Paul B. Tiemann and Deborah Tanner (Tiemann) v. SSM Regional Health Services and Thomas V. Distefano, M.D.

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
PAUL B. TIEMANN and )
DEBORAH TANNER (TIEMANN), )
Appellants, )
)
v. ) WD83998
)
SSM REGIONAL HEALTH ) FILED: August 24, 2021
SERVICES and THOMAS V. )
DISTEFANO, M.D., )
Respondents. )
Appeal from the Circuit Court of Holt County
The Honorable Patrick K. Robb, Judge
Before Division One: Alok Ahuja, P.J., and
Lisa White Hardwick and Anthony Rex Gabbert, JJ.
Paul Tiemann and his wife Deborah Tiemann sued Dr. Thomas V. DiStefano,
and Dr. DiStefano’s employer, SSM Regional Health Services, claiming medical
malpractice in connection with hip replacement surgeries on Paul Tiemann’s right
and left hips. SSM and Dr. DiStefano filed motions for summary judgment, alleging
that the Tiemanns’ claims were barred by the applicable two-year statute of
limitations. The circuit court granted summary judgment to both defendants. The
Tiemanns appeal. They argue that there were genuine issues of material fact
whether the “continuing care” exception operated to delay the running of the statute
of limitations. We affirm the circuit court’s grant of summary judgment with
respect to the Tiemanns’ claims concerning Paul Tiemann’s right hip replacement
surgery (which occurred in 2014), but reverse the grant of summary judgment
concerning his left hip surgery (performed in 2016).
Factual Background
On April 18, 2019, Paul Tiemann and his wife, Deborah Tiemann, filed suit
against Dr. DiStefano and SSM in the Circuit Court of Nodaway County.1 A change
of venue was granted, and the case was transferred to Holt County on June 14,
2019.
The Tiemanns raised three claims in their petition. In Count I, Tiemann
asserted a claim of medical malpractice against Dr. DiStefano, and against SSM
under the doctrine of vicarious liability. Tiemann alleged that Dr. DiStefano
negligently performed total hip arthroplasties (or joint replacement surgeries) on
Tiemann’s hips on August 18, 2014 (right hip), and June 20, 2016 (left hip).
Tiemann alleged that Dr. DiStefano negligently positioned the acetabular
components during both his right and left hip surgeries, and failed to discover the
malpositioning of the acetabular components following the surgeries. Tiemann
alleged that, as a result of the improper positioning of the acetabular components in
both prosthetic hips, he experienced pain, numbness, swelling, tenderness, popping,
clicking, and instability. The petition alleged that, as a result of Dr. DiStefano’s
negligence, Tiemann ultimately underwent total hip revision surgeries on both hips
in 2018 at the University of Kansas Medical Center in Kansas City, Kansas.
In Count II, Tiemann alleged that SSM was negligent in retaining Dr.
DiStefano on staff and allowing him surgical privileges, despite his demonstrated
lack of competence. In Count III, Deborah Tiemann asserted that Dr. DiStefano’s
negligence, and her husband’s consequent injuries, resulted in a loss of consortium.
1 We refer to Paul Tiemann as “Tiemann” in this opinion, and use Deborah
Tiemann’s full name to refer to her.
The Tiemanns’ Brief states that the couple is now divorced, and that Deborah
Tiemann is now known as Deborah Tanner. To remain consistent with the nomenclature
used in the circuit court, we continue to refer to Tiemann's wife as Deborah Tiemann.
2
On May 15, 2020, SSM and Dr. DiStefano filed motions for summary
judgment on all three of the Tiemanns’ claims, asserting that they were barred by
the two-year statute of limitations found in § 516.105.2
In their response to the summary judgment motions, the Tiemanns argued
that, although both of Tiemann’s hip replacement surgeries occurred more than two
years prior to the filing of their petition, the “continuing care” doctrine applied to
delay the accrual of their causes of action.
To support their opposition to the defendants’ summary judgment motions,
the Tiemanns provided new affidavits by Tiemann and by the Tiemanns’ expert, Dr.
Michael B. Tilley. Tiemann’s affidavit sought to clarify or supplement the
testimony he had given in his deposition. Dr. Tilley’s affidavit offered new expert
opinions, beyond those to which he had testified in his deposition. In his deposition,
Dr. Tilley had testified that he had no opinions concerning the quality of Dr.
DiStefano’s post-operative care of Tiemann, because he had not been provided, or
reviewed, the records of that post-operative care. In his summary-judgment
affidavit, however, Dr. Tilley now opined that Dr. DiStefano’s post-operative care
“fell below the accepted standard” either in failing to order surveillance x-rays of
Tiemann’s hips, or in failing to properly assess those x-rays and discover the
misalignment of the prosthetic hips’ components.
The defendants moved to strike the affidavits of both Tiemann and Dr. Tilley,
arguing that each affidavit contradicted the affiant’s prior deposition testimony, and
that the affidavits had been “offered for the sole purpose of manufacturing disputes
of fact to defeat summary judgment.”
