Renee B. Jauregui v. Shannon J. Cothran, M.D. ( 2024 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Athey, Causey and Callins
UNPUBLISHED
Argued at Winchester, Virginia
RENEE B. JAUREGUI
MEMORANDUM OPINION* BY
v. Record No. 1133-23-4 JUDGE DORIS HENDERSON CAUSEY
NOVEMBER 12, 2024
SHANNON J. COTHRAN, M.D.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Richard E. Gardiner, Judge
John S. Koehler (Kenneth J. LaDuca; The Law Office of James
Steele, PLLC; Price Benowitz, LLP, on briefs), for appellant.
Susan L. Mitchell (Matthew D. Banks; Catherine E. Donnelly;
Mitchell Banks, PC, on brief), for appellee.
Renee Jauregui appeals the circuit court’s dismissal of her complaint alleging medical
malpractice against Shannon J. Cothran, M.D. Jauregui argues that the circuit court erred in finding
that the continuing treatment rule did not extend her statute of limitations. We agree and reverse the
judgment of the circuit court.
BACKGROUND
Renee Jauregui filed a complaint in Fairfax County Circuit Court on June 30, 2021,
asserting a medical malpractice claim against Dr. Shannon J. Cothran and Capital Women’s
Care, LLC.1 Jauregui alleged that she informed Dr. Cothran of a lump in her breast during four
pregnancy-related visits with Dr. Cothran between May and October 2018. The complaint stated
*
This opinion is not designated for publication. See Code § 17.1-413(A).
1
The circuit court granted Jauregui’s motion for partial nonsuit of other defendants
named in the complaint.
that Dr. Cothran told Jauregui there was no reason for concern, that the lump was a normal
response to pregnancy, and that diagnostic testing would not display any useful information. The
complaint claimed that Jauregui “did not seek a mammogram or ultrasound” due to this advice,
but returned to Dr. Cothran in August 2019 to follow-up on the lump. Subsequent diagnostic
testing revealed the lump was breast cancer. The complaint asserted that Dr. Cothran’s
negligence in failing to properly diagnose or treat Jauregui for her symptoms resulted in a
metastasized cancer significantly more difficult to treat. Jauregui argued that she was entitled to
compensation for medical malpractice.
Dr. Cothran filed a plea in bar asserting that the two-year statute of limitations under
Code § 8.01-243(A) precluded Jauregui’s claim. The controlling legal issue rested on whether
Virginia’s “continuing treatment rule,” which tolls the statute of limitations for medical
malpractice until the course of improper examination and treatment ends, served to extend the
statute of limitations beyond the date of the October 2018 visit, “the last date that Dr. Cothran
provided any alleged improper treatment for the negligently diagnosed condition.”2 See Farley
v. Goode, 219 Va. 969, 976 (1979) (“[W]hen malpractice is claimed to have occurred during a
continuous and substantially uninterrupted course of examination and treatment . . . the statute of
limitations commences to run when the improper course of examination, and treatment if any, for
the particular malady terminates.”).
Dr. Cothran argued by motion that she provided no examination or treatment for
Jauregui’s symptoms until the August 2019 visit; thus, there was no “continuous and
2
The parties agree that the COVID-19 emergency orders tolled the statute of limitations
for 126 days and that only the August 2019 visit therefore fell within the tolling period. Because
the alleged negligence occurred during those prior visits, Jauregui’s claim is time-barred absent
application of the continuing treatment rule.
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substantially uninterrupted” treatment during that period. Jauregui argued by brief that the facts
set forth in the complaint fell within the continuing treatment rule.
The circuit court held an evidentiary hearing to determine factual and legal issues for the
plea in bar. Jauregui testified that she first told Dr. Cothran about the lump in a May 2018 visit
and that Dr. Cothran examined the lump and diagnosed it as a clogged milk duct, a routine and
benign pregnancy issue. Jauregui stated that Dr. Cothran repeated this examination and advice at
office visits in August and September of 2018. Jauregui then testified that at her postpartum visit
with Dr. Cothran on October 24, 2018, she again mentioned the lump, believing it had gotten
bigger and closer to the skin, and Dr. Cothran provided the same analysis and advice. Jauregui
claimed that Dr. Cothran advised that imaging on a breast producing milk would be cloudy, that
Jauregui would need to stop pumping for diagnostics to show anything, and that the lump would
resolve with continued pumping. Jauregui testified that Dr. Cothran told her that if she noticed
any changes in the lump, she should call Dr. Cothran’s office. When Jauregui noticed that
change in July 2019, she scheduled a follow-up appointment for August 19, 2019. Subsequent
diagnostic testing discovered that the lump was cancer.
