Castillo v. Emergency Medicine ( 2004 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LATISHA S. CASTILLO, 
Plaintiff-Appellant,
v.
EMERGENCY MEDICINE ASSOCIATES,
P.A.,
Defendant-Appellee,  No. 03-1564
and
JOHN/JANE DOE, MD; PRINCE
WILLIAM HOSPITAL,
Defendants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-02-1167-A)
Argued: January 21, 2004
Decided: June 17, 2004
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the majority
opinion, in which Judge Motz joined. Judge Gregory wrote a dissent-
ing opinion.
COUNSEL
ARGUED: Martin Trpis, ASHCRAFT & GEREL, Washington,
D.C., for Appellant. Thomas M. Wochok, HAMILTON ALTMAN
2 CASTILLO v. EMERGENCY MEDICINE
CANALE & DILLON, L.L.C., Fairfax, Virginia, for Appellee. ON
BRIEF: Wayne M. Mansulla, ASHCRAFT & GEREL, Washington,
D.C., for Appellant. Stephen L. Altman, HAMILTON ALTMAN
CANALE & DILLON, L.L.C., Fairfax, Virginia, for Appellee.
OPINION
DUNCAN, Circuit Judge:
Appellant Latisha S. Castillo ("Castillo") challenges the district
court’s granting Appellee Emergency Medicine Associates, P.A.’s
("EMA") motion for summary judgment, on the ground that her medi-
cal malpractice claim is barred by Virginia’s applicable statute of lim-
itations. Castillo argues that the district court erred in failing to view
the evidence in the light most favorable to her, and in finding that the
continuing treatment doctrine did not apply to toll the statute of limi-
tations. Because we conclude that the claim is indeed time-barred and
that the district court did not err in granting the motion for summary
judgment, we affirm.
I.
Castillo came to the emergency department of Prince William Hos-
pital on October 10, 1999, complaining of lower abdominal pain and
several months’ history of severe nausea and abdominal pain with
bloating. An unidentified emergency department physician ("Dr.
Doe") diagnosed Castillo with a urinary tract infection. Dr. Doe pre-
scribed antibiotics and discharged Castillo that same day. Upon dis-
charge, Castillo was provided with the following Emergency Services
Department Discharge Instructions:
The examination and treatment you received today in the
Emergency Services Department has been rendered on an
emergency basis. It is not intended to be a substitute for
comprehensive medical attention. SHOULD YOUR CON-
DITION WORSEN, ANY NEW SYMPTOMS DEVELOP,
OR YOU NOT RECOVER AS EXPECTED, PLEASE
CONTACT THE DOCTOR YOU WERE GIVEN FOR
CASTILLO v. EMERGENCY MEDICINE 3
FOLLOW-UP CARE (listed below). If you cannot reach the
doctor, return to the Emergency Services Department. You
should return immediately to the nearest emergency room
for any emergency.
J.A. 75 (emphasis added). The follow up care specifically refers Cas-
tillo first to her "own MD in North Carolina" or a follow-up with "Dr.
Wall for recheck in 3-4 days if not better." Id. Dr. Wall is a gynecolo-
gist who works at Prince William Hospital, but is not employed by
EMA. The Instructions go on to emphasize as follows: "It is impor-
tant that you follow up with the doctor listed above [i.e., her own doc-
tor or Dr. Wall] for a re-examination. Id. (emphasis in the original).
On October 14, 1999, Castillo called the emergency department
because her condition had not improved. Initially, she asked to speak
with Dr. Wall. When Dr. Wall could not be reached, Castillo spoke
with an unidentified emergency department physician, who prescribed
a new medication over the telephone. On October 19, 1999, Castillo
returned to the emergency department, complaining of severe acute
abdominal pain, fever, and chills. She was seen by Dr. James Eskew,
who admitted her to the hospital. On that day, Castillo underwent sur-
gery for treatment of abdominal adhesions and infected abscesses in
the pelvic area, which had resulted from soilage due to a perforated
intestine. All of the emergency department physicians who treated
Castillo were employed by EMA.
Castillo filed the original complaint on October 19, 2001. That
complaint was voluntarily dismissed, and Castillo filed an amended
complaint on August 7, 2002. The amended complaint alleged that
EMA is liable for the acts and omissions of its agents, including Dr.