The circuit court granted the defendants’ motion to strike the Tiemann and
Dr. Tilley affidavits. The circuit court also granted the defendants’ summary
2 Unless otherwise indicated, statutory citations refer to the 2016 edition of the
Revised Statutes of Missouri, updated through the 2020 Cumulative Supplement.
3
judgment motions as to all of the Tiemanns’ claims, finding that they were barred
by the two-year statute of limitations.
The Tiemanns appeal. We describe additional facts relevant to the
application of the statute of limitations in the Discussion which follows.
Standard of Review
The trial court makes its decision to grant summary judgment
based on the pleadings, record submitted, and the law; therefore, this
Court need not defer to the trial court's determination and reviews the
grant of summary judgment de novo. In reviewing the decision to
grant summary judgment, this Court applies the same criteria as the
trial court in determining whether summary judgment was proper.
Summary judgment is only proper if the moving party establishes that
there is no genuine issue as to the material facts and that the movant
is entitled to judgment as a matter of law. The facts contained in
affidavits or otherwise in support of a party's motion are accepted as
true unless contradicted by the non-moving party's response to the
summary judgment motion. . . .
....
The record below is reviewed in the light most favorable to the
party against whom summary judgment was entered, and that party is
entitled to the benefit of all reasonable inferences from the record.
Green v. Fotoohighiam, 606 S.W.3d 113, 115-16 (Mo. 2020) (quoting Goerlitz v. City
of Maryville, 333 S.W.3d 450, 452-53 (Mo. 2011)); see ITT Commercial Fin. Corp. v.
Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. 1993).
Discussion
I.
The Tiemanns argue that their claims were not time-barred, because
Tiemann was receiving “continuing care” related to both his right and left hip-
replacement surgeries within two years of filing this lawsuit on April 18, 2019. We
agree with the Tiemanns’ argument with respect to the surgery on Tiemann’s left
hip. We conclude, however, that any continuing care concerning Tiemann’s right-
4
hip replacement ended no later than May 26, 2015 – well outside the two-year
limitations period.
A.
The statute of limitations for claims of medical malpractice is set out in
§ 516.105.1, which provides that “[a]ll actions against physicians . . . for damages
for malpractice, negligence, error or mistake related to health care shall be brought
within two years from the date of occurrence of the act of neglect complained of[.]”
The statute provides three explicit exceptions: (1) in cases involving the placement
of a foreign object in a patient’s body; (2) in cases involving the failure to inform a
patient of the results of medical tests; and (3) in cases involving a minor patient.
§ 516.105.1(1), (2) & (3). With respect to the first two exceptions, the statute
specifies that the limitations period begins to run on the date on which the patient
discovers the alleged negligence, or “the date on which the patient in the exercise of
ordinary care should have discovered” the alleged negligence, whichever is earlier.
§ 516.105.1(1) & (2). With respect to the third exception, the statute specifies that a
minor shall have until his or her twentieth birthday in which to file suit.
§ 516.105.1(3).
There is also a fourth, non-statutory exception to the operation of § 516.105.1,
referred to as the “continuing care” exception. This exception was first recognized
by the Missouri Supreme Court in Thatcher v. De Tar, 173 S.W.2d 760 (Mo. 1943).
Thatcher held that where treatment for the consequences of an act of medical
negligence “‘is continuing and of such nature as to charge the medical man with the
duty of continuing care and treatment which is essential to recovery,’” then “‘the
statute does not commence running until the treatment by the physician or surgeon
has terminated.’” Id. at 762 (citations omitted); see Montgomery v. S. Cty.
Radiologists, Inc., 49 S.W.3d 191, 194 (Mo. 2001) (recognizing the “continuing care
exception to the statute of limitations” established in Thatcher). “The duty to
5
attend the patient continues so long as required unless the physician-patient
relationship is ended by . . . the cessation of the necessity that gave rise to the
relationship.” Weiss v. Rojanasathit, 975 S.W.2d 113, 119–20 (Mo. 1998).3
The Missouri Supreme Court recently applied the “continuing care” exception
in Newton v. Mercy Clinic East Communities, 596 S.W.3d 625 (Mo. 2020). Newton
explained that the purpose of the “continuing care” exception “is to ensure that a
patient – facing the short statute of limitations imposed by statute – is not faced
with the impossible choice of either disturbing a course of treatment by initiating
suit against a caregiver or losing a viable cause of action.” Id. at 627.
In Newton, a physician surgically removed a patient’s ovarian cyst on July
10, 2012. The physician continued to see the patient, including for treatment of a
surgical-site infection which required hospitalization, through an appointment on
February 5, 2013. Id. at 626. The patient saw another physician in the same
hospital for further post-operative care on June 18, 2013. Id. “After the
appointment on February 5, 2013, [the patient] did not see [the defendant-
physician] again until January 29, 2015, when [the patient] presented for a general
gynecological exam.” Id. During that January 2015 examination, the patient
complained of fertility problems. Id. It was ultimately determined that the
patient’s fertility issues were caused by damage to her fallopian tubes, which
allegedly resulted from the infection following the cyst-removal procedure. Id. The
patient and her husband filed suit against the physician on June 1, 2016. Id.
