| Chambers v Mirkinson |
| 2009 NY Slip Op 08987 [68 AD3d 702] |
| December 1, 2009 |
| Appellate Division, Second Department |
| Michele Chambers et al., Appellants, v Susan Mirkinson etal., Respondents, et al., Defendants. |
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In an action to recover damages for medical malpractice, etc., the plaintiffs appeal, as limitedby their brief, from so much of an order of the Supreme Court, Nassau County (Martin, J.),entered October 1, 2008, as denied their motion pursuant to CPLR 3211 (b) to dismiss the firstaffirmative defense of the defendants Marc S. Werner and Eye Guys, LLP, doing business asStahl Eye Associates, and granted those branches of the motion of those defendants and theseparate motion of the defendants Susan Mirkinson and Hillside Medical Associates, P.C., whichwere for summary judgment dismissing, as time-barred, those causes of action which were torecover damages for medical malpractice committed prior to September 1, 2004, insofar asasserted against them.
Ordered that the order is modified, on the law and the facts, by deleting the provision thereofgranting that branch of the motion of the defendants Susan Mirkinson and Hillside MedicalAssociates, P.C., which was for summary judgment dismissing the causes of action which wereto recover damages for medical malpractice committed by those defendants on April 27, 2004and July 14, 2004, and substituting therefor a provision denying that branch of the motion; as somodified, the order is affirmed insofar as appealed from, with one bill of costs to the defendantsMarc S. Werner and Eye Guys, LLP, doing business as Stahl Eye Associates, payable by thedefendants Susan Mirkinson and Hillside Medical Associates, P.C., and one bill of costs to thedefendants Susan Mirkinson and Hillside Medical Associates, P.C., payable by the plaintiffs.
On seven occasions from May 21, 2001 through April 13, 2006, the plaintiff MicheleChambers (hereinafter the plaintiff) consulted the defendant Marc S. Werner, M.D., or hisassociate at the defendant Eye Guys, LLP, doing business as Stahl Eye Associates (hereinaftercollectively Eye Guys), regarding decreased visual acuity and spots impairing the vision in herright eye. On nine occasions from August 9, 2000 through June 14, 2006, the plaintiff consultedpractitioners including the [*2]defendant Susan Mirkinson, M.D.,at the defendant Hillside Medical Associates, P.C. (hereinafter together Hillside), for variouscomplaints, including impairment of vision, numbness in her legs, urinary incontinence, andupper respiratory ailments. On the last visit, Hillside referred the plaintiff to a neurologist, whoordered various tests and diagnosed multiple sclerosis (hereinafter MS). The plaintiff and herhusband, derivatively, commenced this action by the filing of a summons and verified complainton March 1, 2007. Subsequently, the plaintiffs moved pursuant to CPLR 3211 (b) to dismiss EyeGuys' first affirmative defense. Eye Guys and Hillside separately moved, inter alia, for summaryjudgment dismissing, as time-barred, those causes of action which were to recover damages formedical malpractice committed prior to September 1, 2004, insofar as asserted against them, andthe plaintiffs opposed the motions on the ground that the doctrine of continuous treatment tolledthe statute of limitations. The Supreme Court denied the plaintiffs' motion and granted thosebranches of the separate motions of Eye Guys and Hillside. We modify.
