To Be Continued?: A Comment on the Continuous Negligent Treatment Rule
The Wisconsin Supreme Court adopted the continuous negligent treatment rule in Tamminen v. Aetna Casualty and Surety Company.[i] Under the rule, “the plaintiff is entitled to have the entire cause of action adjudicated if the action is timely brought, measuring that timeliness from the last negligent act in the related continuum of malpractice.”[ii] By its terms, then, the sole purpose of the rule is to extend the applicable statute of limitations, allowing a plaintiff to bring a lawsuit that may otherwise be time-barred.[iii] Given its effect, the rule runs contrary to the well-known purposes served by statutes of limitation, i.e., “to ensure the prompt litigation of valid claims and to protect the defendant from fake or fraudulent claims brought after the evidence has been lost and memories have faded.”[iv]
Although nearly thirty years have passed since the Court adopted the rule, its parameters remain ill-defined. This article traces the general contours of the rule as it has developed in Wisconsin, specifically focusing on the following question: when is a course of negligent treatment no longer continuous?[v]
II. Continuity is a Function of Timing, Legal Duties, and the Standard of Care.
A. The Wisconsin Court of Appeals Has Reached Conflicting Decisions Regarding the Length of Time that May Elapse Before a Course of Negligent Treatment is No Longer Continuous.
The plaintiff in a medical malpractice action must commence his lawsuit “within the later of: (a) Three years from the date of the injury, or (b) One year from the date the injury was discovered or, in the exercise of reasonable diligence should have been discovered . . . .”[vi] However, if the plaintiff alleges that he was subject to “a course of negligent medical treatment[, then the statute of limitations] accrues at the time of the last act of negligence that was a part of” the continuum.[vii] The rule applies only if: “1) There is a continuum of care . . . 2) There is a continuum of negligent medical care . . . 3) The medical care related to a single condition . . . [and] 4) The precipitating factor in this series or ‘continuum’ was the original” negligent act.[viii]
The Wisconsin Court of Appeals has analyzed and applied the continuity element in two published cases, reaching opposite results. In Westphal v. E.I. Du Pont De Nemours & Co., Inc.,[ix] the court held that the plaintiff did not prove a continuous course of medical treatment. In Forbes v. Stoeckl,[x] a decision rendered twelve years later, the court held that the plaintiff did prove a continuous course of negligent medical treatment.
Westphal was a medical malpractice lawsuit brought by Denise Westphal against Dr. Joseph Litow, in which Ms. Westphal alleged that she was injured by Teflon “contained in a temporomandibular joint (TMJ) implant . . . which was surgically placed in her jaw.”[xi] Ms. Westphal’s claim arose from the following course of treatment:
Westphal allege[d] that in November 1982, Dr. Joseph Litow . . . negligently performed a surgery to repair her left TMJ. In October 1983 and March 1984, Dr. Litow inserted Silastic implants in her front left and right TMJ’s. Westphal’s last visit with Dr. Litow was in October 1984. The Silastic implants were removed in December 1984 by Dr. Eugene Messer and replaced with Proplast implants . . . . In January 1986, Dr. Steven Sewall . . . removed the Proplast implants . . . and replaced them with temporary Silastic implants. These Silastic implants were removed in July 1986 by Dr. Sewall. He performed two further operations in June 1987.[xii]
Based on the foregoing, Ms. Westphal filed suit against Dr. Litow in October 1990.[xiii]
Dr. Litow moved the circuit court for summary judgment, arguing that Ms. Westphal’s lawsuit was time-barred.[xiv] The circuit court agreed and granted Dr. Litow’s motion.[xv] Ms. Westphal appealed, arguing that “the statute of limitations [began] to run when the last negligent act occurred, in June 1987. Because she discovered her claim in April or May 1990, she argue[d] that her . . . complaint was timely . . . .”[xvi]
