New York Appellate Court Applies Continuous Treatment Doctrine In Allowing Medical Malpractice Claim

The State of New York Court of Appeals (“New York Appellate Court”), which is New York’s highest appellate court, applied the continuous treatment doctrine to a New York medical malpractice claim in its decision filed on February 18, 2018, thereby holding that summary judgment was properly denied to the defendant because there are triable issues of fact concerning whether the continuous treatment doctrine tolls the statute of limitations on the plaintiff’s medical malpractice claim.

The Underlying Facts

The New York medical malpractice plaintiff was treated by the defendant physician for chronic shoulder problems beginning in 1998. The defendant performed surgery on the plaintiff in 1999, and the plaintiff had five post-operative visits with the defendant over the course of the next year.

After a scheduled one-year post-surgery appointment, the plaintiff did not see the defendant until 19 months later, when she returned after experiencing increased pain in her shoulder. The defendant recommended injections and a second surgery, which he performed in January 2002. The plaintiff then returned to the defendant for a post-operative visit in April 2002. The plaintiff next saw the defendant in September 2003, after her shoulder injury was aggravated. After the September 2003 appointment, there was a gap in treatment with the defendant of more than thirty months.

The plaintiff testified that she “had gotten discouraged with [defendant]” but ultimately returned to him because the defendant “was all [she] had.” The plaintiff returned to the defendant in April 2006 because of continued pain, at which point the defendant ordered x-rays and referred the plaintiff to his partner for a third surgery because the defendant was no longer performing shoulder surgeries. The plaintiff consulted the defendant’s partner but ultimately began seeing a new orthopedic surgeon in July 2006.

Plaintiff’s New York Medical Malpractice Lawsuit

The plaintiff filed her New York medical malpractice lawsuit against the defendant in September 2008, alleging that he negligently performed her original 1999 surgery and subsequently failed to diagnose the flawed surgery, leading to continued problems with her shoulder and a second surgery.

At the conclusion of discovery, the defendant moved for partial summary judgment seeking dismissal of the plaintiff’s medical malpractice lawsuit to the extent that it alleged malpractice based on conduct before March 2006. The defendant’s motion for summary judgment was denied by the trial court. The lower New York appellate court affirmed denial of the defendant’s motion for summary judgment, holding that the plaintiff raised triable issues of fact concerning the possible tolling of the statute of limitations based on continuous treatment.

New York Appellate Court Decision

Continuous Treatment Doctrine

CPLR 214-a provides that a medical malpractice action must be commenced within 2½ years of the relevant act or the “last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the [challenged] act, omission, or failure.” The operative accrual date for the purposes of determining a claim’s statute of limitations is at the end of treatment when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint.

The New York Appellate Court explained that the continuous treatment doctrine seeks to maintain the physician-patient relationship in order for the patient to receive the most efficacious care; implicit in the policy is the recognition that the doctor not only is in a position to identify and correct the medical malpractice, but is best placed to do so.

In response to the defendant’s arguments aimed at the gaps between the plaintiff’s visits and the “as needed” basis for scheduling some of those appointments, the New York Appellate Court stated that the plaintiff raised issues of fact as to whether she and the defendant intended a continuous course of treatment: the plaintiff saw the defendant over the course of four years, underwent two surgeries by him, and saw no other doctor for her shoulder during this time; and, the plaintiff returned to him after the thirty-month gap, discussed yet a third surgery with him, and accepted his referral to his partner only because the defendant was no longer performing such surgeries.

The New York Appellate Court stated that the plaintiff’s testimony regarding feeling discouraged with the defendant’s treatment does not demonstrate as a matter of law that she never intended to return to his care; in fact, her testimony reveals that she considered the defendant her only doctor during this time. The New York Appellate Court further stated that the fact that the defendant repeatedly told the plaintiff she should return “as needed” did not foreclose a finding that the parties anticipated further treatment; notably, the plaintiff’s injury was a chronic, long-term condition which both the plaintiff and the defendant understood to require continued care.

The New York Appellate Court noted that each of the plaintiff’s visits to the defendant over the course of seven years were for the same or related illnesses or injuries, continuing after the alleged acts of malpractice. As to the 30-month period between visits, the New York Appellate Court stated that it had held in previous cases that a gap in treatment longer than the statute of limitations is not per se dispositive of the defendant’s claim that the statute of limitations has run.

The New York Appellate Court held that reasonable minds may indeed differ on whether the plaintiff ultimately makes her case but that issues of fact exist that are for a jury to decide; the record therefore raises triable issues of fact concerning whether the continuous treatment rule applies in this case.

Source Lohnas v. Luzi, No. 7.

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This entry was posted on Friday, March 2nd, 2018 at 5:22 am. Both comments and pings are currently closed.

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