Opinion
MASTER FILE 00 Civ. 2843 (LAK)
October 15, 2003
PRETRIAL ORDER NO. 206 ( Nicholas — Maes and Duke Summary Judgment Motions)
Defendants Stephen R. Maes, M.D., and Richard Duke, M.D., move for summary judgment dismissing the complaint as to them. In a report and recommendation dated September 23, 2003, Magistrate Judge Katz recommended that the motion of Dr. Maes be granted and that of Dr. Duke be granted in part but denied with respect to the alleged medical malpractice claim against him. Dr. Duke alone objects, arguing that the malpractice claim is barred by the statute of limitations.
Dr. Duke prescribed Rezulin for plaintiff on September 9, 1999. This action was not commenced until March 19, 2002. The pertinent Arkansas statute of limitations is two years, and it runs from "the date of the date of the wrongful act complained of and no other time." ARK. CODE ANN. § 16-114-203. Thus, the malpractice claim against Dr. Duke is barred unless the statute was tolled by Arkansas' continuous treatment doctrine in view of the fact that Dr. Duke treated plaintiff for diabetes as late as March 23, 2000, at which time, according to his medical records, it appears that plaintiff was still taking Rezulin.
Arkansas has adopted a variant of the continuous treatment doctrine. E.g., Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1986). It applies "when the medical negligence consists of a series of negligent acts, or a continuing course of improper treatment." 295 Ark. at 675, 752 S.W.2d at 27. As Arkansas courts repeatedly have held, it does not apply "to claims based on single, isolated acts of negligence." E.g., Baker v. Radiology Associates, 72 Ark. App. 193, 198 S.W.2d 354, 356 (2000) (collecting cases).
Dr. Duke argues that he is entitled to dismissal because the prescription of a drug is a single act under Tullock v. Eck, 311 Ark. 564, 845 S.W.2d 517 (1993). But he unjustifiably expands upon the holding of that case. To be sure, the Arkansas Supreme Court there held that the
statute was not tolled where the physician did no more than prescribe a drug simply because the prescription was refillable, noting that the continued ingestion of the drug did not constitute a continuous course of treatment. On the other hand, the Tullock court reaffirmed the view taken in Lane, viz. that "the continuous treatment doctrine becomes relevant when the medical negligence consists of a negligent act followed by a continuing course of treatment for the malady which was the object of the negligent treatment or act." 311 Ark. at 570, 845 S.W.2d at 521.
Baker v. Radiology Associates, 72 Ark. App. 193, 35 S.W.3d 354 (2000), upon which Dr. Duke relies heavily, did not alter this principle. The plaintiff there had regular screening mammograms over a period of ten years. The 1998 mammogram revealed a suspicious mass which, upon biopsy, proved to be malignant. Review of films taken in prior years allegedly showed that a suspicious lesion was apparent on mammograms taken in 1994, 1995 and 1996. Plaintiff then sued the radiologists who read the earlier films for malpractice and sought to come within the continuous treatment doctrine in an effort to avoid dismissal for untimeliness. The Arkansas Court of Appeals rejected plaintiff's argument. It noted that "the mammograms were conducted for screening purposes only" and that there was "no indication that the radiologists were engaged in the ongoing treatment of [plaintiff] for any specific condition." 72 Ark. App. at 201, 35 S.W.3d at 359. It therefore held that the continuous treatment doctrine did not save plaintiff's claim.
In this case, there is at least a genuine issue of material fact as to whether Dr. Duke continued to treat plaintiff for diabetes, "the malady which was the object of the [allegedly] negligent . . . act" — the prescription of Rezulin, within two years of the commencement of the action. Baker therefore is of no assistance to him. Accordingly, he is not entitled to summary dismissal of the malpractice claim on limitations grounds.
The motions of Stephen R. Maes, M.D., and Richard Duke, M.D., for summary judgment dismissing the complaint are granted in all respects save that Dr. Duke's motion for summary judgment dismissing the medical malpractice claim against him is denied.
SO ORDERED.