3 “Continuing care” may terminate in three other ways: (1) by the mutual
consent of the parties; (2) by the physician’s withdrawal from the relationship after
reasonable notice to the patient; and (3) by the patient’s dismissal of the physician. Weiss,
975 S.W.2d at 119-20. None of these circumstances exist here.
6
The Supreme Court held that the patient’s lawsuit was time-barred, because
it was filed more than two years after any “continuing care” relating to the surgical-
site infection had ceased in June 2013. The Court explained that
[t]he necessity that gave rise to [the physician]’s duty of continuing
care to [the patient] was the surgical removal of an ovarian cyst and
related post-operative care, including treatment of the surgical site
infection. Both parties agree that the last date on which [the
physician] treated that infection was February 5, 2013, and that the
infection itself ended (at the latest) June 18, 2013.
Id. at 629 (footnote omitted).
The Court rejected the patient’s argument that the statute of limitations did
not begin to run in 2013, because the physician knew or should have known that the
patient required further medical treatment. Instead, the Court explained that “the
date on which the necessity that gave rise to the duty ended[ ] is to be determined
using an objective standard without inquiry into what the physician knew or should
have known.” Id. at 628.
Newton also rejected the patient’s contention that she was receiving
“continuing care” in 2015, because she complained of, and sought further treatment
for, consequences which flowed from the physician’s earlier negligence.
The two-year statute of limitations set forth in section 516.105
requires all actions to be brought within two years of the date of the
alleged negligence, irrespective of when the damage is discovered. See
Weiss, 975 S.W.2d at 121. This Court has held “continuing or
subsequently developing damages or injuries do not start the running
of section 516.105 anew,” and the statute of limitations commences to
run upon the occurrence of the act of neglect, not upon the
ascertainment of the damage resulting from the wrong. Id. at 119.
If treatment for consequences resulting from medical negligence
were part of the doctor’s duty of continuing care and served to toll the
statute of limitations for so long as necessary to treat such
consequences, then the continuing care tolling doctrine would simply
be another name for the discredited discovery doctrine because the
patient would not return for such treatment unless and until he or she
discovered there were consequences necessitating treatment. The
7
Court declines to stretch the continuing care tolling doctrine to that
extent.
Id. at 629.
B.
Dr. DiStefano and SSM argue that the “continuing care” exception should not
apply here for multiple reasons, each of which is unpersuasive.
The defendants first argue that the “continuing care” exception does not
apply to single acts of surgical negligence, such as Dr. DiStefano’s alleged
misalignment of the components of Tiemann’s prosthetic hips during the
arthroplasty procedures. But the defendants cite to no Missouri case which
prohibits the application of the doctrine to negligent acts committed during surgery.
In Newton, the Missouri Supreme Court explained that the “continuing care”
exception is intended to prevent a patient from being forced to discontinue an
ongoing “course of treatment” by filing suit precipitously, due to the time pressure
imposed by the statute of limitations. Id. at 627. The defendants offer no
persuasive argument why the “course of treatment” a patient receives in connection
with a hip-replacement surgery should consist only of the surgery itself, but not the
post-operative care that is contemplated by physician and patient before the
surgery is ever performed, and that is essential for the patient to receive the full
benefit of the arthroplasty procedure. Notably, in Montgomery v. South County
Radiologists, Inc., 49 S.W.3d 191 (Mo. 2001), the Missouri Supreme Court held that
the “continuing care” exception was inapplicable “[w]here a physician commits an
act of neglect on one specific date, and has no other contact with the patient.” Id. at
194 (emphasis added). Unlike in Montgomery, Dr. DiStefano did have “other
contact” with Tiemann after performing the arthroplasty surgeries, as both parties
fully contemplated from the outset. The “continuing care” exception can properly be
applied to surgical-negligence claims like the ones the Tiemanns make in this case.
8
The defendants also argue that the “continuing care” exception can only be
applied where the plaintiff alleges that the ongoing care was itself negligent. As
discussed more fully in § II, below, the Tiemanns have no competent evidence that
Dr. DiStefano was negligent in the post-operative care he provided to Tiemann.
Accordingly, the defendants contend that the “continuing care” exception cannot
apply here. The defendants’ argument is once again disproven by Newton. In
Newton, the plaintiffs alleged that a female patient was rendered infertile due to a
surgical-site infection which was caused by negligent acts of the physician-
defendant between July 16, 2012, and August 1, 2012, during the patient’s
immediate post-operative care. 596 S.W.3d at 626. Despite the fact that the
negligence which allegedly caused the infection ended on August 1, 2012, the
Supreme Court held that “continuing care” was occurring until “the treatment for
cyst removal and resulting surgical site infection ended, i.e., June 18, 2013, at the
latest.” Id. at 629. Thus, Newton held that the “continuing care” which prevented
the statute of limitations from running could continue after the defendant’s alleged
negligence had ended. The defendants’ argument is inconsistent with Newton, and
we accordingly reject it.
