Pastchol v. St. Paul Fire & Marine Ins. Co.

Lorine PASTCHOL v. ST. PAUL FIRE & MARINE
INSURANCE COMPANY, as Insurer of Magnolia
Hospital; Scott McMahen, M.D., P. A.; Dan
Bocan, C.R.N.A.; P. Clark, R.N.; and R.
Canterbury, R.N.

95-1167                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
              Opinion delivered September 30, 1996


1.   Motions -- summary judgment -- when appropriate. -- Rule 56(c)
     of the Arkansas Rules of Civil Procedure provides that summary
     judgment is to be rendered only in those instances where "the
     pleadings, depositions, answers to interrogatories and
     admissions on file, together with the affidavits, if any, show
     that there is no genuine issue as to any material fact and
     that the moving party is entitled to a judgment as a matter of
     law."  

2.   Motions -- summary judgment -- burden of proof. -- The burden
     of sustaining a motion for summary judgment is the
     responsibility of the moving party; all proof submitted must
     be viewed in a light most favorable to the non-moving party,
     and any doubts or inferences must be resolved against the
     moving party.

3.   Limitation of actions -- medical injury governed by Medical
     Malpractice Act -- two-year statute of limitations
     controlling. -- The Medical Malpractice Act applies to all
     causes of actions for medical injury arising after April 2,
     1979, and supersedes any inconsistent provision of law; any
     medical injury, even one resulting in the death of a person,
     is governed by the Medical Malpractice Act and not the
     wrongful-death statute; thus, the controlling statute of
     limitations is the two-year period found in Ark. Code Ann. 
     16-114-203(a) (1987).

4.   Limitation of actions -- appellant's cause of action was for
     medical malpractice -- trial court correctly applied two-year
     period. -- Where the case at hand involved a medical injury,
     appellant's cause of action was one of medical malpractice,
     which must have been filed within two years after the cause of
     action accrued, and the trial court was correct in applying a
     two-year statute of limitations period.

5.   Limitation of actions -- medical malpractice -- when cause of
     action accrues. -- Under Ark. Code Ann.  16-114-203(b)
     (1987), the date a cause of action for medical malpractice
     accrues is "the date of the wrongful act complained of and no
     other time."

6.   Limitation of actions -- medical malpractice -- continuous-
     treatment doctrine -- when applicable. -- The appellate court
     viewed appellant's reliance on the doctrine of continuous
     treatment as misplaced because that 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; in contrast to the so-called continuing-tort theory,
     based on a single negligent act, the continuous-treatment
     doctrine becomes relevant when the medical negligence consists
     of a series of negligent acts, or a continuing course of
     improper treatment.

7.   Limitation of actions -- medical malpractice -- continuous-
     treatment doctrine inapplicable. -- In the case at hand,
     appellant complained of only one isolated act of negligence
     that occurred on a single date during the induction of
     anesthesia immediately before the decedent's surgery; no
     further acts of negligence occurred; appellees had no further
     participation in the treatment of decedent up to the time of
     his death ten days later; the mere fact that the decedent
     remained in the hospital under a doctor's care until his death
     did not demonstrate a continuing course of improper treatment
     that would toll the statute of limitations; therefore, the
     appellate court declined to apply the continuous-treatment
     doctrine to the facts of the case.

8.   Limitation of actions -- medical malpractice -- appellant's
     claim barred by statute of limitations -- appellees entitled
     to summary judgment. -- The appellate court concluded that the
     trial court correctly ruled that the date on which the cause
     of action accrued was the date on which the medical injury or
     wrongful act occurred; because appellant did not file her
     initial complaint until more than two years later, her claim
     was barred by the statute of limitations; thus, the appellate
     court concluded that appellees were entitled to summary
     judgment as a matter of law.

9.   Appeal & error -- substitution-of-parties issue not addressed
     -- any survival claim barred by two-year limitations period. -
     - Where appellant argued that the trial court erred in not
     recognizing that, subsequent to the cause of action being
     filed, appellant had been named as administratrix of the
     decedent's estate, and in refusing to allow her to substitute
     herself in that capacity as the real party in interest to the
     survival action, the appellate court concluded that it was not
     necessary to address the argument because it had already
     determined that the case was one of medical malpractice and
     that the applicable statute-of-limitations period was two
     years; thus, any survival claim appellant may have had was
     similarly barred. 


