Does Pre Suit Notice of Medical Malpractice Stop Statute of Limitations Running ?
The Medical Liability and Insurance Improvement Act sets out the statute of limitations for medical malpractice cases. See Rowntree, II, M.D. v. Hunsucker, 833 S.W.2d 103, 104 (Tex. 1992).
Notwithstanding any other law, no health care liability claim may be commenced unless the action is filed within two years from the occurrence of the breach or tort or from the date the medical or health care treatment that is the subject of the claim or the hospitalization for which the claim is made is completed . . .TEX. REV. CIV. STAT. ANN. Art. 4590i, 10.01 (Vernon Supp. 2000).
An extra 75 days is added to the two-year limitations period when a pre-suit "notice of claim" is served. See id. at 4.01(c).
The three points in time set out in section 10.01 -
 occurrence of breach
 completion of medical or health care treatment
 completion of hospitalization -- are to aid plaintiffs who cannot pinpoint the exact date of the injury. See Kimball v. Brothers, M.D., 741 S.W.2d 370, 372 (Tex. 1987).
The statutory provision which reads "'from the date the medical or health care treatment that is the subject of the claim . . . is completed' contemplates a situation wherein the patient's injury occurs during a course of treatment for a particular condition and the only readily ascertainable date is the last day of treatment." Id. for example, cases which allege mis-diagnosis or mistreatment often involve an injury occurring over the course of treatment. See id.
Not surprisingly, the facts of each case determine not only whether a patient is receiving a course of treatment but also when that treatment ends. See Damron v. Ornish, 862 S.W.2d 683, 685 (Tex. App.--Dallas 1993, writ denied) (citing Rowntree, 833 S.W.2d at 106).
In making these determinations, courts have considered whether: (a) the patient-physician relationship is established with respect to the condition that is the subject of litigation; (b) the physician continues to examine the patient; and (c) the condition requires further services from the physician. See id. (citing Rowntree, 833 S.W.2d at 106).
The third consideration is not pertinent in determining whether a patient is receiving a course of treatment.
It is axiomatic that failing to establish a course of treatment does not prove the patient is receiving a course of treatment. See Bala v. Maxwell, 909 S.W.2d 889, 892 (Tex. 1995) (citing Rowntree, 833 S.W.2d at 105-06).
Therefore, even if the condition requires further services, failing to provide those services does not prove the patient is receiving a course of treatment.
Accordingly, in determining whether a patient was receiving a course of treatment, we focus on whether the patient-physician relationship was established with respect to the condition that is the subject of litigation and whether the physician continued to examine the patient.
Texas courts have declined to find a course of treatment in several scenarios.
For instance, when the doctor does not see the patient between the date of mis-diagnosis and the date of the correct diagnosis (discovery of the mis-diagnosis), 5 no course of treatment is established. See id.
Likewise, if there are "no regular examinations or other services, and no return appointments scheduled," merely prescribing medication for a condition not shown to be related to the injury does not "demonstrate sufficient involvement by the physician to constitute a continuing course of treatment." Rowntree, 833 S.W.2d at 108.