New York Appellate Court Applies Continuous Treatment Doctrine In Overturning Dismissal Of Medical Malpractice Lawsuit

The New York Supreme Court, Appellate Division, First Department (“New York Appellate Court”) held in its Decision and Order dated February 11, 2020, “On this record, an issue of fact exists as to the last date on which defendant Dr. Woo treated the decedent, and thus, as to when the applicable statute of limitations began running. We accordingly reverse and reinstate the complaint.”

The New York Appellate Court explained, “Plaintiff raised an issue of fact as to whether Dr. Woo continuously treated the decedent for conditions related to renal cell carcinoma. Plaintiff’s expert, Dr. Feit, opined that Dr. Woo treated the decedent for symptoms of back pain, hypertension, and insomnia, all of which were symptoms of and related to renal cell carcinoma, a diagnosis that should have been considered given the findings in the 2006 MRI of a renal mass.”

The Underlying Facts

Beginning in 1999, Dr. Woo treated the decedent for various issues including hypertension, high cholesterol, back pain, insomnia, and fatigue.

On April 6, 2006, the decedent underwent an MRI of his lumbar spine. The resulting report set forth various findings, including multilevel degenerative changes. The report also stated: “A 2.9 cm x 1.9 cm right renal cyst is seen. There is a 2.8 cm x 2.7 cm heterogenous right renal upper pole slightly exophytic focus that is not well characterized on this examination.” Although the radiologist recommended “further evaluation by renal ultrasound,” Dr. Woo did not refer the decedent to a nephrologist, nor did he discuss the findings of the MRI with him. Dr. Woo testified that he did not consider the findings regarding the renal mass to be abnormal and did not in any event associate them with the decedent’s back pain.

The decedent continued to suffer from hypertension and to complain of back pain. On April 12, 2011, he was admitted to the Westchester Square emergency room complaining of “right flank pain.” Imaging revealed a mass in the upper pole of the decedent’s right kidney that was suggestive of renal cancer. Dr. Woo discharged the decedent on April 13, 2011 with instructions to follow up with physicians at Cornell Hospital for further evaluation of the renal mass.

On April 25, 2011, the decedent’s right kidney was removed by a surgeon at Montefiore Medical Center. The decedent underwent further surgery at Montefiore on May 31, 2011 to remove a lung nodule. In addition, he underwent chemotherapy at St. Luke’s/Roosevelt Hospital Center.

The decedent was admitted to Westchester Square on July 2, 2012 and discharged by Dr. Woo on July 9, 2012. In his discharge report, Dr. Woo noted that the decedent had been treated for “failure to thrive.” Dr. Woo also noted: “From an oncology standpoint, [the decedent] was end stage and at this point in time conservative therapy, which included pain management and placement of a feed tube[,] were advised.” Dr. Woo testified that the decedent’s failure to thrive was attributable to the status of his renal cancer. He instructed the decedent to follow up with him as an outpatient.

On July 24, 2012, Dr. Woo wrote a home health certification and plan of treatment for the decedent that referenced the decedent’s renal cancer. On July 25, 2012, Dr. Woo wrote a letter stating that, after examining the decedent, he had determined that the decedent was suffering from renal cancer and required a wheelchair, seatbelt, and leg rest. Dr. Woo prescribed a wheelchair on July 27, 2012.

On August 28, 2012, the decedent died from renal cancer.

On August 8, 2014, the plaintiff filed her New York medical malpractice lawsuit against Dr. Woo and other defendants, asserting medical malpractice and related causes of action. The plaintiff alleged that Dr. Woo, a member of defendant Peter K. Keller, M.D., P.C., negligently ignored the kidney lesion noted in the 2006 MRI and that his negligence resulted in delayed diagnosis of the decedent’s renal cancer.

The defendants moved to dismiss the complaint under CPLR 3211(a)(5), arguing that plaintiff’s claims were barred by the statute of limitations. The trial court granted the motion, finding that the defendants met their burden on the motion because there was no dispute that the action was commenced more than 2 ½ years after the alleged malpractice, namely, Dr. Woo’s failure to order the renal ultrasound as recommended in the 2006 MRI report. The court found that the plaintiff, in turn, failed to show that the statute of limitations had been tolled by the continuous treatment doctrine. The plaintiff appealed.

New York Appellate Court Decision

The New York Appellate Court held: “Plaintiff sufficiently established that such treatment continued through the decedent’s hospitalization in July 2012. Notably, Dr. Woo authored the decedent’s discharge summary from the hospital. Under “Hospital Course,” Dr. Woo noted that “[f]rom an oncology standpoint, [the decedent] was end stage,” and conservative therapy, including pain management and placement of a feeding tube, were advised. The decedent was instructed to follow up with Dr. Woo as an outpatient. On July 25, 2012, Dr. Woo wrote a letter “to whom it may concern” ordering a wheel chair and home care for the decedent given his debilitated condition following hospitalization for renal cancer.”

“Dr. Woo testified that the decedent was hospitalized for failure to thrive attributable “[t]o the status of his [renal cell] cancer.” Indeed, the decedent died – from renal cell carcinoma – less than one month later. Defendants’ argument that the “failure to thrive” bore no relation to the decedent’s cancer treatment borders on specious. (It should be noted that this argument was raised for the first time on reply, and for that reason should not have been considered, let alone credited.) Under the circumstances, expert testimony was unnecessary to a conclusion that Dr. Woo treated the decedent for renal cell carcinoma in July 2012 … The one-year-and-three month gap between the April 2011 visit and the July 2012 note does not preclude application of the continuous treatment doctrine.”

Dookhie v. Woo, 10821-10821A.

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