In its October 14, 2020 decision, the New York Appellate Division, Second Department (“New York Appellate Court”) held that the trial court had improperly granted dismissal of the entire New York medical malpractice complaint, stating “we agree with the Supreme Court’s determination to grant the defendants’ motion to dismiss so much of the complaint as was based on alleged acts of medical malpractice occurring before January 15, 2008.”
The Underlying Facts
On October 2, 2007, Benigna Melendez (“decedent”) underwent a bilateral screening mammogram at the defendant Woodhull Medical and Mental Health Center (“Woodhull”). On January 15, 2008, the decedent presented to Woodhull with a tender mass in her left breast. A biopsy of the mass was performed in February 2008, resulting in a finding of cancer. The decedent underwent further treatment before her death on November 14, 2008.
The plaintiff, as the administratrix of the decedent’s estate, and individually, commenced the New York medical malpractice wrongful death lawsuit to recover damages. The defendants moved to “dismiss all claims for medical malpractice pertaining to care rendered prior to January 15, 2008 as time-barred for failing to [ful]fill the condition precedent of timely serving a Notice of Claim pursuant to General Municipal Law § 50-e.” In opposing the motion, the plaintiff contended that the continuous treatment doctrine applied to toll the period within which the notice of claim had to be filed.
In an order dated August 16, 2018, the Supreme Court determined that the notice of claim was untimely with respect to the October 2, 2007 mammogram, and that the continuous treatment doctrine did not apply, stating “Defendants’ motion to dismiss time-barred claims is granted. Plaintiff’s complaints are dismissed, as to all defendants.” The plaintiff then appealed.
New York Appellate Court Decision
The New York Appellate Court stated that a medical malpractice action accrues on the date when the alleged original negligent act or omission occurred and that a notice of claim against a municipal corporation must be served within 90 days of the time the claim arises (General Municipal Law § 50-e). However, the continuous treatment doctrine may toll the 90-day period within which the notice of claim must be filed.
Continuous Treatment Doctrine
The continuous treatment doctrine applies when the course of treatment that includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint. “Here, in opposition to the defendants’ prima facie showing, the plaintiff failed to raise a triable issue of fact as to whether the continuous treatment doctrine applied with respect to the October 2, 2007 mammogram … Accordingly, we agree with the Supreme Court’s determination to grant the defendants’ motion to dismiss so much of the complaint as was based on alleged acts of medical malpractice occurring before January 15, 2008.” However, “Since the dismissal of the complaint in its entirety was inconsistent with the Supreme Court’s determination, the order must be modified to conform to the relief that was granted.”
Source Ortiz v New York City Health & Hosps. Corp., 2020 NY Slip Op 05765.
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