| Aulita v Chang |
| 2007 NY Slip Op 07964 [44 AD3d 1206] |
| October 25, 2007 |
| Appellate Division, Third Department |
| Mark Aulita, Respondent, v Theodore T. Chang et al.,Appellants. |
—[*1] The Tuttle Law Firm, Latham (James B. Tuttle of counsel), for respondent.
Carpinello, J. Appeal from an order of the Supreme Court (Teresi, J.), entered December 28,2006 in Albany County, which denied defendants' motion for summary judgment dismissing thecomplaint.
In November 1999, plaintiff consulted with defendant Capital District UrologicalSurgeons, LLP (hereinafter the Urology Group) complaining of back, bladder, testicular andabdominal pain. Although plaintiff was diagnosed with an umbilical hernia by physician CharlesSchwartz at that time, Schwartz indicated that he could "not find any urologic problems" andplaintiff would only be seen "on an as-needed basis if we identify any urologic problems." Nofurther appointments related to plaintiff's urologic complaints were scheduled.According to plaintiff, his original symptoms continued despite the hernia surgery, however,following his complaints of right flank pain to his primary care physician, he was again referredto the Urology Group. On May 21, 2001, plaintiff was examined by physician Stuart Rosenbergand a CAT scan of plaintiff's abdomen thereafter revealed a mass indicative of renal cellcarcinoma. The Urology Group recommended that plaintiff's right kidney be surgically removed,i.e., a "right radical nephrectomy." Plaintiff then met with defendant Theodore T. Chang, aurologic surgeon with the practice. After the surgical options were explained to plaintiff, heelected to have a laparoscopic nephrectomy as opposed to open surgery. Chang and [*2]defendant Michael E. Moran performed the laparoscopic procedureon July 12, 2001.
Plaintiff returned to the Urology Group for a postoperative visit on July 19, 2001 and for asix-month checkup on January 14, 2002. CAT scans performed during this period were negative.During the January 2002 visit, plaintiff inquired about a vasectomy, which was later performedby another physician within the Urology Group on March 25, 2002. Plaintiff was scheduled foranother postoperative checkup regarding his nephrectomy in March 2002, but he canceled theappointment due to a conflict and missed the rescheduled appointments on June 21, 2002 andJuly 18, 2002.
Subsequently, plaintiff's new primary care physician referred him to oncologist StephenHillinger for a consultation. Plaintiff met with Hillinger on June 27, 2003. In his report of thatexamination, which was copied to Chang, Hillinger noted that plaintiff appeared to be "doingwell and the likelihood of a cure is excellent." Hillinger ordered some tests, including anultrasound. The October 27, 2003 ultrasound showed a new mass on plaintiff's "right renal fossa"and he was thereafter scheduled for CAT and PET scans. The notes and results of these testswere sent to both Hillinger and Chang for review.
Plaintiff was next seen by Chang for a physical examination on November 10, 2003. Chang'soffice notes indicate that he received the results of plaintiff's tests and his impression was thatplaintiff was suffering a "recurrence of renal cell carcinoma." Chang discussed the results withplaintiff and, although his notes indicate that he felt unsure as to whether further surgery wasadvisable, he would "bring this situation up at the Tumor Board next week and get back to[plaintiff] after that discussion." Subsequently, Chang's notes of a telephone call with plaintiff onDecember 1, 2003 indicate that he informed defendant that the board's consensus was arecommendation of surgery followed by radiation and chemotherapy treatments. Plaintiffinformed Chang that he was leaning towards an alternative treatment, but would keep theUrology Group "up-to-date on his thinking in progress."
Plaintiff commenced this action against defendants in April 2005, alleging medicalmalpractice. The complaint alleged three causes of action all stemming from the July 2001operation. However, in his bill of particulars, plaintiff also alleged that the Urology Groupcommitted malpractice by failing to diagnose his kidney cancer in 1999. Following joinder ofissue, defendants moved for summary judgment dismissing the complaint as barred by the statuteof limitations. Plaintiff opposed the motion, maintaining that the statute of limitations was tolledbased upon the continuing treatment doctrine. Supreme Court denied defendants' motion,prompting this appeal.
Initially, defendants argue that plaintiff's claims alleging malpractice stemming from the2001 nephrectomy should have been dismissed as untimely because plaintiff commenced thisaction more than 2½ years after that surgery (see CPLR 214-a; see also Cox vKingsboro Med. Group, 88 NY2d 904, 906 [1996]; Waring v Kingston Diagnostic Radiology Ctr., 13 AD3d 1024,1025 [2004]). Furthermore, they contend that Supreme Court erred in concluding that there werequestions of fact as to whether the statute of limitations was tolled because plaintiff providedproof of continuous treatment by defendants from the time of his 2001 surgery untilapproximately November 2003. Specifically, while defendants do not dispute that plaintiff begantreatment with them when his renal carcinoma was discovered after his May 21, 2001 office visit,they maintain that treatment ended, at the latest, on July 18, 2002, when plaintiff missed afollowup appointment related to his nephrectomy and did not reschedule. Plaintiff was not seen[*3]by Chang again until November 2003 and, therefore,defendants contend that any ongoing course of treatment was terminated by this 16-month gap.
