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So now let me go through with you something known as 'continuous treatment.' There is
a doctrine in the law known as the 'continuous treatment rule' and before I share that rule
with you I want to give you this scenario. Let's go back to the Mom that you've now gone
to do the last will and testament for; the one who has the advanced metastatic breast
cancer. And she tells you, when you talk to her, a year and a half...let's make it out
even further...three years ago she told the doctor about that breast lump. And the doctor
told her we'll follow it on a regular basis. Now every 6 months she comes back to the doctor's
office for routine gyn checkup. The patient forgets about it, the doctor forgets about
it and over the course of the next two and a half, three years they both forget about
it until it comes back and resurges. Now the question is does that patient get the benefit
of continuous treatment because what continuous treatment does is it will extend the time
that you have -- or the client has -- to file a lawsuit against that particular physician.
And in law, we call that 'tolling the statute of limitations.' So let's answer that question.
Does a patient who goes back to the doctor for routine follow up - unrelated to the original
complaint -- get the benefit of what's known as continuous treatment? How many of you think
they do? How many of you think they don't? The answer is they don't anand here's why.
In order to get the benefit of continuous treatment, the patient has to go back to the
doctor with the same complaint and same condition that they originally went to them for. That
is a requirement. So that although the patient strongly believes they are getting continuous
treatment because they continued to go back to their doctor, they have in their own mind
what are you talking about? I've been going to my doctor for years continuously. That's
true. But not for the same condition, not for the same complaint about the breast lump
that you originally made. And because of that, you don't get the benefit of extending the
time limit in which to file a lawsuit. So when would this patient have had the opportunity
to file? Within two and a half years of the date of the wrongdoing, okay? Yes ma'am?
But what if the doctor writes in his notes that this is something that they have to watch?
You know, he's put a note, you know, but he just forgets?
Okay, so... I mean she's going to him for a breast exam
as part of a general gynecological exam. Sure.
And he said we're going to follow this and she just doesn't have a complaint. She doesn't
feel any pain or feel it... So the question is, if the doctor puts in
their notes that they're going to follow this and observe it and act on it once the patient
comes back for follow up what can you do? Will you get the benefit of continuous treatment?
Well, let me answer that question because it's not a simple answer. You see, when you're
talking to your client and they ask you whether or not there's continuous treatment, whether
or not I can now bring a lawsuit at this late stage, it is impossible for you or actually
anyone on that first consultation to give them an answer as to whether or not there's
continuous treatment. And let me tell you why. In order to give an educated answer about
whether there's continuous treatment, I guarantee you that if you spoke to the client for an
hour and got their version of what happened, they're going to tell you a story that's not
going to be 100% historically accurate. Everybody forgets details and that's understandable.
But what is required is we have to get all of the medical records to evaluate every single
page of every single record. And when I go through a record and look to see exactly what
was done, here's what I look for. I need to know what complaints the patient made that
were recorded. I need to know why the patient went to the doctor. I need to know what examination
was done. Did the doctor address those complaints? Did they look at whatever the patient is complaining
about? And now - here's where it gets interesting -- did the doctor formulate a treatment plan
to address those particular complaints? Did they send the patient out for tests to be
followed up? Did they do things affirmatively that says I recognize you have this problem,
I want you to do the following things and I want you to return back at a certain time
to check up on those. It is critical to understand why the patient went back on the next visit.
Why they went back on the follow up visit. What complaints they made? Because if we don't
know exactly why they went back and it turned out it was for routine visits, the patient
will no longer have the ability to use that continuous treatment rule in order to extend
their time to follow a lawsuit. So to answer your question ma'am, you have to look and
see into every single record why the patient was there and importantly what treatment plan
the doctor created to address that problem. Now here's something that's going to infuriate
a lot of you and infuriates the plaintiffs' bar constantly. What if the doctor did not
formulate a treatment plan? The patient made a complaint and the doctor says don't worry,
we'll watch it, doesn't write anything in their notes. And there's nothing to indicate
the doctor said okay, here's our plan for this problem. Now where the doctor fails to
create a treatment plan, can you get the benefit when the patient goes back over and over again
for other unrelated things? To say look, but the doctor was supposed to recognize this,
act on it and he failed to do so. That's true. That is true. And in that instance, you have
how much time to bring a lawsuit? Two and a half years from the date of that wrongdoing.
But now let's say that two and a half years have passed and the doctor never formulated
a treatment plan, never decided this was the action we're going to take for your particular
matter, do you get the benefit of extending that time period? The courts in this state
say no and that's a real travesty. And that's something that, you know, the courts are slowly
recognizing is a real travesty. But that's a fact.