     Appeal from Columbia Circuit Court, Second Division; Carol
Crafton Anthony, Judge; affirmed.
     David J. Potter, for appellant.
     Anderson & Kilpatrick, by: Overton S. Anderson and Mariam T.
Hopkins, for appellee St. Paul Fire & Marine Ins. Co. as insurer of
Magnolia Hospital; Dan Bocan, C.R.N.A.; K. Whitehead, R.N.; and R.
Canterbury, R.N.
     Shackleford, Shackleford & Phillips, by: Dennis Shackleford,
for appellee Scott McMahen, M.D.
     Dunn, Nutter, Morgan & Shaw, by: Gary Nutter, for appellee P.
Clark, R.N.

     Donald L. Corbin, Justice.
     Appellant, Lorine Pastchol, appeals the order of the Columbia
County Circuit Court granting summary judgment to appellees,
St. Paul Fire & Marine Insurance Company, Scott McMahen, Dan Bocan,
P. Clark, K. Whitehead, and R. Canterbury, on the ground that the
statute of limitations expired prior to the filing of this medical
malpractice claim involving the death of her brother.  Jurisdiction
is properly had in this court pursuant to Ark. Sup. Ct. R. 1-
2(a)(3) and (16).  In support of this appeal, appellant contends
the trial court erred in granting summary judgment in applying the
wrong statute of limitations; in disregarding the doctrine of
continuous treatment; and in refusing to allow appellant to
substitute herself as decedent's administratrix as the real party
in interest to this action pursuant to Ark. Code Ann.  16-62-101
(1987).  We affirm the judgment of the trial court.  
     Rule 56(c) of the Arkansas Rules of Civil Procedure provides
that summary judgment is to be rendered only in those instances
where "the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law."  The
burden of sustaining a motion for summary judgment is the
responsibility of the moving party. Tullock v. Eck, 311 Ark. 564,
845 S.W.2d 517 (1993).  All proof submitted must be viewed in a
light most favorable to the non-moving party and any doubts or
inferences must be resolved against the moving party.  Green v.
National Health Labs., Inc., 316 Ark. 5, 870 S.W.2d 707 (1994).  
                       PROCEDURAL HISTORY
     Appellant filed her original complaint on September 7, 1993,
alleging a cause of action against appellees for medical
malpractice and the wrongful death of her brother Idell Burton. 
Two amended complaints were subsequently filed.  According to those
complaints, Mr. Burton was admitted to the Magnolia Hospital in
Magnolia, Arkansas, on August 25, 1991, complaining of abdominal
pain, nausea, and vomiting.  The following day, surgery was
performed on Mr. Burton to repair a perforated duodenal ulcer. 
While he was receiving anesthesia, but before the surgery had
begun, Mr. Burton vomited and aspirated the contents of his
stomach, depositing said contents into his lungs.  Appellant
alleges that as a result, Mr. Burton's lungs were severely damaged
and that the aspiration of the stomach contents into his lungs was
the result of the negligent conduct of the appellees.  Mr. Burton
died during transport to Baptist Medical Center in Little Rock,
Arkansas, on September 5, 1991.  
     Appellees subsequently filed motions for summary judgment and
dismissal on the basis that appellant's claim was barred by the
statute of limitations and that appellant had no standing to bring
suit.  The trial court granted appellees' motions and dismissed the
case based on its findings that appellant's claim was filed after
the expiration of the two-year statute of limitations period
provided in the Medical Malpractice Act at Ark. Code Ann.  16-114-
203 (1987).  The trial court reasoned that because appellant
alleged a medical injury to the decedent, the suit was one of
medical malpractice, rather than wrongful death, and that the date
the cause of action accrued was the date the decedent underwent
surgery, August 26, 1991.  Additionally, the trial court determined
that appellant had no standing to pursue a claim of survival
pursuant to section 16-62-101, as she was not the executor nor
administrator of the decedent's estate and therefore not a proper
party to bring suit. 
                   I.  STATUTE OF LIMITATIONS
     Appellant argues that this case is one of wrongful death, not
medical malpractice, and as such the trial court should have
applied the three-year statute of limitations for wrongful death
actions as provided in Ark. Code Ann.  16-62-102 (1987), instead
of the two-year period for medical malpractice actions found in
section 16-114-203.  Appellant asserts that these two causes of
action are separate and distinct even though the cause of death in
this case is alleged to have resulted from a medical injury.  Our
case law does not support appellant's position.        
     In the recent case of Hertlein v. St. Paul Fire & Marine Ins.
Co., 323 Ark. 283, 914 S.W.2d 303 (1996), we reaffirmed our holding
in Ruffins v. ER Arkansas, P.A., 313 Ark. 175, 853 S.W.2d 877
(1993), and recognized that the Medical Malpractice Act applies to
all causes of actions for medical injury arising after April 2,
1979, and that it supersedes any inconsistent provision of law. 
Ark. Code Ann.  16-114-202 (1987).  In an effort to resolve the
conflict between the two actions and their respective statutes of
limitations, we concluded in Hertlein that any medical injury, even
one resulting in the death of a person, is governed by the Medical
Malpractice Act and not the wrongful-death statute.  Thus, the
controlling statute of limitations is the two-year period found in
section 16-114-203(a), which provides that, "[a]ll actions for
medical injury shall be commenced within two (2) years after the
cause of action accrues."  Ark. Code Ann.  16-114-201(3) (1987)
defines medical injury as:
     any adverse consequences arising out of or sustained in
     the course of the professional services being rendered by
     a medical care provider, whether resulting from
     negligence, error, or omission in the performance of such
     services; or from rendition of such services without
     informed consent or in breach of warranty or in violation
     of contract; or from failure to diagnose; or from
     premature abandonment of a patient or of a course of
     treatment; or from failure to properly maintain equipment
     or appliances necessary to the rendition of such
     services; or otherwise arising out of or sustained in the
     course of such services. 

