| Roca v Perel |
| 2008 NY Slip Op 04490 [51 AD3d 757] |
| May 13, 2008 |
| Appellate Division, Second Department |
| Christine Roca, Respondent, v Allen Brian Perel et al.,Appellants. |
—[*1] Mark R. Bower, P.C., New York, N.Y., for respondent.
In an action, inter alia, to recover damages for medical malpractice, the defendants appeal, aslimited by their brief, from so much of an order of the Supreme Court, Kings County (Steinhardt,J.), dated January 3, 2007, as denied their cross motion for summary judgment dismissing thecomplaint, and denied those branches of their separate cross motion which were pursuant toCPLR 3211 (a) (5) to dismiss so much of the complaint as sought to recover damages based onalleged acts of medical malpractice occurring prior to April 22, 2002, or alternatively, prior toMay 17, 2000, as time-barred, and pursuant to CPLR 3124 to compel the plaintiff to provideauthorizations for all of her mental health records.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the defendants' cross motion which was pursuant to CPLR 3124 to compel the plaintiffto provide authorizations for all of her mental health records, and substituting therefor aprovision granting that branch of the cross motion to the extent of directing the plaintiff toprovide authorizations for her mental health records, if any, from and after May 26, 1993, andotherwise denying that branch of the cross motion; as so modified, the order is affirmed insofaras appealed from, without costs or disbursements, and the time for the plaintiff to provide thesubject authorizations, if any, shall be within 30 days of service upon the plaintiff of a copy ofthis decision and order.
From May 26, 1998, until January 2004, the defendant Dr. Allan Brian Perel treated theplaintiff based upon a diagnosis of multiple sclerosis. Magnetic resonance imaging (hereinafterMRIs) taken over the years revealed a lesion on the plaintiff's brain, which grew over time. As aresult of an MRI performed on January 8, 2004, the plaintiff was diagnosed as having ahemangioblastoma on her brain, and had to undergo a craniotomy for it to be removed. It is nowundisputed that, in fact, she did not have multiple sclerosis.[*2]
The plaintiff brought this action against Dr. Perel and hisprofessional corporation, Alpha Neurology, P.C., alleging medical malpractice, among otherthings, in misdiagnosing her as suffering from multiple sclerosis and in failing to diagnose andtreat her brain tumor.
"The essential elements of medical malpractice are (1) a deviation or departure from acceptedmedical practice, and (2) evidence that such departure was a proximate cause of injury"(DiMitri v Monsouri, 302 AD2d 420, 421 [2003]; see Feinberg v Feit, 23 AD3d 517, 518-519 [2005]; Holbrook vUnited Hosp. Med. Ctr., 248 AD2d 358, 359 [1998]). Thus, "[o]n a motion for summaryjudgment dismissing the complaint in a medical malpractice action, the defendant doctor has theinitial burden of establishing the absence of any departure from good and accepted medicalpractice or that the plaintiff was not injured thereby" (Chance v Felder, 33 AD3d 645, 645 [2006] [internal quotationmarks and citations omitted]; seeHernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d 710, 711 [2007]).
"Summary judgment is not appropriate in a medical malpractice action where the partiesadduce conflicting medical expert opinions . . . Such credibility issues can only beresolved by a jury" (Feinberg v Feit, 23 AD3d at 519 [citations omitted]; see Graham v Mitchell, 37 AD3d408 [2007]).
The defendants met their initial burden of demonstrating their entitlement to judgment as amatter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad vNew York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]) by submitting an expert's affirmationestablishing that Perel did not deviate from accepted standards of medical practice and that, inany event, any alleged acts or omissions were not the proximate cause of the plaintiff's damages,as she would have required the same treatment and surgery even if the hemangioblastoma hadbeen diagnosed earlier.
In opposition to the motion, the plaintiff referred to the affirmation of her expert, whichrefuted the assertions of the defendants' expert, opining that "[t]he non-diagnosis of the braintumor by Dr. Perel was a departure from good and accepted standards of medical practice andwas a proximate cause of the patient's injuries." Contrary to the defendants' contention, theforegoing opinion was neither speculative nor conclusory, but relied on specifically citedevidence in the record. This was sufficient to raise a question of fact precluding the granting ofsummary judgment (see Alvarez v Prospect Hosp., 68 NY2d at 324; Graham v Mitchell, 37 AD3d 408[2007]; Feinberg v Feit, 23 AD3d at 519). Accordingly, the Supreme Court correctlydenied the defendants' cross motion for summary judgment dismissing the complaint.