The defendants also argue that the “continuing care” exception cannot be
applied to a hospital, and that it does not apply to claims of vicarious or derivative
liability (like Deborah Tiemann’s loss of consortium claim, or the vicarious liability
claim asserted against SSM as Dr. DiStefano’s employer). In Montgomery, 49
S.W.3d 191, the Missouri Supreme Court rejected an argument by a corporate
multi-physician radiology clinic that the “continuing care” exception only applies to
claims against an individual treating physician:
SCR strenuously argues that its services – even if continuing –
are not of such a nature as to charge it with a duty of continuing care
and treatment. SCR believes that only the treating physician can have
such a duty, while other health-care entities cannot, citing dicta in
9
Shah v. Lehman, 953 S.W.2d 955, 958 (Mo. App. 1997), and Dunagan
v. Shalom Geriatric Center, 967 S.W.2d 285, 289 (Mo. App. 1998).
Neither Shah nor Dunagan holds that health-care entities cannot have
a duty of continuing care, but rather, both found no duty on the facts in
those cases. By invoking section 516.105, SCR concedes that it is an
“entity providing health care services.” The plain language of section
516.105 does not distinguish between types of providers, but covers
any “entity providing health care services.”
SCR ignores that the treating physician must rely on specialists,
such as radiological services: “the doctor must render [continuing care
and treatment] or must see to it that some other competent person
does so until termination of the physician-patient relationship.” Weiss,
975 S.W.2d at 120 . . . . 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.
49 S.W.3d at 195 (emphasis and other citations omitted); accord, Cole v. Ferrell-
Duncan Clinic, 185 S.W.3d 740, 742-45 (Mo. App. S.D. 2006) (applying “continuing
care” exception to claims of medical negligence and loss of consortium filed against
“a health care entity that . . . employed about 100 physicians”). The fact that SSM
is a hospital, rather than an individual treating physician, does not prevent
application of the “continuing care” exception.
We also reject the defendants’ contention that the “continuing care” exception
cannot be applied to claims of vicarious or derivative liability. Claims asserting
vicarious liability against an employer, and claims for loss of consortium by a
spouse, are both derivative of the patient’s underlying negligence claim against the
physician. Neither a vicarious liability claim, nor a loss of consortium claim, can
exist without a viable underlying negligence claim by the injured patient against
the treating physician. See, e.g., Dalbey v. Heartland Reg’l Med. Ctr., 621 S.W.3d
36, 43 (Mo. App. W.D. 2021) (“‘where the right to recover is dependent entirely on
the doctrine of respondeat superior and there is a finding of no negligence by the
servant there should be no judgment against the master’” (citations omitted));
10
Kamerick v. Dorman, 907 S.W.2d 264, 267 (Mo. App. W.D. 1995) (“A consortium
claim is derivative from the injured spouse's claim and depends on the validity of
the underlying claim. Although the consortium claim and the underlying claim
exist to compensate the two spouses for the different losses they sustain, both
involve a claim for damages for malpractice or negligence related to health care.
Thus, both are governed by § 516.105.” (citations omitted)).
Both a vicarious liability claim and a loss of consortium claim are subject to
the same statute of limitations as Tiemann’s claim against Dr. DiStefano, and
should be subject to the same “continuing care” exception. Refusing to apply the
“continuing care” exception to either a vicarious liability claim, or to Deborah
Tiemann’s loss of consortium claim, would create the very dilemma which the
Missouri Supreme Court has sought to avoid by adoption of the doctrine: “that a
patient – facing the short statute of limitations imposed by statute – is not faced
with the impossible choice of either disturbing a course of treatment by initiating
suit against a caregiver or losing a viable cause of action.” Newton, 596 S.W.3d at
627. Such disruption of ongoing care would occur by the early assertion of a
vicarious liability or loss of consortium claim, as much as by a direct negligence
claim against the individual treating physician. Although neither opinion
specifically discusses the issue, we note that in both Montgomery and Cole, the
courts applied the “continuing care” doctrine both with respect to a patient’s direct
negligence claims, but also with respect to a spouse’s loss of consortium claim. See
Montgomery, 49 S.W.3d at 192 (noting that suit involved claims for both “medical
negligence and loss of consortium”); Cole, 185 S.W.3d at 741 (same).
C.
We analyze the statute of limitations separately with respect to the
arthroplasties performed on Tiemann’s right and left hips. Although Dr. DiStefano
performed similar hip-replacement procedures on both of Tiemann’s hips, the
11
surgeries were performed almost two years apart, and addressed distinct medical
issues. During the summary judgment briefing, the Tiemanns admitted that
“[d]egenerative joint disease in the right hip is a different condition than
degenerative joint disease in the left hip,” that “the treatment for degenerative joint
disease in one hip is separate and distinct from treatment of degenerative joint
disease in the other hip,” and that “[t]reating degenerative joint disease in the right
hip [will not] cure degenerative joint disease in the left hip, and vice versa.”
Because the treatment for Tiemann’s two hips was “separate and distinct,” we must
separately consider whether the Tiemanns’ claims concerning the right- and left-hip
surgeries are time-barred.