On review, the court of appeals (speaking through a two judge majority) began by noting that the one-year discovery rule “begins to run on the date when the injury is discovered or should have been discovered, but, in any event, permits no party to bring an action more than five years after the date upon which the act occurred out of which the cause of action arose.”[xvii] Accordingly, the majority continued: “[w]hether Westphal’s action was timely commenced against Dr. Litow turns on whether she received continuous negligent care.”[xviii]
With respect to the issue of continuity, the majority explained: “[t]he test . . . is ‘whether a lay person could reasonably conclude that the facts fall within a single unit or occurrence. We must determine whether the actions alleged to be negligent are sufficiently related in time and sequence to constitute a continuous course of negligence.”[xix] The majority continued: because the expiration of the statute of limitations creates a vested right in the defendant, “the amount of time that has passed between each allegedly negligent act is necessarily a primary factor in determining whether there has been a continuum of negligent treatment for the purposes of extending a limitations period.”[xx]
After reviewing Ms. Westphal’s affidavits, the majority concluded that Dr. Litow’s “allegedly negligent treatment was not continuous.”[xxi]
Westphal’s expert, Dr. William Irby, averred that Dr. Litow’s decision to operate on Westphal on November 10, 1982, was negligent . . . . Dr. Irby opined that the next negligent procedure occurred more than two years later when, on December 13, 1984, Dr. Messer replaced Westphal’s Silastic implants with Proplast implants. According to Dr. Irby, the next negligent acts occurred more than two-and-one-half years later, when in June 1987, Dr. Sewall performed two additional surgical procedures.[xxii]
Accordingly, the majority held that “Westphal’s claim against Dr. Litow began to run on November 10, 1982, the first and only date she allege[d] he was negligent.”[xxiii] “[S]ignificant gaps in time between each negligent act preclude the application of the continuous negligent treatment doctrine.”[xxiv]
Judge Gartzke issued a dissenting opinion regarding the continuity question. Judge Gartzke explained: “Because the test looks to what ‘a layperson could reasonably conclude,’ it should be liberally rather than strictly applied.”[xxv] Judge Gartzke continued:
The majority states that the amount of time that has passed between each allegedly negligent act is necessarily a primary factor in determining whether there has been a continuum of negligent treatment. Why the amount of time is "necessarily a primary factor" is not explained. The implication is that there may be other "primary" factors but the majority relies only on the passage of time between Dr. Litow’s operation on November 10, 1982, and Dr. Messer’s operation on December 13, 1984. Nor does the majority explain why the passage of about two years, without more, requires our holding that the second element, continuous negligent medical care, is unsatisfied.[xxvi]
Judge Gartzke would have held that the rule applied, citing two facts in support of his opinion: (1) Dr. Litow performed additional (non-negligent) procedures on Ms. Westphal “[i]n October 1983 and in March 1984”; and, (2) “about eight-and-one-half months passed between Dr. Litow’s last implant insertion in March 1984 and Dr. Messer’s allegedly negligent procedure on December 13, 1984.”[xxvii] Alternatively, Judge Gartzke suggested that if a bright-line rule was desirable, then that bright-line should track the (three year) statute of limitations, and three years had not elapsed between the alleged negligence of Drs. Litow and Messer.[xxviii]
Twelve years after Westphal, a different panel of the court of appeals decided Forbes, in which the bright-line issue re-surfaced. In Forbes, Dr. Clemens Stoeckl diagnosed Tammy Forbes with TMJ in 1989.[xxix] Two years later, Dr. Stoeckl recommended that Ms. Forbes
build up her bite using crowns. Stoeckl applied these crowns . . . over the next year. Between 1993 and 1999, Stoeckl continued to adjust the crowns . . . . According to Forbes’ expert, the crowns were too high for the teeth to which they were attached, and so they continued to come loose and fall out during these years. Because the crowns were loose, bacteria and saliva could enter the dentinal portion of the teeth, contributing to the need for root canals.
