| Johanson v Sullivan |
| 2009 NY Slip Op 09118 [68 AD3d 1303] |
| December 10, 2009 |
| Appellate Division, Third Department |
| David Johanson et al., Appellants, v William Sullivan, Respondent. |
—[*1] Maynard, O'Connor, Smith & Catalinotto, L.L.P., Albany (Robert A. Rausch of counsel), forrespondent.
Garry, J. Appeal from an order of the Supreme Court (Ferradino, J.), entered December 5,2008 in Saratoga County, which granted defendant's motion for partial summary judgment.
Beginning in approximately 1990, plaintiff David Johanson (hereinafter plaintiff) was apatient of defendant's dental practice in Saratoga County and saw defendant regularly forexaminations, cleanings, cavity fillings, and removals. Defendant retired in 2006 and, in May2007, plaintiff began receiving dental care from defendant's successor, who observed thatplaintiff had suffered bone loss from advanced periodontal disease and referred him to aspecialist. In October 2007, plaintiffs commenced this action seeking damages for dentalmalpractice, alleging that defendant had negligently failed to diagnose and treat plaintiff'speriodontal disease between July 21, 2003 and December 12, 2006. The action also alleges lackof informed consent and asserts a derivative claim on behalf of plaintiff's wife. Defendant'sanswer included the affirmative defense of the statute of limitations. Supreme Court granteddefendant's subsequent motion for partial summary judgment dismissing plaintiffs' dentalmalpractice claims based on treatments prior to April 10, 2005, as well as the informed consentclaim. Plaintiffs now appeal.
Supreme Court found that plaintiffs' claims before April 2005 were time-barred and that thecontinuous treatment doctrine did not apply to toll the running of the limitations period. Anaction for dental malpractice "must be commenced within two years and six months of the act,[*2]omission or failure complained of or last treatment wherethere is continuous treatment for the same illness, injury or condition which gave rise to the saidact, omission or failure" (CPLR 214-a [emphasis added]). Under the continuous treatmentdoctrine, the running of the statute of limitations is tolled until the end of a course of treatmentwhen "the course of treatment which includes the wrongful acts or omissions has runcontinuously and is related to the same original condition or complaint" (Iazzetta vVicenzi, 200 AD2d 209, 211 [1994], lv dismissed 85 NY2d 857 [1995] [internalquotation marks and citations omitted]). The purpose of the doctrine is "to enforce the view thata patient should not be required to interrupt corrective medical treatment by a physician andundermine the continuing trust in the physician-patient relationship in order to ensure thetimeliness of a medical malpractice action or notice of claim" (Young v New York CityHealth & Hosps. Corp., 91 NY2d 291, 296 [1998]; see Massie v Crawford, 78 NY2d516, 519 [1991]; Borgia v City of New York, 12 NY2d 151, 156 [1962]). "Because apatient who is not aware of the need for further treatment of a condition is not faced with thedilemma that the doctrine is designed to prevent," allegations that a defendant failed to timelytreat a condition do not establish a course of treatment giving rise to application of the doctrine(Young v New York City Health & Hosps. Corp., 91 NY2d at 296 [citations omitted]).As the Court of Appeals has established, "[w]hile the failure to treat a condition may well benegligent, we cannot accept the self-contradictory proposition that the failure to establish acourse of treatment is a course of treatment" (Nykorchuck v Henriques, 78 NY2d 255,259 [1991]).
Here, the record includes no indication that plaintiff was treated for periodontal diseasebefore 2007, and the gravamen of plaintiffs' complaint is that defendant did not diagnose or treatthe condition. Nonetheless, plaintiffs contend that the doctrine should apply, claiming that therequirement for a course of treatment was met by the regular visits plaintiff made to defendantbetween 1997 and 2006 for such purposes as cleanings, examinations, and cavity fillings. In thisregard, plaintiffs contend that one reason good dental practice includes regular examinations is toavoid periodontal disease, and that such visits should therefore be considered to be treatments ofthat condition for this purpose. Supreme Court correctly rejected this contention. CPLR 214-aprovides that "the term 'continuous treatment' shall not include examinations undertaken at therequest of the patient for the sole purpose of ascertaining the state of the patient's condition."Continuous treatment does not include routine diagnostic examinations, visits for reasons notrelated to the condition addressed in the malpractice claim, or a general doctor-patientrelationship (see Massie v Crawford, 78 NY2d at 520; Boyle v Fox, 51 AD3d 1243[2008], lv denied 11 NY3d 701 [2008]). This reasoning applies with equal force todental treatments. Where, as here, a dentist failed to diagnose and treat periodontal disease in thecourse of a series of visits for purposes limited to "cleanings, X-rays, hard and soft tissueexaminations and cavity fillings, and . . . routine checkups," the continuoustreatment doctrine was not implicated (Parsons v Rubin, 239 AD2d 653, 654 [1997]).We have previously held that continuous treatment was not established when dentists failed todiagnose and treat a patient's periodontal disease during a 22-year history of dental treatment thatincluded cleanings, fillings, crowns, bridges, root canals, and the extraction of a number of teeth,as the "[d]efendants' failure to treat [the] plaintiff's periodontal disease may well be negligent,but [the] defendants' failure to establish a course of treatment does not constitute a course oftreatment" (Iazzetta v Vicenzi, 200 AD2d at 212; see Smith v Fields, 268 AD2d579, 580 [2000]; see also Shay v Palombaro, 229 AD2d 697, 701 [1996]). SupremeCourt properly found that plaintiffs' claims before April 10, 2005 were time-barred.
Plaintiffs further contend that Supreme Court improperly dismissed their claim of lack ofinformed consent. To state such a claim, "plaintiff[s] must allege that the wrong complained[*3]of arose out of some affirmative violation of plaintiff'sphysical integrity" (Iazzetta v Vicenzi, 200 AD2d at 213). Plaintiffs allege no suchaffirmative violation here, contending instead that defendant failed to inform plaintiff of the risksof failing to treat periodontal disease. This is insufficient to state a claim for lack of informedconsent (see Smith v Fields, 268 AD2d at 580; Iazzetta v Vicenzi, 200 AD2d at212-213).
Cardona, P.J., Peters, Kane and Stein, JJ., concur. Ordered that the order is affirmed, withcosts.