1.
With respect to Tiemann’s right hip, the undisputed facts establish that
Tiemann’s post-operative care terminated no later than May 26, 2015 – well more
than two years before the Tiemanns filed suit on April 18, 2019.
Dr. DiStefano performed a total arthroplasty on Tiemann’s right hip at SSM
Health St. Francis Hospital – Maryville on August 18, 2014. Tiemann was seen two
weeks after his discharge from the hospital, on September 2, 2014, to have his
staples removed by a nurse. Tiemann reported that he was “doing well.” He was
given a refill of his prescription for hydrocodone, a painkiller.
Tiemann saw Dr. DiStefano for the first post-operative evaluation of his right
hip on September 30, 2014, six weeks after his surgery. Tiemann reported that he
had no pain or issues with his right hip at that time. X-rays were taken of
Tiemann’s right hip, and they were interpreted as demonstrating “very good
alignment.” Dr. DiStefano prescribed Tiemann Hydrocodone and instructed him to
apply ice to his hip three times a day. Tiemann was released to resume light duty
and activities.
12
Tiemann’s second post-operative evaluation took place six weeks later on
November 11, 2014. More x-rays were taken, which again showed “good alignment
with no change” from the last visit. Dr. DiStefano instructed Tiemann to continue
taking Mobic, a nonsteroidal anti-inflammatory drug that relieves pain, as well as
continue to ice his hip three times a day. Dr. DiStefano released Tiemann to return
to regular duty and activities, including work, with no restrictions.
On December 9, 2014, Tiemann saw an SSM nurse again, with his chief
complaint being right hip pain. Tiemann reported feeling a catch in his hip while
walking or when getting up from a low chair, and rated his pain, on a scale of one to
ten, at a six or seven.
Tiemann next saw Dr. DiStefano regarding his right hip on May 26, 2015, at
which time he reported that the right hip was “good” and “doing well.” Another set
of x-rays were taken, and they demonstrated the right hip was in “good alignment.”
In the Statement of Undisputed Material Facts supporting their summary
judgment motion, the defendants asserted that the May 26, 2015 visit was when
Tiemann “last saw Dr. DiStefano regarding the right hip.” The defendants
supported this statement with the records of the May 26, 2015 visit, and with
Tiemann’s deposition.4 In his deposition, Tiemann agreed that, during his visit
with Dr. DiStefano on May 26, 2015, “there was a report of no pain and generally
that the hip was doing good.” Tiemann testified that, following the May 26, 2015
visit, he was instructed by Dr. DiStefano to follow up with respect to his right hip as
4 Tiemann argues that the defendants failed to make a prima facie case for
summary judgment, because according to Tiemann the defendants had the burden to
negate the “continuing care” exception in their summary judgment motion, and failed to do
so. We need not decide who had the burden to prove the applicability (or inapplicability) of
the “continuing care” exception. Even if the burden was on the defendants as the moving
parties, their summary judgment motion negated the applicability of the “continuing care”
exception as to Tiemann’s right-hip arthroplasty by explicitly alleging – with competent
evidentiary support – that Tiemann “last saw Dr. DiStefano regarding the right hip” on
May 26, 2015.
13
needed, but that he had no further medical care for his right hip until he dislocated
the hip in July 2018 (more than three years later):
Q. But generally in May of 2015, things were good with your
right hip?
A. Yes.
Q. And you were instructed to follow up as needed?
A. Uh-huh.
....
Q. . . . After the visit in May of 2015, did you ever return to
St. Francis for your right hip other than coming back in July of 2018
when you went to the emergency room because there was an issue with
twisting and a toolbox?
....
A. No, I only went there just for standard visits.
Q. What do you mean “standard visits”?
A. Well, the scheduled visits that I had, and that was
probably about it.
Q. Did you have any – if the instructions in May of 2015
were to follow up as needed –
A. Yes.
Q. – did you have any scheduled visits after 2015 for your
right hip?
A. No. I think it was – we stopped at a year, visits for the
right hip.
In their opposition to the defendants’ summary judgment motion, the
Tiemanns sought to deny that the May 26, 2015 visit was the last time Dr.
DiStefano saw Tiemann concerning his right hip. But the evidentiary materials on
which they relied did not support their denial. First, the Tiemanns relied on
medical records of Tiemann’s visits to Dr. DiStefano on February 21, 2017, and on
May 16, 2017. But the records of those visits (which occurred following Tiemann’s
left-hip surgery) both indicate that the reason for the visits was to “follow-up [on]
14
left hip pain.” There is no mention in the records that Tiemann complained of pain
or other problems with his right hip during those visits. While Dr. DiStefano may
have examined both of Tiemann’s hips, there is no indication that the visits
constituted continuing post-operative care for any complication resulting from
Tiemann’s right-hip arthroplasty procedure.