In 2000, Stoeckl decided to connect the crowns into four bridges. To anchor the bridges, he performed root canals . . . . Stoeckl performed the final root canals on September 18, 2001.[xxx]
Based on this course of treatment, Ms. “Forbes filed suit on July 7, 2004, alleging that Stoeckl treated her negligently and that he failed to inform her of the risks of the treatment or provide alternatives . . . .”[xxxi] Thereafter, Dr. Stoeckl moved for partial summary judgment, arguing that any negligent acts that occurred before July 7, 2001, were time-barred.[xxxii] The circuit court granted Dr. Stoeckl’s motion.[xxxiii] Ms. Forbes appealed.[xxxiv]
On appeal, Ms. Forbes argued “that the three-year statute of limitations found in Wis. Stat. § 893.55(1)(a) did not begin to run on any of the alleged malpractice until September 18, 2001, when Stoeckl last treated her,” relying on the continuous negligent treatment doctrine.[xxxv] In response, Dr. Stoeckl, relying on (what he believed to be) the two-year Westphal bright-line rule, “point[ed] to a five-and-a-half year gap between root canals in 1986 and 1992 and a six-and-a-half year gap between root canals in 1993 and 1999.”[xxxvi] Thus, the court was required to resolve “whether a ‘lay person could reasonably conclude that the facts f[e]ll within a single unit or occurrence.’”[xxxvii]
The court held that Dr. Stoeckl’s treatment of Ms. Forbes qualified as continuous negligent treatment, distinguishing Westphal:
[T]he fact that the procedures in Westphal were conducted by different doctors over time made it less reasonable to conclude that the facts fell within a single "unit or occurrence." Here, in contrast, we have a series of allegedly negligent procedures all performed by the same dentist and all allegedly a part of that dentist’s attempts to treat the TMJ that he had diagnosed.[xxxviii]
The court continued:
We further note that Stoeckl’s purported gaps in treatment are problematic on their own. The first one follows a 1986 root canal, which all parties agree was unrelated to the TMJ diagnosis (predating it by three years) and which Forbes has agreed is not at issue in this action. The second gap runs between root canals in 1993 and 1999; however, Forbes has alleged that Stoeckl continued to adjust and reattach the crowns that he had put in her mouth, and her expert averred that the crowns were ill-fitting and caused infection, leading to further root canals.[xxxix]
Accordingly, the court held “that Forbes’ claims constitute[d] a continuum of negligent treatment.”[xl]
Forbes may be read to suggest that the Westphal two-year bright-line is no longer good law and there is some non-authoritative support for that position.[xli] However, a careful reading of Forbes highlights that the court did not include the date of each specific (allegedly negligent) act in its decision. Given the lack of information regarding the course of treatment between 1993 and 1999, it is difficult (if not impossible) to determine (from the information publicly available) the length of time that elapsed between each treatment. Accordingly, it is unclear whether or not Forbes actually abrogated the two-year bright-line set forth in Westphal. Therefore, to the extent Forbes suggests that the defendant may not rely exclusively on the length of time between negligent acts, the defendant should research related variables including his legal duties and the standard of care, which, as explained below, may impact the court’s decision regarding the issue of continuity.
B. The Length of Time Between Negligent Treatments May Be The Primary Consideration; However, the Defendant Should Also Research His Legal Duties and the Standard of Care.
The savvy defendant will not rely solely upon the length of time between negligent acts to defeat a plaintiff’s claim of continuous negligent treatment. Although a gap in treatment is relevant, the defendant should also research his legal duties and the standard of care to determine whether or not the care provided (including the time elapsed between contacts) is consistent therewith. In Wisconsin, there is only one published case that has directly addressed these issues.
Wiegert v. Goldberg was a medical malpractice lawsuit that arose out of Deborah Wiegert’s presentation at St. Joseph’s Hospital on November 24, 1997.[xlii] Beginning with that hospitalization, the following events allegedly transpired:
[Ms. Wiegert] saw Dr. Goldberg, who prescribed medication that provided relief of her symptoms. Following release from the hospital, Wiegert followed up with Dr. Goldberg by appointment on December 30, 1997, and then by phone in January and February 1998.
