dissenting. This is a case of summary judgment granted on the basis that Dr. Eck’s alleged negligence occurred more than two years prior to the filing of Betty Tullock’s complaint. The majority affirms the summary judgment. I disagree.
The facts are that Dr. Eck was aware of a lump in Betty Tullock’s breast and recommended a mammogram in November 1987. On November 30, 1987, Dr. Eck wrote a prescription for the drug premarin, an estrogen supplement. Tullock refilled the prescription twice in 1988, pursuant to Dr. Eck’s authorization, the last time being November 10, 1988. We can assume for purposes of the motion that she continued taking premarin after refilling the prescription a second time.
Dr. Eck was negligent in prescribing premarin for a patient with a mass in her breast. In March 1990, Tullock was found to have breast cancer which was estrogen-dependent. She filed her complaint against Dr. Eck for medical malpractice on December 11, 1990.
The majority correctly quotes the limitation statute for medical malpractice that “The date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time.” Ark. Code Ann. § 16-114-203 (1987). A wrongful act, however, and specifically a negligent act, can be an act of commission or omission. National Fire Ins. Co. v. Yellow Cab Co., 205 Ark. 953, 171 S.W.2d 927 (1943). For purpose of summary judgment, we must assume that a negligent act was committed, not only by the prescription but by the failure to cancel the prescription or to advise Tullock of the formidable consequences of estrogen ingestion in her condition.
This is not a case of self-prescription by Tullock over an extended period of time. It is a case where the doctor, with knowledge of the patient’s condition, negligently prescribed an estrogen supplement for that patient and then negligently failed to stop the prescription.
It was the failure to terminate the prescription that tolls the statute of limitations; that act of omission occurred within two years of filing the complaint. At least, a material question of fact is involved here regarding the failure to terminate the prescription, and reasonable minds could differ as to when Tullock’s cause of action accrued. See McGuire v. Ortho Pharmaceutical Corp., 60 Ohio App. 3rd 54, 573 N.E.2d 199 (1989) (reversed summary judgment where statute of limitations applied to complaint of vision loss due to medication). I would reverse the summary judgment on the basis that this material question of fact has not been resolved.