The Tiemanns’ denial also relied on a passage from Tiemann’s deposition, in
which he testified that “I’m thinking there was” a further visit concerning his right
hip following the May 26, 2015 appointment. Tiemann testified that “I went back
for my right [hip] for a checkup because I was concerned” following the May 26,
2015 visit. When asked when that visit occurred, Tiemann could not specify; in
particular, he could not recall whether that further checkup occurred before or after
he was seen by Dr. DiStefano for an unrelated orthopedic issue involving his right
hand in August 2015. No medical records substantiate the further visit which
Tiemann vaguely recalled. Given that Tiemann could not even recall if this
purported visit occurred before or after August 2015 – almost four years before this
lawsuit was filed – Tiemann’s testimony that some further visit occurred concerning
his right hip, at an unspecified time, cannot create a genuine issue of material fact
that he was receiving “continuing care” concerning his right hip on or after April 18,
2017.
Finally, in denying the defendants’ claim that Tiemann’s last treatment for
his right hip occurred on May 26, 2015, the Tiemanns relied on Tiemann’s
summary-judgment affidavit. In that affidavit, Tiemann claimed that he informed
Dr. DiStefano and his staff, “at every visit between August 18, 2014, and July 2,
2018,” that he was experiencing “popping, clicking and catching” in his right hip.
To the extent Tiemann’s affidavit claims that he made complaints concerning his
right hip during the May 26, 2015 visit, his affidavit contradicts his deposition
testimony, in which he testified that he had no complaints of pain during that visit,
15
and that his right hip was “doing good.” Further, Tiemann testified that, during his
August 2015 visit for his right hand injury, he likewise reported that he was “happy
with [his] right hip at that point in time.” In his deposition, Tiemann also testified
that, in the year prior to visiting the emergency room concerning his right hip in
July 2018, he had not “had any issues with [his] right hip.”
In light of his deposition testimony, the circuit court could properly disregard
the claim in Tiemann’s affidavit that he made complaints concerning his right hip
“at every visit between August 18, 2014, and July 2, 2018.” “[A] party may not
avoid summary judgment by giving inconsistent testimony and then offering the
inconsistencies into the record in order to demonstrate a genuine issue of material
fact.” ITT Commercial, 854 S.W.2d at 388; accord, Kellog v. Kellog, 989 S.W.2d 681,
687 (Mo. App. E.D. 1999) (no genuine factual issue was created by plaintiff’s
summary judgment affidavit concerning his mental incapacity, which contradicted
his deposition testimony); Rustco Prods. Co. v. Food Corn, Inc., 925 S.W.2d 917, 923
(Mo. App. W.D. 1996) (“[c]ompetent material evidencing two plausible, but
contradictory, conclusions cannot come from the testimony of the same witness” to
preclude grant of summary judgment).
But even if Tiemann’s summary-judgment affidavit were properly considered,
it would not create a genuine factual dispute as to whether he was receiving
“continuing care” for his right hip replacement from the performance of the surgery
in August 2014, through the commencement of the limitations period in April 2017.
As Newton makes clear, “continuing care” only exists if a patient is actually
receiving continuing treatment from the health-care provider for the condition on
which the claim of negligence is based. Newton specifies that “continuing care” is
not established merely because the patient later requires treatment for
complications arising from the health-care provider’s negligence, or because the
health-care provider knew, or should have known, of the patient’s need for further
16
treatment. 596 S.W.3d at 628-29. Tiemann’s claim that he continued to complain
of right-hip discomfort cannot alone establish “continuing care,” without some
evidence that Dr. DiStefano was actually treating him for that discomfort on an
ongoing basis. See Kamerick v. Dorman, 907 S.W.2d 264, 266 (Mo. App. W.D. 1995)
(phone call by patient to physician’s office, complaining of doctor’s diagnosis, “does
not rise to the level of medical care, services or treatment”).
We accordingly conclude that the Tiemanns’ claims relating to the
arthroplasty performed on Paul Tiemann’s right hip on August 18, 2014, are time-
barred, and that the circuit court properly granted summary judgment with respect
to those claims.
2.
We reach a different conclusion concerning the timeliness of the Tiemanns’
claims concerning the surgery on Tiemann’s left hip.
On June 20, 2016, Dr. DiStefano performed an arthroplasty on Tiemann’s left
hip at SSM in Maryville. Tiemann returned two weeks after discharge, on July 5,
2016, to have a nurse remove his staples. The nurse’s report of the visit noted that
Tiemann was positive for joint and muscle pain.
Tiemann returned to Dr. DiStefano’s practice on July 19, 2016, and reported
to a nurse that he was experiencing an increased pain level of 3 out of 10 in his left
hip, which began on July 14, 2016. The nurse noted mild swelling in the posterior
of Tiemann’s left hip and reported it was mildly tender. The nurse instructed
Tiemann to continue taking Mobic for pain and icing his hip.
Tiemann saw Dr. DiStefano on July 26, 2016. Although Dr. DiStefano’s notes
of the visit state that Tiemann had “no pain, no issues,” he also recorded that
Tiemann was experiencing “some stiffness,” and was taking Mobic for pain. Dr.
