Opinion
CASE NO. 5:16-CV-5301
01-29-2018
DELLA GOINS, Individually and as the ADMINISTRATOR OF THE ESTATE OF STEPHEN RAY GOINS, DECEASED PLAINTIFF v. GREGORY J. OAKHILL, M.D.; GREGORY J. OAKHILL, M.D., P.A.; HIGHLANDS ONCOLOGY GROUP, P.A.; UNITED STATES OF AMERICA, Individually and as the Owner and/or Operator of the VETERANS HEALTH CARE SYSTEM OF THE OZARKS a/k/a VETERANS AFFAIRS MEDICAL CENTER (VAMC) located in Fayetteville, Arkansas and the CENTRAL ARKANSAS VETERANS HOSPITAL SYSTEM (CAVHS) located in Little Rock, Arkansas; and JOHN DOES 1-300 DEFENDANTS
MEMORANDUM OPINION AND ORDER
Currently before the Court is a Motion for Summary Judgment (Doc. 18) filed by separate Defendants Gregory J. Oakhill, M.D.; Gregory J. Oakhill, M.D., P.A.; and Highland Oncology Group (collectively, the "Oakhill Defendants"). The Court previously issued an Order (Doc. 27) taking the Motion under advisement and giving the parties a 90-day period of discovery because of an Arkansas statute of limitations issue that is central—indeed, dispositive—to whether Goins can maintain an action against the Oakhill Defendants. At the close of this 90-day discovery period and pursuant to the above-mentioned Order, the parties submitted supplemental briefing addressing the question of whether a narrow exception, the continuous treatment doctrine, operates in this case to toll the otherwise applicable two-year limitations period for medical malpractice suits. See Docs. 33 (Plaintiff's Supplemental Response), 34 (Oakhill Defendants' Supplemental Reply), & 37 (Plaintiff's Sur-Reply). For the reasons stated below, the Oakhill Defendants' Motion for Summary Judgment is GRANTED.
I. BACKGROUND
A. Factual Background
Plaintiff Delia Goins ("Goins") was married to Stephen Ray Goins, and is now the administratrix of his estate. Mr. Goins was diagnosed with esophageal cancer in March of 2011, and tragically succumbed to that disease on September 14, 2014. Goins has named a number of defendants in this medical malpractice suit involving her husband's death. Defendant Gregory J. Oakhill, M.D. is an oncologist practicing in Fayetteville, Arkansas. Defendant Gregory J. Oakhill, M.D., P.A. is alleged to be an entity employing Dr. Oakhill. Defendant Highlands Oncology Group, P.A. is an entity operating in Fayetteville, Arkansas, of which Dr. Oakhill was an agent, servant, or employee during the time period relevant to this case. Aside from the Oakhill Defendants, Goins also named the United States in its capacity as the owner and operator of the Veterans Healthcare System of the Ozarks a/k/a Veterans Affairs Medical Center ("VHSO") in Fayetteville, Arkansas, and the Central Arkansas Veterans Hospital System ("CAVHS") in Little Rock, Arkansas.
As a veteran of the United States Army, Stephen Goins primarily received his medical care from the Veterans Administration ("VA"). Mr. Goins went to the VHSO for his annual exam on July 16, 2010. During his appointment, he reported that when he ate, it sometimes felt like food was getting stuck. On February 25, 2011, Mr. Goins underwent testing at a facility in Ft. Smith, Arkansas, that revealed an almost complete blockage of his esophagus. See Doc. 25-2, pp. 63-65. This led to a diagnosis of esophageal cancer in March of 2011. On April 14, 2011, Mr. Goins underwent a procedure called an Ivor-Lewis esophagectomy to remove his esophageal tumor. The surgery was performed by Dr. Aytekin Ozmerir at the CAVHS in Little Rock. According to the surgical pathology report, residual tumor was microscopically observed at the surgical margin. Id. at 3. After his surgery, Mr. Goins scheduled a follow-up appointment with the VHSO's oncology clinic in Fayetteville for May 5, 2011. The appointment was rescheduled for June 1, 2011.
"In the Ivor Lewis esophagectomy, the esophageal tumor is removed through an abdominal incision and a right thoracotomy (a surgical incision of the chest wall). The esophagogastric anastomosis (reconnection between the stomach and remaining esophagus) is located in the upper chest." https://stanfordhealthcare.org/medical-treatments/e/esophagectomy/types/ivor-lewis-esophagectomy.html.
There seems to be some confusion about the actual name of this surgeon, as Goins calls him Dr. Ozmerir in the Complaint (Doc. 1, p. 9), but Mr. Goins's medical records refer to him as Dr. Ozdemir (Doc. 1-5, p. 50).
The VHSO's oncology clinic employs advanced practice nurses (APNs) with specialized training and certification in the field of oncology. The oncology APNs provide direct patient care, within a certain authorized scope of practice, and pursuant to a patient's treatment plan. Oncology treatment plans must be developed and implemented by a board certified oncologist. During the pertinent years in question here, the VHSO did not employ oncologists at its Fayetteville clinic, but instead contracted with local oncologists in private practice to provide those services.
