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Carter v. Haygood1/19/2005
continuity of a general professional relationship." Id.
Extending the jurisprudence of the "continuous representation rule" by analogy, the continuing treatment rule would require a plaintiff to establish the existence of (1) a continuing treatment relationship with the physician, which is more than perfunctory, during which (2) the physician engaged in conduct which served to prevent the patient from availing herself of her cause of action, such as attempting to rectify an alleged act of malpractice.
With this understanding and relying on this analogous jurisprudence, we now examine the present case to determine whether the continuing treatment rule is applicable in this medical malpractice context.
Application of Continuing Treatment Rule Plaintiffs' position is that Mrs. Carter was treated continuously by Dr. Haygood from June 25, 1996, until her last visit on January 6, 1997, a fact which is not disputed. Plaintiff's purpose for seeing Dr. Haygood was to replace a partial she received 22 years before.
During this time of treatment, plaintiff alleges "defendant failed to treat Carter for gum disease or pyorrhea, failed to instruct petitioner that she had periodontal disease, failed to properly measure or calibrate the periodontal pockets, failed to instruct petitioner in proper oral hygiene techniques, failed to treat the alleged disease and failed to refer petitioner to a periodontist for treatment." Further, rather than treating plaintiff's gum disease, Dr. Haygood simply extracted 11 teeth, causing plaintiff permanent and substantial damage. Therefore, plaintiffs are seeking recovery for the medical malpractice that occurred during the course of this comprehensive treatment, and according to plaintiffs' petition, the process of replacing the partials necessarily entailed both the diagnosis and treatment of gum disease, as well as the removal of some teeth.
Plaintiffs' claims against Dr. Haygood are not limited to the improper extractions. Rather, plaintiffs allege the improper extractions caused the partials to not fit properly and the permanent teeth that remained could not properly hold the partials.
It only became apparent to plaintiff in January 1997, when Dr. Haygood refused to see her again, that Dr. Haygood had no intention of fitting her with permanent partials and that she was stuck with broken teeth and with ill-fitting temporary partials. She filed a malpractice claim within one year of that time, and therefore, plaintiff asserts her claim was timely.
Although plaintiff did begin complaining about the extractions and the ill-fitting partials immediately, plaintiff claims she was lulled into waiting several months to get her partials right by Dr. Haygood's repeated assurances to "hang in there" and his repeated attempts to correct the partials. Additionally, plaintiffs allege that at no time prior to January 1997, did Dr. Haygood advise Mrs. Carter that there was nothing more he could do for her and that her situation was not going to improve. According to plaintiff's testimony, Mrs. Carter did request her medical records on several occasions, but Dr. Haygood's office refused to give her a copy of her records. Moreover, even after he refused to see her, his office still refused to give her a copy of her records until after her medical malpractice claim was filed. Plaintiffs assert this failure of Dr. Haygood to release plaintiff's medical records is at the very least highly suggestive of an intent either to mislead the plaintiff or cover up past mistakes.
The court of appeal treated the improper extractions, i.e., defendant's failure to attempt to obtain permission for the extraction and/or failu
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