The Missouri Court of Appeals Western District (“Missouri Appellate Court”), in its opinion dated August 24, 2021, partially revived the plaintiffs’ Missouri Medical Malpractice lawsuit involving two hip replacement surgeries, by applying the continuing care doctrine.

The Underlying Facts

In April 2019, Paul Tiemann and his wife Deborah Tiemann sued Dr. Thomas V. DiStefano and Dr. DiStefano’s employer, SSM Regional Health Services (“SSM”), claiming medical malpractice in connection with hip replacement surgeries on Paul Tiemann’s right and left hips. Dr. DiStefano had performed a hip replacement on Tiemann’s right hip in August 2014, and on his left hip in June 2016.

SSM and Dr. DiStefano filed motions for summary judgment, alleging that the Tiemanns’ claims were barred by the applicable two-year statute of limitations. In response, the Tiemanns argued that, although both of Paul Tiemann’s hip replacement surgeries occurred more than two years prior to the filing of their petition, the “continuing care” doctrine applied to delay the accrual of their causes of action. To support their opposition to the defendants’ summary judgment motions, the Tiemanns provided new affidavits by Paul Tiemann and by the Tiemanns’ expert, Dr. Michael B. Tilley, which sought to clarify or supplement the testimony they had given in their depositions. The defendants moved to strike the Tiemann and Dr. Tilley affidavits, arguing that those affidavits contradicted the affiants’ deposition testimony, and had been submitted solely to manufacture disputed issues of fact to prevent summary judgment.

The circuit court granted the defendants’ motion to strike the Tiemann and Dr. Tilley affidavits. The circuit court also granted the defendants’ summary judgment motions as to all of the Tiemanns’ claims, finding that they were barred by the two-year statute of limitations. The plaintiffs appealed.

Missouri Appellate Court Opinion

Section 516.105.1, RSMo, provides that “[a]ll actions against physicians . . . for damages for malpractice . . . related to health care shall be brought within two years from the date of occurrence of the act of neglect complained of[.]” The Missouri Supreme Court has held, however, that this statute of limitations does not begin to run so long as the plaintiff-patient is receiving “continuing care” from the physician defendant for the consequences of the physician’s alleged negligence. The Missouri Supreme Court has explained that the “continuing care” exception “ensure[s] that a patient – facing the short statute of limitations imposed by statute – is not faced with the impossible choice of either disturbing a course of treatment by initiating suit against a caregiver or losing a viable cause of action.”

The Missouri Appellate Court stated that the Tiemanns did not effectively controvert the defendants’ statement of undisputed fact which alleged that Paul Tiemann “last saw Dr. DiStefano regarding the right hip” on May 26, 2015 – well outside the two-year limitations period. Accordingly, the circuit court correctly granted summary judgment to the defendants with respect to the Tiemanns’ claims concerning Paul Tiemann’s right hip surgery. With respect to Paul Tiemann’s left-hip surgery, however, the summary-judgment record presents a genuine issue of material fact whether Dr. DiStefano continued to provide Tiemann with post-operative care for complications of his left-hip replacement surgery (including pain and numbness) into the limitations period.

The Missouri Appellate Court held that the circuit court erred in granting summary judgment to the defendants on the Tiemanns’ claims regarding the left-hip surgery but did not err in striking the summary-judgment affidavit of Dr. Tilley, in which he opined that Dr. DiStefano had breached the standard of care in his post-operative treatment of Paul Tiemann because the affidavit contradicted Dr. Tilley’s deposition testimony in which he testified that he would not be providing any opinions concerning the quality of the post-operative care Paul Tiemann received, because he had not reviewed the necessary medical records.

Source Tiemann v. SSM Regional Health Services, WD83998.

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