Cole v. Ferrell-Duncan Clinic

185 S.W.3d 740, 2006 Mo. App. LEXIS 125, 2006 WL 224288
CourtMissouri Court of Appeals
DecidedJanuary 31, 2006
Docket26731
StatusPublished
Cited by5 cases

This text of 185 S.W.3d 740 (Cole v. Ferrell-Duncan Clinic) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cole v. Ferrell-Duncan Clinic, 185 S.W.3d 740, 2006 Mo. App. LEXIS 125, 2006 WL 224288 (Mo. Ct. App. 2006).

Opinions

KENNETH W. SHRUM, Presiding Judge.

Alfred C. Cole (“Alfred”) and Janis E. Cole (collectively called Plaintiffs) sued Ferrell-Duncan Clinic, Inc. (“Defendant”) for medical negligence and loss of consortium. Their suit was filed April 15, 2003. They alleged, inter alia, that Dr. Jack Mantell (a physician employed by Defendant) negligently failed to inform Alfred about PSA tests (for prostate cancer detection) and negligently failed to order PSA tests when Alfred went to Dr. Man-tell for physical exams on December 8, 1997, and January 27, 1999; that in October 2002, Alfred was diagnosed with prostate cancer; that when Alfred saw Dr. Mantell for physical examinations in 1997 and 1999, he had a material chance of recovery from prostate cancer, but Dr. Mantell’s negligence caused Alfred to lose part of his material chance of recovery.1

Defendant timely objected to evidence and jury instructions about Alfred’s 1997 and 1999 visits with Dr. Mantell. It did so on the grounds that any part of Plaintiffs’ claim arising from those visits was time [742]*742barred (§ 516.105)2. The court overruled Defendant’s objections.

After a jury verdict favorable to Plaintiffs, Defendant appealed. The sole issue is whether the “continuing care” exception to the statute of limitations (§ 516.105) applied here, thus allowing the jury to consider evidence that section 516.105 would otherwise have made inadmissible. Finding no error in the trial court’s rulings, we affirm.

Defendant is a health care entity that provides health care to people in the southwest Missouri area. As of 2001, it employed about 100 physicians. Beginning December 8, 1997, and continuing through February 4, 2003, Alfred used some of Defendant’s physicians for his healthcare. He started in December 1997 with Dr. Jack Mantell (Defendant’s employee) as his primary care physician.

Plaintiffs originally contacted Dr. Man-tell “and asked if he would take [them] as patients” after Alfred’s employer (Burlington Northern Railroad) changed insurance programs and they (Plaintiffs) had to get a primary care physician. After Dr. Mantell agreed to be his physician, Alfred began having Dr. Mantell do periodic physical examinations of him. As Alfred worded it, he wanted Dr. Mantell to “have the chance” of identifying “what risks [he] might be facing relative to [his] health,” including “early detection of cancer.”

Alfred first saw Dr. Mantell on December 8, 1997, when he was sixty-one years old. The history given Dr. Mantell included that Alfred suffered from “nocturia [urinating at night] one to two times.” As a part of the physical, Dr. Mantell did a digital rectal exam. The purpose was to check Alfred’s prostate gland, i.e., feel its size, texture, roughness,' and symmetry. This was done because abnormality in the prostate can indicate cancer in the gland. Dr. Mantell’s December 8 record of Alfred’s exam read “[p]rostate is small, no irregularity.”

On January 27, 1999, Dr. Mantell made another of his periodic examinations of Alfred. As before, this included a digital rectal exam. This time Dr. Mantell found Alfred’s prostate “normal.” Dr. Mantell next saw Alfred October 20, 2000. On that date, Dr. Mantell reported that Alfred’s prostate was “small.” Dr. Mantell’s final examination of Alfred was on August 28, 2001. During that exam, Dr. Mantell told Alfred his prostate was a “little enlarged.”

Mfred testified that during the years he used Dr. Mantell for routine checkups, he was unaware that blood tests were available to screen for prostate cancer. M-though Dr. Mantell had blood drawn from Mfred on some occasions for various reasons, he conceded he never ordered PSA testing of Mfred’s blood, nor did he discuss this with Alfred. Dr. Mantell testified he did not normally inform his patients about PSA testing unless they brought up the topic with him. His reasons for not routinely doing a PSA test of Mfred’s blood were the risk of false positive and false negative results and infections.

Mter Dr. Mantell retired in September 2001, Alfred started using Dr. John Waites (another physician employee of Defendant) as his primary care provider. When Dr. Waites first saw Mfred on July 3, 2002, he started the prostate health part of the exam by ordering PSA testing. The results showed Alfred’s PSA was “significantly elevated to 30.4.”

Alfred was referred to another of Defendant’s employees, Dr. Peter Trinca, a urologist. Biopsied tissue from Mfred’s prostate was positive for cancer and later tests [743]*743revealed the cancer had spread to surrounding tissues.

Ultimately, Alfred went to The Mayo Clinic where his prostate cancer was treated surgically. Following surgery, Alfred was given hormone therapy, but was told “there is a likelihood that [his cancer] will return.” Medical expert, Dr. Finkel, testified that Dr. Mantell deviated from the accepted standard of care in failing to inform Alfred of PSA testing availability. Other medical experts testified that had Dr. Mantell offered a PSA test in 1997 and 1999, it would have shown an elevated prostate antigen level; that a biopsy would have disclosed cancer, and prompt treatment would have kept the cancer from spreading outside the prostate. Consequently, he would not have lost sexual function, he would be at a stage T1 rather than stage T3B in his cancer development, and the chance of cancer reoccurrence for Alfred would be much less.

At trial Defendant repeatedly objected that the jury should not hear about or be instructed it could find negligence based on any pre-April 15, 2001, facts. Defendant’s objections and arguments were based on the two-year time limit prescribed by section 516.105 for medical malpractice claims. The trial court, however, overruled all such objections. It based its ruling on the so-called “continuing care” exception to section 516.105.3 The jury found for Plaintiffs and awarded them damages. This appeal followed.

The “continuing care” exception to section 516.105 was first recognized in Missouri in Thatcher v. De Tar, 351 Mo. 603, 173 S.W.2d 760 (1943). There, the defendant doctor left a surgical needle in the plaintiff during an appendectomy (performed August 25,1937) and did not find it during the period he provided post-surgical care (which was until October 1939). Thatcher’s malpractice suit was filed August 29, 1941. His petition charged defendant with negligence for (1) leaving the needle, (2) failing to properly treat plaintiff thereafter, and (3) not finding the needle during post-surgery treatment. The trial court ruled Thatcher’s claim was time barred. The Supreme Court of Missouri disagreed, saying: “Taking a common sense view of the situation, and one in harmony with justice, the conclusion seems apparent that the statute of limitations did not begin to run against plaintiff until the treatment by the defendant ceased.” Id. at 762.

The “continuing care” exception remains as a part of Missouri law. This court has said it applies “when the treatment which continues is of such a nature as to charge the defendant with the duty of continuing care and treatment which is essential to recovery.” Reynolds v. Dennison, 981 S.W.2d 641, 642[1] (Mo.App.1998).

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Related

Hooe v. SAINT FRANCIS MEDICAL CENTER
284 S.W.3d 738 (Missouri Court of Appeals, 2009)
Dickey v. Vermette
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Cole v. Ferrell-Duncan Clinic
185 S.W.3d 740 (Missouri Court of Appeals, 2006)

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Bluebook (online)
185 S.W.3d 740, 2006 Mo. App. LEXIS 125, 2006 WL 224288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cole-v-ferrell-duncan-clinic-moctapp-2006.