dissenting. In paragraph V of her second amended complaint, Lorine Pastchol alleges that Dr. Scott McMahen rendered medical care to Idell Burton in August and September, 1991. That allegation has not been rebutted by any affidavit or other evidence presented by Dr. McMahen or any other defendant. A material factual issue thus remains. Ark. R. Civ. P. 56(c).
The error made by the Trial Court in rendering summary judgment and perpetuated here is illustrated by this statement from the majority opinion:
We believe appellant’s reliance on the doctrine of continuous treatment is misplaced, as that doctrine was not designed to extend the statute of limitations period in cases where only a single, isolated act of malpractice or negligence is alleged.
That statement ignores one of the logical bases of the rule illustrated in these statements we made in Tullock v. Eck, 311 Ark. 564, 845 S.W.2d 517 (1993):
If a physician is negligent in treating a patient but the patient continues to be treated by the physician for the condition which was the object of the negligent act or treatment, the patient should not be required to interrupt the treatment to bring suit against the physician because a statute of limitations is about to run. That is the most often stated rationale for the “continuous treatment doctrine” which tolls the statute of limitations until treatment is discontinued. Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988); Rountree v. Hunsucker, 833 S.W.2d 103 (Tex. 1992).
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[I]f the treatment by the doctor is a continuing course and the patient’s illness, injury, or condition is of such a nature as to impose on the doctor a duty of continuing treatment and care, the statute does not commence running until treatment by the doctor for the particular disease or condition involved has terminated.
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[T]he continuous treatment doctrine becomes relevant when the medical negligence consists of a negligent act, followed by a continuous course of treatment for the malady which was the object of the negligent treatment or act.
While these statements may be regarded as obiter in view of our holding in the Tullock case that there had been no continuing treatment by the physician for the malady which was the subject of the initial treatment, the rationale stated there was clear. Here we ignore it. Summary judgment should not have been granted at least as to the complaint against Dr. McMahen.
I respectfully dissent.
ROAF, J., joins.