Hudak v. Rawls

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SHIRLEY HUDAK; JOSEPH JOHN HUDAK,
Plaintiffs-Appellants,
v. No. 96-1279
HOLMAN C. RAWLS, III, D.D.S.,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Raymond A. Jackson, District Judge.
(CA-95-925-2)
Argued: January 29, 1997
Decided: March 6, 1997
Before RUSSELL and WILKINS, Circuit Judges, and HERLONG,
United States District Judge for the District of South Carolina,
sitting by designation.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Miriam Weizenbaum, DELUCA & WEIZENBAUM,
LTD., Providence, Rhode Island, for Appellants. Anisa Patrice Kel-
ley, MCCONNELL & ASSOCIATES, Glen Allen, Virginia, for
Appellee. ON BRIEF: Malcolm P. McConnell, III, MCCONNELL
& ASSOCIATES, Glen Allen, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Shirley Hudak appeals the district court's order granting summary
judgment to Dr. Holman Rawls, III, D.D.S. The district court held
that the statute of limitations had run on Hudak's medical malpractice
claim against Dr. Rawls. We affirm.
I.
Hudak suffers from temporomandibular joint disorder. In August,
1992, she began seeing Dr. Rawls who held himself out to be a maxil-
lofacial surgeon. On July 15, 1993, Dr. Rawls referred Hudak to Dr.
Graham, D.D.S. Dr. Graham operated on Hudak on August 23, 1993,
and gave her post-operative care until October 5, 1993.
Dr. Rawls's records indicate that he last saw Hudak on August 17,
1993. Hudak states that she telephoned Dr. Rawls on August 23,
1993, the day of her surgery, and that Dr. Rawls told her to continue
taking pain medication that he had previously prescribed.
On October 28, 1993, Hudak began treatment with Dr. Gregory, a
new maxillofacial surgeon with no ties to Dr. Graham or Dr. Rawls.
On September 14, 1995, Hudak filed this action in the United States
District Court for the Eastern District of Virginia asserting federal
jurisdiction under 28 U.S.C. § 1332(a)(1). She alleged that during his
course of treatment, Dr. Rawls failed to advise her of the need to
remove temporary temporomandibular implants which another doctor
had previously implanted.
II.
Summary judgment is appropriate when there is no genuine issue
of material fact to be decided by the trier of fact and the moving party
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is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see
Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.), cert. denied, 115 S. Ct.
67 (1994). Any disputed fact or disagreement in the evidence must be
construed in the light most favorable to the non-movant. United States
v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam). We review
a district court's grant of summary judgment de novo. See Higgins v.
E.I. DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988).
III.
The filing of Hudak's claim is controlled by the two-year statute
of limitations for personal injuries set forth in§ 8.01-243 of the Vir-
ginia Code. The commencement of the limitations period is subject
to the "continuing treatment rule" which states:
[W]hen malpractice is claimed to have occurred during a
continuous and substantially uninterrupted course of exami-
nation and treatment in which a particular illness or condi-
tion 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 limita-
tions commences to run when the improper course of exami-
nation, and treatment if any, for the particular malady
terminates.
Farley v. Goode, 252 S.E.2d 594, 599 (Va. 1979) (citations omitted).
Accordingly, the statute of limitations in the instant case began to run
when Dr. Rawls completed his course of examination and treatment.
Hudak admits that her last contact with Dr. Rawls was a phone
conversation on August 23, 1993. This conversation occurred more
than two years before she filed suit in September, 1995. However, at
oral argument, Hudak's counsel argued that Dr. Rawls continued his
course of examination and treatment by telling Hudak, over the
phone, to continue taking the pain medication that he had previously
prescribed. Essentially, Hudak's counsel argued that Rawls's course
of examination and treatment did not terminate until Hudak consumed
the prescription. No Virginia case has interpreted the continuing treat-
ment rule so broadly.
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Next, Hudak argues that under Virginia law, when two physicians
jointly treat a patient, the statute of limitations does not begin to run
until both physicians complete their treatment. Accordingly, Hudak
argues that Dr. Rawls's course of examination and treatment did not
end until Dr. Graham completed his treatment in October.
To support her argument, Hudak cites Grubbs v. Rawls, 369 S.E.2d
683 (Va. 1988), and Justice v. Natvig, 381 S.E.2d 8 (Va. 1989). How-
ever, neither of these cases helps her position. In Grubbs, both doctor-
defendants performed post-operative treatment within two years of
receiving notice of Grubbs's claim. Grubbs, 369 S.E.2d at 684-87.
Therefore, there was no need for the court to extend the continuing
treatment rule by tolling the statute of limitations on the first doctor
until the second doctor terminated treatment. Similarly, in Justice, the
court specifically found that the original negligent physician had seen
the plaintiff every year for eight years. Justice, 381 S.E.2d at 10.
Accordingly, there was no need for the court to toll the statute of limi-
tations until all of the interim referral physicians had terminated their
treatment.
Finally, even if Hudak's interpretation of Virginia law were cor-
rect, her claim would still fail because there is no evidence that Dr.
Graham and Dr. Rawls jointly treated Hudak.
For the reasons stated above, we hold that the district court did not
err in concluding that Virginia's personal injury statute of limitations
barred Hudak's claim.
AFFIRMED
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