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Karley v. Bell6/29/2000
ations period did not begin until that treatment was completed.
The Husain court held that the dates of the doctor's alleged negligence were readily ascertainable and that it was therefore immaterial whether the doctor established a course of treatment:
It is also unimportant to our inquiry whether the tort is characterized as a failure to diagnose cancer or as an improper course of treatment based on a misdiagnosis of fibrocystic disease. Khatib's complaint is that Husain was negligent in not taking actions--mammograms, referrals to specialists, proper breast examinations--that would have led to earlier discovery of Khatib's cancer. Those events, or non-events, occurred on specific ascertainable dates: January 25, 1990, and September 26, 1991. On August 25, 1992, Hussain ordered the mammogram that detected Khatib's cancer. Therefore, any negligence could only have occurred at the latest at the September 26, 1991, examination.
In the case now before us, Appellants contend that Dr. Bell was negligent in not taking actions that would have led to earlier discovery of Karley's cancer-specifically, conducting or recommending timely, thorough physical examinations. Dr. Bell could have breached his duty to conduct or recommend a complete physical examination only on those occasions when he saw Karley: April 23, 1993; September 21, 1994; and October 10, 1994. We conclude that the dates of Dr. Bell's alleged negligence are readily ascertainable and that it is therefore immaterial whether Dr. Bell established a course of treatment for Karley's rectal pain and bleeding. We now must examine each of these three dates to determine whether the limitations period could have begun on any of these dates.
As for the April 23, 1993 date, Dr. Bell states in his affidavit that in reasonable medical probability, Karley had no detectable cancer on this date. Appellants agree that all medical testimony is to the effect that Karley's cancer did not exist in any detectable degree on April 23, 1993. In fact, Appellants' expert, Dr. Rhett K. Fredric, states in his affidavit in opposition to Appellees' motions for summary judgment, "Because it cannot be said with reasonable medical probability that the fatal disease entity existed in Mrs. Karley on April 23, 1993, I cannot say that Dr. Bell failed to diagnose the condition on that date."
Appellants therefore concede that as a matter of law any complaint that Dr. Bell was negligent in failing to perform a complete physical examination on April 23, 1993 would fail. We conclude that because the summary judgment evidence conclusively establishes that Karley's cancer did not exist in any detectable degree on April 23, 1993, Dr. Bell could not have breached his duty to conduct or recommend a complete physical examination on that date and that the limitations period therefore could not have begun on that date.
The second date is September 21, 1994, when Dr. Bell examined Karley, but did not refer her to a surgeon. Although September 21, 1994 appears to be an ascertainable date within the two-year-and-seventy-five-day limitations period, Appellants have not argued that the limitations period began on this date. Rather, Appellants argued in the trial court and on appeal only that Dr. Bell established a course of treatment for Karley and that the limitations period, therefore, should be measured from the last date of that treatment, October 10, 1994. In fact, Appellants' attorney stated during oral argument that a negligence claim based on the September 21, 1994 visit would be barred and that Appellants prevail only if we determine that based on the course-of-treatment rule, the limitations period began on October 10, 1994. Be
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