The Continuous Debate Over the “Continuous Treatment” Rule

Cefaratti v. Aranow, — A.3d — 321 Conn. 637 (Conn. 2016)

The “continuous treatment” rule is generally understood to allow an aggrieved patient to toll the limitations period upon showing that “(1) she had an identified medical condition that required ongoing treatment or monitoring; (2) that the defendant provided ongoing treatment or monitoring of that medical condition after the allegedly negligent conduct, or that the [patient] reasonably could have anticipated that the defendant would do so; and (3) that the plaintiff brought the action within the appropriate statutory period after the date that treatment terminated.” Grey v. Stamford Health System, Inc., 924 A.2d 831 (2007). What constitutes an “ongoing treatment,” however, is often a matter of fierce contestation.

In the case at bar, the plaintiff underwent open gastric bypass surgery in an attempt to cure her morbid obesity. Her follow-up treatment and monitoring took place between 2004 and the summer of 2009. All these procedures have been carried out by the same surgeon at a hospital in which he had attending privileges as an independent contractor. According to the plaintiff, on each of her post-operative visits she told the surgeon that she was experiencing abdominal pain. In August 2009, after being diagnosed with breast cancer by another physician, the plaintiff had a CT scan of her chest, abdomen, and pelvis, which revealed the presence of a foreign object in her abdominal cavity. This object was a surgical sponge that the surgeon left when he operated the plaintiff in 2003. Following that discovery, the plaintiff filed a malpractice suit against the surgeon and the hospital.

Based on these facts, the plaintiff argued that she is entitled to toll the statute of limitations pursuant to the continuous treatment rule. The defendants disagreed. According to them, the continuous treatment rule only applies when the entire course of the plaintiff’s treatment was negligent. A single act of negligence, they argued, will not do.

This argument conflated the “continuous treatment” rule with the “continuous negligence” doctrine that often allows plaintiffs to circumvent both the limitations statute and the statute of repose. See Pitt-Hart v. Sanford USD Med. Ctr., 878 N.W.2d 406 (S.D. 2016), and my discussion of this important decision here. The defendants’ argument also ran against the social purpose of the “continuous treatment” rule. This rule is premised on the belief that “the most efficacious medical care will be obtained when the attending physician remains on a case from onset to cure.” Grey, id. at 837; Blanchette v. Barrett, 640 A.2d 74, 85 (Conn. 1994); Ewing v. Beck, 520 A.2d 653, 659–60 (Del.1987). Guided by this belief, the rule avoids creating “a dilemma for the patient, who must choose between silently accepting continued corrective treatment from the offending physician, with the risk that his claim will be time-barred or promptly instituting an action, with the risk that the physician-patient relationship will be destroyed.” Rizk v. Cohen, 535 N.E.2d 282, 285 (N.Y. 1989).

Unsurprisingly, the Connecticut Supreme Court rejected the defendants’ argument. Cefaratti v. Aranow, — A.3d —- 321 Conn. 637, 653-54 (Conn. 2016). Importantly, the Court also clarified that “To the extent that the defendants contend that routine appointments can never constitute a continuing course of treatment for purposes of the doctrine, we again disagree. Rather, we conclude that routine postoperative appointments for the purpose of tracking the progress of the plaintiff’s condition and postoperative complications, if any, constitute continuing treatment for any identified medical condition that was caused by the surgery.” Id. at 655.