dissenting. I respectfully dissent. The negligence attributed to Dr. Eck occurred on November 30,1987, when he prescribed estrogen for Ms. Tullock, although by Tullock’s story, Dr. Eck knew at the time that Tullock had a mass in her breast, she had not had a biopsy and she had not been informed of the risks with respect to not having a biopsy. When Tullock saw a different doctor in June of 1989, she discovered that the mass in her breast was malignant and that the cancer was estrogen dependent. She filed suit against Dr. Eck in December of 1990, which was about three years, one month after Dr. Eck’s purported negligence in November of 1987. The statute of limitations for medical malpractice is two years.
Obviously, Dr. Eck’s negligence, if any, is barred by the two-year limitation provision unless the facts show Tullock was under Dr. Eck’s continued treatment. Taylor v. Phillips, 304 Ark. 285, 801 S.W.2d 303 (1990); Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988). Under such facts, the statute of limitations is tolled until treatment is discontinued.
The facts must be viewed in Ms. Tullock’s favor. See Cordes v. Outdoor Living Center, Inc., 301 Ark. 26, 781 S.W.2d 31 (1989). In the circumstances of this case, the issue becomes whether Ms. Tullock’s continued ingestion of estrogen prescribed by Dr. Eck was continuous-physician treatment which tolled the two-year limitation provision. If so, her suit is timely since she continued taking estrogen until Dr. Eck refused to authorize further refills in June of 1989 when Tullock’s prescription expired. On November 30, 1987, Dr. Eck had given Tullock a prescription for estrogen which was refillable in quantities sufficient to provide treatment for at least a year and four months. Tullock obtained those refills on June 9,1988, and November 10, 1988.1 submit Dr. Eck’s treatment of Tullock terminated in June 1989, when he refused further medicinal care of Tullock or, for that matter, any type medical care of her.
Stedman’s Medical Dictionary, Fifth Lawyers’ Edition, defines the term treat as “to manage a disease by medicinal, surgical, or other measures; to care for a patient medically or surgically.” And treatment is defined in Stedman’s as “medical or surgical management of a patient.” In the instant case, Tullock could not have received estrogen without Dr. Eck’s authorization. Obviously, in managing Tullock’s health and medicinal needs, Dr. Eck exercised his discretion to give her estrogen but later he chose to take that medication from her by refusing any further refills.
The majority opinion cites no cases in point. For example, the case of Bernado v. Ayerest Laboratories, 470 N.Y.S.2d 395 (A.D. 1 Dept. 1984), held the continuous treatment doctrine did not apply, but there, the patient undertook self treatment by continuing use of a drug prescribed many years before — long after the prescribing doctor had discontinued treatment. No self treatment exists here. Tullock’s position is that she never left Dr. Eck’s care. In fact, she had returned to him after her malignancy was diagnosed so Dr. Eck would perform the surgery. An insight as to her continuing treatment by Dr. Eck is Eck’s office manager’s testimony which indicated that Tullock was a returning patient in March 1990, her file had not been purged and the file was coded as a “periodic reexamination.” One physician, Dr. Paul Blaylock, averred that, in his opinion, Dr. Eck’s relationship did not end until April 1990, or at least until July 1989 when her prescription for estrogen ran out. In further support of her position, Tullock said that she did not go to any other doctor for estrogen or treatment of any kind until she saw a Dr. Johnson when her cancer was diagnosed. At the minimum, the proof here unquestionably raises a material fact issue as to whether Dr. Eck continued his treatment of Tullock to July 1989 or to April 1990. Either date would make timely the complaint Tullock filed in December 1990.
The majority opinion also mentions Millbaugh v. Gilmore, 285 N.E.2d 19 (Ohio 1972), where the court held the continuing course of treatment doctrine did not apply where the patient secured a refill of a prescription without the knowledge of the physician and after the physician-patient relationship had ended. Clearly, that is not the situation here.
The other cases cited by the majority are likewise distinguishable. In fact, the rationale related in Rowntree v. Hunsucker, 833 S.W.2d 103 (Tex. 1992), seems more to support Tullock’s, not Dr. Eck’s, position. In Rowntree, the doctor prescribed Sectrol as a medication for Hunsucker’s hypertension. After some visits to the doctor and getting refills, the doctor gave Hunsucker a prescription for Sectrol for a six-month period. About eight months later, she suffered a stroke. The Texas Supreme Court stated the controlling issue for limitation purposes was whether Hunsucker’s taking medication on a prescription that the doctor agreed to refill constitutes “a course of treatment” absent any other concomitant medical care, e.g., office visits or related diagnostic services. The Texas court rejected the doctor’s assertion that his last examination of a patient was the triggering event for the statute of limitations in a medical malpractice suit. The court concluded instead that there are some situations in which the statute would run from the date of the last drug treatment, if the course of that treatment is the direct cause of the injury. Because Hunsucker failed to allege the drug prescribed by the doctor actually caused Hunsucker harm, it declined to use the last drug treatment to toll the statute.
Here, Tullock’s drug treatment ended sometime after March of 1989, and before she sought to renew her prescription in June 1989. In either case, she had two years to bring suit — which she did — to allege that the estrogen she took could have caused the growth of a malignancy she now experiences. In this respect, Tullock specifically alleges here medical condition required a continuous course of monitoring and treatment, but her breast cancer was an estrogen-dependent tumor worsened by Dr. Eck’s treatment with estrogen medication. Dr. Blaylock opined the estrogen medication probably aggravated Tullock’s underlying medical condition.
In my view, this case has many factual determinations yet to be decided. Dr. Eck’s management of Ms. Tullock’s medicinal needs and health care clearly, in my estimation, constitute continuing treatment. That being so, I would reverse this cause and return it for further proceedings.