Editor’s note: Missouri’s two-year statute of limitations will remain intact without a loophole after the Missouri Supreme Court in January 2024 said that the statute of limitations had run out for Dane Templeton to sue Dr. Orth. The state’s high court ruled that “the uncontested facts before the circuit court show Templeton’s medical malpractice action was time-barred.”
The patient got a second opinion from another physician, stopped taking the antibiotics Dr. Orth ordered and opted for the other physician’s treatment plan. “It is the combination of these three actions that unmistakably signaled his intent to end the continuing care relationship with Dr. Orth,” the state Supreme Court said in its ruling. “Because the undisputed facts show Templeton ended his physician-patient relationship with Dr. Orth before Oct. 9, 2016, Dr. Orth was entitled to judgment, as a matter of law, that Templeton’s suit (filed Oct. 9, 2018) is barred by the two-year statute of limitations.”
The Missouri Supreme Court is set to determine whether patients will, in effect, have an indefinite amount of time to file medical liability claims against their physicians.
The state has a strict two-year statute of limitations on the time patients have to file a medical liability lawsuit. However, a state appellate court ruling in the case, Templeton v. Orth wrongly opened a big loophole, according to an amicus brief filed by the Litigation Center of the American Medical Association and State Medical Societies, the Missouri State Medical Association (MSMA) and the U.S. Chamber of Commerce.
The brief urges the state’s highest court to overturn an appellate court ruling allowing a man to go forward with a claim under the “continuous-course-of-treatment” doctrine, aka the “continuing care” doctrine. The court-created exception to the filing time limit has, traditionally, only been allowed in highly limited circumstances in which a patient continues to get care for an injury caused by medical negligence from the physician who provided the care leading to the injury.
The problem in this case, the brief says, is that the patient wasn’t continuing to receive care from the physician he alleges caused him injury.
“Extending Missouri’s continuous-course-of-treatment doctrine whenever a patient subjectively decides he or she is in a physician-patient relationship would create a large, unintended loophole in the statute of limitations,” says the brief. “Rather than dismiss untimely claims, a relaxed application of the doctrine would result in unnecessary, expensive trials that would raise the cost of health care for Missouri residents.”
Data from 2016 to 2018 shows that a defense verdict at trial costs five times more than the court dismissing the case—$158,843 versus $30,439 for cases that are dropped, dismissed or withdrawn, according to the AMA’s “Medical Liability Reform Now! 2023” resource (PDF).
Find out more about the cases in which the AMA Litigation Center is providing assistance and learn about the Litigation Center’s case-selection criteria.
Man no longer physician’s patient
The facts in the case are undisputed, but two courts interpreted them differently.
Orthopaedic surgeon Charles Orth, DO, first treated Dane Templeton in September 2012, operating on the man’s right leg that was injured after Templeton was ejected from a golf cart into a barbed wire fence and tree. Clinic notes show Dr. Orth released Templeton from his care in December of that year.
More than three years later, Templeton returned to Dr. Orth because his right knee was swollen. In the first half of 2016, Dr. Orth treated the man, including performing arthroscopy and arthrotomy. The last appointment was Aug. 29, 2016. Dr. Orth wrote Templeton a prescription for trimethoprim/ sulfamethoxazole (marketed as Bactrim) and told him to schedule a follow-up visit.
But Templeton never scheduled another appointment with Dr. Orth. Instead, in September 2016, Templeton saw a different orthopaedic surgeon who advised him to stop taking the medication Dr. Orth prescribed. Templeton complied, and the new orthopaedic surgeon operated on Templeton’s right leg on Oct. 11, 2016, discovering two foreign bodies that may have been from the golf-cart crash.
The circuit court in Templeton’s case filed on Oct. 9, 2018 said the state’s two-year statute of limitations applied to both encounters with Dr. Orth and dismissed the case. The appellate court agreed that the statute applied to the 2012 encounter, but said an exception could be granted for the care Templeton received from Dr. Orth in 2016 under the continuing care doctrine.
Court needs to draw a bright line
A number of states have a continuing care doctrine, with courts recognizing that there are times when a physician who may have been negligent is best positioned “to identify and correct his or her malpractice.” If that can be done, “it not only advances the patient’s care, but also can avoid the need for litigation,” the AMA Litigation Center brief says, citing earlier court rulings in Ohio and New York.
But, the brief notes with numerous examples, courts in states such as New York, Louisiana and North Carolina and beyond have opined that there needs to be actual treatment and not just a relationship between the patient and physician. In addition, the ongoing treatment needs to be related to the injury. That didn’t happen in Templeton’s case.
“Without this clear application, there would be no bright line rule or predictability,” the brief says. “A patient may subjectively decide when he is no longer under a physician’s care, thereby giving him the ability to make his otherwise time-barred claims timely.”
