Goins v. Oakhill, M.D. et al

Filing 27

OPINION and ORDER taking under advisement 18 Motion for Summary Judgment. The Court will Defer Ruling on the Oakhill Defendants' Motion. See order for deadlines. Signed by Honorable Timothy L. Brooks on May 22, 2017. (src)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION

PLAINTIFF

DELLA GOINS
V.

CASE NO. 5:16-CV-5301
DEFENDANTS

GREGORY J. OAKHILL, M.D., et al.
OPINION & ORDER

Currently before the Court is the Motion for Summary Judgment (Doc. 18) filed by
separate Defendants Gregory J. Oakhill , M.D. ; Gregory J. Oakh ill, M.D. , P.A. ; and
Highland Oncology Group (collectively, the "Oakhill Defendants"). The Oakhill
Defendants' Motion , filed on April 6, 2017 , contends that Plaintiff Della Goins 1 filed this
medical malpractice suit after Arkansas' two-year limitations period expired. Goins' May
4, 2017 Response (Doc. 25) argues otherwise. It asserts that Arkansas' continuous
treatment doctrine operates to toll the limitations period such that her suit was timely filed.
The Oakhill Defendants filed a Reply (Doc. 26) on May 5, 2017 , reiterating its
disagreement with Goins' position . For the reasons stated herein, the Court will DEFER
RULING on the Oakhill Defendants' Motion, and take the Motion UNDER ADVISEMENT.

I. DISCUSSION
The Court held a case management hearing on May 19, 2017, during which it took
oral argument on the pending Motion. After contemplating the parties' positions, the Court
announced from the bench that it intended to defer ruling on the Motion , and take the
matter under advisement to allow Mrs. Goins the opportunity to conduct additional

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Goins is suing in both her individual capacity and as the administrator of the Estate of
Ray Goins, deceased.

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discovery. The Court set a 90-day discovery period, and announced that the substantive
scope of discovery would be limited to events occurring on or after October 23, 2013two years before Mrs. Goins originally filed suit in state court. Relatedly, the Court limited
the scope of this discovery period to addressing the issue of whether Dr. Oakhill may be
responsible for any negligence that occurred within that two-year time frame.
Following the hearing , the Court returned to chambers to review some of the
pertinent case law discussed orally by the parties. That review leads the Court to alter its
ruling from the bench in the following respect: The temporal scope of the 90-day discovery
period shall not be limited to events occurring on or after October 23, 2013. Instead , it
shall encompass the entire scope of the Oakhill Defendants' treatment of Mr. Goins,
beginning on June 1, 2011 . This includes any treatment administered by APNs or medical
personnel that Mrs. Goins argues is attributable to the Oakhill Defendants for purposes
of the continuous treatment doctrine.
The Court will briefly explain the reasoning behind this decision . In Lane v. Lane,
295 Ark. 671 (1988) , the Arkansas Supreme Court described the continuous treatment
doctrine as follows:
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 unless during treatment the patient learns or should learn of
negligence, in which case the statute runs from the time of discovery, actual
or constructive.

Id. at 673-74 (quoting 1 D. Louisell and H. Williams Wachsman , Medical Malpractice
§ 13.08 (1982)). The doctrine "becomes relevant when the medical negligence consists
of a series of negligent acts, or a continuing course of improper treatment." Id. at 675.

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This case presents a difficult application of the continuous treatment doctrine for
several reasons , one of which is particularly pertinent to the instant ruling . To illustrate
the difficulty, consider three types of medical malpractice claims. In the first, the plaintiff
alleges that a doctor committed a single negligent act. As a result of the negligent act, the
plaintiff remained hospitalized , under the doctor's care, for a period of 10 days. There is
no allegation that the doctor acted negligently during this subsequent hospitalization. The
plaintiff later files suit on a date more than two years after the single negligent act, but
less than two years after his release from the hospital. See Ark. Code Ann . § 16-114-203
(establishing a two-year limitations period for medical injuries). On these facts , Arkansas
law strongly suggests that the continuous treatment doctrine would not apply to toll the
limitations period , thus dooming the plaintiff's claim. The relevant case is Pastchol v. St.
Paul Fire & Marine Insurance Co. , 326 Ark. 140 (1996), which tracks the above

hypothetical closely. 2 The Arkansas Supreme Court opined that the continuous treatment
doctrine "was not designed to extend the statute of limitations period in cases where only
a single, isolated act of malpractice or negligence is alleged ." Id. at 145. And , "[t]he mere
fact that the decedent remained in the hospital under a doctor's care until his death does
not demonstrate a continuing course of improper treatment which would toll the statute of
limitations . . . ." Id. at 148 (emphasis in original).
In the second case, the plaintiff alleges that a doctor committed an initial negligent
act, then committed additional negligent acts during a subsequent course of treatment.
The plaintiff later files suit more than two years after the initial negligent act, but less than