In support of their respective motions, Eye Guys and Hillside established their prima facieentitlement to judgment as a matter of law dismissing, as time-barred, the plaintiffs' claims basedupon alleged acts of malpractice committed by Eye Guys and Hillside prior to September 1,2004, the period that was more than two years and six months prior to the commencement of theaction (see CPLR 214-a; Cox v Kingsboro Med. Group, 88 NY2d 904, 906[1996]; Capece v Nash, 65 AD3d1270 [2009]). In opposition to Eye Guys' motion, the plaintiffs failed to raise a triable issueof fact as to whether the doctrine of continuous treatment tolled the statute of limitations forclaims premised upon office visits occurring prior to September 1, 2004 (see Cox vKingsboro Med. Group, 88 NY2d at 906-907; Anderson v Central Brooklyn Med. Group, 56 AD3d 500, 501[2008]). Under the continuous treatment doctrine, the limitations period is tolled only if thedefendants continuously rendered an "actual course of treatment" during the relevant period "forthe same conditions or complaints underlying the plaintiff's medical malpractice claim" (Gomez v Katz, 61 AD3d 108,111-112 [2009]). The plaintiff's visits to Eye Guys in May 2001 and January 2003, however,were in the nature of "[r]outine diagnostic examinations" or "return visits on the patient'sinitiative, merely for the purpose of having [her] condition checked" (Norum v Landau, 22 AD3d 650,652 [2005]). "[C]ontinuing efforts to arrive at a diagnosis" or "a physician's failure to properlydiagnose a condition that prevents treatment altogether" fall short of a course of treatment(Gomez v Katz, 61 AD3d at 112; see Nykorchuck v Henriques, 78 NY2d 255,259 [1991]; McDermott v Torre, 56 NY2d 399, 405-406 [1982]). Moreover, on therecord presented, the plaintiff and physician did not mutually agree upon or anticipate futureappointments (see Anderson v CentralBrooklyn Med. Group, 56 AD3d 500, 501 [2008]), nor could the plaintiff's return on herown initiative a year and a half after breaking a follow-up appointment be deemed "timely"(McDermott v Torre, 56 NY2d at 406; cf. Ramos v Rakhmanchik, 48 AD3d 657, 658 [2008]).Accordingly, the Supreme Court properly granted that branch of the motion of Eye Guys whichwas for summary judgment dismissing those causes of action which were to recover damages formedical malpractice committed prior to September 1, 2004, insofar as asserted against it, andproperly denied the plaintiffs' motion pursuant to CPLR 3211 (b) to dismiss Eye Guys' firstaffirmative defense.
In opposition to Hillside's motion, the plaintiff failed to raise a triable issue of fact as towhether she sought and obtained an actual course of treatment for her symptoms related to MSduring the four appointments on August 9, 2000 September 3, 2002, May 8, 2003, and August26, 2003. On each of those dates, the plaintiff complained of discrete symptoms and receivedtesting which failed to show any abnormalities except, on one occasion, the unrelated conditionof strep throat. After each appointment, future treatment was not anticipated except for ascheduled follow-up visit after the consultation on September 3, 2002, which the plaintiff failedto keep. Under the circumstances, these four office visits manifest the "mere continuation of ageneral doctor-patient relationship" (Gomez v Katz, 61 AD3d at 112), or "return visitson the patient's initiative, merely for the purpose of having [her] condition checked" (Norumv Landau, 22 AD3d at 652). By contrast, the plaintiff submitted evidence that shecomplained of symptoms related to MS during the appointments on April 27, 2004 and July 14,2004 and continued to complain of such symptoms on March 7, 2005, a date falling within thelimitations period. The plaintiff also submitted evidence that, on these dates, Hillside addressedthe symptoms by administering therapy, ordering testing, or making referrals to specialists.Accordingly, the plaintiff raised a triable issue of fact as to whether Hillside actually rendered acontinuous course of treatment related to her MS symptoms commencing [*3]on April 27, 2004 and the Supreme Court should have denied thatbranch of Hillside's motion seeking to dismiss those claims as time-barred (see Gomez vKatz, 61 AD3d at 114).
Finally, the continuous treatment toll is personal to the patient and not available to extendthe husband's loss of consortium claim (see Schrank v Lederman, 52 AD3d 494, 496-497 [2008]). Thehusband's claim, however, is governed by the three-year statute of limitations (see CPLR214; Schrank v Lederman, 52 AD3d at 497). Since the summons and complaint werefiled on March 1, 2007, the plaintiff's April and July 2004 consultations at Hillside fall withinthe three-year limitations' period, and the husband's loss of services claim is not time-barred withrespect to those dates. Mastro, J.P., Belen, Hall and Austin, JJ., concur.