| Capece v Nash |
| 2009 NY Slip Op 06792 [65 AD3d 1270] |
| September 29, 2009 |
| Appellate Division, Second Department |
| Linda Capece, Appellant, v Thomas Nash,Respondent. |
—[*1] Martin Clearwater & Bell, LLP, New York, N.Y. (Nancy A. Breslow, Peter T. Crean, andNancy J. Block of counsel), for respondent.
Motion by the plaintiff for leave to reargue an appeal from an order of the Supreme Court,Kings County (Steinhardt, J.), dated January 23, 2007, which was determined by decision andorder of this Court dated June 24, 2008.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
Ordered that the motion is granted and, upon reargument, the decision and order of thisCourt dated June 24, 2008 (Capece vNash, 52 AD3d 760 [2008]), is recalled and vacated, and the following decision andorder is substituted therefor:
In an action to recover damages for medical malpractice and wrongful death, the plaintiffappeals from an order of the Supreme Court, Kings County (Steinhardt, J.), dated January 23,2007, which granted the defendant's motion for summary judgment dismissing, as time-barred,so much of the complaint as was based upon alleged acts of medical malpractice committed priorto May 21, 2001, and for summary judgment dismissing the wrongful death cause of action, anddenied her cross motion to strike the defendant's affirmative defense based on the statute oflimitations.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof grantingthat branch of the defendant's motion which was for summary judgment dismissing the wrongfuldeath cause of action to the extent it is premised on acts alleged to have occurred on or after July13, 2000, and substituting therefor a provision denying that branch of the motion, and (2) bydeleting the provision thereof denying that branch of the cross motion which was to strike theaffirmative defense of the statute of limitations with respect to so much of the wrongful deathcause of action as was premised on the allegation that medical malpractice was committed on orafter July 13, 2000, and substituting therefor a provision granting that branch of the crossmotion; as so [*2]modified, the order is affirmed, without costsor disbursements.
The plaintiff commenced this action on November 20, 2003, alleging, inter alia, that thedefendant was negligent in his treatment of the decedent from November 1999 through May 24,2001. The defendant, an internist who specializes in infectious diseases and pulmonarymedicine, treated the decedent between December 3, 1999, and July 7, 2000. The decedentconsulted the defendant in connection with a condition in her right lung that had been disclosedduring screening at a clinic on November 17, 1999. The treatment included a needlebiopsy in December 1999 that was negative, a recommendation that a follow-up CT scan beconducted in three months, and a follow-up CT scan that was conducted on June 1, 2000.The parties disagree as to the scope of the defendant's recommendations made on June 6, 2000,but agree that there was a recommendation that the decedent have an additional CT scan in sixmonths. The defendant also requested that the decedent submit a copy of the original CT scanthat had been conducted at the screening clinic, for comparison with the June 1, 2000 scan. Thedecedent submitted a copy of that earlier scan, under cover letter dated July 7, 2000, and thedefendant made a notation for his staff to send the scan to the imaging center that conducted theJune 1, 2000 scan for comparison. The decedent did not make any future appointments with thedefendant, she did not have the recommended six-month follow-up CT scan, and there is noassertion that she made any inquiry of the defendant as to the status of the proposed comparisonof the two CT scans.
In March 2001 the decedent was hospitalized for pneumonia and chronic obstructivepulmonary disease. During that hospitalization an X ray again disclosed the condition in herright lung. In early May 2001 the decedent was seen by another physician, also a pulmonologist,who suggested she return to the defendant for further evaluation of the lung condition. Thedefendant saw the decedent on May 24, 2001. At his recommendation, the decedent underwentadditional tests and was subsequently diagnosed with lung cancer. The decedent died on January13, 2003.
The defendant established his prima facie entitlement to judgment as a matter of lawdismissing, as time-barred, so much of the medical malpractice cause of action as was based onalleged acts of malpractice committed prior to May 21, 2001, the period that was more than2½ years prior to the commencement of the action, and so much of the wrongful deathcause of action as was based on alleged acts committed prior to July 13, 2000, the period thatwas more than 2½ years prior to the death of the decedent (see CPLR 214-a;Cox v Kingsboro Med. Group, 88 NY2d 904, 906 [1996]; Massie v Crawford, 78NY2d 516, 519 [1991]; Kaufmann vFulop, 47 AD3d 682 [2008]; Magalios v Nyhlen, 18 AD3d 719 [2005]; Schreiber v Zimmer, 17 AD3d342 [2005]). In opposition, the plaintiff failed to raise a triable issue of fact as to the"continuous treatment" doctrine (seegenerally Gomez v Katz, 61 AD3d 108 [2009]). The plaintiff may have shownthe existence of an initial course of treatment through the monitoring of the specific lungcondition (see Ganess v City of New York, 85 NY2d 733, 736 [1995]; Cherise v Braff, 50 AD3d 724,726 [2008]; Connors v Eng, 42AD3d 511 [2007]), but she failed to raise a triable issue of fact as to that course of treatmentcontinuing beyond July 7, 2000. The decedent did not schedule the recommended follow-up CTscan, inquire as to the status of the proposed comparison of the scans, or schedule any otherappointment with the defendant until she returned to see him on May 24, 2001, at the suggestionof another pulmonologist (see Erlington v Staub, 29 AD3d 939 [2006]; Zelig v Urken, 28 AD3d 318[2006]; Palladino v Gutman, 176 AD2d 930, 931 [1991]; Bellmund v Beth IsraelHosp., 131 AD2d 796, 797 [1987]). The plaintiff failed to raise a triable issue of factas to the applicability of the "continuous treatment" doctrine sufficient to toll the statute oflimitations (see Young v New York City Health & Hosps. Corp., 91 NY2d 291, 297[1998]; Anderson v Central BrooklynMed. Group, 50 AD3d 829 [2008]; Nespola v Strang Cancer Prevention Ctr., 36 AD3d 774, 775[2007]; Magalios v Nyhlen, 18AD3d 719 [2005]; McPherson vAbraham, 13 AD3d 422 [2004]). Accordingly, the Supreme Court properly granted thatbranch of the defendant's motion which was for summary judgment dismissing, as time-barred,so much of the medical malpractice cause of action as was based upon alleged acts of medicalmalpractice committed prior to May 21, 2001.
However, the Supreme Court erred in granting that branch of the defendant's motionwhich was for summary judgment dismissing the wrongful death cause of action in its entirety.The portion of the medical malpractice cause of action that is based on the defendant's treatmentof the decedent on May 24, 2001 was still viable when the decedent died on January 13, 2003.[*3]Accordingly, to the extent the wrongful death cause of action,which was commenced within two years of the decedent's death, is premised on the allegationthat medical malpractice was committed on or after July 13, 2000, it is not time-barred (seeEPTL 5-4.1; Scanzano v Horowitz,49 AD3d 855 [2008]; Norum vLandau, 22 AD3d 650 [2005]; Murphy v Jacoby, 250 AD2d 826 [1998]).
The plaintiff's remaining contentions are without merit. Spolzino, J.P., Santucci, Angiolilloand Balkin, JJ., concur. [See 14 Misc 3d 1233(A), 2007 NY Slip Op 50290(U).]
[Recalled and vacated by 70 AD3d 743.]