Notably, "[t]he continuous treatment doctrine serves to toll the [s]tatute of [l]imitationsduring a patient's course of treatment with his or her physician" (Casale v Hena, 270AD2d 680, 682 [2000]) so long as the treatment sought is continuous and is " 'for the sameillness, injury or condition which gave rise to the said act, omission or failure' originallycomplained of" (Plummer v New York City Health & Hosps. Corp., 98 NY2d 263, 267[2002], quoting CPLR 214-a; see Cox v Kingsboro Med. Group, 88 NY2d at 906; Labshere v Petroski, 32 AD3d645, 646 [2006]; Waring v Kingston Diagnostic Radiology Ctr., 13 AD3d at 1025;Lemmerman v Delmar Dental, 3AD3d 771, 772 [2004]). While this Court has held that treatment does not necessarilyterminate at a patient's last visit, further treatment by both the patient and doctor must becontemplated (see Waring v Kingston Diagnostic Radiology Ctr., 13 AD3d at 1026;Casale v Hena, 270 AD2d at 682).
Here, viewing the evidence in a light most favorable to plaintiff, the nonmoving party(see Labshere v Petroski, 32 AD3d at 647), we find that Supreme Court did not err inconcluding that a question of fact exists with respect to the applicability of the continuoustreatment doctrine in relation to plaintiff's claims regarding his 2001 surgery. Regardless of the16-month gap in treatment and plaintiff's referral to an oncologist for consultation, plaintiffpresented issues of fact which support the conclusion that plaintiff never expressed an intentionto abandon treatment with defendants and they considered themselves to be actively involved inhis care. Specifically, the record shows that plaintiff had scheduled appointments with defendantsduring that time period, even if he did not attend them. As for plaintiff's treatment with Hillinger,although continuous treatment may be terminated when a patient seeks treatment from a differentphysician, on the facts alleged, plaintiff sufficiently set forth proof suggesting that he did notabandon his treatment with Chang and, instead, intended Chang and Hillinger to workcooperatively (see Rudolph v JerryLynn, D.D.S., P.C., 16 AD3d 261, 262-263 [2005]). For example, not only wereHillinger's medical notes copied to Chang, plaintiff stated in his deposition that the results of theultrasound ordered by Hillinger were sent directly to Chang for review because "[he] was mydoctor." Additionally, Chang's office notes of his November 2003 examination of plaintiffindicated that he had been monitoring plaintiff's progress, specifically discussed the implicationsof the latest test results with plaintiff and planned to actively pursue the question of treatmentoptions for him in light of the recurrence of his cancer. Chang's office notes from his December1, 2003 conversation with plaintiff indicate that he intended to continue monitoring and treatingplaintiff in the future. Given this proof in the record, we find no basis to disturb Supreme Court'sconclusion that questions of fact justify the denial of defendants' summary judgment motion withrespect to claims emanating from the 2001 surgery.
Turning to that part of defendants' summary judgment motion that sought dismissal ofplaintiff's 1999 failure to diagnose claims,[FN*]we reach a different result and conclude that these [*4]claims are,in fact, time-barred. There is nothing in the record to support an inference that plaintiff'streatment for renal cancer commenced with his 1999 appointment with Schwartz and his laterinteractions with defendants were a continuation of that treatment. No follow-up appointmentswere contemplated in 1999, a fact confirmed by both Schwartz's office notes of the appointmentas well as plaintiff's own deposition testimony. As noted above, while there is no question that"[a] patient's last visit may not necessarily terminate treatment, . . . it must bedemonstrated that further treatment is explicitly anticipated by both the patient and physician"(Casale v Hena, 270 AD2d at 682). Since the proof in the record establishes that therewas no continuing treatment contemplated following plaintiff's examination by Schwartz in1999, his later treatment in 2001 by the Urology Group could only be considered a "resumption"of treatment as opposed to a continuation of his prior care (see id.; Fox v Glens FallsHosp., 129 AD2d 955, 957 [1987]). Accordingly, there is no basis for the statute oflimitations to be tolled with respect to plaintiff's failure to diagnose allegations and we modifythe order to the limited extent of dismissing those claims as time-barred.
The remaining arguments advanced by defendant have been examined and found to beunpersuasive.
Mugglin, Rose and Lahtinen, JJ., concur; Cardona, P.J., not taking part. Ordered that theorder is modified, on the law, without costs, by reversing so much thereof as denied that part ofdefendants' motion seeking dismissal of the claims of malpractice related to treatment received inNovember 1999; said claims dismissed; and, as so modified, affirmed.
Footnote *: We note that althoughdefendants argue that the 1999 claims should be dismissed both on timeliness grounds and thefact that plaintiff failed to plead them in his complaint, only the statute of limitations issue wasincluded in defendants' summary judgment motion and, therefore, was preserved for our review.