New York Appellate Court Rules 2 ER Visits 2.5 Years Apart Not Subject To Continuous Treatment Doctrine

In its Decision and Order dated January 28, 2021, the Supreme Court of the State of New York Appellate Division, First Judicial Department (“New York Appellate Court”) held: “Supreme Court properly dismissed plaintiff’s action against Montefiore [Montefiore Medical Center] on the ground that her claims based on her October 4, 2012 emergency room visit, during which a lesion on her liver was detected during a CT scan, are barred by the 2 ½-year statute of limitations (see CPLR 214-a; Wilson v Southampton Urgent Med. Care, P.C., 112 AD3d 499, 499 [1st Dept 2013]). The continuous treatment doctrine did not operate to toll the statute of limitations because plaintiff’s return to the emergency room on February 24, 2015, at which time she was diagnosed with hepatocellular carcinoma, did not constitute a “course of treatment” (Massie v Crawford, 78 NY2d 516, 519 [1991]; see Lewis v Treitel, 157 AD3d 452 [1st Dept 2018]).”

“Plaintiff never returned to Montefiore between these two emergency room visits in 2012 and 2015 to seek further treatment for her abdominal pain, nor did she provide evidence of an “ongoing relationship of trust and confidence” with Montefiore (Devadas v Niksarli, 120 AD3d 1000, 1006 [1st Dept 2014] [internal quotation marks omitted]). Accordingly, her return to Montefiore in 2015 “constituted a resumption of treatment rather than a continuation thereof,” insufficient to toll the statute of limitations (see Fox v Glens Falls Hosp., 129 AD2d 955, 957 [3d Dept 1987] [internal quotation marks omitted]).”

Source Estrella v Montfiore Medical Center, Case No. 2020-02506.

Continuous Treatment Doctrine

The continuous treatment doctrine is codified at CPLR 214-a, which provides, in pertinent part, that “[a]n action for medical, dental or podiatric malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure.” One of the purposes of the doctrine is to permit a doctor to address a possible act of malpractice without the distraction of a lawsuit commenced by the very person he or she is trying to treat.

The continuing nature of a diagnosis or misdiagnosis does not itself amount to continuous treatment. Rather, the continuous treatment doctrine requires the existence of a relationship of continuing trust and confidence between the patient and physician. This relationship, however, does not necessarily come to an end upon a patient’s last personal visit with his or her physician. Thus, there will be continuing treatment when a patient, instructed that he or she does not need further attention, soon returns to the doctor because of continued pain in that area for which medical attention was first sought.

If you or a loved one may be the victim of medical negligence in New York or in another U.S. state, you should promptly find a New York medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.

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