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Pastchol does involve some potentially distinguishing facts, but a searching analysis of
that case is unnecessary for the Court's present purposes.
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two years after the final act of negligence that occurred during the subsequent course of
treatment. On this hypothetical, the continuous treatment doctrine tolls the limitations
period. This was precisely the outcome in Lane, 295 Ark. at 671 , where the Arkansas
Supreme Court tolled the limitations period after a doctor-husband treated his wife's
migraine headaches with regular narcotic injections over a span of nearly two decades.
And, this hypothetical is materially identical to the facts in Taylor v. Phillips, 304 Ark. 285
(1990), where the court tolled the limitations period after the plaintiff alleged negligence
during an initial surgery and six follow-up appointments that extended into the limitations
period .
In the third case, the plaintiff alleges that a doctor committed an initial negligent
act, then committed additional negligent acts during a subsequent course of treatment.
However, this time, the plaintiff files suit: (i) more than two years after the initial negligent
act, and (ii) more than two years after the final act of negligence that occurred during the
subsequent course of treatment, but (iii) less than two years after the subsequent course
of treatment ended. That is arguably the situation in the instant case. Adopting a
perspective favorable to Mrs. Goins, she alleges that Dr. Oakhill was negligent in his initial
decision to not prescribe chemotherapy and radiation , and then negligent throughout Mr.
Goins' follow-up care . According to her, Dr. Oakhill's negligent course of treatment ended
on October 28, 2013, when Mr. Goins was informed by another physician that his cancer
had returned . See Lane, 295 Ark. at 673-74. This would mean that the continuous course
of treatment ended within two years of October 23 , 2015-the date on which Mrs. Goins
filed suit in state court. However, the last negligent act during that course of treatment
could not have occurred much past September 4, 2013-the date of Mr. Goins' last

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relevant visit with Dr. Oakhill (or medical personnel that Mrs. Goins argues to be affiliated
with him)-and thus outside of two years from October 23, 2015.
In the Court's view, whether Arkansas would apply the continuous treatment
doctrine on these facts is an open question of law, with some compelling arguments on
each side. The Court is accordingly inclined to afford Mrs. Goins a scope of discovery
that would allow her to attempt to establish a continuous course of treatment following
Mr. Goins' initial June 1, 2011 appointment with Dr. Oakhill , and extending through
October 28, 2013, even if the last negligent act committed during that course of treatment
occurred prior to the latter date. The Court will then take supplemental briefing to address
whether Arkansas courts would recognize this application of the continuous treatment
doctrine, and whether Mrs. Goins has shown facts establishing a continuous course of
treatment for purposes of the doctrine.
As a final note on this matter, at the case management hearing, defense counsel
cited Hicks v. Armstrong, 253 F.3d 1072 (8th Cir. 2001) , and insinuated that it would
foreclose application of the doctrine in this third hypothetical. The Court disagrees with
that reading of the case. Hicks involved the scenario discussed in the first hypothetical
above, where a plaintiff shows an isolated negligent act occurring outside of the limitations
period , followed by a course of non-negligent follow-up care. See id. at 1075-76. At the
end of its opinion , the Hicks Court remarked :
Finally, we note that only the last follow-up visit Hicks made to the appellee
fell within the two-year limitations period. At best for appellant, only
negligence and damages arising from that visit could be actionable in any
event. However, appellant has presented no facts to support any claim of
negligence during that particular visit, nor any damages that would have
flowed from that examination . Therefore, summary judgment for the
appellee was clearly proper.

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Id. at 1076-77.

Defense counsel would take this paragraph to mean that the last negligent act
must occur within the two-year limitations period for the continuous treatment doctrine to
apply. However, prior to this paragraph , the Hicks Court had already held that the
continuous treatment doctrine did not apply to the plaintiff's claim . Best understood , then ,
this paragraph addresses the question of whether the plaintiff's claim could survive a
limitations defense even without the benefit of tolling , since his last contact with the
defendant-doctor occurred within the (non-tolled) limitations period . It is not relevant to
the question in the instant case of whether the continuous treatment doctrine could apply
to the facts of the third hypothetical posed above, since Hicks did not involve any
negligence in the plaintiff's follow-up care.
In sum, the present posture of this case involves both material factual and legal
questions that are currently unanswered , and would be premature to resolve . The Court
believes that Mrs. Goins should be afforded sufficient latitude during discovery to address
both categories of questions.
II. CONCLUSION
IT IS THEREFORE ORDERED that the Court will DEFER RULING on the Oakhill

Defendants' Motion for Summary Judgment (Doc. 18), and take that Motion UNDER
ADVISEMENT. Mrs. Goins shall have a 90-day discovery period , beginning on this date.

The substantive scope of discovery shall be consistent with this Order. Following the
close of this 90-day discovery period , Mrs. Goins shall have 14 DAYS to file a
supplemental response to the Oakhill Defendants' Motion. The Oakhill Defendants shall
have 14 DAYS thereafter to file a supplemental reply.

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,,J
IT IS SO ORDERED on this /l__d ay of May, 2017 .

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