The Supreme Court also denied that branch of the defendants' separate cross motion whichwas pursuant to CPLR 3211 (a) (5) to dismiss so much of the complaint as sought to recoverdamages based on alleged acts of medical malpractice occurring prior to April 22, 2002, oralternatively, prior to May 17, 2000, as time-barred. The Supreme Court was correct in doing so,since all of the allegations of medical malpractice in the plaintiff's complaint were timelyinterposed, as the plaintiff was continuously treated by defendant Perel for the same conditiongiving rise to this action, from and after May 26, 1998.
Pursuant to CPLR 214-a, "when the course of treatment which includes the wrongful acts oromissions has run continuously and is related to the same original condition or complaint, the'accrual' comes only at the end of the treatment" (Borgia v City of New York, 12 NY2d151, 155 [1962]; see Young v New York City Health & Hosps. Corp., 91 NY2d 291, 296[1998]; Allende v New York City Health & Hosps. Corp., 90 NY2d 333, 338 [1997];McDermott v Torre, 56 NY2d 399, 405-406 [1982]). To satisfy the first element, that thetreatment be continuous, "further treatment must be explicitly anticipated by both the physicianand patient, as demonstrated by a regularly-scheduled appointment for the near future, which wasagreed upon at the last visit and conforms to the periodic [*3]appointments relating to the treatment in the immediate past"(Monello v Sottile, Megna, 281 AD2d 463, 464 [2001]; see Young v New York CityHealth & Hosps. Corp., 91 NY2d at 296; McDermott v Torre, 56 NY2d at 405;McInnis v Block, 268 AD2d 509 [2000]). To satisfy the second element, the course oftreatment must have been "established with respect to the condition that [gave] rise to thelawsuit" (Nykorchuck v Henriques, 78 NY2d 255, 259 [1991]; see Young v NewYork City Health & Hosps. Corp., 91 NY2d at 295).
Both elements are satisfied here. First, contrary to the defendants' contention, the twooccasions when the plaintiff waited longer between visits than the two to three months the doctorhad advised did not, by themselves, evidence "an intent not to return to defendant[s]" or aninterruption in her "reliance upon the defendant[s'] observation and directions for overseeing herprogress" (Sposato v Di Giacinto, 247 AD2d 267 [1998]). Under the circumstances here,in contrast to those in Sposato, applying the continuous treatment doctrine furthers "thepolicy underlying the . . . doctrine, i.e., that a patient should not be required tointerrupt corrective medical treatment by a physician and undermine the trust in thephysician-patient relationship in order to ensure a timely claim" (Couch v County of Suffolk,296 AD2d 194, 197 [2002]).
Second, the plaintiff demonstrated that the course of treatment was "established with respectto the condition that [gave] rise to the lawsuit" (Nykorchuck v Henriques, 78 NY2d 255,259 [1991]; see Pace v Caron, 232 AD2d 617 [1996]).
Finally, the Supreme Court erred in denying that branch of the defendants' cross motionwhich was pursuant to CPLR 3124 to direct the plaintiff to provide authorizations for all of hermental health records. In her bill of particulars, the plaintiff alleged several psychic injuries, andhas placed her mental condition "in controversy," and for purposes of this litigation, waived theprivilege of CPLR 4504 (CPLR 3121 [a]; see Dillenbeck v Hess, 73 NY2d 278 [1989];Starling v Warshowski, 148 AD2d 441, 442 [1989]). Under these circumstances, thatbranch of the defendants' cross motion which was pursuant to CPLR 3124 to compel the plaintiffto provide authorizations for all of her mental health records should have been granted to theextent of directing the plaintiff to provide authorizations for her mental health records, if any,from and after May 26, 1993, a point five years prior to the date she started treatment with thedefendants, which is a reasonable period of time. Prudenti, P.J., Fisher, Miller and Balkin, JJ.,concur.