     Clearly, the case at hand involves a medical injury; thus,
appellant's cause of action is one of medical malpractice, which
must have been filed within two years after the cause of action
accrued.  We therefore conclude the trial court was correct in
applying a two-year statute of limitations period.  Given that, our
inquiry must now focus on the more complicated issue of when this
cause of action accrued.
               II.  ACCRUAL OF THE CAUSE OF ACTION
     Section 16-114-203(b) provides that the date a cause of action
for medical malpractice accrues is "the date of the wrongful act
complained of and no other time."  (Emphasis added.)  Appellant
argues that this cause of action accrued on the date of the
decedent's death, September 5, 1991, based on the common-law
doctrine of continuous treatment.  Appellees argue that the
applicable date in this case is August 26, 1991, the date the
decedent underwent surgery and the date on which the alleged
wrongful act complained of occurred.  Appellees further argue that
the doctrine of continuous treatment does not apply in this case
because the only act or wrong complained of was the single,
isolated incident which occurred during surgery.  Appellees support
this position by pointing out that appellant does not allege any
acts of malpractice occurring during any treatment after the
surgery.  Moreover, during oral argument before this court, counsel
for appellees stated, and counsel for appellant did not contest on
rebuttal, that appellees did not even participate in the post-
surgery treatment of the decedent.  
     Appellant concedes that the only act of negligence alleged is
that which occurred during the induction of anesthesia before the
decedent's surgery on August 26, 1991.  Appellant also admits that
the post-surgery treatment of the decedent was proper; however, she
maintains that because the decedent was continually under medical
treatment until his death, the cause of action did not accrue until
the date of the decedent's death.  We believe appellant's reliance
on the doctrine of continuous treatment is misplaced, as that
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.  
     This court adopted the continuous treatment doctrine in Lane
v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988).  In that case,
Dr. Lane had given narcotic injections to his wife over the course
of many years to treat her migraine headaches.  As a result of the
injections, Ms. Lane suffered scarring and drug addiction. 
Dr. Lane moved for summary judgment and a directed verdict on the
ground that the statute of limitations barred the claim, but the
trial court denied his motion even though the initial injurious
treatment occurred more than two years before suit was filed.  In
recognition of the validity of the continuous treatment doctrine,
we held that:
          In contrast to the so-called continuing tort theory,
     based on a single negligent act, the continuous treatment
     doctrine becomes relevant when the medical negligence
     consists of a series of negligent acts, or a continuing
     course of improper treatment.
  
Id. at 675, 752 S.W.2d  at 27 (emphasis added).  

