| Shister v City of New York |
| 2009 NY Slip Op 05315 [63 AD3d 1032] |
| June 23, 2009 |
| Appellate Division, Second Department |
| Marina Shister et al., Respondents, v City of New York,Defendant, and New York City Health and Hospitals Corporation et al.,Appellants. |
—[*1] Callan, Koster, Brady & Brennan, LLP (Mischel & Horn, P.C., New York, N.Y. [Scott T.Horn], of counsel), for appellant Inna Inoyatova. Mark M. Basichas & Associates, P.C., New York, N.Y. (Aleskey Feygin and AlexanderWulwick of counsel), for respondents.
In an action to recover damages for medical malpractice, etc., (1) the defendant New YorkCity Health and Hospitals Corporation appeals, and the defendant Inna Inoyatova separatelyappeals, from so much of an order of the Supreme Court, Kings County (Levine, J.), datedDecember 7, 2007, as denied those branches of their respective motions which were forsummary judgment dismissing the complaint insofar as asserted against each of them, and (2) thedefendant New York City Health and Hospitals Corporation appeals, as limited by its brief, fromso much of an order of the same court (Dabiri, J.), dated April 28, 2008, as, upon reargument,adhered to the original determination in the order dated December 7, 2007.
Ordered that the appeal by the defendant New York City Health and Hospitals Corporationfrom the order dated December 7, 2007, is dismissed, as so much of the order as denied thatbranch of its motion which was for summary judgment dismissing the complaint insofar asasserted against it was superseded by the order dated April 28, 2008, made upon reargument; andit is further,
Ordered that the order dated December 7, 2007, is reversed insofar as reviewed, on the law,and that branch of the motion of the defendant Inna Inoyatova which was for summary judgmentdismissing the complaint insofar as asserted against her is granted; and it is further,
Ordered that the order dated April 28, 2008, is reversed insofar as appealed from, on the law,and, upon reargument, so much of the original determination in the order dated December 7,2007, as denied that branch of the motion of the defendant New York City Health and HospitalsCorporation which was for summary judgment dismissing the complaint insofar as assertedagainst it is vacated, and that [*2]branch of the motion is granted;and it is further,
Ordered that one bill of costs is awarded to the appellants.
The plaintiffs allege that medical malpractice delayed the diagnosis of the decedent's uterinecancer, resulting in her death in 2004. In March 1999 the decedent underwent a gynecologicalexamination at the gynecological clinic at Coney Island Hospital, which is part of the defendantNew York City Health and Hospitals Corporation (hereinafter NYCHHC). In April 1999 theclinic performed an endometrial biopsy of the decedent's uterus, which was negative for anymalignancy. Thereafter the decedent was treated at Coney Island Hospital for other conditions,including removal of her gall bladder in October 1999. She returned to the gynecological clinicin June 2000 for her annual examination. However, she left without being examined by a doctor.
The Supreme Court, upon granting the motion of the NYCHHC for reargument of thatbranch of its motion which was for summary judgment dismissing the complaint insofar asasserted against it, erred in denying summary judgment based upon the continuous treatmentdoctrine. The continuous treatment doctrine provides that " 'when the course of treatment whichincludes the wrongful acts or omissions has run continuously and is related to the same originalcondition or complaint,' the limitations period does not begin to run until the end of thetreatment" (Williamson v PricewaterhouseCoopers LLP, 9 NY3d 1, 8 [2007], quotingBorgia v City of New York, 12 NY2d 151, 155 [1962]; see CPLR 214-a)."Essential to the . . . doctrine is [that the] course of treatment [be related to thecondition which] gives rise to the lawsuit . . . Routine examination of a seeminglyhealthy patient, or visits concerning matters unrelated to the condition [at issue] giving rise to theclaim, are insufficient to invoke the benefit of the doctrine" (Plummer v New York CityHealth & Hosps. Corp., 98 NY2d 263, 268 [2002] [citation omitted]; see Young v NewYork City Health & Hosps. Corp., 91 NY2d 291, 296 [1998]; McDermott v Torre,56 NY2d 399, 406 [1982]).
In response to NYCHHC's showing of entitlement to judgment as a matter of law, theplaintiffs failed to raise a triable issue of fact as to the application of the continuous treatmentdoctrine (see Young v New York City Health & Hosps. Corp., 91 NY2d 291, 296[1998]; Nykorchuck v Henriques, 78 NY2d 255, 259 [1991]). The plaintiffs failed tosubmit competent evidence that the decedent's subsequent treatment at NYCHHC was related toher symptoms of March and April 1999. Since the course of treatment relating to the allegedmalpractice ended in April 1999, the plaintiffs' complaint, filed in August 2001, was untimelyinsofar as asserted against NYCHHC (see McKinney's Uncons Laws of NY §7401 [2] [New York City Health and Hospitals Corporation Act § 20 (2), as added by L1969, ch 1016, § 1, as amended]; Mignott v New York City Health & Hosps.Corp., 250 AD2d 165 [1998]; see also Public Authorities Law § 2981; EPTL5-4.1 [1]).
The denial of the motion of the defendant Inna Inoyatova for summary judgment dismissingthe complaint insofar as asserted against her also was error. The decedent sought regulartreatment from Inoyatova in August 2000 for a variety of medical conditions, and the decedentmisrepresented that she had a normal mammogram and pap smear in April 2000. On March 28,2001, when the decedent complained of vaginal bleeding, Inoyatova referred her for agynecological examination. A pap smear did not reveal cancer, but additional testing did.
Inoyatova established her prima facie entitlement to judgment as a matter of law bysubmitting an affidavit of a medical expert who opined, based on the medical records anddepositions, that she did not depart from accepted medical practices and that none of her actionsor omissions was a proximate cause of any injury (see Costello v Kirmani, 54 AD3d 656[2008]; Perro v Schappert, 47 AD3d 694 [2008]). In response, the plaintiffs failed toraise a triable issue of fact as to whether a typographical error in Inoyatova's record of thedecedent's medical history was a proximate cause of any injury to the decedent.
The plaintiffs' expert claimed that Inoyatova committed medical malpractice proximatelycausing injury when she failed to ascertain from the decedent's certified medical records fromConey Island Hospital that the decedent had misreported that she had a gynecologicalexamination in 2000. He further claimed that, since a woman of the decedent's age and medicalhistory required a gynecological examination every year, Inoyatova's failure to order agynecological examination in 2000 delayed discovery of the [*3]cancer, reducing the decedent's life expectancy. This opinion isbased upon mere speculation (see Rodriguez v Montefiore Med. Ctr., 28 AD3d 357[2006]). Spolzino, J.P., Angiolillo, Chambers and Hall, JJ., concur.