Opinion
No. 27199
July 31, 2006
Appeal from the Circuit Court of Jasper County, Honorable Jon A. Dermott, Circuit Judge.
Patrick Martucci, for Appellant.
David E. Overby, Shannon A. Vahle, for Respondents, Mark Zubres, D.O., Zubres Radiology, Inc.
Wayne E. Putnam, Carthage Radiologists — Brian D. Malkmus, for Respondents.
The Circuit Court of Jasper County granted summary judgment based on the statute of limitations on a medical negligence claim. We affirm.
Phillip White ("Mr. White") underwent a whole-body bone scan on July 10, 1998, at the recommendation of his family doctor, Dr. Bowling, to evaluate symptoms of rib pain. The testimony of defendant Mark Zubres, D.O. ("Dr. Zubres"), a radiologist, indicated that a bone scan is a medical test that utilizes radioactive materials to evaluate bone metabolism. Increased uptake of the radioactive material in a bone can be caused by a myriad of medical conditions ranging from benign degenerative conditions, such as arthritis, to potentially life threatening conditions, such as osteosarcoma. The bone scan is diagnostic only for increased (or decreased) uptake within the bone, it cannot diagnose the etiology of the increased uptake; further, medical tests must be undertaken to investigate the cause of the increased uptake.
Mr. White's bone scan indicated an increased uptake in both knees; however, in the written report, Dr. Zubres described the bone scan as "normal" with "satisfactory uptake" throughout the bony structures and "[n]o evidence of [radionuclide uptake] to suggest bone pathology." Dr. Zubres did not refer Mr. White to his treating physician for further testing to determine the etiology of the increased intake. In April 2002, approximately four years after the bone scan, medical tests for Mr. White's complaints of right knee pain revealed osteosarcoma in his right knee.
Mr. White initiated a medical malpractice claim on August 7, 2002, against Drs. Bowling and Zubres. Mr. White's petition alleged that Dr. Zubres failed to properly read the bone scan and, therefore, failed to inform him of the true and actual results thereof; his claim is that his action came within the provisions of section 516.105(2) (2004). A fourth amended petition, filed March 30, 2004, and a fifth amended petition, filed April 30, 2004, added Zubres Radiology, Inc. and Wayne E. Putnam d/b/a Carthage Radiologists, respectively, as additional defendants under the doctrine of respondeat superior. All of the defendants filed a motion for summary judgment claiming Mr. White's action was barred by the two-year statute of limitations set out in section 516.105. The trial court granted defendants' motions and Mr. White appeals.
Although multiple amended petitions were subsequently filed, an entire procedural history is not necessary; however, it should be noted that Dr. Bowling was voluntarily dismissed without prejudice on January 23, 2004.
Mr. White does not allege any continuing care and/or treatment by Dr. Zubres after July 10, 1998, or fraudulent concealment.
On August 28, 2005, the legislature repealed section 516.105 and, using the same section number, enacted a new statute of limitations for medical malpractice actions. H.B. No. 393 (2005). The new section 516.105 applies only to cases filed after August 28, 2005; since Mr. White's case was filed in 2004, the 2004 version of section 516.105 is the controlling statute and is used throughout this opinion.
Mr. White brings one point on appeal; he claims that his medical malpractice action falls within an exception contained in section 516.105(2), which creates a rule in cases involving the "negligent failure to inform the patient of the results of medical tests," because Dr. Zubres knew that the bone scan showed an increased uptake which could have been caused by a potentially life threatening condition, but failed to inform Mr. White about that finding.
The Missouri legislature has enacted a general two-year limitations period for medical malpractice actions; however, there are three exceptions to this general limitations period. At issue in this case is the second exception, which provided:
In cases in which the act of neglect complained of is the negligent failure to inform the patient of the results of medical tests, the action for failure to inform shall be brought within two years from the date of the discovery of such alleged negligent failure to inform, or from the date on which the patient in the exercise of ordinary care should have discovered such alleged negligent failure to inform, whichever date first occurs; except that, no such action shall be brought for any negligent failure to inform about the results of medical tests performed more than two years before August 28, 1999[.]
Section 516.105(2). The meaning of the words "negligent failure to inform the patient of the results of the medical tests" is at issue in this case. The interpretation of a statute is a question of law and our appellate review is de novo. Nelson v. Crane , 187 S.W.3d 868, 869 (Mo. banc 2006). The primary rule is to ascertain the intent of the legislature from the language used and to give effect to that intent if possible. Id. at 869-70. We consider the words used in their plain and ordinary meaning. Id. at 870.