     We further concluded that the doctrine's application is proper
in situations where a patient receives a series of treatments for
which no single treatment caused the harm; rather the harm resulted
from the cumulative effect of the multiple treatments.  In such a
situation it would be unfair to require the patient to pinpoint the
one particular treatment which caused the injury.  That is clearly
not the situation before us.  In the case at hand, there was no
series of improper or negligent treatments which would make it
difficult for appellant to identify the act which caused the
medical injury.  To the contrary, appellant points to but one act
of negligence, namely the decedent's aspiration during the
administration of anesthesia.  The facts of this case are thus
distinguishable from those present in the Lane case. 
     Similarly, in Taylor v. Phillips, 304 Ark. 285, 801 S.W.2d 303
(1990), this court applied the continuous treatment doctrine.  In
that case, Dr. Phillips had performed oral surgery on Mr. Taylor,
placing a brace in his jaw on September 8, 1987.  During subsequent
follow-up visits with Dr. Phillips, Mr. Taylor complained of
various problems with the brace.  At one point during the course of
the treatment, Dr. Phillips repositioned the jaw bones and advised
Mr. Taylor to continue to wear the brace.  Approximately one month
later, Mr. Taylor again complained about the jaw, and this time
Dr. Phillips advised that further surgery would be needed.  In the
meantime, on December 8, 1987, Mr. Taylor consulted with
Dr. Phillips's partner who took x-rays of the jaw and manually
repositioned the jaw bones after cutting the brace.  On December 9,
1987, Dr. Phillips consulted with his partner and both agreed that
further surgery in the form of a bone graft operation was needed. 
Mr. Taylor filed suit on October 16, 1989, alleging that
Dr. Phillips was negligent in his care and treatment of Mr. Taylor. 
Based upon those facts, this court held that the application of the
continuous treatment doctrine was proper based upon our prior
ruling in Lane as well as the holdings of various cases in other
jurisdictions.   
     One of the cases relied upon by the majority in Taylor, was
Farley v. Goode, 252 S.E.2d 594 (1979).  In Farley, the appellant
was treated by a dentist over a period of years and she alleged
that his diagnosis and treatment of her was negligent.  The Supreme
Court of Virginia held that when malpractice is alleged to have
occurred during a continuous and substantially uninterrupted course
of examination and treatment, the cause of action accrues and the
statute of limitations begins to run when the improper course of
examination and treatment for the particular malady terminates.  In
a concurring opinion in Taylor, it was pointed out that the
Virginia court in Farley noted that where the alleged malpractice
constitutes a single, isolated act, the continuous treatment
doctrine would not apply.  Taylor, 304 Ark. 285, 801 S.W.2d 303
(Newbern, J., concurring), (citing Farley, 252 S.E.2d 594).
     The facts of this case differ considerably from the facts
present in Taylor, 304 Ark. 285, 801 S.W.2d 303.  Unlike the
situation in Taylor, appellant concedes that the treatment of the
decedent following surgery was entirely proper.  In the Taylor
case, the complaint alleged that Dr. Phillips was negligent in his
overall care and treatment of Mr. Taylor; the complaint did not
allege any negligence in the surgery performed on September 8,
1987.  In other words, the complaint in Taylor can be distinguished
on the bases that there was no allegation that a single, isolated
act of negligence caused Mr. Taylor's injury; rather, the complaint
alleged his injury stemmed from the entire series of negligent
treatments of his jaw injury.  
     In our most recent application of this doctrine, Tullock, 311
Ark. 564, 845 S.W.2d 517, we upheld the trial court's granting
summary judgment to Dr. Eck on the grounds that Ms. Tullock's claim
was barred by the two-year statute of limitations.  In that case,
Ms. Tullock alleged that on November 30, 1987, Dr. Eck negligently
prescribed an estrogen supplement to her knowing that she had a
mass in her breast and that she had not had a biopsy performed. 
Ms. Tullock refilled the prescription on June 9, 1988, and again on
November 10, 1988, providing her with medication until May 1989. 
When Ms. Tullock saw a different doctor in June of 1989, she
discovered that the mass in her breast was malignant and that the
cancer was estrogen dependent.  She filed suit against Dr. Eck in
December of 1990, approximately three years and one month following
the alleged negligent act of prescribing the estrogen.  This court
concluded that because the negligent act or conduct occurred on
November 30, 1987, when Dr. Eck prescribed the estrogen, and
because Ms. Tullock had no further contact with Dr. Eck, other than
refilling the prescription, the continuous treatment doctrine did
not apply.  The factual situation in Tullock is comparable to this
case in that Ms. Tullock was able to identify the single act of
negligence, the initial prescription of estrogen.  Ms. Tullock was
not placed in the awkward and often impossible position of trying
to identify the harmful act amongst a series of otherwise unharmful
acts. 
     In the case at hand, appellant complains of only one single,
isolated act of negligence which occurred on August 26, 1991,
during the induction of anesthesia immediately before the
decedent's surgery.  No further acts of negligence occurred. 
Furthermore, appellees Dr. McMahen, the surgeon, Dan Bocan, the
anesthetist, and the three nurses, P. Clark, K. Whitehead, and R.
Canterbury had no further participation in the treatment of
decedent up to the time of his death on September 5, 1991.  The
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 and, therefore, we decline to apply the doctrine to the
facts of this case.  Were we to hold otherwise, the statute of
limitations would cease to exist in instances where a single act of
malpractice is followed by the prolonged hospitalization and
subsequent death of the patient, even though the hospitalization
and subsequent treatment were completely appropriate.  Further,
were this court to reverse the trial court's ruling, our decision
would directly conflict with the General Assembly's manifest intent
to bar all medical malpractice claims not filed within two years
from the date the wrongful act occurred.
     We conclude that the trial court correctly ruled that the date
this cause of action accrued was August 26, 1991, the date the
medical injury or wrongful act occurred.  Because appellant did not
file the initial complaint until September 7, 1993, her claim is
barred by the statute of limitations, and as such, we conclude the
appellees were entitled to summary judgment as a matter of law.  
                  III.  SUBSTITUTION OF PARTIES
     Lastly, appellant argues that she should have been allowed to
