Chambers v. Conaway

GONZALEZ, Justice,

concurring.

I agree with the judgment of the Court. Summary judgment evidence establishes, through expert medical testimony, that the relevant standard of care requires the primary care physician to make inquiry and schedule follow-up care on women who complain about lumps in their breast. Dr. Spoil’s uneontroverted affidavit creates a fact issue as to whether Dr. Chambers breached this duty. I write separately, however, to express my concern regarding the uncertainty in determining when the statute of limitations begins to run in this type of case. I encourage the legislature to express more clearly its intent as to when the limitations period begins to run on primary care physicians who, by failing to establish procedures for adequate follow-up care and treatment, have breached a duty as established within the relevant medical community.1

*160In the ease before us, two mammograms, one in 1983 and the other in 1986, indicated that the lump in Mrs. Conaway’s breast was not cancerous. The last date on which Dr. Chambers saw Mrs. Conaway regarding the lump in her breast was June 16, 1986.2 Accordingly, unless there was a duty to continue follow-up care, June 16,1986, was the date the health care treatment for that condition was terminated and arguably, the limitations period began to run. Although Mrs. Cona-way visited Dr. Chambers on numerous occasions between June of 1986 and January of 1988, these visits were for reasons wholly unrelated to the lump in her breast, i.e., medication for a backache suffered as a result of an automobile accident, medication for a urinary tract infection, blood sugar testing, and treatment for high blood pressure.3 These unrelated visits should not operate to extend the limitations period indefinitely. Nevertheless, the present limitations statute does not provide a means for establishing when the limitations period runs on this duty to continue follow-up care.

In enacting the Medical Liability and Insurance Improvement Act, Tex.Rev.Civ.Stat. Ann. art. 4590i (Vernon Supp.1993), the legislature adopted an absolute two-year statute of limitations. Morrison v. Chan, 699 S.W.2d 205, 208 (Tex.1985). In order to be timely, suit must be brought within two years of the event giving rise to liability, the commencement of which runs from one of three dates: (1) the occurrence of the breach or tort; (2) the date the health care treatment that is the subject of the claim is completed; or (3) the date the hospitalization for which the claim is made is completed. Rowntree v. Hunsucker, 833 S.W.2d 103, 104 (Tex.1992); Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex.1987). The third situation is not applicable under the facts of this ease because there was no period of hospitalization. Thus, under the present statute, the limitations period began running from either the date of . the occurrence of the breach or tort, or the date the health care treatment that is the subject of the claim is completed.

Today the Court opts for the former by concluding the summary judgment evidence “tend[s] to establish that Dr. Chambers was negligent in his care of Mrs. Conaway up to the last appointment between them on January 19, 1988_ Consequently, when Mrs. Conaway filed her action on January 30, 1989, it was within two years of the purported ‘occurrence of the breach,’ and her claim was not barred by limitations.” 883 S.W.2d 158.

Classifying a failure to continue follow-up treatment as an “occurrence” for limitations purposes is problematic. Any such failure “occurs” the first time the doctor examines a patient and continues every day thereafter that the doctor fails to perform follow-up care. The Court cannot say, however, that the statute of limitations never begins to run in these circumstances because of the obvious clash with legislative intent. Instead, the Court decides that each time the patient revisits the doctor for any reason, there is a new “occurrence” of a failure to diagnose if there was a continuing duty to monitor the condition in question. Under this reasoning, establishing the two-year statute of limitations from the “occurrence of the breach” is now arguably an exercise in futility, because all an individual need do to extend the limitations period is to make another appointment.

Equally troubling, however, is a standard which allows for the limitations periods to begin running from the date the health care treatment that is the subject of the claim is completed. The applicability of this provision presupposes that there has been a continuing course of treatment for a condition and that the only readily ascertainable date of the injury is the last day of treatment. Rowntree v. Hunsucker, 833 S.W.2d 103, 105 (Tex.1992).4 Under the present facts, no *161continuing course of treatment for Mrs. Con-away’s breast condition had been established. In fact, the very “subject of the claim” is the failure to continue a course of treatment.

The present limitations statute is inadequate to readily ascertain when the limitations period begins to run on claims involving the failure to render follow-up care. Unless the legislature fixes this problem, the consequence of this uncertainty is that physicians may be indefinitely subjected to liability or may waste an inordinate amount of time and resources defending stale claims, or both.

. This duty should not be read as imposing on a physician an obligation to conduct follow-up care and treatment on his or her patients for every conceivable medical condition that the physician has treated. Unless the medical community’s standard of reasonable care requires periodic follow-up examinations for a particular condition, there is no duty on the part of the physician to undertake such procedures.

. After reviewing the radiological reports, Dr. Chambers told Mrs. Conaway that her breast was "alright.”

. Although she had been experiencing symptoms of breast cancer, Mrs. Conaway never advised Dr. Chambers of these symptoms.

."The provision ... that permits the limitations period to run 'from the date the medical or health care treatment that is the subject of the claim ... is completed' contemplates a situation wherein the patient’s injury occurs during a course of treatment for a particular condition and the only readily ascertainable date is the last *161day of treatment. Such a situation often arises in suits alleging misdiagnosis or mistreatment.” Kimball v. Brothers, 741 S.W.2d 370, 372 (Tex.1987).