Kamerick v. Dorman

907 S.W.2d 264, 1995 Mo. App. LEXIS 1640, 1995 WL 563916
CourtMissouri Court of Appeals
DecidedSeptember 26, 1995
DocketNo. WD 44572
StatusPublished
Cited by6 cases

This text of 907 S.W.2d 264 (Kamerick v. Dorman) 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
Kamerick v. Dorman, 907 S.W.2d 264, 1995 Mo. App. LEXIS 1640, 1995 WL 563916 (Mo. Ct. App. 1995).

Opinion

BERREY, Judge.

From an adverse ruling on respondent’s motion for summary judgment this appeal was taken. The appeal was filed on March 11,1991, and on September 30, 1991, respondent sought protection under the bankruptcy code. Proceedings were stayed until April 18, 1995, when the bankruptcy stay was lifted.

[265]*265Appellants Loretta and George Kamerick filed their two-count petition for damages on November 13, 1989, alleging medical malpractice and loss of consortium. This pleading stated that the last date Loretta Kamer-ick received treatment from respondent Dr. Dorman was June 30, 1987.

Respondent’s answer and subsequent motion for summary judgment alleged the appellants’ claims are barred by the statute of limitations contained in § 516.105, RSMo. 1994. Section 516.105 states in pertinent part that “All 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 ...” Respondent contends that by appellants’ own admission the statute of limitations ran on June 30, 1989, almost five months before their petition was filed.

Although appellants filed their petition for damages on November 13, 1989, the trial court initially overruled respondent’s motion for summary judgment. After hearing the respondent’s motion for reconsideration, however, the trial court entered its order of summary judgment in favor of the respondent on January 8, 1991.

Appellants allege two points of trial court error. They claim (1) the trial court erred in entering summary judgment against Loretta Kamerick “because there [is] reasonable doubt as to a material fact in that the date of the last treatment is in issue,” and (2) the trial court erred in entering summary judgment against George Kamerick on his claim for loss of consortium because that claim was timely filed under an applicable five-year statute of limitations. Affirmed.

Summary judgment is proper if there is no genuine issue of a material fact and the movant is entitled to judgment as a matter of law. Rule 74.04(c). A “genuine issue” exists where the record .contains competent materials that evidence two plausible but contradictory accounts of the material facts. ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 382 (Mo. banc 1993). When opposing a summary judgment, specific facts about a material issue must be alleged. Chrysler Credit Corp. v. Schroeder, 724 S.W.2d 726, 727 (Mo.App.1987).

In Point I, appellants concede the applicability of the two-year statute of limitations to Loretta Kameriek’s claim for damages in Count I but essentially argue that the “continuing care” exception applies so that their petition was timely filed. Under the continuing care exception, the two-year period of limitations does not begin to run until treatment by the health care provider ceases. Thatcher v. De Tar, 351 Mo. 603, 173 S.W.2d 760, 762 (1943). However, the exception only applies “where the treatment is continuing and of such a nature as to charge the medical man with the duty of continuing care and treatment which is essential to recovery.” Id.

In the present case, appellants allege (1) that Loretta Kamerick sought treatment from respondent during the period February of 1983 through and including June 30, 1987; (2) that Loretta Kamerick discovered she was suffering from cloacogenic carcinoma in November of 1987; and (3) that respondent failed to timely diagnose Loretta Kameriek’s condition and failed to timely refer her to a specialist who could have properly diagnosed her condition. Thus, June 30,1987, is clearly the last date that any act of neglect complained of could be asserted. See Shroyer v. McCarthy, 769 S.W.2d 156, 161 (Mo.App.1989). The record indicates that Loretta Kamerick was never thereafter treated by respondent.

Rather, she was referred by Humana Hospital to a Dr. M. Asghar Chaudhary. Appellants claims against respondent are based upon respondent’s alleged failure to diagnose and/or refer Loretta Kamerick to a specialist regarding a condition which existed at the time Loretta Kamerick sought treatment from the respondent. The negligent act complained of therefore must have occurred on or before June 30, 1987. Appellants limitations period commenced to run on June 30, 1987, at the latest.

In an apparent attempt to avoid the running of the statute of limitations, appellants’ affidavit in opposition to the respondent’s motion for summary judgment states that [266]*266Loretta Kamerick had a telephone conversation with respondent on either “November 7, November 8, or November 9, 1987,” “concerning [her] continued complaints about his diagnosis that [she] had hemorrhoids.” Appellants’ affidavit further alleges that Huma-na Hospital had suggested that Loretta Kamerick see Dr. M. Asghar Chaudhary and that Dr. Dorman was to review information “concerning Dr. Chaudhary.” According to appellants, this telephone call caused Dr. Dorman to become Loretta Kamerick’s “treating” physician during the whole month of November 1987.

Appellants thus claim that the telephone call creates a “reasonable doubt” regarding the date of Loretta Kamerick’s last treatment by Dr. Dorman and that summary judgment is therefore inappropriate. Appellants cite Ventimiglia v. Cutter Laboratories, 708 S.W.2d 772 (Mo.App.1986), as supportive of their position. It is not.

At issue in Ventimiglia was the date the defendant-physician last provided medical care or treatment to the younger plaintiff. In June of 1981, the defendant-physician set the younger plaintiffs fractured forearm in a cast. Soon thereafter, the skin beneath it began to burn. The plaintiffs’ second amended petition filed in October of 1984 alleged the defendant-physician treated the younger plaintiff for his burns until September of 1983, and the defendant-physician admitted at his deposition that he recalled “glancing” at the scars on September 6,1983, “in the course of the follow-up care for treatment ... previously extended.” The court thus found that the record left the issue of the date of last treatment unresolved and therefore that summary judgment was inappropriate. Id. at 774.

The instant case is distinguishable, however. Appellants initially acknowledge June 30, 1987, as the last date medical services were rendered Loretta Kamerick by Dr. Dorman. Their subsequent affidavit asserts the November 1987 telephone call constituted the date of last treatment. However, Loretta Kamerick was not seeking treatment from respondent at this time. Instead, the nexus of her phone conversation with Dr. Dorman in November of 1987 concerned her “continued complaints about his diagnosis that [she] had hemorrhoids.” (Emphasis added.) Such conversation does not rise to the level of medical care, services or treatment. Rather, Loretta Kamerick apparently had discovered respondent’s alleged negligence by November of 1987.

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Bluebook (online)
907 S.W.2d 264, 1995 Mo. App. LEXIS 1640, 1995 WL 563916, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kamerick-v-dorman-moctapp-1995.