Doe, and that Dr. Doe was negligent in his treatment of Castillo on
October 10, 1999. EMA moved for summary judgment on the ground
that Castillo failed to bring her cause of action for medical malprac-
tice within two years of the date it accrued. Castillo argued that there
existed a genuine issue of material fact regarding the date of the onset
of her injury, and therefore a grant of summary judgment was
improper. Further, Castillo contended that the district court should
apply the continuing treatment doctrine to toll the statute of limita-
tions while she was under the care of physicians employed by EMA.
4 CASTILLO v. EMERGENCY MEDICINE
For both these reasons, Castillo argued that her cause of action was
not time-barred.
The district court found that no genuine issue of material fact
existed as to the timing of the injury, and that the continuing treat-
ment doctrine did not apply. Specifically, with respect to the continu-
ing treatment theory, the court found that the physician-patient
relationship between Castillo and Dr. Doe terminated upon her dis-
charge from the Emergency Department on October 10, 1999, and so,
necessarily, did her physician-patient relationship with EMA. Thus,
the district court found that the statute of limitations barred Castillo’s
cause of action and granted EMA’s motion for summary judgment.
II.
We review a district court’s grant of a motion for summary judg-
ment de novo. See Stone v. Liberty Mut. Ins. Co., 105 F.3d 188, 191
(4th Cir. 1997). To prevail on a motion for summary judgment, a
party must show (1) there is no genuine issue of material fact; and (2)
it is entitled to judgment as a matter of law. Id. at 190. In reviewing
the evidence, we draw all reasonable inferences in favor of Castillo,
the non-moving party. Thompson v. Aluminum Co. of Am., 276 F.3d
651, 656 (4th Cir. 2002).
As a federal court sitting in diversity, we interpret and apply the
substantive law of the state in which the action arose. Erie R.R. Co.
v. Tompkins, 304 U.S. 64, 78 (1938). In this case, the Virginia statute
of limitations applies. See Rowland v. Patterson, 852 F.2d 108, 110
(4th Cir. 1988) ("Federal courts sitting in diversity generally apply
state statutes of limitations.").
The applicable Virginia statute of limitations states that "every
action for personal injuries, whatever the theory of recovery . . . shall
be brought within two years after the cause of action accrues." Va.
Code Ann. § 8.01-243(A) (Michie 2003). Under Virginia law, the
statute of limitations for personal injury begins to run when the wrong
is committed, rather than on the date the injury is discovered. See Va.
Code Ann. § 8.01-230 (Michie 2003)("[T]he right of action shall be
deemed to accrue and the prescribed limitation period shall begin to
run from the date the injury is sustained in the case of injury to the
CASTILLO v. EMERGENCY MEDICINE 5
person . . . ."); Caudill v. Wise Rambler, Inc., 168 S.E.2d 257, 259-60
(Va. 1969) (finding that the right to recover damages for personal
injuries accrues at the time a person is injured).
In this case, the original complaint was filed on October 19, 2001.
Therefore, in order for the cause of action to fall within the two-year
statute of limitations, the injury must have been sustained on or after
October 19, 1999, or the limitations period must have been tolled.
A.
Castillo contends that an issue of material fact existed regarding the
date of injury, and that a reasonable jury could find that the injury
began on or after October 19, 1999. She argues that a grant of sum-
mary judgment was therefore improper.
In making her argument, Castillo contends that the actionable
injury resulted from the adhesions and fistulas caused by the intra-
abdominal scarring that happened when an intestinal perforation was
allowed to seal on its own instead of being treated. Since the scarring
occurred after the sealing of the perforation, and the sealing was com-
plete by the time corrective surgery was performed on October 19,
1999, Castillo argues that the scarring could have started after that
date.
To support this contention, Castillo offered the opinion of Dr. Eric
Munoz, her expert on causation and damages. During his deposition,
Dr. Munoz opined that the intestinal perforation sealed "[s]ome time
before [October] 20 but no one could say." J.A. 103-04. Castillo con-
tends that based on this testimony, a reasonable juror could find that
the scarring process occurred on or after October 19, 1999.
However, the following colloquy also occurred during Dr. Munoz’s
deposition:
Q: [Castillo] presents on October 10 and you are saying
that between the tenth and the twelfth is basically the
time frame within which to meet the standard of care?
A: Correct.