Wiegert’s symptoms returned and she called Dr. Goldberg on March 18, 1998. Dr. Goldberg prescribed 30 mg of Temazepam per day for thirty days without requiring an office appointment . . . .
On April 14, 1998, Wiegert called Dr. Goldberg’s office for a refill of Temazepam. Dr. Goldberg did not speak to Wiegert, but provided her with prescriptions for three thirty-day refills of Temazepam.[xliii]
Thereafter, during April 1998, Ms. Wiegert began to experience behavioral changes.[xliv] Accordingly, “[Ms.] Wiegert made an appointment with Dr. Goldberg for May 12, 1998.”[xlv] Following “the May 12 appointment, [Ms.] Wiegert’s condition deteriorated rapidly . . . [and she was eventually] committed to Sheboygan Memorial Hospital” on June 18, 1998.[xlvi]
The Wiegerts filed a medical malpractice lawsuit against Dr. Goldberg on June 14, 2001.[xlvii] Dr. Goldberg moved for summary judgment, “argu[ing] that the statute of limitations had run because the claim was not filed within three years of Dr. Goldberg’s last negligent act on May 12, 1998, the date of [Ms.] Wiegert’s final visit . . . .”[xlviii] In response, “[t]he Wiegerts argued that the continuum of negligent medical treatment doctrine extended Dr. Goldberg’s negligence to at least June 18, 1998, because Dr. Goldberg negligently failed to monitor [Ms.] Wiegert during the course of her use of Temazepam.”[xlix] The trial court rejected the Wiegerts’ arguments and granted summary judgment in favor of Dr. Goldberg.[l] The Wiegerts appealed.[li]
On appeal, the issue was “whether Dr. Goldberg’s duty to monitor [Ms.] Wiegert was ongoing and constant through the full ninety-day prescription refill period.”[lii] The Wiegerts argued “that Dr. Goldberg’s duty to monitor [Ms.] Wiegert continued through June 18, 1998, and therefore the last negligent act occurred on June 18, 1998, when no monitoring took place.”[liii] After reviewing the Wiegerts’ argument, which was based on their interpretation of the Wisconsin Supreme Court's decisions in Tamminen and Robinson v. Mount Sinai Medical Center, the court concluded: “No case law supports the Wiegerts’ position. The Wiegerts’ contention would furthermore lead to an unreasonable result. If physicians have a constant and ongoing duty to monitor patients through the end of a prescription drug regimen, how could we determine when a breach occurred?”[liv] The court continued:
We decline the Wiegerts’ invitation to impose such a vague and undefined duty on physicians. Even Dr. Breggin’s affidavit reveals that the scope of the duty the Wiegerts are attempting to place on Dr. Goldberg is unwieldy. In his affidavit, Dr. Breggin states that the "FDA approved manufacturer’s labeling for temazepam provides that . . . if it is taken for longer periods of time such as 2 to 3 weeks, periodic reevaluation is required." (Emphasis added).
