Montgomery v. South County Radiologists, Inc.

49 S.W.3d 191, 2001 Mo. LEXIS 73, 2001 WL 826839
CourtSupreme Court of Missouri
DecidedJuly 24, 2001
DocketSC 83293
StatusPublished
Cited by17 cases

This text of 49 S.W.3d 191 (Montgomery v. South County Radiologists, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Montgomery v. South County Radiologists, Inc., 49 S.W.3d 191, 2001 Mo. LEXIS 73, 2001 WL 826839 (Mo. 2001).

Opinions

BENTON, Judge.

Evan W. and Judith A. Montgomery sued Dr. Edward W. Szoko and South County Radiologists, Inc., for medical negligence and loss of consortium. The circuit court granted Szoko’s motion for summary judgment and SCR’s motion for partial summary judgment. The Montgomerys appeal. After opinion by the Court of Appeals, a dissenting judge transferred the case to this Court. Mo. Const, art. V, sec. 10. Affirmed in part, reversed in part, and remanded.

I.

This Court reviews the record in the light most favorable to the Montgom-erys (against whom judgment was entered), according them the benefit of all reasonable inferences from the record. ITT Commercial Finance v. Mid-America Marine Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).

Evan Montgomery suffered from chronic lower back pain. To determine its cause, Montgomery’s neurosurgeon referred him to St. Anthony’s Medical Center for diagnostic radiological services. By contract, SCR is the sole provider of these services for St. Anthony’s. SCR, however, bills the patient directly for its services.

SCR hires medical doctors who specialize in radiology. These radiologists interpret films, which are actually taken by technicians at St. Anthony’s. When a patient is first referred to SCR, a patient file — or “jacket” — is created, on which an SCR radiologist records patient diagnostics and information. Each time an SCR radiologist reviews films of a patient, the [193]*193radiologist includes both the film and report in the patient’s jacket.

It is not uncommon for a patient, after the initial referral, to receive additional radiological services. SCR’s policy and practice is to assign radiologists on a rotating basis. When a patient receives later services, SCR’s “standard of care” is that its doctors review and compare previous radiologists’ reports and films.

On February 14,1995, Dr. Szoko of SCR interpreted x-rays and a magnetic resonance imaging (MRI) of Montgomery’s lumbar spine. On July 31st and November 3rd that same year, two different SCR doctors separately interpreted MRIs of Montgomery’s lumbar spine. Each time, the SCR doctor on rotation reviewed the films, noted impressions on Montgomery’s jacket, and prepared a findings report. The SCR radiologist on duty July 31st compared his study to Szoko’s of February 14th. None of the SCR radiologists personally saw or examined Montgomery, except through viewing x-rays and MRIs. All three SCR radiologists failed to notice and diagnose the cancerous tumor on Montgomery’s spine.

Two weeks after his last appointment with SCR, Montgomery consulted a radiologist not employed by SCR. This radiologist immediately detected the tumor, subsequently diagnosed as osteosarcoma.

On May 23, 1997, the Montgomerys sued, among others, SCR and its three radiologists for medical negligence. Szoko moved for summary judgment, and SCR sought partial summary judgment with respect to any allegations about the February 14th services. Both alleged that with respect to services on that date, the Mont-gomerys filed their lawsuit beyond the two-year statute of limitations. The circuit court ruled for Szoko and SCR, specifically noting that the “continuing care” exception did not apply. After the circuit court’s ruling, the Montgomerys dismissed — without prejudice' — their claims against the remaining defendants (including the other two SCR radiologists), making a final judgment for purposes of appeal.

II.

Summary judgment is appropriate when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Rule 74.04(c)(3). Where the record contains competent materials establishing two plausible but contradictory accounts of the essential facts, a “genuine issue” of material fact exists. ITT Commercial Finance, 854 S.W.2d at 382. If so, summary judgment cannot be granted. Rule 74.04(c)(3). This Court’s review is de novo. ITT Commercial Finance, 854 S.W.2d at 376.

