| Stewart v Cohen |
| 2011 NY Slip Op 01831 [82 AD3d 874] |
| March 8, 2011 |
| Appellate Division, Second Department |
| Glenda Stewart, Appellant, v Allen T. Cohen et al.,Respondents. |
—[*1] Charles E. Kutner, LLP, New York, N.Y. (Patrick Mevs of counsel), forrespondents.
In an action to recover damages for medical malpractice, lack of informed consent, andwrongful death, the plaintiff appeals from an order of the Supreme Court, Kings County(Rosenberg, J.), dated January 7, 2010, which granted the defendants' motion for summaryjudgment dismissing, as time-barred, so much of the complaint as was based upon allegedmalpractice committed before May 5, 2001.
Ordered that the order is affirmed, with costs.
The plaintiff's decedent, Doris Green, began seeing the defendant doctor, a familypractitioner, in May 1998. During the course of the next several years, Green returned to thedefendant doctor several times with various ailments, some of which concerned breathingproblems. Eventually, in April 2001, she was diagnosed with lung cancer by another doctor, andshe died in November 2001. The plaintiff, the administrator of Green's estate, commenced thisaction on November 5, 2003, against the defendant doctor and his professional corporation(hereinafter together the defendants) seeking damages, inter alia, for medical malpractice. Thecomplaint alleged that the defendant doctor failed to properly diagnose and treat Green's lungcancer. The defendants moved for summary judgment dismissing, as time-barred, so much of thecomplaint as was based upon alleged malpractice committed before May 5, 2001 (seeCPLR 214-a; Cox v Kingsboro Med. Group, 88 NY2d 904, 906 [1996]; Chambers v Mirkinson, 68 AD3d702, 704 [2009]). The plaintiff opposed the motion on the ground that the continuoustreatment doctrine tolled the statute of limitations (see CPLR 214-a; Cox v KingsboroMed. Group, 88 NY2d at 906). The Supreme Court granted the motion, the plaintiff appeals,and we affirm.
In support of their motion, the defendants established, prima facie, that the action wascommenced on November 5, 2003, and that therefore all claims for malpractice arising from actsor omissions taking place more than 2½ years earlier were barred by the applicable statuteof limitations (see CPLR 214-a; Cox v Kingsboro Med. Group, 88 NY2d 904,906 [1996]; Chambers v Mirkinson,68 AD3d 702, 704 [2009]). The burden thus shifted to the plaintiff to demonstrate theexistence of a triable issue of fact (see Cox v Kingsboro Medical Group, 88 NY2d at906).
Generally, a cause of action alleging medical malpractice accrues on the date of the allegedwrongful act or omission, and the statute of limitations begins running on that date. In instances,however, when the patient is undergoing a continuous course of treatment with a doctor withrespect to the same condition or complaint that gives rise to the lawsuit, the statute of limitationswill not begin to run until the end of the course of treatment (see Nykorchuck vHenriques, 78 NY2d 255, 258 [1991]; Gomez v Katz, 61 [*2]AD3d 108, 111 [2009]). The doctrine relies on the premise that apatient should not be required to choose between, on the one hand, maintaining the doctor-patientrelationship with the physician treating the condition, and, on the other, compromising or endingthat relationship by interposing a lawsuit in order to satisfy the statute of limitations (seeYoung v New York City Health & Hosps. Corp., 91 NY2d 291, 296 [1998]; Allende vNew York City Health & Hosps. Corp., 90 NY2d 333, 338 [1997]; Nykorchuck vHenriques, 78 NY2d at 258; Gomez v Katz, 61 AD3d at 111). Further, the doctrineassumes that the original doctor is in the best position to identify and correct his or her ownmalpractice (see Nykorchuck v Henriques, 78 NY2d at 258; Gomez v Katz, 61AD3d at 111). In order to establish that the doctrine applies, the plaintiff is required todemonstrate that there was a course of treatment, that it was continuous, and that it was in respectto the same condition or complaint underlying the claim of malpractice (see McDermott vTorre, 56 NY2d 399, 406-407 [1982]; Gomez v Katz, 61 AD3d at 111-112). In theabsence of continuing efforts by a doctor to treat a particular condition, the policy underlying thecontinuous treatment doctrine does not justify tolling the statute of limitations.
Here, the record established that Green and the defendant doctor had a continuingdoctor-patient relationship, but the plaintiff failed to raise a triable issue of fact as to whetherGreen's discrete ailments over the course of that relationship were viewed by both the defendantdoctor and Green as a continuing course of treatment regarding the condition that was eventuallydiagnosed as lung cancer (see Allende v New York City Health & Hosps. Corp., 90NY2d at 338; Richardson v Orentreich, 64 NY2d 896, 899 [1985]; Chambers v Mirkinson, 68 AD3d702 [2009]; Gomez v Katz, 61 AD3d at 112). Accordingly, the Supreme Courtproperly granted the defendants' motion for summary judgment dismissing, as time-barred, somuch of the complaint as was based upon acts or omissions constituting malpractice occurringbefore May 5, 2001.
In light of our determination, the plaintiff's remaining contentions are academic. Rivera, J.P.,Balkin, Leventhal and Hall, JJ., concur.