In the fall of 2010, Highlands Oncology Group entered into a contract with the VHSO to staff its oncology clinic with board certified oncologists. (Doc. 20-2). The contract assigned Dr. Oakhill and three other medical oncologists as "key personnel" to provide these services. Dr. Oakhill provided medical oncology services at the VA clinic "once a month." Doc. 33-8, p. 6. Mr. Goins became a patient of Dr. Oakhill's because of this arrangement, and met with him for the first time on June 1, 2011.
The Contract also provided that these doctors were contractors who "shall not supervise any VA employee and will perform only authorized contract work at the VHSO in strict accordance with the schedule of services and costs shown in the contract." (Doc. 33-4, p. 4).
According to his initial progress note, Dr. Oakhill "discussed the limited information on post op chemotherapy" with Mr. Goins, and Mr. Goins "opted for observation and will be seen in 3 months with surveillance scans." (Doc. 25-2, p. 122). Linda Jones, one of VHSO's oncology APNs, was present and participated with Dr. Oakhill in this first appointment. Nurse Jones's notes indicate, "per Dr. Oakhill, chemotherapy not indicated, back to Dr. Oakhill with scans 3 months." Id. at 124. The notes do not reflect a discussion about residual tumor, or the relative significance of such a finding at the surgical margin.
In fact, Dr. Oakhill testified that he was not aware of Mr. Goins's "R status." Doc. 33-8, p. 29. Goins's expert, Dr. Kenneth Pennington, is critical of Dr. Oakhill's apparent failure to obtain and consider this information when formulating his treatment plan for Mr. Goins. See Doc. 33-9, pp. 13-17. See also Doc. 33-10, p. 8.
Dr. Oakhill and Nurse Jones next saw Mr. Goins on October 5, 2011. Nurse Jones wrote that "[Goins] elected for observation and is here [for follow-up] surveillance CT's." Id. at 119. The medical records say that Dr. Oakhill reviewed Nurse Jones's note, and "was present for the exam and agree[s]." Id. at 117. The CT scans noted surgical changes, but were otherwise unremarkable as pertinent here. Dr. Oakhill requested that Goins return to the clinic in 3 months for follow-up and new scans. Id.
The next follow-up appointment occurred on January 4, 2012, when Mr. Goins saw Dr. Oakhill and Nurse Finical, who is another of the VHSO's oncology APNs. Dr. Oakhill found that Mr. Goins's post-operative changes were improved, that he will continue the course of observation, and that Mr. Goins should return for another scan in three months. Id. at 109-115.
Dr. Oakhill did not see or participate in any of Mr. Goins's surveillance appointments after January 4, 2012. Instead, as it turned out, Nurse Finical coordinated and conducted all of Mr. Goins's subsequent follow-up oncology exams at predetermined intervals pursuant to Dr. Oakhill's original treatment plan. Doc. 33-8, p. 7 and Doc. 33-2, pp. 4-6. In the event of an untoward change on a future scan, then Dr. Oakhill would see Mr. Goins and advise him of any recommended changes to the treatment plan. Doc. 33-2, p. 7.
More than two years later, Dr. Oakhill did provide palliative chemotherapy consultations in February and May 2014, but Goins does not attribute any negligence to these consultations, nor does she contend that the pertinent "course of care" was continued by Dr. Oakhill as a consequence of these consultations.
As relevant here, Nurse Finical examined Mr. Goins and reviewed CT scan results with him on three subsequent occasions: May 9, 2012; December 20, 2012; and March 25, 2013. Mr. Goins did not voice any new concerns or complaints at any of these appointments. Nurse Finical interpreted these patient exams as normal, and no pertinent changes were observed on the scans. Id. at 98-108. Dr. Oakhill did not participate in any of these follow-up visits, and there is no record (or specific recollection) of these findings being communicated to him. Nor did Nurse Finical make any changes to Dr. Oakhill's original treatment plan. At the end of his March 25, 2013 appointment, Mr. Goins was told to return for follow-up scanning in six months. Id. at 101.
But at some point short of six months later, Mr. Goins began having difficulty swallowing. In August 2013, Mr. Goins brought these complaints to the attention of his VA primary care physician, Dr. Jimmy Acklin. These were the same symptoms that precipitated the previous discovery—and surgical removal—of the esophageal tumor in 2011. Dr. Acklin ordered a CT scan and an EGD. According to a September 4, 2013 radiology report, the CT scan contained "no significant change from [the scan performed on] 3/25/13." Id. at 35-36. On September 9, 2013, Dr. McKnight, a VA gastroenterologist, performed an EGD, the results of which contained no confirmation of malignancy, but did cause Dr. McKnight to remark that Mr. Goins's esophagus appeared "suspicious for a malignant process." Id. at 78. Dr. Robert Skinner, a VA gastroenterologist, performed another EGD on October 23, 2013. During the procedure, "[m]ultiple biopsies were made of the esophageal stricture and [were] submitted to [the] pathology lab." Id. at 81. Unfortunately, the pathologist reported to Dr. Skinner on that same day that the biopsies were positive for recurrence of esophageal adenocarcinoma. Id. at 127-128. According to Goins, a MRI on November 13, 2013, revealed that the cancer had metastasized to the spine.
