Do I have a case under continuous treatment if my surgeon doesn't assist further?

Question

I have H.O.D., a rare disease caused by complications from emergency surgery in 2019, resulting in a CSF leak (cerebrospinal fluid) and pseudomeningocele (a collection of cerebrospinal fluid), which is clearly written in my reports. Since then, I've been bedridden. I left AMA (Against Medical Advice), and his office didn't want to return my calls. Less than a month ago, the surgeon's office contacted me for another MRI, which I completed. However, the surgeon has not contacted me directly, and his name isn't mentioned in my medical reports, even though he, along with another surgeon who is no longer there, 100% performed the surgery. I've consulted with other medical professionals about my condition to no avail. If the surgeon doesn't assist me further, do I still have a case under continuous treatment?

Tim Akpinar · Answer

I'm sorry for your ordeal with this matter. From a textbook standpoint, you could make that argument under the continuous treatment doctrine. However, from a practical standpoint, many law firms are not enthusiastic about relying on the doctrine in settings that extend beyond the statute of limitations. You could reach out to law firms to discuss. If a law firm expressed preliminary interest, I believe they would not commit to representation without a thorough page-by-page review of relevant file documents. But this is only my individual opinion. See what other attorneys say. That's the best way to answer your question. I hope you are able to arrange the medical care you are seeking here. Good luck

Jonathan R. Ratchik · Answer

Under the doctrine of continuous treatment, the statute of limitations is tolled until the last date of treatment where there has been continuous treatment for the condition giving rise to the malpractice action. There has to be some objective continuity between the patient's complaints and the times at issue; and further treatment has to be explicitly anticipated by both the physician and the patient, i.e. a scheduled or agreed-upon future appointment. A resumption of treatment for the condition does not toll the statute of limitations. The treatment needs to have been continuous. Given that your surgery was in 2019, it is unlikely that you will be able to satisfy the requirements for tolling absent evidence that you have been continuously treating with the surgeon or his practice for your condition.

Q: Do I have a case under continuous treatment if my surgeon doesn't assist further?