6 CASTILLO v. EMERGENCY MEDICINE
Q: And after the twelfth she begins to receive some physi-
cal damage from the lack of intervention?
A: Yes.
Q: Let me put it this way: On October 13, 1999 to a rea-
sonable degree of medical certainty, in your opinion,
because interventions weren’t performed she has suf-
fered physical damage?
A: Yes.
Q: And that the physical damage became exacerbated day
by day until she actually received the care?
A: Correct.
J.A. 105-06. Additionally, during the depositions of Castillo’s other
expert witnesses, Drs. Soloman Shah and David Munter, each opined
that the damage from the perforated intestine began before October
19, 1999.1 Further, in her memorandum to the district court in opposi-
1
From the deposition of Dr. Shah:
Q: And, Doctor, you also believe to a reasonable degree of
medical certainty therefore that as each day passes after
October 10, 1999, until the surgery is actually done, that her
infection grew and spread so that more and more of the
peritoneal space became involved with this infection?
A. Correct.
J.A. 85.
From the deposition of Dr. Munter:
A: [Reading from his report] At the time of her evaluation on
October 10th, 1999 in the emergency services department
of Prince William Hospital in Manassas, Virginia, Ms. Cas-
tillo had an intraabdominal [sic] infectious process as evi-
denced by her history, physical examination, and laboratory
test.
J.A. 96-97.
CASTILLO v. EMERGENCY MEDICINE 7
tion to EMA’s motion for summary judgment, Castillo states that
"[o]n October 10, 1999, [she] had either a perforation of her intestine
or she had and [sic] acute appendicitis." J.A. 112.
Each of Castillo’s three witnesses agrees that medical intervention
should have begun on October 10, 1999, on her first visit to the emer-
gency department.2 Further, they agree that the onset of the injury
occurred sometime before October 19, 1999.
2
From the deposition of Dr. Munoz:
Q: By when should those interventions have been done to
greatly lessen her morbidity and damages?
A: Within the first 24 to 48 hours of her admission to Prince
William Hospital . . . .
J.A. 101.
From the deposition of Dr. Shah:
Q: So you also believe to a reasonable degree of medical cer-
tainty that had [the standard of care been met on] October
10, 1999, it would have prevented the growth and spread of
her infection? For example, on October 11, 1999, had the
surgery been done — okay? — the extent of the physical
damage to her would have been less than it actually was —
A: Correct.
Q: — on the date the surgery was done?
A: Correct.
J.A. 85.
From the deposition of Dr. Munter:
A: [Reading from his report] If an abdominal and pelvic com-
puted tomography scan had been obtained on Ms. Castillo
on October 10th, 1999, it would have demonstrated an
intraabdominal [sic] infectious process. In this case, the
standard of care for emergency medicine would have
required an immediate surgical consultation and the admin-
istration of intravenous antibiotics in the emergency ser-
vices department.
J.A. 98.
8 CASTILLO v. EMERGENCY MEDICINE
Thus, even under Castillo’s version of the sequence of events, her
focus on when the scarring process might have started is misplaced.
The physical injury which led to the infections and the scarring
occurred and worsened when her intestinal perforation went untreated
during the period before October 19, 1999, more than two years prior
to the running of the statute of limitations.
B.
Alternatively, Castillo argues that the continuing treatment doctrine
applies, and that the statute of limitations was tolled when treatment
began on October 10, 1999. Virginia courts agree that the continuing
treatment doctrine tolls the running of the statute of limitations while
a patient is undergoing a "continuous and substantially uninterrupted
course of examination and treatment" for a particular ailment. Farley
v. Goode, 252 S.E.2d 594, 599 (Va. 1979). In order for the continuing
treatment doctrine to apply, a physician-patient relationship must
exist over the course of treatment. See Grubbs v. Rawls, 369 S.E.2d
683, 686 (Va. 1988)("Part of our rationale in Farley was that as long
as the physician-patient relationship continued as to a particular mal-
ady or injury, then it could not be said that treatment had ceased.").
Thus, in order for the continuing treatment to toll the statute of limita-
tions in this case, there must have been a physician-patient relation-
ship between Castillo and EMA that continued from her first
treatment by Dr. Doe on October 10, 1999 until October 19, 1999.
Virginia’s highest court has not addressed whether the continuing
treatment doctrine applies in a situation such as this, when a patient
is treated by different emergency room physicians during separate
incidents, and those physicians are employed by the same association.