"EGD" is the more commonly used description for an esophagogastroduodenoscopy. "The procedure uses an endoscope. This is a flexible tube with a light and camera at the end." https://medlineplus.gov/ency/article/003888.htm
On November 29, 2013, Mr. Goins presented to the emergency department of the CAVHS in Little Rock. He was in pain and requested to "expedite getting imaging done." Id. at 74-74. Linda West, APN, saw Mr. Goins on that visit. After taking a history and conducting an exam, Nurse West noted that:
[Mr. Goins] had a treatment plan outlined and [Goins] expressed desire to return to Fayetteville and close to home to get treatment done. He has appt on 12/3 in Ft. Smith for [radiation therapy] consult. As there are no available medical oncology slots here in a timely manner, I will send [Goins] as a one-time consult outside to Highlands Oncology. [Called] to expedite today but clinic is closed for Thanksgiving holiday. Will send consult on Monday.Id. at 73-75 (emphasis added). However, a subsequent note authored by Nurse West states that Goins was unable to attend that appointment because he was "pursuing hospice." Id. at 72.
On February 21, 2014, Nurse Jones, the oncology APN in Fayetteville, spoke on the phone with Mr. Goins. According to the progress notes, Mr. Goins said he was no longer interested in hospice, and that he had been receiving treatment from a private oncologist, but needed a VA oncologist to approve a change to his palliative chemotherapy regimen. On February 24, 2014, records reflect that Nurse Jones spoke on the phone with Dr. Oakhill, who verbally authorized the requested changes. Dr. Oakhill also conveyed additional orders for periodic lab work, and he asked to see Mr. Goins in May with new scanning. Id. at 91.
See id. at 92 ("[Mr. Goins's sister-in-law] was advised that information will be faxed today to Highland Oncology Group for appt with Dr[.] Oakhill to review local oncologist recommendation for capcitabine to replace palliative 5FU.").
Then, on May 27, 2014, Dr. Oakhill saw Mr. Goins in the VHSO clinic. This was the first time Dr. Oakhill had examined Mr. Goins since January 14, 2012. According to Dr. Oakhill's notes, Mr. Goins "received palliative FOLFOX therapy in Ft. Smith and [radiation therapy]. He presented to the [Fayetteville] VA for additional treatment options." Id. at 89. "He has been offered additional palliative chemotherapy and supportive care with aredia and pain control. He is felling [sic] better and would like to hold off on chemo for now but continue bisphosphonate therapy. Restage in 3 months." Id.
Mr. Goins passed away on September 2, 2014.
B. Procedural Background and Contentions
Goins filed suit in state court on October 23, 2015, exactly two years after the EGD biopsy showed a recurrence of Mr. Goins's esophageal cancer. On that same date, Goins filed a Federal Administrative Tort Claim with the Office of General Counsel for the Arkansas Department of Veteran Affairs. The federal tort claim was administratively denied in April of 2016. Goins voluntarily dismissed her state court claims on October 20, 2016, and then re-filed her suit in this court on October 21, 2016. Her Complaint (Doc. 1) brings medical malpractice and wrongful death claims against all of the Defendants. Goins contends that the Defendants were negligent when they failed to administer adjuvant chemotherapy and/or radiation therapy, and because Dr. Oakhill failed to include semi-annual surveillance EGDs in his treatment plan. But for these failures, Goins contends, her husband would not have died on September 2, 2014.
The Oakhill Defendants filed a Motion for Summary Judgment (Doc. 18) on April 6, 2017, wherein they contended that the suit is time-barred because Arkansas's two-year statute of limitations expired prior to filing suit. Goins conceded the obvious—more than two years had passed between Dr. Oakhill's last surveillance exam on January 14, 2012, and the filing of suit on October 23, 2015—but she argued that the statute was tolled. According to Goins, there was a continuous course of negligent treatment for which the Oakhill Defendants were directly and/or vicariously liable; this, she argued, tolled the statute of limitations until the recurrence of cancer was diagnosed on October 23, 2013, and thus her claim was timely filed within two years thereafter. The Oakhill Defendants filed a Reply (Doc. 26) on May 5, 2017, reiterating disagreement with Goins's position.
The Court then held an initial case management hearing on May 19, 2017, and received oral argument on the pending Motion. Upon questioning by the Court, counsel for Goins was somewhat at a loss to identify or explain exactly what negligence—subsequent to the clinic visit on January 14, 2012—could be attributed to Dr. Oakhill. More specifically, the active versus passive nature of any alleged on-going negligence, and the extent to which Dr. Oakhill had a duty to supervise the APN's treatment, if any, was not entirely clear to Goins, much less to the Court. And since a discovery deadline had not even been set yet, Goins requested time to establish facts and to obtain the expert opinions she would need to support her tolling theory. So the Court issued an Order (Doc. 27) taking the Motion under advisement and granting Goins a period of 90 days to obtain discovery on the limitations issue and to supplement her response.