While we acknowledge that the Wiegerts have established, for purposes of this appeal, that Dr. Goldberg had a duty to monitor [Ms.] Wiegert, we cannot agree that such a duty is constant and ongoing, subject to breach twenty-four hours a day during the entire prescription period. More appropriately, we hold that Dr. Goldberg had a duty at the time he wrote the prescriptions . . . .[lv]
Based on the foregoing, the court of appeals affirmed, thereby dismissing the Wiegerts’ lawsuit.[lvi]
In Hull v. Medical Associates of Menomonee Falls, Ltd., the court of appeals (albeit in an unpublished decision) again reviewed the scope of the health care provider’s legal duties in determining whether or not the plaintiff could rely on the continuous negligent treatment rule.[lvii] In Hull, Kelly Hull first complained of rectal bleeding to FHP on March 6, 1987.[lviii] Ms. Hull returned to FHP on March 10, 1987, at which time she consulted with Dr. Nelson.[lix] During the March 10th consultation, “Dr. Nelson did not attempt to identify the source of her bleeding, assuming that it was vaginal. No tests to rule out colorectal cancer were ordered.”[lx] Following the March 10th consultation, Ms. Hull “withdrew from FHP and began treatment at Medical Associates.”[lxi] Her first consultation at Medical Associates occurred in October 1989.[lxii] After one additional consultation at Medical Associates, Ms. Hull re-enrolled with FHP on March 30, 1990, consulting Dr. Nelson on May 22, 1990 and returning to FHP on May 2, 1991.[lxiii] No tests or screening for colorectal cancer were performed on either occasion.[lxiv] Ms. Hull was diagnosed with colorectal cancer in January 1992.[lxv] She died in October 1992.[lxvi]
David Hull commenced a medical malpractice lawsuit (against those health care providers involved with Ms. Hull’s treatment) on June 11, 1993.[lxvii] After a court trial, “the trial court concluded that FHP and Medical Associates were causally negligent for the death of Kelly Hull.”[lxviii]
The trial court ruled that although Kelly discovered she had colorectal cancer in January 1992, she did not ‘discover’ that she was misdiagnosed in March 1987 at any time. Accordingly, the trial court ruled that the lawsuit filed in June 1993 was filed within one year from the date of discovery. The trial court also ruled that the continuum of negligent treatment doctrine applied, which extended the five-year statute of repose because FHP’s last act of continuing negligent treatment occurred in May 1991. Accordingly, the June 1993 filing fell within the five-year time limit of § 893.55(1)(b), Stats.[lxix]
FHP and Medical Associates appealed.[lxx]
On appeal, FHP argued that the claim was time-barred based on the argument “that the critical date relative to the claim against it was the office visit with Dr. Nelson on March 10, 1987.”[lxxi] The court of appeals rejected FHP’s argument, explaining:
Here FHP’s causal negligence occurred in March 1987. Nevertheless, a continuum of alleged negligent treatment continued at Medical Associates in October 1989, and again at FHP in May 1990 and May 1991. There was evidence at trial that FHP is under a continuing duty to review patients’ completed medical history each time they are seen for whatever reason. Thus, the trial court’s finding that Dr. Nelson was under a continuing duty to assess Kelly’s complaints was not clearly erroneous.[lxxii]
Accordingly, the court of appeals affirmed the circuit court’s decision with respect to this issue.[lxxiii]
The court of appeals’ decisions in Wiegert, and, to a lesser extent in Hull (if only because of its unpublished status), highlight that, as part of the continuity question, the defendant should consider his legal duties under the circumstances. And, by extrapolation, Wiegert and Hull stand for the proposition that a gap in treatment, by itself, may not defeat the plaintiff’s reliance thereon. If, for example, the standard of care does not require that the plaintiff consult with his health care provider more frequently than bi-annually, it stands to reason that a two-year gap in treatment may not automatically dispose of the plaintiff’s reliance on the continuous negligent treatment rule. Therefore, rather than relying solely upon a gap in treatment, the defendant should also research related variables including his legal duties and the standard of care, to defeat the a claim of continuous negligent treatment.
The determination of whether or not the plaintiff may rely on the continuous negligent treatment rule is a fact-intensive inquiry that requires the defendant to analyze the plaintiff’s course of treatment. Although the applicability of the rule is unclear, by researching each of the areas discussed herein, the defendant is well-positioned to defeat the plaintiff’s reliance on the rule.
[i] 109 Wis. 2d 536, 327 N.W.2d 55 (1982).
[ii] Id. at 558.
[iii] See, e.g., Maluka v. Tucker, 117 Wis. 2d 1, 7, 343 N.W.2d 407 (Ct. App. 1983).
[iv] Strassman v. Muranyi, 225 Wis. 2d 784, 788, 594 N.W.2d 398 (Ct. App. 1999) (internal brackets and citation omitted).
