| Boyle v Fox |
| 2008 NY Slip Op 04423 [51 AD3d 1243] |
| May 15, 2008 |
| Appellate Division, Third Department |
| Carolyn Boyle et al., Appellants, v Stanley Fox et al.,Respondents. |
—[*1] Levene, Gouldin & Thompson, L.L.P., Binghamton (David F. McCarthy of counsel), forrespondents.
Peters, J.P. Appeals (1) from an order of the Supreme Court (Coccoma, J.), entered August15, 2007 in Delaware County, which, among other things, granted defendants' motion to dismissthe complaint, and (2) from the judgment entered thereon.
In May 2003, plaintiff Carolyn Boyle (hereinafter plaintiff) was prescribed Gentamicin, fortreatment of her endocarditis, by defendants, her treating physicians. In November 2006, plaintiffand her husband, derivatively, commenced this action for medical malpractice againstdefendants, alleging that as a result of their negligent administration and monitoring ofGentamicin, plaintiff suffered inner ear damage affecting her vision and balance and causing herrecurrent headaches. Defendants moved to dismiss the complaint on the ground that the actionwas time-barred by the applicable 2½-year statute of limitations (see CPLR 214-a).Rejecting plaintiffs' assertion that the statute of limitations was tolled based upon the continuingtreatment doctrine, Supreme Court granted defendants' motion and dismissed the complaint.Plaintiffs appeal and we affirm.
As conceded by plaintiffs, defendants met their threshold requirement of offering prima facieproof that the applicable statute of limitations had expired, thereby shifting the burden toplaintiffs to present evidentiary facts establishing the applicability of the continuous treatmentdoctrine (see Traverso v Reed, 234 AD2d 731, 732 [1996]; Sweet v Austin, 226AD2d 942, 943 [1996], lv denied 88 NY2d 811 [1996]; Siegel v Wank, 183AD2d 158, 159-160 [1992]). Under [*2]this doctrine, "the time inwhich to bring a malpractice action is stayed 'when the course of treatment which includes thewrongful acts or omissions has run continuously and is related to the same original condition orcomplaint' " (McDermott v Torre, 56 NY2d 399, 405 [1982], quoting Borgia v City ofNew York, 12 NY2d 151, 155 [1962], affd 15 NY2d 665 [1964]; see Aulita v Chang, 44 AD3d1206, 1208 [2007]). While "[t]he doctrine includes 'a timely return visit instigated by thepatient to complain about and seek treatment for a matter related to the initial treatment' " (Lemmerman v Delmar Dental, 3 AD3d771, 772 [2004], quoting McDermott v Torre, 56 NY2d at 406; see Stahl vSmud, 210 AD2d 770, 771 [1994]), neither a general physician/patient relationship, routineexaminations nor visits concerning matters unrelated to the condition giving rise to themalpractice claim are sufficient to invoke the benefit of the doctrine (see Plummer v NewYork City Health & Hosps. Corp., 98 NY2d 263, 268 [2002]; Young v New York CityHealth & Hosps. Corp., 91 NY2d 291, 296 [1998]; Massie v Crawford, 78 NY2d516, 519-520 [1991]). Essentially, plaintiffs must proffer evidence supporting an establishedcourse of treatment with respect to the condition that gave rise to the lawsuit (see Nykorchuckv Henriques, 78 NY2d 255, 259 [1991]; Waring v Kingston Diagnostic Radiology Ctr., 13 AD3d 1024,1025-1026 [2004]).
Plaintiff's affidavit in opposition to defendant's motion avers that she was under thecontinuous care of defendants for treatment of the complaints that she made shortly after she wasprescribed Gentamicin, that she continued to see defendants through October 2004 and that she"never saw [defendants] without complaining of the effects of the Gentamicin and seekingmedical relief from the symptoms of those effects." Yet medical records of July, September andOctober 2004[FN*] show that plaintiff was treated for separate and distinct conditions, such as high blood pressure,heart palpitations and arthritic related symptoms, and are devoid of proof that plaintiffcomplained of, or was treated for, any symptoms related to the conditions alleged in hercomplaint (compare Easton v Kellerman, 248 AD2d 913, 914 [1998]). While defendants'medical records do reveal that plaintiff had developed "ototoxicity from the Gentamicin withvestibular problems" shortly after defendant Stanley Fox discontinued the Gentamicin on June16, 2003, that plaintiff made complaints regarding her vision and balance for the following fewmonths and that her condition was reported on some of the subsequent medical notes, the recordfails to demonstrate a continuous course of treatment by defendants in connection with thiscondition. Indeed, it is well settled that the continuing nature of a diagnosis is insufficient tosatisfy the requirements of the doctrine (see Ganess v City of New York, 85 NY2d 733,736 [1995]; Nykorchuck v Henriques, 78 NY2d at 259). Moreover, plaintiff informeddefendant Blaine R. Jones in July 2003 that she intended to initiate legal action concerning hercare with respect to the Gentamicin treatment, conduct which suggests that "whateverrelationship of trust and confidence that previously may have been said to exist between plaintiffand defendant[s]" regarding the treatment of this particular condition was, by that time, severed(Schloss v Albany [*3]Med. Ctr., 278 AD2d 614, 615[2000], lv denied 96 NY2d 707 [2001]; see Allende v New York City Health &Hosps. Corp., 90 NY2d 333, 339 [1997]). Accordingly, Supreme Court properly granteddefendants' motion to dismiss the complaint.
Nor did Supreme Court err in dismissing plaintiffs' derivative claims as time-barred. Anyextension granted by the tolling of the statute of limitations pursuant to the continuous treatmentdoctrine is personal to the recipient of the treatment and does not apply to derivative claims(see CPLR 214-a; Cahill vLat, 39 AD3d 1013, 1014 [2007]; Whipple v Goldsmith, 202 AD2d 834, 835[1994]).
Spain, Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the order and judgment areaffirmed, with costs.
Footnote *: These are the only records datedless than 2½ years prior to the commencement of this action. Although plaintiff claims thatshe also presented her complaints and sought treatment for the symptoms thereof during anAugust 22, 2004 visit with defendant Stanley Fox, the corresponding medical record indicatesthat plaintiff was a "no show" on that date.