The opinion
CORNELIUS, Chief Justice,
dissenting.
While I agree that a physician’s act in prescribing medicine for a patient may constitute continuing treatment, I do not agree that the patient’s unilateral act in refilling a prescription months after the patient’s last contact with the physician constitutes “continuing treatment by the physician” so as to delay the running of limitations.
In this case, both Mrs. Hunsucker’s and Dr. Rowntree’s summary judgment evidence conclusively establish that Mrs. Hun-sucker’s last contact with the doctor was on May 22, 1987, when he renewed her prescription for Sectral. If that date constituted the last date of Dr. Rowntree’s continuous treatment of Mrs. Hunsucker, limitations had run before her suit was filed.
Mrs. Hunsucker’s pleadings allege various omissions in Dr. Rowntree’s treatment, including failure to properly diagnose, failure to refer to other physicians, failure to monitor her condition, and failure to perform surgery. They do not allege that Dr. Rowntree was negligent in prescribing Sec-tral.
There is nothing in the pleadings to indicate that Dr. Rowntree’s failure to diagnose Mrs. Hunsucker’s occluded carotid artery occurred on any date but September 15,1986, the date he last examined her, nor is there anything in the pleadings to indicate that his failure to refer her to another doctor or for surgery arose out of anything but his examination of her. Assuming that the doctor’s failure to monitor Mrs. Hun-sucker’s condition was a negligent act on which she based her suit, the last date he treated her was May 22, 1987, the date he prescribed medication.
Mrs. Hunsucker contends that her act in refilling the Sectral prescription postponed the beginning of limitations until the date of the last refill, which was December 13, 1987. Although there are no Texas cases addressing the effect of a patient’s unilateral prescription refills on the running of limitations, other jurisdictions have held the continuous treatment doctrine to be inapplicable where the patient relies solely on the continued use of medication long after the last contact with the physician who prescribed it. Wheeler v. Schmid Laboratories, Inc., 451 N.W.2d 133, 138-39 (N.D.1990); Froysland v. Altenburg, 439 N.W.2d 797 (N.D.1989); Parrott v. Rand, 126 A.D.2d 621 , 511 N.Y.S.2d 57 (1987). As the Supreme Court of North Dakota has stated:
We do not believe that a continued prescription for medication eight years after the last personal contact with the doctor constitutes continuous treatment....
Wheeler v. Schmid Laboratories, Inc., supra, at 138-39.
The cases cited by the majority opinion do not support the proposition for which they are cited. In Thomas v. Jacksonville Electric Authority, 536 So.2d 310 (Fla.Dist.Ct.App.1988), the question in a workers’ compensation case was whether medicines prescribed for the worker constituted “remedial treatment” although the medicine was only palliative rather than curative. The court held that it did constitute remedial treatment. The prescription for the medicine, however, was made within the limitations period. In City of Orlando *785 v. Blackburn, 519 So.2d 1017 (Fla.Dist.Ct.App.1987), the same question was involved, and the court made the same holding. In Orlando, however, the physician testified that he treated the patient from 1983 until 1986 and gave him eleven prescriptions for medicine, although he did not see him personally. The claim for medical benefits in that case was filed in 1986, well within the limitations period. Freeman v. Mid-South Ins. Co., 197 Ga.App. 445 , 398 S.E.2d 727 (1990), was a case where Freeman sued his'health insurance carrier for medical expenses. The policy excluded coverage for medicines used in treating preexisting ailments. The court held that since Freeman admittedly had taken prescribed medicines for a pre-existing condition, he came within the policy exclusion. The basis of the holding was that he had incurred medical expenses related to a preexisting condition. None of the cases cited in the majority opinion focuses on the term “treatment” as it applies to the physician.
The continuous treatment rule necessarily focuses on the physician. Treatment requires some act on the part of the physician. If it did not, any patient having a purported claim against a physician could indefinitely stay the running of limitations by engaging in unilateral acts in response to the physician’s previous treatment. For example, a patient whose physician advised him to follow a regimen of diet or exercise could forever forestall the running of limitations simply by periodically exercising or dieting, even though it had been months, or even years, since he had seen, contacted, or been treated by the physician. The same is true of taking prescribed medicines. If refills are allowed, the patient can indefinitely forestall limitations by ex parte purchases of medicine. Such an interpretation of the rule would have the running of limitations depend on the act of the patient, rather than on the act of the physician. In my judgment that would thwart the intention and purpose of the Legislature in adopting an absolute two-year statute of limitations for malpractice claims.
My disagreement with the majority is primarily on what constitutes the prescription of medicine. Apparently, the majority concludes that a prescription is reinstituted or recreated every time the patient purchases a refill. I believe the prescription constitutes treatment only on the date it is actually made and that the unilateral refilling of it, even when refills are allowed by the doctor, does not constitute a new or continuing prescription. Although the doctor permitted refills in this case, they were not required. Whether or not they were refilled was left strictly to Mrs. Hunsucker’s option. If it can be said that Dr. Rowntree prescribed the refills, he prescribed them on May 22, 1987, when he wrote the prescription, not on the subsequent dates when the refills were purchased.
Had Mrs. Hunsucker alleged that her injuries were caused by the medication Dr. Rowntree prescribed for her, it might be proper to consider the date she last refilled the medicine to be date of last treatment. But when she alleges, as she did here, only failure to discover the occluded artery, to refer her to other doctors, and to monitor symptoms, the latest date that can be considered treatment is the date of the last prescription, which was May 22, 1987.
I would affirm the summary judgment because the undisputed evidence shows that the last date Mrs. Hunsucker was treated by Dr. Rowntree was May 22,1987.