The Court posited in its Order that the fact pattern discussed at the hearing might be askew from the fact patterns that the Arkansas Supreme Court had previously considered in either approving or rejecting application of this tolling doctrine. See Doc. 27, pp. 3-5. Viewing the facts favorably to Goins, the Court left open and invited further briefing on the following proposition. Would the Arkansas Supreme Court extend the continuous treatment doctrine to the fact pattern here, where: (i) Dr. Oakhill's original treatment plan served as the initial act of negligence (e.g., the treatment plan did not incorporate adjuvant therapies and EGD surveillance); (ii) the treatment plan itself required future acts that were negligently performed (e.g., Dr. Oakhill failed to modify the (otherwise improper) treatment plan with adjuvant therapies and EGDs before it was too late); and (iii) Mr. Goins was in the midst of complying with the negligent treatment plan when the recurrence of cancer was diagnosed on or about October 23, 2013. Given these facts, Goins contended that the statute must be tolled, because otherwise Mr. Goins would have been required to interrupt his treatment plan in order to timely perfect the filing of his suit—based on negligence that he didn't yet know about. The continuous treatment exception, Goins argued, was intended to avoid this very catch-22 dilemma.
The recurrence was suspected as early as McKnight's EGD on September 9, 2013. (Doc. 25-2, p. 78), and later confirmed by the biopsy taken during Dr. Skinner's EGD on October 23, 2013. Id. at 81. Goins states, without any specific proof, that she and her husband were first informed of the biopsy findings on October 25, 2013. Goins filed suit within two years of the biopsy on October 23, 2015. For purposes of the Court's statute of limitations analysis, it has assumed that there is no material distinction between the October 23rd biopsy date and the October 25th notification date.
Depositions were taken, additional expert opinions were provided, and Goins supplemented her Response (Doc.33). The Oakhill Defendants filed supplemental briefing too, this time including additional arguments based on Goins's expert's failure to opine as to proximate cause. (Doc. 34). This led to motions to strike and yet additional briefing. (Docs. 35,37,38, and 40). For the reasons explained below, Goins has not persuaded the Court that the facts support a tolling of the statute of limitations under Arkansas law.
II. LEGAL STANDARDS
A. Summary Judgment
The standard for summary judgment is well established. Under Federal Rule of Civil Procedure 56(a), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The Court must review the facts in the light most favorable to the opposing party and give that party the benefit of any inferences that can be drawn from those facts. Canada v. Union Elec. Co., 135 F.3d 1211, 1212-13 (8th Cir. 1997). The moving party bears the burden of proving the absence of a genuine dispute of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
Once the moving party has met its burden, the non-moving party must "come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(c)). However, "the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient" to survive summary judgment. Anderson v. Durham D&M, L.L.C., 606 F.3d 513, 518 (8th Cir. 2010) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). Rather, in order for there to be a genuine issue of material fact that would preclude summary judgment, the non-moving party must produce evidence "such that a reasonable jury could return a verdict for the nonmoving party." Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994) (quoting Anderson, 477 at 248 (1986)).
B. Continuous Treatment Doctrine
In Arkansas, lawsuits for medical malpractice generally must be commenced within two years after the cause of action first accrues. Ark. Code Ann. § 16-114-203(a). Under Arkansas law, "the date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time." § 16-114-203(b). However, Arkansas, like many states, recognizes certain exceptions to this general rule. The exception at issue here, the continuous treatment doctrine, was first recognized by the Arkansas Supreme Court in Lane v. Lane. 295 Ark. 671, 673 (1988). There, it adopted the definition of the doctrine as provided by a medical malpractice treatise:
if the treatment by the doctor is a continuing course and the patient's illness, injury or condition is of such a nature as to impose on the doctor a duty of continuing treatment and care, the statute does not commence running until the treatment by the doctor for the particular disease or condition involved has terminated unless during treatment the patient learns or should learn of negligence, in which case the statute runs from the time of discovery, actual or constructive.Id. at 673-74 (quoting 1 D. Louisell and H. William Wachsman, Medical Malpractice § 13.08 (1982)). The Arkansas Supreme Court has stated that this doctrine requires both treatment that is a continuing course and that the patient's illness or condition impose on the doctor a duty of continuing treatment and care. Tullock v. Eck, 311 Ark. 564, 569 (1993). Most importantly for the present Motion, the inclusion of the requirement of a continuing course of treatment is vital, per the Arkansas Supreme Court, because, "without [that] element, it might be thought that a physician's omission of treatment where there is a duty of care could toll the statute of limitations on the basis of continuation of negligence or tortious conduct." Id. (emphasis added).
Several policy justifications undergird the doctrine. First, when applicable, the continuous treatment doctrine serves to protect a plaintiff who is unable to identify which treatment in a string of treatments caused his injury. See, e.g., Roberts v. Francis, 128 F.3d 647, 651 (8th Cir. 1997) (agreeing with the District Court's conclusion that the recognized continuous treatment exception is "limited to those situations wherein a plaintiff cannot identify one treatment that produced his injury"). Where, however, a plaintiff can identify the injurious negligent treatment, the statute of limitations is not tolled. Id. The doctrine has also been defended on the basis that it would be inequitable to force a plaintiff to choose between continuing active, corrective treatment by the physician and filing her lawsuit. See, e.g., Wright v. Sharma, 330 Ark. 704, 707 (1997) ("We have also said that '[i]t would be absurd to require a wronged patient to interrupt corrective efforts by serving a summons on the physician.'") (quoting Lane, 295 Ark. at 675).