When there is no decision by the highest state court, a federal court
"must apply what [it] find[s] to be the state law after giving proper
regard to relevant rulings of other courts of the State." Barnes v.
Thompson, 58 F.3d 971, 982 (4th Cir. 1995) (internal quotation omit-
ted). We therefore turn to a consideration of relevant Virginia law.
Virginia courts have found that a "physician’s duty arises only
upon the creation of a physician-patient relationship; that relationship
springs from a consensual transaction, a contract, express or implied,
general or special . . . ." Lyons v. Grether, 239 S.E.2d 103, 105 (Va.
CASTILLO v. EMERGENCY MEDICINE 9
1977) (citation omitted). The physician-patient relationship generally
exists between an individual physician and his or her patient, arising
when a patient entrusts his or her care to a physician and the physi-
cian accepts responsibility for that care. Id.
When an individual is treated by more than one physician for the
same ailment, that individual has separate physician-patient relation-
ships with each physician, and the continuing treatment doctrine
applies separately to treatment by each physician. See Hewlette v.
Proffer, 55 Va. Cir. 387, 389-90 (2001) ("Grubbs does not provide a
separate standard for a ‘joint treatment’ situation; the statute of limita-
tions was determined for each physician separately and independently
of their joint treatment of the plaintiff."). The application of the con-
tinuing treatment doctrine requires more than the continuous treat-
ment of a single ailment; the physician-patient relationship must be
continuous as well. In Hollingsworth v. Shenandoah Medical Imag-
ing, Inc., 38 Va. Cir. 324 (1996), a patient brought a medical malprac-
tice action against individual physicians and a radiology clinic for
misdiagnosing breast cancer. The patient claimed that cancer should
have been seen in a mammogram taken in June of 1990. She filed a
complaint in September of 1993. The circuit court held that the statute
of limitations barred the action, finding that two isolated x-ray read-
ings by a radiologist did not constitute continuing treatment. The cir-
cuit court stated that
[some] jurisdictions focus on the course of treatment with-
out the additional requirement of the continuing individual
physician-patient relationship. While the Virginia Supreme
Court is cognizant of such authorities, . . . it has consistently
focused on both the individual physician-patient relationship
as well as the continuous course of treatment and held that
both are requirements for the continuous treatment excep-
tion to apply.
Id. at 333 (citation omitted). It is important to note, however, that Vir-
ginia courts have found that treatment by subsequent physicians does
not interrupt the original treatment for statute of limitations purposes
where 1) the first physician referred the patient to the other physi-
cians, and (2) the first physician, who committed the malpractice,
continued to treat the patient for the same condition. See Justice v.
10 CASTILLO v. EMERGENCY MEDICINE
Natviq, 381 S.E.2d 8, 10 (Va. 1989) (finding that the continuing treat-
ment doctrine applied even though there had been eight years of non-
negligent treatment by the physician since the negligent act, and
during that time the plaintiff had seen two other physicians for treat-
ment of complications created by the negligent act).
To address Castillo’s claim, we must preliminarily determine
whether the continuing treatment doctrine can be applied to a corpora-
tion. Castillo contends that a physician-patient relationship may exist
between EMA and an individual, and her assertion is correct. The
Virginia Supreme Court cites the Medical Malpractice Act as provid-
ing that there is no legal distinction between individual and organiza-
tional health care providers.3 See Pulliam v. Coastal Emergency
Servs. of Richmond, Inc., 509 S.E.2d 307, 320 (Va. 1999)(finding that
a corporation created to provide emergency physicians to staff emer-
gency departments was a health care provider as defined by Va. Code
Ann. § 8.01-581.1(vi)). Further, the Virginia Supreme Court has
found that a physician-patient relationship can exist between an indi-
vidual and a professional corporation that is a health care provider as
defined by section 8.01-581.1. See Didato v. Strehler, 554 S.E.2d 42,
46 (Va. 2001), (finding that where the plaintiffs engaged a profes-
sional corporation "to provide all health care that a family should
receive from . . . a professional corporation engaged in providing
health care services relating to the practice of pediatrics," such an
agreement was sufficient to create a direct physician-patient relation-
ship between the plaintiffs and the corporation). The analysis of
whether the continuing treatment doctrine applies in such situations
would appear to be substantially the same as when an individual
physician-patient relationship is involved: whether there was an ongo-
ing physician-patient relationship with the corporate health care pro-
vider, and whether the patient was undergoing a continuous and
substantially uninterrupted course of treatment for the same ailment.