[v] It is unclear whether or not the continuous negligent treatment rule applies only to medical malpractice lawsuits. Cf. Robinson v. Mount Sinai Med. Ctr., 137 Wis. 2d 1, 25, 402 N.W.2d 711 (1987) with Kolpin v. Pioneer Power & Light Co., Inc., 162 Wis. 2d 1, 18-25, 469 N.W.2d 595 (1991).
vi] Wis. Stat. § 893.55(1m)(a)-(b).
[vii] Tamminen, 109 Wis. 2d at 562.
[viii] Robinson, 137 Wis. 2d at 28-29. See generally Clark v. Erdmann, 161 Wis. 2d 428, 442-44, 468 N.W.2d 18 (1991) (holding continuous negligent treatment rule inapplicable when plaintiff fails to show continuous treatment).
[ix] 192 Wis. 2d 347, 531 N.W.2d 386 (Ct. App. 1995).
[x] 2007 WI App 151, 303 Wis. 2d 425, 735 N.W.2d 536.
[xi] Westphal, 192 Wis. 2d at 355.
[xii] Id. at 357-58.
[xiii] See id. at 368.
[xiv] See id.
[xv] See id.
[xvii] Id. at 368-69.
[xviii] Id. at 369.
[xix] Id. at 370 (internal citation omitted; emphasis added).
[xx] Id. at 373-74.
[xxi] Id. at 374.
[xxii] Id. (emphasis added).
[xxiii] Id. at 375 (footnote omitted).
[xxiv] Id. at 375 n.4. See also Flynn v. Szwed, 586 N.E.2d 539, 545 (Ill. App. Ct. 1991) (“[W]e do not believe that a year-long regular course of treatment, followed by a 15-month gap, two weeks of treatment and a 12-month gap constitutes ‘continuous treatment’ sufficient to toll the limitations period.”).
[xxv] Id. at 376 (emphasis added).
[xxvi] Id. at 377 (internal citation omitted).
[xxviii] See id. at 377-78; see also Schoenrock v. Tappe, 419 N.W.2d 197, 201-02 (S.D. 1988) (holding that the continuous representation doctrine did not apply when the length of time between attorney-client contacts was greater than the three-year statute of limitations).
[xxix] See Forbes, 303 Wis. 2d 425, ¶ 2.
[xxx] Id., ¶¶ 2-3 (footnotes omitted; emphasis added).
[xxxi] Id., ¶ 4.
[xxxii] See id.
[xxxiii] See id.
[xxxiv] See id.
[xxxv] Id., ¶ 5.
[xxxvi] Id., ¶ 6.
[xxxvii] Id., ¶ 7 (citation omitted).
[xxxix] Id. n.5 (emphasis added).
[xl] Id., ¶ 11.
[xli] See Hull v. Med. Assocs. of Menomonee Falls, Ltd., unpublished slip op., No. 97-AP-1246 (Wis. Ct. App. Dec. 29, 1998) (holding that the plaintiff could pursue her claims arising out of a course of treatment where there was only one two-year-plus gap and there was evidence of a continuing duty to monitor).
[xlii] 2004 WI App 28, ¶ 2, 269 Wis. 2d 695, 676 N.W.2d 522.
[xliii] Id., ¶¶ 2-4.
[xliv] See id., ¶ 4.
[xlvi] Id., ¶¶ 5-6.
[xlvii] See id., ¶ 7.
[l] See id.
[li] See id.
[lii] Id., ¶ 12.
[liii] Id., ¶ 17.
[liv] Id., ¶ 20.
[lv] Id., ¶¶ 20-21.
[lvi] See id., ¶ 22.
[lvii] See Hull, unpublished slip op., No. 97-AP-1246. Cf. Bissell v. Papastavros’ Assocs. Med. Imaging,626 A.2d 856, 863-65 (Del. Super. Ct. 1993).
[lviii] See Hull, unpublished slip op., No. 97-AP-1246.
[lxi] See id.
[lxii] See id.
[lxiii] See id.
[lxiv] See id.
[lxv] See id.
[lxvi] See id.
[lxix] See id.
[lxxiii] See id.