To recap, Mr. White is not contending that Dr. Zubres failed to report any findings to him; he is contending that Dr. Zubres failed to report the increased uptake in his knees to him or to another medical specialist. Mr. White reiterates that he is not claiming that Dr. Zubres negligently interpreted the bone scan because Dr. Zubres "correctly noted the greater concentrations of increased uptake in the right knee"; the gravamen of Mr. White's complaint is that Dr. Zubres negligently failed to communicate the increased uptake in his knees, which was the factual finding contained within the radiology report. Mr. White agrees with the trial court's finding that the allegedly negligent act occurred on July 10, 1998, when Dr. Zubres read the bone scan and reported it as normal. He contends that the limitations period did not commence when Dr. Zubres informed "something" to Mr. White but rather when Mr. White discovered the alleged failure to inform or, with the exercise of ordinary care, should have discovered such failure to inform him of the actual factual results. He argues that the second exception was created by the legislature to remedy just this sort of action, i.e. when the physician is accused of failing to relay the actual results of testing.
Mr. White's interpretation of the plain and ordinary meaning of the language used in section 516.105(2) encompasses cases where a healthcare provider fails to inform the patient of the actual results of the medical testing. In other words, his interpretation of "to inform" means the imparting to the patient of the specific facts of the medical tests. He further notes the use of "negligent" to modify "failure to inform" as an implication that the exception covers situations where the healthcare provider not only fails to impart any information or knowledge as a result of a medical test, but also where the healthcare provider misinforms the patient about test results. Mr. White claims that if section 516.105(2) is interpreted to exclude his claim, healthcare providers, particularly radiologists, in effect will be granted a license to behave as negligently as they wish, provided they impart something to their patients regarding their medical testing, regardless of whether the information imparted is the actual test result.
Defendants frame the issue in a different light. They contend that the issue on appeal is "when a radiologist, exercising his medical judgment and expertise, interprets the results of a bone scan as normal, and the interpretation is communicated to the patient (regardless of whether the interpretation is correct or not) does section 516.105(2) toll the statute of limitation or does the general two[-]year statute of limitation for medical negligence cases apply." Defendants argue that the "results" of the bone scan are determined by the radiologist. In other words, it is a medical decision to determine whether the information contained on the bone scan is considered "normal" or "abnormal." If the radiologist determines the results are "normal," that is a medical decision and subject to the two-year statute of limitations. Defendants argue a step further. They argue that as long as the medical provider informs the patient of any information, the second exception does not apply. We reject both extremes of Mr. White's and defendants' analyses.
The second exception of the general two-year statute of limitations was created by the legislature in 1999, the year after the Missouri Supreme Court reached a "distasteful" result in Weiss v. Rojanasathit , 975 S.W.2d 113 (Mo. banc 1998). In Weiss , a cause of action was brought against a gynecologist for failing to tell Weiss that her Pap smear was abnormal. Id. at 116. The Pap smear was correctly read by an outside laboratory as showing a cancerous or precancerous condition and those results were sent to the gynecologist's office; however, the gynecologist did not contact the patient to inform her about the results. Id. A Pap smear four years later indicated the patient had developed cervical cancer. Id. The patient filed her petition one year after discovering the malpractice. Id. The gynecologist's motion for summary judgment on the ground that the action was barred by the two-year statute of limitations was affirmed by the supreme court. Id. at 121. Quoting Laughlin v. Forgrave , 432 S.W.2d 308, 314 (Mo. banc 1968), the court stated "[T]he legislative branch of the government has determined the policy of the state and clearly fixed the time when the limitation period begins to run against actions for malpractice. This argument addressed to the court properly should be addressed to the General Assembly." Id. at 117. The following year the legislature added the exception listed in section 516.105(2). That exception has yet to be applied or even discussed in any published decisions in the State of Missouri.
We do not read the exception contained in section 516.105(2) to provide an exception only when absolutely no information is provided to the patient as proposed by defendants. Neither do we read the exception to include all cases wherein the medical provider fails to provide the factual results of medical tests. Instead, we find when the ultimate question is whether the health care provider was negligent in the interpretation of test results, the two-year statute of limitations applies. If there was no question that test results indicated "abnormal" results but the health care provider failed to inform the patient of the abnormal results, the exception in section 516.105(2) applies. Such are not the facts before us.
The uncontradicted testimony before the trial court was that a doctor considers the clinical history and the area of patient complaint when interpreting a bone scan to detect metabolic activity. Although, in this case, Dr. Zubres did not recall whether he even read the bone scan, he testified that Mr. White was complaining of rib pain and that an increased uptake within Mr. White's different joints was considered typical for middle-aged men. Dr. Zubres testified that, using his judgment, he would interpret the results as normal based on a determination of the clinical history of the patient, the fact that osteoarthritis is very common in someone of Mr. White's age group, and an increased uptake is commonly greater on one side than the other. Even upon review of the bone scan after the fact, Dr. Zubres would still report the bone scan as normal despite the later diagnosis of osteosarcoma. Mr. White is, in essence, challenging Dr. Zubres' medical judgment in failing to diagnose the ultimate osteosarcoma and not his failure to inform the patient of a known result of testing for osteosarcoma. Our legislature has chosen to provide a two-year statute of limitations for the failure to diagnose in situations such as this. The point is denied.
Summary judgment is affirmed.
Parrish, J., Lynch, J., concur.