3
Va. Code Ann. § 8.01-581.1 (Michie 2003) ("‘Health care provider’
means (i) a person, corporation, facility or institution licensed by this
Commonwealth to provide health care or professional services as a phy-
sician or hospital . . . (vi) a corporation, partnership, limited liability
company or any other entity, except a state-operated facility, which
employs or engages a licensed health care provider and which primarily
renders health care services . . . .").
CASTILLO v. EMERGENCY MEDICINE 11
Castillo does not allege the existence of a direct physician-patient
relationship between herself and EMA, however. Rather, she attempts
to take the analysis one step further. Castillo argues that an indirect
relationship arose with EMA through her interactions with its
unnamed physician-employees. Virginia law does not take us this far.
It is undisputed that all three emergency department physicians
with whom Castillo had contact were employed by EMA.4 It is also
undisputed that treating Castillo was within the scope of each of the
emergency department physician’s agency.5 However, the further
determination that the existence of a physician-patient relationship
with the individual employees provides a basis for asserting the con-
tinuing treatment doctrine against the corporate health care provider
that employs them is one we need not make on these facts. Even if
Virginia law clearly allowed Castillo to reach EMA because of the
continuing care of its physician-employees, we conclude that the dis-
crete and isolated nature of the emergency room contacts in this case
do not support such a claim.
Castillo saw two different emergency department physicians during
two isolated visits more than a week apart, on October 10, 1999 and
October 19, 1999. A third intervening contact occurred when she cal-
led the emergency department and spoke over the telephone with a
third, unknown physician on October 14, 1999. There is no allegation
that the three emergency department physicians consulted about the
care of Castillo, nor is there evidence of such in the record. Dr. Doe
did not refer Castillo to the subsequent emergency department physi-
cians who treated her. To the contrary, Castillo was urged to seek fol-
low up care from her "own MD" or others should her condition not
improve. J.A. 75. None of the three emergency department physicians
is Castillo’s regular physician. Further, the Emergency Services
Department Discharge Instructions given to Castillo on October 10,
1999 explicitly state that "[t]he examination and treatment you
received today in the Emergency Services Department has been ren-
dered on an emergency basis. It is not intended to be a substitute for
comprehensive medical attention." J.A. 75 (emphasis added).
4
See J.A. 29, Answer ¶ 3.
5
See id.
12 CASTILLO v. EMERGENCY MEDICINE
Although the Instructions provided that Castillo was to "return to the
Emergency Services Department" if she could not reach the appropri-
ate physician for follow-up care, they further stated that she "should
return immediately to the nearest emergency room for any emer-
gency." Id. (emphasis added).6 Castillo could have no reasonable
expectation of an ongoing physician-patient relationship. As such,
Castillo did not contract for continuing care with Dr. Doe or EMA.
In fact, in one of the cases relied on by the district court, a Virginia
circuit court found that while a physician’s acts may bind a hospital,
[w]here the patient is not completely recovered on dis-
charge, the patient’s continuing care obligations are
assumed by the patient’s treating physician for whom the
hospital is generally not responsible. While the hospital may
be held liable for acts of physicians employed by it, this
does not mean that the hospital is also providing continuing
care to the patient after the patient leaves the hospital.
6
The dissent construes the Emergency Services Department Discharge
Instructions as having "instructed Castillo to return for follow up care
. . . ." Post at 16. This is a mischaracterization of the Instructions.
As noted supra, the Instructions direct Castillo to first seek follow up
care from her "own MD in North Carolina" or a physician not employed
by EMA. J.A. 75. The Instructions go on to stress, in underlined type, the
importance of following up with her "own MD" or the non-Emergency
Services physician, Dr. Wall. Only then, if Castillo "cannot reach th[ose]
doctor[s]," do the Instructions state that Castillo should return to the
Emergency Services Department. Id. It could not be clearer from the
Instructions that returning to Emergency Services is provided as the
option of last resort.
