| Simons v Bassett Health Care |
| 2010 NY Slip Op 03818 [73 AD3d 1252] |
| May 6, 2010 |
| Appellate Division, Third Department |
| Kathryn Simons et al., Respondents, v Bassett Health Care et al.,Appellants. |
—[*1]
Cardona, P.J. Appeal from an order of the Supreme Court (Lebous, J.), entered June 26,2009 in Otsego County, which, among other things, partially denied defendants' motion forsummary judgment dismissing the complaint.
In December 2001, plaintiff Kathryn Simons (hereinafter plaintiff) became a patient atdefendant Bassett Health Care and, over the next several years, received treatment for a varietyof medical conditions including, among other things, migraines, other headaches and sinusinfections. On June 9, 2003, in connection with a bone fracture in plaintiff's foot, a whole bodybone scan of plaintiff was performed. The radiologist noticed an abnormality in the right side ofplaintiff's skull and ordered X rays, the results of which prompted him to recommend a CT scanfor the purpose of ruling out a possible meningioma. According to plaintiff, she was neveradvised of these findings and a CT scan was not performed at that time. Subsequently, from June2003 through November 2004, Bassett's providers continued to treat plaintiff for a variety ofcomplaints, including migraines, headaches, dizziness, vision problems, facial pain and swellingon the right side of her face. In November 2004, a CT scan was conducted in connection withplaintiff's various complaints of "sinusitis-type pains over the right side of her face around herright eye." That scan detected a right-side orbital mass which, upon referral, was diagnosed bythird parties as meningioma.[*2]
Plaintiff and her husband, derivatively, commenced thismedical malpractice action in March 2007, alleging that Bassett and its division, defendantPrime Care, deviated from accepted medical standards by, among other things, failing to disclosethe June 9, 2003 bone scan results so that a timely diagnosis and appropriate follow-up carecould have lessened or prevented the consequences of the meningioma. Following joinder ofissue, defendants moved for summary judgment dismissing the complaint as untimely. Plaintiffscross-moved for partial summary judgment seeking, among other things, that certain affirmativedefenses be stricken. Supreme Court partially granted plaintiffs' cross motion and, as relevantherein, denied that part of defendants' motion seeking dismissal of the medical malpractice causeof action as untimely. The court found that triable issues of fact existed with respect to theapplication of the continuous treatment doctrine to that cause of action, prompting this appeal bydefendants.
The narrow issue presented is whether Supreme Court should have dismissed the medicalmalpractice cause of action as barred by the applicable 2½-year statute of limitations(see CPLR 214-a). Defendants met their initial burden of establishing entitlement tosummary judgment on that ground by presenting undisputed proof that this action wascommenced approximately three years and eight months after the alleged failure of defendants'providers to communicate or act upon the June 9, 2003 bone scan and X-ray results. Thus, theburden shifted to plaintiffs to demonstrate triable issues of fact as to whether the continuoustreatment doctrine tolled the statute of limitations (see CPLR 214-a; Massie vCrawford, 78 NY2d 516, 519 [1991]; Waring v Kingston Diagnostic Radiology Ctr., 13 AD3d 1024,1025 [2004]). Upon review of the record, we conclude that the court properly found thatquestions of fact were presented.
Notably, the continuous treatment doctrine tolls the commencement of the limitations perioduntil the end of a course of treatment "when the course of treatment which includes the wrongfulacts or omissions has run continuously and is related to the same original condition orcomplaint" (McDermott v Torre, 56 NY2d 399, 405 [1982] [internal quotation marksand citation omitted]). Where, in a case such as this, it is alleged that a medical practitioner failsto properly diagnose a condition, the continuous treatment doctrine may apply as long as thesymptoms being treated indicate the presence of that condition (see Davidson v O'Brien, 21 AD3d1330, 1331 [2005]; Bonanza v Raj, 280 AD2d 948, 949 [2001]).
Here, plaintiffs' medical expert, Guy Napolitana, a board certified physician in the field ofinternal medicine, described in an affidavit how, upon review of plaintiff's medical records anddeposition testimony, he identified several dates between June 2003 and November 2004 whendefendants' personnel provided treatment for symptoms and complaints suggestive of orconsistent with a meningioma. Although there is no question that certain of the visits relied onby Napolitana focused primarily on other intermittent or discrete conditions, such as plaintiff'sreaction to a bee sting or her foot fracture, which could not constitute continuous treatment for acondition suggestive of a meningioma (see Plummer v New York City Health & Hosps.Corp., 98 NY2d 263, 268 [2002]; Young v New York City Health & Hosps. Corp.,91 NY2d 291, 296 [1998]), significantly, the medical records for many of these visits makeexpress additional references to complaints or ongoing treatment of migraines, headaches,dizziness, pain on the right side of her face and blurred vision. These records also reflect thescheduling of regular follow-up visits to address these complaints, thus presenting a factualquestion as to whether further treatment of conditions suggestive of meningioma werecontemplated (see Young v New York City Health & Hosps. Corp., 91 NY2d at 297).Under the circumstances, we find no basis to disturb Supreme Court's denial of defendants'motion for summary judgment on statute of limitations grounds (see McDermott v Torre,56 NY2d at 406).[*3]
We have examined defendants' remaining arguments andfind them to be unpersuasive.
Spain, Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,with costs. [Prior Case History: 24 Misc 3d 1208(A), 2009 NY Slip Op 51303(U).]