consider the majority opinion to be an extension of

that exception unwarranted by these facts, I respectfully

dissent.

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