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ANDERSON v. SHORT9/23/1996
On appeal is an order dismissing Appellants' complaints as barred by the statute of limitations. We affirm.
FACTS
Sandra Anderson began seeing Dr. Marvin Short, a psychiatrist, in August 1983 for pain management. She was under his continuous care for this and other ailments until March 1991, when she was admitted into a hospital for treatment of substance
The trial judge found both actions were barred by the statute of limitations.
ISSUES
I. Is the
II. Is the loss of consortium claim barred by the statute of limitations?
DISCUSSION
I.
An action for
Sandra concedes that under application of the "discovery rule," her complaint is untimely. Rather, she argues this court should adopt the continuous treatment rule. According to this rule, "if the treatment by the doctor is a continuing course and the patient's illness, injury or condition is of such a nature as to impose on the doctor a duty of continuing treatment and care, the statute does not commence running until treatment by the doctor for the particular disease or condition involved has terminated." David W. Louisell & Harold Williams,
Many states have adopted some version of the continuous treatment rule. However, most courts will not apply the rule to toll the running of a statute of limitations if before treatment ends the patient discovers or should have discovered the injury giving rise to the cause of action., See, e.g. Ballenger v. Crowell, 38 N.C. App. 50, 247 S.E.2d 287 (1978). See also Louisell & Williams, supra, at 13.02 ; 54 C.J.S. Limitations of Action § 174 (1987); 61 Am.Jur.2d Physicians, Surgeons Etc. § 316 (1981). Were we to adopt the continuous treatment rule in this state, we would be inclined to conform with the majority of jurisdictions in limiting its application in the manner described above. See Preer v. Mims, ___ S.C. ___, 476 S.E.2d 472 (1996) (Davis Adv. Sh. No. 25 at 3). Sandra has conceded she discovered her addiction more than three years prior to the time she brought her action. Thus the action would still be untimely notwithstanding our adoption of the continuous treatment rule, which, under these facts, we expressly decline to decide.
II. Loss of Consortium,
In his order, the trial judge ruled against Paul on two grounds. First, the judge ruled Paul was barred by the discovery rule because he was on constructive notice of a potential claim against Dr. Short for more than three years before the action was commenced. Second, the judge ruled a claim for loss of consortium was derivative and thus bound by the decision regarding Sandra's claim. Paul has only challenged the second ground. Because he has not appealed on all grounds, the trial court's decision is affirmed. Biales v. Young, 315 S.C. 166, 432 S.E.2d 482 (1993) (where a decision is based on more than one ground, the appellate court will affirm unless the appellant appeals all grounds because the unappealed ground will become the law of the case).
CONCLUSION
If the continuous treatment rule with the above-discussed discovery exception were the law in South Carolina, it would not be used to toll the accrual of a
Accordingly, the order of the trial court is AFFIRMED.
FINNEY, C.J., TOAL, MOORE, and BURNETT, JJ., concur.
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