Dr. Cothran testified and disputed that Jauregui ever mentioned the lump during any 2018
visit; she stated she never examined Jauregui’s breast or told Jauregui to monitor the lump and
report any changes. Dr. Cothran testified that after the October 2018 visit, she never expected to
see Jauregui again. Dr. Cothran introduced the notes of the 2018 visits, which do not reference
any complaints or advice related to a breast lump, and at times directly state there were no breast
problems. She also introduced the August 2019 record that indicated Jauregui “noticed the lump
when she started breast feeding and was told initially that it could be a blocked duct. The lump
has gotten bigger and harder over the last year, but she was waiting until she stopped breast
feeding to have it looked at.”
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The parties provided competing medical expert opinions as to whether the doctor-patient
relationship continued between Dr. Cothran and Jauregui after the October 2018 visit and
whether that visit concluded Jauregui’s care.
Ruling from the bench, the circuit court first concluded that, under Farley v. Goode, 219
Va. 969 (1979), and Chalifoux v. Radiology Associates of Richmond, Inc., 281 Va. 690 (2011),
“the proper standard” to be applied under the continuing treatment rule “is the continuous and
substantially uninterrupted course of examination and treatment.” (Emphasis added). Applying
the rule, the court found that “there was no treatment in this case at all,” emphasizing that the
recommended breast pumping was not treatment. Second, the circuit court found that despite
Jauregui’s testimony—which the court appeared to accept—that Dr. Cothran had examined the
lump in October 2018, and advised her to call and set up an appointment if anything changed,
there was no substantially uninterrupted course of examination. Rather, the circuit court found
there was a “substantially interrupted course of examination.” (Emphasis added). The circuit
court emphasized that the doctor “knew [that Jauregui] may never, ever have to come back” and
did not forecast any need for additional treatment.
Finding that both elements of Farley did not apply, the circuit court sustained the plea in
bar and dismissed the suit for failure to comply with the statute of limitations. This appeal
followed.
ANALYSIS
In three assignments of error, Jauregui asserts that the continuing treatment rule applied
between the October 24, 2018 and August 18, 2019 visits and that the circuit court therefore erred in
finding her claim time-barred. We agree.
A circuit court’s “decision on a plea in bar of the statute of limitations involves a question
of law that we review de novo.” Radiance Cap. Receivables Fourteen, LLC v. Foster, 298 Va.
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14, 19 (2019) (quoting Van Dam v. Gay, 280 Va. 457, 460 (2010)). “The movant bears the
burden of proof on such a plea, and if evidence is presented ore tenus, the circuit court’s factual
findings ‘are accorded the weight of a jury finding and will not be disturbed on appeal unless
they are plainly wrong or without evidentiary support.’” Cornell v. Benedict, 301 Va. 342, 349
(2022) (quoting Massenburg v. City of Petersburg, 298 Va. 212, 216 (2019)).
Medical malpractice actions are controlled by a two-year statute of limitations. Code
§ 8.01-243(A). “[I]t is well established in Virginia that the statute of limitations begins to run
when the plaintiff is injured, not when the plaintiff discovers the injury.” Chalifoux, 281 Va. at
696. The continuing treatment rule, however, operates as an exception to this general rule.
Under the continuing treatment rule, “the statute of limitations begins to run at the conclusion of
the course of treatment for a particular disease or condition.” Id. at 697. The question of
whether the continuing treatment rule was correctly applied to a set of facts is an “issue [that]
presents a mixed question of law and fact” and is reviewed de novo; however, “the continuing
treatment rule ‘presupposes that a continuous course of improper examination or treatment which
is substantially uninterrupted is proved as a matter of fact.’” Id. at 696-97. “In our review of the
circuit court’s application of the law to the facts, we give deference to the circuit court’s factual
findings and view the facts in the light most favorable to . . . the prevailing party below.” Id. at
697. Here, the prevailing party is Dr. Cothran.
The continuing treatment rule was first applied in Farley. When presented with a
dentist’s negligent care between 1972 and 1976, the Supreme Court of Virginia held:
when malpractice is claimed to have occurred during a continuous
and substantially uninterrupted course of examination and
treatment in which a particular illness or condition should have
been diagnosed in the exercise of reasonable care, the date of
injury occurs, the cause of action for that malpractice accrues, and
the statute of limitations commences to run when the improper
course of examination, and treatment if any, for the particular
malady terminates.