substitute herself as the decedent's administratrix as the real
party in interest in this action as provided in section 16-62-101. 
That section, which provides for the survival of actions the
decedent may have brought on his own, also allows an executor or
administrator of a decedent's estate to sue on the decedent's
behalf for the pain and suffering experienced by the decedent prior
to his death.  Akin to the provisions for wrongful death found in
section 16-62-102, section 16-62-101 provides for a three-year
statute of limitations period within which to file survival claims. 
Appellant asserts her claim was one of medical malpractice,
wrongful death, and survival, as she alleged damages for the pain
and suffering of the decedent.  Appellant argues that the trial
court erred in not recognizing that, subsequent to this cause of
action being filed, appellant had been named as administratrix of
the decedent's estate, and in refusing to allow her to substitute
herself in that capacity as the real party in interest to the
survival action.  Based on our previous rulings in Ruffins, 313
Ark. 175, 853 S.W.2d 877, and Hertlein, 323 Ark. 283, 914 S.W.2d 303, that any claim involving an act of medical injury is
encompassed in the provisions of the Medical Malpractice Act, it is
not necessary to address this argument as we have already
determined that this case is one of medical malpractice, and the
applicable statute of limitations period is two years.  Thus, any
survival claim appellant may have had is similarly barred. 
     Affirmed.
     GLAZE and BROWN, JJ., concur.
     NEWBERN and ROAF, JJ., dissent.
=================================================================
            TOM GLAZE, Associate Justice, Concurring
     I concur only because this court has held in two 4-3 decisions
that the three-year statute of limitations for wrongful death is
not applicable when a party's death resulted from a medical injury. 
See Hertlein v. St. Paul Fire and Marine Insurance Company, 323
Ark. 283, 914 S.W.2d 303 (1996); Ruffins v. ER Arkansas, P.A., 313
Ark. 175, 853 S.W.2d 877 (1993).  I dissented in both Hertlein and
Ruffins, but my position on this limitations issue is aptly and
strongly stated in Justice Corbin's dissent in Ruffins, as follows:
          Without overruling Matthews or any of our subsequent
     cases, the majority attempts to distinguish our
     subsequent cases to reach the holding that an action for
     wrongful death resulting from medical injury is subject
     to the provisions of the Medical Malpractice Act enacted
     by Act 709 of 1979.  This is the crux of my dissent.  One
     only has to read Matthews, Simmons First Nat'l Bank,
     Dawson, Brown I, Bailey, and Brown II to reach the
     inescapable conclusion that this court has recognized
     unwaveringly for a quarter of a century that an action
     for medical malpractice and an action for wrongful death
     are separate causes of action even though they may arise
     from the same negligent acts.  For this court to
     "distinguish" these cases so as to reach an opposite
     conclusion is an intellectual feat that I suspect exceeds
     our profession's ingenuity.  While this issue will be
     moot in the future by virtue of our decision in Weidrick
     v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), we should
     follow the precedent which applies to this case.
     While I remain of the view that this court reached the wrong
holdings in Hertlein and Ruffins, there presently are not enough
members of this court who would overrule those decisions.  As a
consequence, I am compelled to join the majority decision, but will
do so by concurring and, at the same time, mentioning that I will
be more than susceptible to overruling Hertlein and Ruffins if this
court should decide to do so in the future.
=================================================================
         ROBERT L. BROWN, Associate Justice, Concurring
     I concur in the result.
     One issue in this case raises the identical issue that this
court confronted in Hertlein v. St. Paul Fire and Marine Ins. Co.,
323 Ark. 283, 914 S.W.2d 303 (1996) -- whether a general
applicability clause in the Medical Malpractice Act operates to
eliminate a separate cause of action for wrongful death which
arises out of a medical injury.  The relevant clause in the Medical
Malpractice Act reads: "This subchapter applies to all causes of
action for medical injury accruing after April 2, 1979, and, as to
such causes of action, shall supersede any inconsistent provision
of law."  Ark. Code Ann.  16-114-202 (1987).  It is clear to me
that this clause must be read in the context of the Medical
Malpractice Act (Ark. Code Ann.  16-114-201 through 16-114-209
(1987 & Supp. 1995)), which relates to causes of action for medical
negligence, and not as a repealer to our separate Wrongful Death
Act (Ark. Code Ann.  16-62-102 (Supp. 1995)).
     I dissented in Hertlein and said:
          Because of today's opinion, the survivor of a person
     who dies two years after suffering a medical injury has
     no cause of action for wrongful death.  Wrongful death
     actions have existed in this state since 1883.  Bell v.
     Estate of Bell, 318 Ark. 483, 885 S.W.2d 877 (1994)
     (citing Act 53 of 1883).  Had the General Assembly
     desired to repeal the wrongful death cause of action for
     medical injuries in any respect, it could easily have
     done so in 1979 by a specific repealer in the Medical
     Malpractice Act.  It did not.  Nor did it do so after our
     decision in Brown v. St. Paul Mercury Ins. Co., supra,
     where we expressly affirmed use of the statute of
     limitations under the Wrongful Death Act for a medical
     injury.  Now, almost 20 years after the enactment of the
     Medical Malpractice Act, we hold that a repeal was
     contemplated.  I cannot make that interpretative leap.
     The majority decision in Hertlein decides the issue in this
case.  I still maintain, though, that had the General Assembly
intended to repeal the wrongful death cause of action for medical
injuries, it could have clearly and specifically done so in 1979. 
It did not.  It takes more, in my opinion, than a general
applicability statement to eliminate a cause of action in Arkansas. 
I commend this matter to the General Assembly for renewed
legislative scrutiny.
=================================================================
          DAVID NEWBERN, Associate Justice, Dissenting
     In paragraph V of her second amended complaint, Lorine
Pastchol alleges that Dr. Scott McMahen rendered medical care to
Idell Burton in August and September, 1991.  That allegation has
not been rebutted by any affidavit or other evidence presented by
Dr. McMahen or any other defendant.  A material factual issue thus
remains.  Ark. R. Civ. P. 56(c).
     The error made by the Trial Court in rendering summary
judgment and perpetuated here is illustrated by this statement from
the majority opinion:

     We believe appellant's reliance on the doctrine of continuous
     treatment is misplaced, as that 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.

That statement ignores one of the logical bases of the rule
illustrated in these statements we made in Tullock v. Eck, 311 Ark.
564, 845 S.W.2d 517 (1993):

          If a physician is negligent in treating a patient but the
     patient continues to be treated by the physician for the
     condition which was the object of the negligent act or
     treatment, the patient should not be required to interrupt the
     treatment to bring suit against the physician because a
     statute of limitations is about to run.  That is the most
     often stated rationale for the "continuous treatment doctrine"
     which tolls the statute of limitations until treatment is
     discontinued.  Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25
     (1988); Rountree v. Hunsucker, 833 S.W.2d 103 (Tex. 1992).
                               ***
     [I]f 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.
                               ***
     [T]he continuous treatment doctrine becomes relevant when 
     the medical negligence consists of a negligent act, followed
     by a continuous course of treatment for the malady which was
     the object of the negligent treatment or act.

     While these statements may be regarded as obiter in view of
our holding in the Tullock case that there had been no continuing
treatment by the physician for the malady which was the subject of
the initial treatment, the rationale stated there was clear.  Here
we ignore it.  Summary judgment should not have been granted at
least as to the complaint against Dr. McMahen.
     I respectfully dissent.
     Roaf, J., joins.