Q: As a family practitioner, I include a breast examination on a standard physical. About 3 years ago, I noticed what felt like a thickened area in the upper outer quadrant of a patient’s breast. My inclination was to ascribe it to the suspensory ligament, but I still sent her for a mammogram, which was negative. However, the mammogram indicated that her breasts were dense, so I also sent her for an ultrasound. It was negative as well. She was 36 at the time, with no family history, so I instructed her in self-examination and told her to let me know if she felt any changes, but if nothing changed then she would have her next mammogram at 40. She came back for her flu shot, an evaluation for Lyme disease (she felt ill after a camping trip), and a vision test when she renewed her pistol permit. At her general physical about a year ago, I did not notice any changes in the breast at that time. Four months later, though, she came in with a small mass in the area that I had not felt before. This time the mammogram and ultrasound showed a lesion, and biopsy showed lobular carcinoma. She had a positive axillary node as well. Now I’m being sued, not just for a claim that I missed the cancer on the last physical but also for a claim that I was negligent 3 years ago and should have done an MRI then. She is claiming that is not blocked by the 2-year Statute of Limitations in our state because of “continuous treatment.” If a patient comes back to see you, does the Statute of Limitations become meaningless?

A: Professional malpractice (this would apply to legal malpractice as well, for example) is a unique class of torts because of when the Statute of Limitations starts to run. In other types of torts, it starts at the time of the injury—when you know that you were harmed. In a malpractice case, though, it starts at the time of the malpractice, even if the injury is unknown at that time and may take years to become evident, years that may exceed the limit on when the case can be brought.

Citing continuous treatment is one way that a plaintiff can avoid the harshness of this, but it is a very limited exception. For this plaintiff to claim continuous treatment, she must show that you were actually treating her for that condition over the 3-year interval. That will not be possible because after the first physical exam and first round of testing you had found nothing to treat.

She also cannot rely on you telling her to do a breast self-exam and let you know if there was a change because that was a suggestion to monitor, not treatment.

At the second routine physical, the fact that you did include a general breast exam that covered this area will not bridge the gap because it was not a specific follow-up of a condition.

She can claim that you should have done more after the thickened area was again felt on the second physical, but that is the only claim that she can make that will not be dismissed as time-barred.

The public policy behind the continuous treatment doctrine is that the law does not want patients to have to choose between maintaining treatment that may correct the original error and keeping their right to legal recourse. Only if the situation becomes one of ongoing malpractice as the patient is dealt with over and over for the same problem and treated negligently for it will the Statute be tolled.

It may seem objectively unfair that the concept of “treatment” can be subjectively limited. Couldn’t a reasonable patient interpret a doctor’s lack of further intervention as a signal that the issue is unimportant, similar to a course of treatment in which no additional action is taken? Yes.

In fact, in a notorious New York case, it was held that a doctor who found a breast mass and then, over a course of other visits, simply never re-evaluated it, did not come under the doctrine precisely because he ignored it rather than treating it. He was clearly negligent to never re-examine the mass he found, but doing nothing was not “treatment” as the law required, even though the patient was relying on his apparent lack of concern.

What is “treatment” and what isn’t? It will be a case-by-case analysis but some guideposts are illustrative. Continuing to treat symptoms even though a diagnosis was never made will qualify as treatment. However, a hospital’s failure to test its blood supply, resulting in an AIDS-tainted transfusion to a patient, was not treatment, nor was monitoring a patient for complications after an intrauterine device insertion even though pelvic inflammatory disease was missed; general procedural actions that can be understood by a lay juror without an expert’s help, or routine follow-up, do not come in as treatment for the purpose of extending the time to sue.

Then, what is “continuous” treatment? It is a sustained clinical approach to a given condition. That is why years of screening mammograms or colonoscopies are not considered continuous, but subsequent studies to evaluate a finding or even because the patient has an inherent risk, such as family history, are considered a continuous process because they are directed to a single condition.

The reason that this plaintiff wants to claim the doctrine is obvious. If you set the clock of the allegation back for several years, causation is extended and damages increase. Breast cancer is generally present for years before it becomes palpable, and the presumption is that it would’ve been found at an earlier stage. If you had actually failed to adequately evaluate for cancer years ago, its spread could be attributed to that delay. All she has without that claim is a 4-month delay (the time between the second physical, which she is also claiming negligence toward, and the detection of the palpable lesion); but it is unlikely to be called clinically significant by an expert, undercutting causation and, even if she can prove causation, limiting her damages to 4 months of worsening rather than 3 years of it. This case may therefore not proceed or will likely settle if it does.