Montgomery v. South County Radiologists, Inc. , 2001 Mo. LEXIS 73 ( 2001 )

LIMBAUGH, Chief Justice,

concurring in part and dissenting in part.

The majority correctly affirms the trial court’s dismissal of the claim against Dr. Szoko, but I disagree that the trial court’s dismissal of the companion claim against South County Radiologists (SCR) should be reversed and the claim reinstated.

The majority rests its holding against SCR on the continuing care exception. Given the express and unequivocal language of the statute of limitations set out in section 516.105, RSMo 1994 — “All actions against [health care providers] ... shall be brought within two years from the date of occurrence of the act of neglect complained of ... ” — the court-made continuing care exception is a stretch, except, perhaps, where, as held in Thatcher v. De Tar, 351 Mo. 603, 173 S.W.2d 760, 762 (1943), the continuing care is an act of continuing negligence. Now, with no proper deference to the legislature, the majority boldly extends the exception from its conventional application to treating physicians, to an unprecedented application to diagnostic consultants engaged only to perform specific tests or examinations.

Although I have reservations about the continuing care exception in any form, I recognize that the legislature has amended the statute time and again without reference to the exception, thus tacitly approving it. As I will attempt to explain, however, extending the exception in this way is inconsistent with the rationale behind the exception, as well as the language of the statute.

The basis of the continuing care exception, as the majority correctly observes, is the existence of a duty to provide continuing care, Thatcher, 173 S.W.2d at 762; Weiss v. Rojanasathit, 975 S.W.2d 113, 119 (Mo. banc 1998); and the majority’s analysis turns on its determination of that duty. I take issue with two critical parts of that analysis.

First, the majority plays off the notion that a physician’s duty continues until the physician-patient relationship ends by “cessation of the necessity that gave rise to the relationship.” Though I have no objection to that statement, the majority then inaccurately defines “necessity” by stating, “The necessity that gives rise to the relationship is the patient’s ailment or condition.” That definition may well be appropriate for a treating physician, but not for a physician, or group of physicians, called on to perform a single diagnostic examination and who were engaged for that purpose alone under the direction of the treating physician. As Judge Crahan wrote in his dissenting opinion when the case was pending before the Court of Appeals:

[The] argument overlooks the fact that, in the context of radiological diagnostic services, the necessity that gave rise to the relation ceases to exist when the report interpreting what is viewed on the films is transmitted to the treating physician. That is the sole reason the “relationship” was established and that purpose is accomplished when the report is rendered.

I would add to Judge Crahan’s remarks that on the uncontroverted record before us, when SCR and its physicians undertook each examination, neither they, nor the treating physician, nor the patient intended that care or treatment would continue beyond the conduct of the examination ordered. Furthermore, it is undisputed that the treating physician was “calling the shots” as to whether SCR and its physicians should conduct additional examinations, and they did not have the option, much less the duty, to continue or discontinue the series of examinations that was eventually ordered. This is not a case in which the radiologist himself or herself ordered more tests or follow-up treatment or had the authority to do so. I would hold that the “necessity” of care or treatment ended with the submission of the report from each examination.

A second part of the majority’s duty analysis involves an equally tenuous jump in logic. After noting that treating physicians must often rely on specialists, the majority states: “The treating physician thus has a comprehensive duty of continuing care and treatment. Likewise, an entity that provides continuing radiological services has a proportionate duty of continuing care until its relation with the patient ends.” Though I agree with the proposition that entities as well as individuals may have a duty of continuing care, it does not follow that entities providing radiological services have the same duty as entities or individuals serving in the role of a treating physician. The case cited by the majority, Poluski v. Richardson Transp., 877 S.W.2d 709, 713 (Mo.App.1994), says nothing of the sort and stands only for the agreed-on notion that both entities and individuals may be charged with a continuing duty of care. In any event, the majority’s position devolves into the same “necessity that gives rise to the relationship” approach discussed above.

The difficulty with the majority’s statement is compounded by the suggestion •that an entity has a proportionate duty of continuing care because the entity provides what the majority perceives to be continuing radiological services. It seems the majority has it backwards. The duty of continuing care arises from the need for the entity in question to provide continuing care, not from the circumstance that care or treatment was in fact provided, as if a hindsight test was somehow appropriate. But here, the majority satisfies the duty requirement by reference to the fact that successive examinations were conducted, not that there was a duty of continuing care to conduct those successive examinations.

In sum, I would hold that the series of diagnostic radiological services ordered by the separate treating physician in this case did not create any continuing duty of care on the part of Dr. Szoko or SCR and that each of the services rendered was discrete and intermittent, rather than continuing. Under these circumstances, the statute of limitations ran against both Dr. Szoko and SCR, and the judgment of the trial court upholding summary judgment in favor of both defendants should be affirmed.