DiStefano’s notes reflect that his “treatment plan” was for Tiemann to continue
17
taking Mobic, ice his hip three times a day, exercise his hip twice per day, and
“[f]ollowup in 6 weeks with an x-ray.”
On August 1, 2016, following Tiemann’s request at the prior visit, Dr.
DiStefano released Tiemann to return to work without restrictions.
On August 30, 2016, Tiemann returned to see Dr. DiStefano, with the chief
complaint of left hip pain. Tiemann reported it felt like parts were moving around
in his hip and that he was having some popping. He also reported a dull or aching
pain, as well as locking and catching. The duration was noted as “constant,” and
the frequency as once a week/intermittent. The symptoms were aggravated by
bending, squatting, and walking, and were limiting Tiemann’s activities. Dr.
DiStefano instructed Tiemann to continue taking Mobic and icing his hip three
times a day, as well as to exercise daily on an elliptical, starting at eight minutes
per day and increasing to thirty minutes per day, four times a week.
Dr. DiStefano saw Tiemann for a follow-up visit on October 25, 2016. The
chief complaint for the visit was noted as hip pain. Dr. DiStefano’s records indicate
that Tiemann was positive for pain in the left hip. Tiemann also reported
numbness in the skin nerves around his left hip. Due to Tiemann’s complaints of
numbness, Dr. DiStefano ordered an electromyography to test the nerves in that
area. Tiemann was later told the results came back as “all right” or “normal.” At
that visit, Tiemann reported that he was doing better and had started running
again, but also that his hip was popping at times. Dr. DiStefano instructed
Tiemann to continue exercising daily and to return in three months for another x-
ray.
On February 21, 2017, Tiemann saw Dr. DiStefano again for a “followup”
visit for “left hip pain.” Dr. DiStefano’s notes indicate that Tiemann was also
having “some numbness in the leg.” Although Dr. DiStefano’s notes indicate that
Tiemann reported “[n]o pain,” his notes also indicate that Tiemann was continuing
18
to take Mobic. Dr. DiStefano instructed Tiemann to follow up in six months, one-
year from his left-hip arthroplasty.
On May 4, 2017, Tiemann fell in the bathtub, causing left hip pain. On May
16, 2017, before his six-month follow-up after the February 21, 2017 visit, Tiemann
returned to Dr. DiStefano for an evaluation of his left hip pain. Dr. DiStefano noted
in his records that Tiemann reported no pain in his left hip prior to his fall. More x-
rays were taken, which were interpreted to show no evidence of hardware failure.
Dr. DiStefano instructed Tiemann to apply ice to the left hip and follow-up as
needed.
Tiemann returned to Dr. DiStefano’s practice, and saw a nurse-practitioner,
on June 30, 2017, complaining of left hip pain. Tiemann returned once again on
November 29, 2017, reporting three weeks of pain in his left hip, which he rated a 5
out of 10. The pain was aggravated by walking and standing, and limited his
activities. The nurse-practitioner also noted pain upon direct pressure. Tiemann
was given a corticosteroid shot and instructed to take 600mg of ibuprofen three
times a day for two weeks. Tiemann saw the nurse-practitioner again for pain in
his left hip on March 15, 2018.
Given this course of treatment, the Tiemanns presented a genuine issue of
material fact whether Tiemann was receiving “continuing care” associated with his
left-hip replacement surgery, from the time of that surgery on June 20, 2016, into
the limitations period commencing on April 18, 2017. Dr. DiStefano’s records
indicate that Tiemann was following up with Dr. DiStefano because of complaints of
pain in his left hip, and that Dr. DiStefano was offering Tiemann treatment for his
complaints of pain (including taking x-rays, and recommending medication, icing,
exercise and further follow-up visits). While it may not be entirely clear whether
that course of post-operative treatment was continuing following the February 21,
2017 visit, where Tiemann apparently reported that he was experiencing “no pain,”
19
the fact that a further follow-up visit was scheduled, and that Tiemann continued to
take pain medication, could support the conclusion that Dr. DiStefano continued to
provide Tiemann with post-operative care for complications of his left-hip
replacement surgery (including pain and numbness). A jury could reasonably find
that Dr. DiStefano’s instructions for Tiemann to return in six months for further
examination of his left hip demonstrated that Dr. DiStefano recognized that
Tiemann needed ongoing therapy for his pain, in order to achieve full recovery from
his left-hip arthroplasty. A jury could find that this follow-up visit was intended not
merely as general surveillance, but instead as “continuing care” to treat (and
hopefully resolve) Tiemann’s lingering left hip pain.
Thus, a genuine issue of material fact exists as to whether “the necessity that
gave rise to the relationship” continued to exist following the February 21, 2017
visit. See Weiss, 975 S.W.2d at 119–20. The defendants failed to establish that they
were entitled to summary judgment on the Tiemanns’ claims related to Tiemann’s
left-hip arthroplasty, based on the application of the two-year statute of limitations
found in § 516.105.
II.