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219 Va. at 976. The Court noted that holding otherwise would put patients in the difficult
position of needing to file lawsuits “in the midst of a course of treatment,” that doctors “should
have all reasonable time and opportunity to correct mistakes,” and that the continuing treatment
rule preserved the “highly essential” patient-doctor relationship. Id. at 978. The Court explained
that “[i]t would be absurd to require a wronged patient to interrupt corrective efforts by serving a
summons on the physician or hospital superintendent or by filing a notice of claim in the case of
a city hospital.” Id. at 979 (quoting Borgia v. City of New York, 187 N.E.2d 777, 779 (N.Y.
1962)). Thus, the Court found that Farley’s statute of limitations for her malpractice claim
against her dentist started in 1976, not 1972, and the circuit court erred in sustaining the plea in
bar. Id. at 977, 982.
I. “Examination, and Treatment If Any”
In reviewing the circuit court’s application of this rule here, we first determine whether
Dr. Cothran’s examinations and statements regarding the lump qualify as “examination and
treatment” under the continuing treatment rule. The Farley Court held that “the statute of
limitations commences to run when the improper course of examination, and treatment if any, for
the particular malady terminates.” 219 Va. at 976 (emphasis added).3 The phrase “and treatment if
any” indicates that the continuing treatment rule applies in the absence of treatment, when improper
examinations have resulted in a failure to properly treat.4
3
See also Fenton v. Danaceau, 220 Va. 1, 3 (1979) (same); Grubbs v. Rawls, 235 Va. 607,
611 (1988) (same); Justice v. Natvig, 238 Va. 178, 180 (1989) (same); Chalifoux, 281 Va. at 697(same).
4
That the circuit court here, in reviewing the same line of cases, found that there must be
a continuous and substantially uninterrupted course of examination and treatment, traces to
ostensibly equivocal presentations of the continuing treatment rule. Indeed, the language used in
Farley and subsequent decisions could yield a mixed impression as to whether examination and
treatment, or examination or treatment, is required for the continuing treatment rule to apply.
Compare, e.g., Farley, 219 Va. at 980 (“Parenthetically, we note that the rule applied today
presupposes that a continuous course of improper examination or treatment which is
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This understanding of the continuing treatment rule is also consistent with malpractice
claims in general. “Malpractice” is defined as “any tort action or breach of contract action or
personal injuries or wrongful death, based on health care or professional services rendered, or which
should have been rendered, by a health care provider, to a patient.” Code § 8.01-581.1 (emphasis
added). The lack of treatment stemming from a faulty diagnosis is thus a clearly established basis
for malpractice, and the continuing treatment rule is meant to preserve malpractice claims for the
duration of a plaintiff’s “improper course of examination, and treatment if any” for that type of
claim. Farley, 219 Va. at 976
In Chalifoux, our Supreme Court applied the continuing treatment rule to doctors who had
only engaged in examination and diagnosis. 281 Va. at 700-01.
Between December 2002 and October 2005, Chalifoux’s treating
physicians referred her to Radiology Associates on six occasions for
diagnostic radiology studies. During that time, Radiology Associates
studied and interpreted seven scans of Chalifoux’s brain and head.
Each study related to the same or similar symptoms: the pain and
numbness on the right side of Chalifoux’s face. There is evidence
that Radiology Associates was aware of Chalifoux’s ongoing
symptoms because all the studies were kept in one file under
Chalifoux’s name, and both experts in this case testified that
radiologists frequently reviewed previous examinations, especially
when they relate to the same symptoms.
Id. The Court held that under these facts, the continuing treatment rule applied. Id. at 701. These
facts fit within the holding of Farley because the improper radiological examinations led to a lack of
a diagnosis which delayed Farley’s necessary treatment; when corrected, the full process was “a
continuous and substantially uninterrupted course of examination and treatment.” Id. (quoting
Farley, 219 Va. at 976).
substantially interrupted is proved as a matter of fact.”), with Chalifoux, 281 Va. at 698 (“Thus,
the dispositive issue is whether ‘a continuous and substantially uninterrupted course of
examination and treatment’ existed between Chalifoux and Radiology Associates[.]”).
