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Pledger v. Carrick5/5/2005
Appellants James Dow Pledger and the Estate of Barbara J. Pledger (Mr. Pledger) appeal the order of the Franklin County Circuit Court granting summary judgment to appellees Garreth R. Carrick, M.D., and Cooper Clinic, P.A., on the ground that the statute of limitations expired prior to the filing of this medical malpractice claim involving the death of his wife. Mr. Pledger argues that the circuit court erred in not applying the continuous-treatment doctrine to toll the statute of limitations. We reverse and remand.
Affidavits and pleadings before the circuit court revealed these facts. Dr. Carrick first saw Barbara Pledger, the decedent, in 1998 after Ms. Pledger was injured in a slip-and-fall accident. On February 8, 2000, Ms. Pledger first presented with complaints of abdominal pain. Dr. Carrick diagnosed Ms. Pledger's condition as diverticulitis and prescribed a course of antibiotics as treatment. Ms. Pledger next complained of abdominal pain on April 17, 2000, and Dr. Carrick again prescribed antibiotics to treat diverticulitis. On January 10, 2001, Dr. Carrick saw Ms. Pledger in his office. According to Dr. Carrick, Ms. Pledger's chief complaint at that visit was related to her continued restless legs syndrome. However, Ms. Pledger's medical records reveal that she indicated that she was having epigastric pain, and that Dr. Carrick advised her to try Gas-X tablets. In addition, the medical records for that visit contain a notation that if the tablets did not resolve the problem, "we will have to do a complete exploration of the lower bowel."
Ms. Pledger next complained of abdominal pain on May 1, 2001. Dr. Carrick again prescribed antibiotics for diverticulitis, and he also ordered a CT scan of Ms. Pledger's colon to rule out other causes of her complaints. The CT scan was performed on May 4, 2001. The results of the CT scan indicated a "possibility of. . . an an ular constricting mass and/or some mild inflammatory changes surrounding the colon."
On May 11, 2001, Ms. Pledger was admitted as a patient complaining with abdominal pain to St. Edward Mercy Medical Center in Fort Smith. During her hospitalization, Ms. Pledger was diagnosed with colon cancer, and she underwent surgical treatment. Ms. Pledger was discharged from the hospital on May 24, 2001. Dr. Carrick did not treat Ms. Pledger in reference to abdominal complaints or colon cancer after the May 1, 2001, office visit.
Ms. Pledger died on November 8, 2002. The primary cause of Ms. Pledger's death, as stated on the death certificate, was colon cancer. On April 7, 2003, Mr. Pledger filed a medical malpractice suit against Dr. Carrick and the Cooper Clinic. Mr. Pledger alleged that Dr. Carrick misdiagnosed Ms. Pledger with diverticulitis and failed to order the appropriate tests to diagnose colon cancer. Mr. Pledger further alleged that "for a period of approximately 15 months until Ms. Pledger's admission to St. Edward Mercy Medical Center on May 11, 2001, Defendant, Cooper Clinic and separate Defendant, Dr. Garreth R. Carrick, continuously treated Ms. Pledger for the misdiagnosed diverticulitis condition."
Dr. Carrick and the Cooper Clinic filed a motion for summary judgment, arguing that the continuous-treatment doctrine did not apply, and that Mr. Pledger's claims were barred by the statute of limitations. The circuit court agreed and granted the motion for summary judgment in favor of Dr. Carrick and the Cooper Clinic. From that order, Mr. Pledger appeals.
Standard of Review
The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the pa
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