Background
Dane Templeton sustained an injury to his right knee and thigh for which Dr. Charles Orth performed surgery on September 18, 2012. Templeton returned to Dr. Orth for follow-up evaluations over the course of several months. Dr. Orth did not provide any medical care to Templeton between his last postsurgical check-up on December 6, 2012, and December 10, 2015, when Templeton returned to Dr. Orth because of swelling in his right knee. Dr. Orth operated on the knee again and provided follow up care through August 2016. On August 18, 2016, Dr. Orth prescribed an antibiotic. Templeton’s last appointment with Dr. Orth was on August 29, 2016. During the appointment, Dr. Orth wrote Templeton a prescription for a pain relief drug and advised Templeton he would “see him in a month at least.”
Templeton scheduled an appointment with an infectious disease doctor, Dr. Albert Eid, for September 1, 2016. As recommended by Dr. Eid, Templeton saw Dr. Michael Tilley, an orthopedic doctor at KU medical center, on September 7, 2016. Templeton elected one of the two treatment options offered by Dr. Tilley and – without consulting Dr. Orth – stopped taking the antibiotics. As Dr. Tilley predicted, the infection in Templeton’s leg worsened.
On October 11, 2016, Dr. Tilley reviewed Templeton’s MRIs and identified two masses in his thigh. That same day, Dr. Tilley performed surgery on Templeton’s thigh and removed two pieces of wood that had been left in the leg after his 2012 accident. After surgery, Templeton continued seeing Dr. Tilley for post-operative care and did not see Dr. Orth again.
On October 9, 2018, Templeton sued Dr. Orth and Orthopedic Surgeons, Inc. Templeton alleged that, among other things, Dr. Orth was negligent in his failure to appropriately recognize, evaluate, treat and otherwise resolve Templeton’s condition. Dr. Orth filed an answer and raised the affirmative defense that Templeton’s cause of action was barred by the two-year statute of limitations in section 516.105.
Continuing Care Exception
Generally, according to Missouri law, medical malpractice suits must be brought within two years of the date of the alleged act of negligence. §516.105.1. One exception to this two-year limitation is the common law doctrine commonly referred to as the continuing care exception: the statute of limitations does not begin to run if the physician’s treatment is continuing and of such a nature as to charge the physician with the duty of continuing care and treatment which is essential to recovery. The continuing care exception exists so the patient, in the face of a short statute of limitations, is not forced to choose between interrupting a course of treatment by suing their physician or losing their cause of action.
The duty to attend the patient continues and, therefore, the statute of limitations is tolled so long as required unless the physician-patient relationship is ended by (1) the mutual consent of the parties, (2) the physician’s withdrawal after reasonable notice, (3) the dismissal of the physician by the patient, or (4) the cessation of the necessity that gave rise to the relationship. Absent good cause to the contrary, where the doctor knows or should know that a condition exists that requires further medical attention to prevent injurious consequences, the doctor must render such attention or must see to it that some other competent person does so until termination of the physician-patient relationship.
The Supreme Court of Missouri stated in its Opinion issued on January 30, 2024: “Here, Templeton (1) sought a second opinion from Dr. Tilley, (2) received an alternative treatment plan from Dr. Tilley, and (3) consciously chose to follow
Dr. Tilley’s plan by discontinuing the antibiotics Dr. Orth prescribed without further consultation with Dr. Orth. Based on these three actions, all of which indisputably occurred before October 9, 2016, the only reasonable inference is that Templeton intended to terminate the physician/patient relationship with Dr. Orth at that time. Taken alone, any one of these actions may not have been enough to terminate the continuing care relationship. But even viewing these facts in the light most favorable to Templeton, the combination of these three actions ended Templeton’s continuing care relationship with Dr. Orth before October 9, 2016. Therefore, Templeton’s suit against Dr. Orth, filed on October 9, 2018, is barred by the two-year statute of limitation in section 516.105.”
Source Templeton v. Orth, D.O., No. SC100089.
If you or a loved one may have been injured due to medical negligence in Missouri or in another U.S. state, you should promptly consult with a Missouri medical malpractice attorney (or a medical malpractice attorney in your state) who may investigate your possible malpractice claim for you and represent you or your loved one in a medical negligence case, if appropriate.
Visit our website to be connected with Missouri medical malpractice lawyers, or medical malpractice lawyers in your state, who may assist you with your malpractice claim, or call us toll free at 800-295-3959.
Turn to us when you don’t know where to turn.