III.

Section 516.105 provides:

All actions against physicians, hospitals .... and any other entity providing health care services and all employees of any of the foregoing acting in the course and scope of their employment, 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....

Section 516.105 RSMo 1994. The Mont-gomerys allege that Szoko committed only one act on one specific date: the diagnostic service on February 14, 1995. The Mont-gomerys sued on May 23,1997 — more than two years after the date of occurrence of Szoko’s act of neglect complained of. Section 516.105 required the Montgomerys to sue Szoko within two years after February 14, 1995. Therefore, Section 516.105 bars their claim against Szoko.

[194]*194The Montgomerys invoke the continuing care exception to the statute of limitations. The statute does not begin to run against a plaintiff patient until treatment by the medical defendant ceases “where the treatment is continuing and of such nature as to charge the medical [provider] with the duty of continuing care and treatment which is essential to recovery until the relation ceases.... ” Thatcher v. De Tar, 351 Mo. 603, 173 S.W.2d 760, 762 (1943); Weiss v. Rojanasathit, 975 S.W.2d 113, 119 (Mo. banc 1998). This duty continues until the physician-patient relationship ends by (1) mutual consent of the parties, (2) the physician’s withdrawal after reasonable notice, (3) the patient’s dismissal of the physician, or (4) cessation of the necessity that gave rise to the relationship. Weiss, 975 S.W.2d at 119-20.

The Montgomerys assert that Szo-ko had a duty of continuing care to Evan. They allege that Szoko performed the initial radiological service, participated as a shareholder with other physicians in a rotating assignment system, never withdrew or was dismissed as Montgomery’s physician, and provided services essential to Montgomery.

A prerequisite for the continuing care exception is that a patient is under the doctor’s continuing care. Thatcher, 173 S.W.2d at 762; Weiss, 975 S.W.2d at 119. The Montgomerys’ allegations are not sufficient to show that Szoko’s care was “continuing.” Where a physician commits an act of neglect on one specific date, and has no other contact with the patient, the statute of limitations begins to run on that date (except for the specific exceptions in section 516.105). Shroyer v. McCarthy, 769 S.W.2d 156, 161 (Mo.App. 1989); Green v. Washington University Medical Center, 761 S.W.2d 688, 689-90 (Mo.App.1988); Laughlin v. Forgrave, 432 S.W.2d 308, 313 (Mo. banc 1968). The circuit court properly granted summary judgment to Szoko.

rv.

The circuit court also granted partial summary judgment to SCR on any claim related to its services on February 14, 1995.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Chalifoux v. RADIOLOGY ASSOCIATES
708 S.E.2d 834 (Supreme Court of Virginia, 2011)
Hooe v. SAINT FRANCIS MEDICAL CENTER
284 S.W.3d 738 (Missouri Court of Appeals, 2009)
Grey v. Stamford Health System, Inc.
924 A.2d 831 (Supreme Court of Connecticut, 2007)
Zielinski v. Kotsoris
901 A.2d 1207 (Supreme Court of Connecticut, 2006)
Davidson v. Lazcano
204 S.W.3d 213 (Missouri Court of Appeals, 2006)
Cole v. Ferrell-Duncan Clinic
185 S.W.3d 740 (Missouri Court of Appeals, 2006)
Tendai v. Missouri State Board of Registration for the Healing Arts
161 S.W.3d 358 (Supreme Court of Missouri, 2005)
L.A.C. Ex Rel. D.C. v. Ward Parkway Shopping Center Co.
75 S.W.3d 247 (Supreme Court of Missouri, 2002)
Montgomery v. South County Radiologists, Inc.
49 S.W.3d 191 (Supreme Court of Missouri, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
49 S.W.3d 191, 2001 Mo. LEXIS 73, 2001 WL 826839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montgomery-v-south-county-radiologists-inc-mo-2001.