Further, the language on which the dissent relies must be read in the
context of the first two sentences of the Instructions which the dissent
fails to address: "The examination and treatment you received today in
the Emergency Services Department has been rendered on an emergency
basis. It is not intended to be a substitute for comprehensive medical
attention." Id.; supra. Read as a whole, the Instructions clearly inform
Castillo that she received solely emergency care, and that only should
another emergency occur and she is unable to reach her regular or
follow-up physician is she to return to Emergency Services.
CASTILLO v. EMERGENCY MEDICINE 13
Pidgeon v. Wake, 34 Va. Cir. 336, 341 (1994) (citation omitted).
While there were three discrete instances with respect to which EMA
owed Castillo the duty attendant to a physician-patient relationship,
that relationship was neither coordinated nor continuous. Castillo’s
isolated visits and contact with emergency department physicians
were insufficient to establish the ongoing physician-patient relation-
ship required for the application of the continuing treatment doctrine.
Virginia’s circuit courts have reached similar decisions. In Merritt
v. Clark, 40 Va. Cir. 13 (1995), the circuit court found that examina-
tions by two different emergency room doctors, both employed by the
same association, did not constitute continuous and uninterrupted treat-
ment.7 In that case, as in the instant case, a patient was seen in an
emergency room in two separate incidents and by two different doc-
tors, neither of whom was the patient’s regular physician. The court
found such isolated visits insufficient for the application of the contin-
uing treatment doctrine. We note that Castillo did not address Merritt
7
The dissent states that we rely on Merritt, which it finds to be inappo-
site, to reach our holding in this case. Post at 14. In fact, we rely on the
foregoing extensive analysis of Virginia case law, including Merritt, to
reach the decision. We are unable to find any cases, and the dissent cites
to none, that apply the "continuing care" doctrine in the context of emer-
gency room care. See, e.g., Pidgeon, specifically noting that an emer-
gency room physician is "employed to provide emergency room services
to patients, not continuing care." 34 Va. Cir. at 341.
Further, we do not agree that Merritt in inapplicable. It is true, as the
dissent points out, that the patient in Merritt was discharged from the
hospital by order of her regular doctor between the emergency room vis-
its. As we have noted, however, recourse to her "own MD" was the
course of action urged upon Castillo as well. Further, the court in Merritt
made no reference to the intervening discharge in reaching its conclu-
sion. Instead, on facts very similar to those presented here, involving a
patient who came to an emergency room to be treated for chest pains,
was discharged, and returned to the emergency room again complaining
of chest pains, the court found as follows: "Here, there are two isolated
incidents, involving two different doctors in emergency room situations.
Neither of these doctors were the patient’s regular practitioner, nor were
the visits continuous. Upon that background, the Court holds these facts
insufficient to prove the continuing treatment doctrine applicable." 40
Va. Cir. at 15.
14 CASTILLO v. EMERGENCY MEDICINE
in her brief, citing an inability to locate the case. Additionally, in
Pidgeon, the circuit court found that an emergency room physician is
employed to provide emergency care, and "not continuing care." Id.
at 341. Relying on these cases, the district court gave proper regard
to the relevant rulings of the Virginia circuit courts when it deter-
mined that the continuing treatment doctrine does not apply on these
facts.
III.
For the foregoing reasons, the district court did not err when it
found the action to be barred by the two-year statute of limitations,
and the judgment of the district court is affirmed.
AFFIRMED
GREGORY, Circuit Judge, dissenting:
The majority holds that Castillo was not entitled, as a matter of
law, to invoke the continuous treatment doctrine to toll Virginia’s two
year statute of limitations for medical malpractice causes of action. I
respectfully dissent from this holding for two reasons. First, I believe
that Merritt v. Clark, 40 Va. Cir. 13 (1995), 1995 WL 17015552, at
*1, the case upon which the majority relies to reach this holding, is
factually distinguishable and thus inapplicable. Second, I believe, as
will be discussed below, that Castillo did in fact receive continuous
treatment from EMA and was thus entitled to toll Virginia’s statute
of limitations for medical malpractice suits.
In Merritt, Florence Stansel, the decedent, went to Mount Vernon
Hospital on November 30, 1992 complaining of chest pains. Dr. Ford,
a doctor who was employed by Capital Emergency Associates, exam-
ined and admitted Stansel into the hospital, where she remained until
December 1, 1992. On that same day, Stansel was discharged from
the hospital "by order of her regular doctor, Dr. Clark." Id. at *1.