Unlike other states that recognize the continuous treatment doctrine, however, Arkansas's version is strictly construed because of the statutory language. Indeed, as the above-quoted language indicates, the Arkansas legislature has provided that a cause of action for medical malpractice accrues on the date of the wrongful act complained of and no other time. Ark. Code Ann. § 16-114-203(b) (emphasis added). "Arkansas courts view this language as a strong command by the legislature not to adopt more lenient approaches to the determination of the accrual of a cause of action, such as discovery of the injury or continuous tort." Hicks v. Armstrong, 253 F.3d 1072, 1073-74 (8th Cir. 2001). As a result, many courts have expressed the sentiment that "[t]he manner in which the Arkansas courts have applied the doctrine suggests that it is rarely applicable." Med. Liab. Mut. Ins. Co. v. Alan Curtis Enters., 2006 WL 3542986 (E.D. Ark. Dec. 8, 2006).
Procedurally, the Arkansas Supreme Court has indicated that "once it is clear from the face of the complaint that the action is barred by the applicable limitations period, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of limitations was in fact tolled." Wright, 330 Ark. at 706.
III. DISCUSSION
In its May 22nd Order, the Court observed that this case might present a novel hybrid of the fact patterns where Arkansas appellate courts have previously applied or rejected the continuous treatment doctrine. See Doc. 27, p. 3. Now having afforded Goins an opportunity to take discovery, and with the benefit of her supplemental evidence and briefing, the Court is firmly persuaded that the Arkansas Supreme Court would not extend the continuous treatment doctrine to the undisputed facts presented here.
In reaching this conclusion, the Court has made two important assumptions favorable to Goins. First, it is assumed that Dr. Oakhill is vicariously liable for treatment provided by Nurse Jones and Nurse Finical, because they were implementing Dr. Oakhill's (allegedly negligent) treatment plan. Second, the Court has assumed that but for any such negligence, Mr. Goins would not have died on September 2, 2014. The Oakhill Defendants dispute both assertions. To be clear, the Court makes these assumptions only for purposes of resolving this motion. The Court is not making any such findings as a matter of law.
Goins contends that her husband's treatment was enveloped by a continuing course of negligent treatment. In support of her tolling argument, Goins contends (i) that Dr. Oakhill's negligent course of treatment began on June 1, 2011, when he devised and implemented a below-the-standard-of-care treatment plan; and (ii) such negligence continued throughout the duration of the plan's intended length of regularly scheduled surveillance activities, because Dr. Oakhill failed to intervene before it was too late; and (iii) therefore the statute of limitations did not begin to accrue until the recurrence of cancer was diagnosed on October 23, 2013. According to Goins, this was the first point in time when she and her husband should reasonably be charged with knowledge of Dr. Oakhill's negligence. And since Goins filed suit within two years of this continuing treatment, the argument continues, her claims are timely.
Goins acknowledges that Dr. Oakhill's last surveillance exam was more than two years prior to filing suit, but she insists that Dr. Oakhill was directly and vicariously liable for the subsequent period of surveillance treatment that was more specifically arranged and monitored by the VA's APNs—because they were merely executing Dr. Oakhill's negligent treatment plan. To the extent Goins's argument has any merit, it nevertheless misses the point. Goins has still not identified any negligent corrective action attributable to Dr. Oakhill that occurred within two years of filing suit. At best, Goins points to negligent omissions within the statutory period. But the continuous treatment doctrine does not apply to mere negligent omissions. In practical effect, Goins is seeking to establish the accrual date of her claims based not on when a final negligent act occurred, but rather based on when the cumulative effects of the negligence were discovered. Arkansas doesn't recognize that theory either.
A. Undisputed Facts
The following chronology of events is undisputed:
• 04-14-11 Dr. Ozdemir performs Ivor-Lewis Esophagectomy
• 04-14-11 Pathology report notes microscopic residual tumor
• 06-01-11 Dr. Oakhill's Initial Consultation and Treatment Plan
• 10-05-11 Dr. Oakhill's follow-up exam and scan review
• 01-14-12 Dr. Oakhill's last follow-up exam and scan review
• 05-09-12 VA Nurse Finical follow-up exam and scan review
• 12-20-12 VA Nurse Finical follow-up exam and scan review
• 03-25-13 VA Nurse Finical's last follow-up exam and scan review
• 09-04-13 Dr. Acklin orders CT Scan. "[N]o significant change"
This particular CT scan was not ordered by Dr. Oakhill or Nurse Finical. Rather, it was ordered by Dr. Acklin (Mr. Goins's primary care physician), due to a recurrence of symptoms of difficulty swallowing. (Doc. 25-2, pp. 35-36).
• 09-09-13 Dr. McKnight's EGD is "suspicious for malignant process"
• 10-23-13 Dr. Skinner's EGD—Biopsies of esophageal stricture
• 10-23-13 Biopsy results positive for recurrent adenocarcinoma
• 11-13-13 MRI indicates metastasis to the spine
• 02-24-14 Dr. Oakhill's phone consultation for palliative chemotherapy
• 05-27-14 Dr. Oakhill's follow-up exam for palliative chemotherapy
Although it is undisputed that Dr. Oakhill provided palliative care consultations on February 24, 2014, and May 27, 2014, Goins does not contend that either of these encounters tolled the statute. Rather, Goins argues that the statute of limitations began accruing on October 25, 2013—the date her husband was notified that the cancer had returned. (Doc. 25, p. 5).