In their third Point, the Tiemanns argue that the circuit court erred in
striking the summary-judgment affidavit of Dr. Michael Tilley, the orthopedic
surgeon who performed Tiemann’s total hip revision surgeries in 2018. In his
affidavit, Dr. Tilley opined that Dr. DiStefano had been negligent in his post-
operative care of Tiemann. Specifically, in his affidavit Dr. Tilley opined that Dr.
DiStefano’s post-operative care of Tiemann had fallen below the standard of care
if he failed to continue his care of Paul Tiemann by ordering and
reviewing the appropriate x-rays after each total hip replacement at
[specified] intervals; and that even if Dr. DiStefano did engage in such
follow-up x-ray protocol, that his care . . . still fell below the accepted
standard because he continuously failed to detect and remedy the
grossly obvious, misaligned manner in which he had originally
20
installed the integral component parts of both the left and right total
hip replacements.
Dr. Tilley’s affidavit was properly stricken, because it was inconsistent with
his deposition testimony. In his deposition, Dr. Tilley stated he would not be
providing an opinion on the post-operative care provided to Tiemann. Dr. Tilley
testified that he had not been provided with any records concerning the post-
operative care provided by Dr. DiStefano, and he “ha[d] no idea” if Dr. DiStefano
had taken x-rays of Tiemann’s hips following his surgeries. Instead, Dr. Tilley
testified that his opinions were based entirely on the radiographs taken at the
University of Kansas Medical Center in 2018, and what Dr. Tilley saw
intraoperatively as he performed Tiemann’s 2018 hip revision surgeries. As the
Tiemanns themselves acknowledge, “Dr. Tilley indicated in his deposition,
repeatedly, that he did not then have any opinion regarding post-operative care by
Dr. DiStefano because he had not seen any of the records.” They repeat this
statement in their reply brief: “Dr. Tilley clearly informed Defendants that the
reason he did not have an opinion about post-operative care at the time of his
deposition was because he had not reviewed any of the St. Francis records.”
Despite his deposition testimony that he could not offer any opinions
concerning Tiemann’s post-operative care, because he had not reviewed the records
of that care, in his affidavit Dr. Tilley purports to offer opinions concerning Dr.
DiStefano’s post-operative care – even though it is evident that Dr. Tilley’s new
standard-of-care opinions are not based on review of Tiemann’s post-operative
records (since Dr. Tilley’s affidavit reflects that he still “has no idea” whether post-
operative x-rays were even taken of Tiemann’s hips).5
5 Dr. Tilley’s affidavit does state that he reviewed the record of a May 16, 2017
visit by Tiemann to Dr. DiStefano’s practice. But the only conclusion Dr. Tilley derives
from that record is that the x-ray which Dr. DiStefano ordered on that date “is the
appropriate method of examination when a bilateral hip study is needed and constitutes
continuing care[.]”
21
Having reviewed no additional medical records detailing the post-operative
care Dr. DiStefano provided to Tiemann, Dr. Tilley may not provide an opinion
which he previously testified he was unable to give, simply as a means to prevent
the grant of summary judgment to Dr. DiStefano and SSM. “[A] party may not
avoid summary judgment by giving inconsistent testimony and then offering the
inconsistencies into the record in order to demonstrate a genuine issue of material
fact.” ITT Commercial, 854 S.W.2d at 371; see Popoalii v. Corr. Med. Servs., 512
F.3d 488, 498-99 (8th Cir. 2008) (district court did not err in striking physician-
expert’s summary judgment affidavit, where in his deposition the expert “testified
that he had no specific criticisms of the defendants’ medical treatment,” but in his
affidavit “opine[d] that if the defendants had treated Popoalii's intracranial
pressure they likely could have prevented her blindness”).
Point III is denied.6
Conclusion
We affirm the circuit court’s grant of summary judgment to the defendants
with respect to the Tiemanns’ claims concerning the right-hip arthroplasty
performed on Paul Tiemann in August 2014. We reverse the circuit court’s grant of
summary judgment with respect to the Tiemanns’ claims concerning Paul
6 We find it unnecessary to address any further arguments made by the
Tiemanns in Point II, concerning the striking of Tiemann’s summary judgment affidavit, or
in Point IV, concerning the circuit court’s ruling deeming certain facts asserted by the
defendants to be admitted. As we have explained in § I.C.1, above, the circuit court
properly found that the Tiemanns failed to effectively controvert the critical fact supporting
the grant of summary judgment concerning Tiemann’s right-hip surgery: that his “last”
visit with Dr. DiStefano concerning that hip occurred in May 2015. Whether the Tiemanns
effectively controverted other factual contentions made in the defendants’ summary
judgment motions, including through reliance on Tiemann’s summary judgment affidavit, is
irrelevant to the timeliness of their claims concerning the right-hip surgery. With respect
to the left-hip surgery, we have concluded in § I.C.2, above that summary judgment must be
reversed, without reference to any aspects of Tiemann’s affidavit, or the trial court’s ruling
deeming certain facts to be admitted.
22
Tiemann’s left-hip arthroplasty. The case is remanded to the circuit court for
further proceedings consistent with this opinion.
Alok Ahuja, Judge
All concur.
23