Stansel, however, returned to the hospital on December 4, 1992, again
complaining of chest pains, and was examined by Dr. Palace, another
Capital Emergency Associates physician. Later that day, Stansel suf-
fered a heart attack and died.
CASTILLO v. EMERGENCY MEDICINE 15
The administratrix of Stansel’s estate, Merritt, filed a wrongful
death and medical malpractice claim against Capital Emergency
Associates and Dr. Ford on December 2, 1994. A Virginia trial court,
however, held that this claim was barred by Virginia’s two year stat-
ute of limitations. In so holding, the court concluded that Merritt was
not entitled to toll the statute of limitations because she failed to
establish continuous treatment. The court reached this conclusion
because "there [were] two isolated incidents, involving two different
doctors in emergency situations. . . . Neither [of whom were] the
patient’s regular practitioner, nor were the visits continuous." Id. at *2
(emphasis added).
Stansel’s visits to the emergency room on November 30 and
December 4, 1992 were not continuous, because in the interim Stansel
was treated, and in fact, discharged from the hospital by her regular
physician. The intervention of Stansel’s emergency treatment by her
regular physician transformed her return trip to the emergency room
on December 4th into a discrete emergency visit. On December 4th,
Stansel was seeking emergency services for acute chest pains. And,
as the majority recognizes in its opinion, "[w]here the patient is not
completely recovered on discharge, the patient’s continuing care obli-
gations are assumed by the patient’s treating physician. . . ." Ante, at
12 (quoting Pidgeon v. Wake, 34 Va. Cir. 336, 341 (1994)).
The facts of the instant case are quite different from those in Mer-
ritt. Upon being released-from Prince William Hospital’s emergency
services department, Castillo was presented with three options in her
discharge instructions: "(1) Should your condition worsen, any new
symptoms develop, or you not recover as expected, please contact the
doctor you were given for follow up care; (2) If you cannot reach the
doctor, return to the Emergency Services Department; (3) You should
return immediately to the nearest emergency room for any emer-
gency." Ante, at 2-3. For follow up care, Castillo was referred to her
"own MD in North Carolina"* or to a Prince William Hospital gyne-
cologist, Dr. Wall, for "recheck in 3-4 days if not better." Ante, at 3.
*The EMA physicians at the Prince William Hospital were made
aware upon Castillo’s first visit to the emergency department that she
was a North Carolina resident who was visiting Virginia at the time of
her illness.
16 CASTILLO v. EMERGENCY MEDICINE
The majority concedes that Castillo called the Prince William Hos-
pital emergency department on October 14, 1999, not for emergency
care, but "because her condition had not improved." Ante, at 3. During
that phone call, Castillo attempted to reach Dr. Wall, as instructed by
her October 10, 1999 discharge sheet. Dr. Wall, however, was
unavailable at that time, and thus another EMA physician provided
Castillo with follow up treatment and prescribed her a different type
of medication. In doing so, this EMA physician instructed Castillo "to
follow up with Dr. Wall or return to the emergency services depart-
ment if [she] didn’t [feel] better." J.A. 72. Accordingly, when her
condition did not improve, Castillo returned to Prince William Hospi-
tal’s emergency department on October 19, 1999 for additional follow
up treatment. Despite these facts, the majority erroneously concludes
that the treatment rendered by the Prince William Hospital’s emer-
gency services department consisted of "discrete and isolated" con-
tacts. Ante, at 11.
In my view, rather than being "discrete and isolated" contacts, Cas-
tillo’s visit on October 10th, phone call on October 14th, and follow
up visit on October 19th, were all part of EMA’s continuous treatment
of Castillo’s original illness. Unlike in Merritt, Castillo was not
treated by her regular physician, or any physician other than an EMA
physician, during the period that she was treated by EMA. Moreover,
EMA’s instructions to Castillo clearly indicated that its treatment of
Castillo’s illness would be continuous. The fact that Castillo was not
required to follow up with the same physician or with EMA does not,
as the majority concludes, alter the continuous nature of this treat-
ment. The fact remains that EMA instructed Castillo to return for fol-
low up care, Castillo sought and received this follow up care for the
same illness and Castillo never was treated by an independent physi-
cian. Under these circumstances, I believe that there is little doubt that
Castillo received continuous treatment from EMA and was thus enti-
tled to toll Virginia’s two year statute of limitations.
For the foregoing reasons, I respectfully dissent from the majority’s
holding.