• 09-02-14 Mr. Goins succumbs to cancer
• 10-23-15 Goins files suit alleging medical malpractice
B. Continuing Course of Treatment or Continuing Tort?
In Arkansas, the continuous treatment doctrine is only applicable when a plaintiff can show by a preponderance of the evidence that the treatment complained of consisted of "a series of negligent acts, or a continuing course of improper treatment." Hobbs v. Naples, 1992 WL 486910, at *3 (W.D. Ark. May 18, 1992) (citing Lane, 295 Ark. at 675). In addition, the Arkansas Supreme Court has indicated that the doctrine's requirement of continuing treatment forecloses a plaintiff from arguing that "a physician's omission of treatment where there is a duty of care could toll the statute of limitations on the basis of continuation of negligence or tortious conduct." Tullock, 311 Ark. at 569. To hold otherwise, the Court held, would be to lend credence to the continuing tort theory, a theory consistently rejected by the Arkansas Supreme Court. Id. Of course, this rather narrow view stems directly from a recognition that the Arkansas statute of limitations for malpractice is to be strictly construed. See id. at 570 ("As we explained in . . . Lane . . ., we feel constrained by the statute . . . .").
Thus, as an initial matter, the Court must first determine whether the allegations of negligence that Goins attributes to the Oakhill Defendants are more appropriately akin to the continuous treatment or continuing tort line of cases. Goins argues, through her expert Dr. Pennington, that the Oakhill Defendants' conduct fell below the standard of care for two separate reasons. First, in his initial letter report dated October 12, 2015, Dr. Pennington stated that the Oakhill Defendants deviated from the standard of care because of the "failure to administer either pre-operative or post-operative chemotherapy and radiation." (Doc. 25-3, p. 11). Second, after the additional 90-day discovery period ended, Goins submitted a more robust expert report from Dr. Pennington in which he further opined that the Oakhill Defendants also breached the standard of care when "Dr. Oakhill failed to order an EGD in December of 2011, June of 2012, December of 2012, and June of 2013." (Doc. 33, p. 16; see also Ex. J, p. 8).
Given that these are the only allegations of negligence advanced by Goins, the Court concludes that these negligent acts are more akin to continuing torts than to a continuous course of treatment. To understand the difference, the Court will quickly summarize relevant cases from each category.
1. Continuous Treatment
The Arkansas Supreme Court has only twice applied the continuous treatment doctrine to toll the statute of limitations. In the first, Lane v. Lane, a wife sued her former husband, a doctor, who had continuously and repeatedly injected her with a variety of narcotics from 1966 to 1984. Lane, 295 Ark. at 673. In the second, Taylor v. Phillips, a plaintiff who suffered a broken jaw sued both the doctor who performed the surgery and initial post-surgery treatment and that doctor's partner for injuries alleged to have been caused by multiple post-surgery repositionings of the jaw brace done by both doctors. 304 Ark. 285, 286, 289 (1990). In both of these cases, the continuing treatment was active in nature and both Lane and Taylor alleged active malfeasance on the part of each doctor. Moreover, in both cases, the purpose behind the continuous treatment doctrine—i.e. not holding a plaintiff to the near impossible task of identifying which of those particular treatments (e.g. the specific injection or active repositioning) caused the injury—would clearly be furthered by tolling the limitations period.
2. Continuous Torts
Unlike the continuous treatment cases, plaintiffs in continuous tort cases are able to point to allegedly negligent acts that cause a continuing harm. For instance, in Williams v. Edmondson, Williams contended that a misreading of an X-ray that a tumor was benign (thus resulting in the X-ray being put away and no treatment being given to Williams's husband) should have tolled the statute of limitations until the error was discovered. 257 Ark. 837, 849 (1975). The Court rejected that approach, finding that "the wrong, if any, was completed at the time of the reading" and that "the continuing tort theory best addresses itself to the General Assembly who has the responsibility for establishing the public policy on that issue." Id. at 848-49. A similar result was obtained in Baker v. Radiology Associates where Baker argued that radiologists administered sub-standard of care treatment when they did not inquire into the nature of suspicious lesions when reading mammograms in consecutive years. 72 Ark. App. 193, 194 (2000). The Court determined that these were isolated acts of negligence and rejected Baker's argument that "the [continuous treatment] doctrine should apply because current mammograms are viewed in conjunction with previous mammograms to determine if a change has occurred." Id. at 200.