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The facts here are analogous to those in Chalifoux. Dr. Cothran examined Jauregui based on
specific, on-going complaints. That examination led to an incorrect diagnosis which delayed the
necessary treatment. This entire process constitutes “examination and treatment,” just as it did in
Chalifoux. The presence of specific treatment is not determinative.5
II. “Continuous and Substantially Uninterrupted”
We next determine whether Dr. Cothran’s course of examination of Jauregui qualifies as
“continuous and substantially uninterrupted.” Farley, 219 Va. at 976. The circuit court in this case
found a “course of examination,” appeared to find that Dr. Cothran examined the lump, and
appeared to credit Jauregui’s testimony that Dr. Cothran advised her that “if she saw any changes,”
she should “call the office and set up another appointment.” 6 But despite these factual findings, the
circuit court ruled that these instructions were insufficient to find that Jauregui’s August 2019 visit
was part of a “continuous and substantially uninterrupted” course of examination. We disagree.
Under Farley, the relevant question in determining whether the course of examination was
“substantially uninterrupted” is not merely whether there was an ongoing physician-patient
relationship, but whether that relationship concerns the “same or related illnesses or injuries.”
Farley, 219 Va. at 979 (quoting Borgia, 187 N.E.2d at 779). 7 So, in this case, Dr. Cothran’s
5
To the extent that Jauregui argues on brief that the circuit court judge erroneously found
a lack of examination because of a lack of treatment in this case, we disagree. The circuit court
described the sequence of events as showing “not a continuous and uninterrupted course of
examination [but rather] in my view, clearly a substantially interrupted course of examination.”
(Emphasis added).
6
Dr. Cothran urges this Court to affirm the circuit court on the grounds that these
conversations never occurred because the testimony about them was in conflict. But the circuit
court did not do so, and in fact appeared to find Jauregui’s testimony more credible by
referencing one of these conversations in its ruling.
7
Similarly, the Court in Grubbs said:
The rule of decision in [Farley and Fenton v. Danaceau] was not
that the negligence of the defendant physician extended until the
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expectations about whether Jauregui would return are not dispositive; rather, what matters is that
Jauregui later did return, pursuant to Dr. Cothran’s instructions, for further examination of the same
condition.
When Jauregui raised her concerns in the October 2018 visit, Dr. Cothran provided a
diagnosis of a clogged milk duct. Dr. Cothran examined the lump and, as the circuit court
recognized, instructed Jauregui that if she noticed any changes, she should call the office and set up
another appointment. Trusting that advice, Jauregui monitored her lump and scheduled a follow-up
appointment, when necessary, pursuant to Dr. Cothran’s instructions. Jauregui’s behavior between
October 2018 and August 2019 can be directly attributed to Dr. Cothran’s instructions. When
Jauregui then returned in August 2019 after following that plan, the diagnostic testing and discovery
of cancer was part of a “continuous and substantially uninterrupted course of examination” of
Jauregui’s breast lump, because the October 2018 and August 2019 visits centered on “the same or
[a] related illness or injur[y].” Id. at 976, 979 (quoting Borgia, 187 N.E.2d at 779).
Chalifoux provides additional support for our conclusion that the August 2019 visit was part
of a continuous and substantially uninterrupted course of examination. Chalifoux did not receive
proper treatment for her symptoms, due in part to improper initial examinations resulting in
incorrect diagnoses in December 2002, March 2003, August 2003, and February 2004. Chalifoux,
281 Va. at 693. A follow-up MRI in October 2005 then led to the discovery of her tumor and
treatment. Id. at 693-94. In finding that this represented a “continuous and substantially
physician-patient relationship ended. Instead, the rule of that
decision was that if there existed a physician-patient relationship
where the patient was treated for the same or related ailments over
a continuous and uninterrupted course, then the plaintiff could wait
until the end of that treatment to complain of any negligence which
occurred during that treatment.
235 Va. at 613 (first emphasis added).
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uninterrupted course of examination and treatment,” the Court found that because each follow-up
“related to the same or similar symptoms,” each prior misdiagnosis was “continuous and
substantially uninterrupted” to the eventual correct diagnosis. Id. at 700-01. Approximately 20
months passed between the correct MRI diagnosis and the prior improper one in Chalifoux, nearly
double the amount of time between Jauregui’s improper diagnosis in 2018 and follow-up in 2019.
In this case, there was a direct causal link between the October 2018 visit, Jauregui’s
following Dr. Cothran’s advice, and Dr. Cothran’s treatment in August 2019. Each link in this
chain is connected by Jauregui’s consistent symptoms and efforts to diagnose and resolve those
symptoms. Thus, they are “continuous and substantially uninterrupted.” Farley, 219 Va. at 976.
CONCLUSION
For the foregoing reasons, the circuit court erred in failing to apply the continuous
treatment rule to Jauregui’s statute of limitations and sustaining the plea in bar. We therefore
reverse the judgment of the circuit court and remand the case for further proceedings consistent
with this opinion.
Reversed and remanded.
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