The allegations of negligence that Goins and her expert advance are analogous to the kind asserted in the continuous tort cases. In those cases and in the case at bar, the plaintiffs are able to point to specific decisions or omissions that were made by the doctor that resulted in injury. However, unlike active malfeasance such as repeated injections that caused an injury, the allegations in this case and in Baker and Williams are essentially that the patient was wronged by the cumulative effect of inaction, i.e. recurring omissions, a/k/a non-feasance, because it deprived him of the chance to have a quicker diagnosis or an earlier treatment plan. In Williams, had the diagnoses been properly made on the X-rays, the patient would have begun treatment for cancer. In Baker, had the radiologists followed up on suspicious lesions rather than just comparing one scan to another, the patient could have had faster treatment. And here, had Dr. Oakhill included (1) adjuvant chemotherapy and (2) surveillance EGDs as part of Mr. Goins's treatment plan, it is argued that he would have had a better chance at surviving for a longer period of time. According to Goins, the negligent failure to "treat" was "continuous" at each subsequent follow-up visit, and in fact, Goins contends, the standard of care was continuously breached until the ultimate injury—recurrence of the cancer—was eventually diagnosed. What these cases have in common is that the alleged negligent omissions are not sufficient on their own to establish the kind of continuous treatment necessary to toll the statute of limitations.
As the Arkansas Supreme Court indicated in Tullock, the conjunctive requirement of both treatment and a continuous course requires affirmative actions on the part of doctors. See, e.g., Tullock, 311 Ark. at 569 ("Without the former element, it might be thought that a physician's omission of treatment where there is a duty of care could toll the statute of limitations on the basis of continuation of negligence or tortious conduct."). This is precisely what Goins alleges occurred here. But the mere continuation of a negligent treatment plan is not enough to meet the requirements for Arkansas's narrow exception.
This point is at least partially illustrated in the concerns expressed by the Justices who wrote separate opinions in Taylor v. Phillips. Certain Justices had misgivings about future litigants misinterpreting the majority's reliance on out-of-state cases, especially given the breadth of those states' limitations statutes compared to Arkansas's statute. Although the out-of-state cases cited in the majority opinion involved active treatment occurring after the claimed negligent act(s) that gave rise to the suit (therefore being readily distinguishable from the present case), future litigants were admonished against placing too much reliance on the non-Arkansas opinions as reliable indicators of how far Arkansas's exception extended. For example, Justice Newbern, in concurring only in the result, first emphasized the narrowly written wording of the Arkansas statute:
[t]here is no stated recognition that the problem in this case is whether Dr. Phillips' inaction subsequent to placing the brace on Mr. Taylor constituted "treatment." That is the issue, and it is a close one in the context of our medical malpractice statute of limitations which begins to run "the date of the wrongful act complained of and no other time."304 Ark. 285, 290 (Newbern, J.). And because the majority opinion "may mislead future litigants," Justice Newbern wrote separately to emphasize that:
[i]t should not be assumed by those reading the court's opinion that as long as a doctor-patient relationship continues, or there is a continuous course of non-treatment or omission, the statute does not begin to run. A review of the cases cited in the majority opinion shows that they do not support such a conclusion in a jurisdiction which has a statute such as ours.Id. at 289-90.
That sentiment was equally shared by Justice Hays, who, importantly, happens to have authored the Lane decision that ushered in the continuous treatment doctrine in Arkansas. His opinion similarly took issue with the possible expanded reading that the majority's language might support. He argued that "[i]n Lane we specifically rejected applying the continuous treatment theory to nonfeasance, i.e., we did not mean to include the failure of the treating physician to correct a wrong as . . . within the continuous treatment doctrine. Rather, the cause of action was to be the result of active malfeasance . . . ." Id. at 293 (Hays, J.) (citing to the Lane court's support of the argument that "it would be absurd to require a wronged patient to interrupt corrective efforts by serving a summons on the physician" (emphasis added)).
While Taylor itself did not involve nonfeasance (rendering all of the discussion about nonfeasance in the majority, concurrence, and dissenting opinions dicta), the attention that these Justices paid to the issue of active malfeasance vs. nonfeasance illustrates the Court's concern that the continuous treatment doctrine recognized under Arkansas law is not meant to be applied where the specified negligence is the failure of a physician to initiate any particular treatment (in this case, either chemotherapy/radiation or semi-annual EGDs).
Perhaps seeing the writing on the wall given how strictly construed this exception is, Goins argues in her Supplemental Response that the Arkansas Medical Malpractice Act broadly defines "medical injury" to include "any adverse consequences arising out of or sustained in the course of the professional services being rendered by a medical care provider to a patient or resident, whether resulting from negligence, error, or omission in the performance of such services." (Doc. 33, p. 2). While this is no doubt true, this definition does little to clarify whether the failure to begin treatment can qualify as a negligent continuing course of treatment for the purpose of tolling the statute of limitations.
Case law from other jurisdictions that recognize the continuous treatment doctrine generally confirm the Court's concerns. See, e.g., Nykorchuck v. Henriques, 78 N.Y.2d 255, 259 (1991) (holding that the failure to establish a course of treatment cannot constitute a course of treatment); Rowntree v. Hunsucker, 833 S.W.2d 103, 105-06 (Tex. 1992) (noting that the Texas Supreme Court would not "accept the self-contradictory proposition that the failure to establish a course of treatment is a course of treatment").
C. Do The Surveillance Scans Constitute Affirmative Treatment?
Even if on-going omissions in general will not suffice, Goins makes a more discrete and distinguishing argument that the surveillance scanning itself constituted affirmative treatment—but only partially in keeping with the standard of care. To her, the failure to couple those scans with either chemotherapy and/or semi-annual EGDs was negligent and caused Mr. Goins to have a lower likelihood of survival. But this is a distinction without a meaningful difference and, regardless, is insufficient to trigger the continuous treatment exception.
In an effort to argue otherwise, Goins cites to cases from New York, for the proposition that while the failure to establish a course of treatment cannot constitute a course of treatment, "[t]he monitoring of an abnormality to ascertain the presence or onset of a disease or condition may constitute treatment for purposes of tolling." Flint v. Zielinski, 130 A.D.3d 1460, 1462 (N.Y.App. Div. 4th Dep't 2015) (emphasis added). For reasons that do not require more elaboration here, the Court believes that Goins has overstated the applicability of Flint. Moreover, Goins has ignored other precedent which undermines her reliance on New York law to support the argument here.
In Flint "the malpractice cause of action was based on [the doctor's] failure to take any steps to diagnose decedent's lung cancer in light of certain findings contained in a May 2, 2006 CT scan . . . and that he never established a course of treatment for lung cancer." Id. at 1460. This argument that the doctor failed to notice a cancer that was allegedly visible on a CT scan in 2016, opting instead to just continue scans for around 19 months after that (from the May 2006 scan to December 2007 when the doctor's treatment of the patient ended) fundamentally differs from Goins's claim of negligence here.
Werner v. Kwee,148 A.D.2d 701, 702 (N.Y. App. Div. 2d Dep't 1989) involved a patient, just like Mr. Goins, who "had a cancerous condition which had previously necessitated surgery." That patient, like Mr. Goins, was referred to a defendant-doctor for a period of years (there from 1982-1985) for semiannual examinations to detect any recurrence of the cancer. The Court there held that "[a]lthough the plaintiff established an ongoing physician-patient relationship, she failed to show that the appellant was providing continuous treatment. . . . Indeed, while the plaintiff alleged that the appellant was "treating and guarding against a recurrence of my cancer," she alleged no specific treatment. It is clear from the record that each visit to the appellant's office was discrete, complete and "for the sole purpose of ascertaining the state of [her] condition . . . ." Under these circumstances, the doctrine of continuous treatment is inapplicable.
Regardless, the argument is purely academic because it ignores the narrowness of Arkansas's continuous treatment doctrine and the undisputed time line. Even if the Court assumes: (1) that surveillance scanning constitutes active treatment under Arkansas law; and (2) that Dr. Oakhill is vicariously liable for the surveillance appointments conducted by Nurse Finical; more than two years nevertheless elapsed between Nurse Finical's last surveillance appointment on March 25, 2013, and the filing of suit of October 23, 2015. See, e.g., Raynor v. Kyser, 64 Ark. App. 365, 372 (1998) (noting that "in the two cases in which the supreme court applied the continuous-treatment theory . . . the last portion of the negligent treatment fell within the two-year statute of limitations, even though the initial act of negligence was outside of that period").
In making this assumption the Court is required to ignore a contractual provision and certain disputed testimony to the contrary. See note 3, supra. --------
This leaves Goins to argue that her husband remained within a continuous course of active treatment for tolling purposes merely because Nurse Finical (at the end of the March 25, 2013, appointment) told Mr. Goins to return for "rescan in 6 months." (Doc. 25-2, p. 101). But that takes us right back to the distinction explained above regarding the difference between on-going active treatment where the tolling doctrine is recognized, and continuing negligence based on on-going omissions where tolling is not recognized.
IV. CONCLUSION
At bottom, neither of the two Arkansas Supreme Court cases that have applied the continuous treatment doctrine have applied it to the sort of time line present here. As the Eighth Circuit indicated in Hicks v. Armstrong, "[w]ere this case from a jurisdiction that had more broadly construed the . . . doctrine, we might be inclined to allow these claims to go forward. However, our duty is to apply Arkansas law as the Arkansas state courts would . . . in light of the specific restrictive language of the statute . . . ." 253 F.3d 1072, 1075 (8th Cir. 2001). This Court has serious doubts that Arkansas courts, many of whom repeatedly comment on the narrowness of the exception, would allow it to apply here as the effect would be to enlarge the coverage of a rarely applicable exception.
For all of the reasons advanced above, the Court finds that Goins has failed to establish by a preponderance of the evidence that Arkansas's continuous treatment doctrine brings her claims against the Oakhill Defendants within the otherwise applicable limitations period. It will therefore GRANT the Oakhill Defendants' Motion for Summary Judgment (Doc. 18). As a result, the claims asserted against the Oakhill Defendants are DISMISSED WITH PREJUDICE.
IT IS THEREFORE ORDERED that the Oakhill Defendants' Motion for Summary Judgment (Doc. 18) is GRANTED. The claims asserted against Gregory J. Oakhill, M.D.; Gregory J. Oakhill, M.D., P.A.; and Highlands Oncology Group are DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the Oakhill Defendants' Motion to Strike (Doc. 38) is MOOT.
IT IS SO ORDERED this 29th day of January, 2018.
/s/_________
TIMOTHY L. BROOKS
UNITED STATES DISTRICT JUDGE