| Chestnut v Bobb-McKoy |
| 2012 NY Slip Op 03267 [94 AD3d 659] |
| April 26, 2012 |
| Appellate Division, First Department |
| Sheila Chestnut, as Executrix of Doris Fulton, Deceased,Appellant, v Marion Bobb-McKoy, M.D., et al.,Respondents. |
—[*1] Edward J. Guardaro, Jr., White Plains, for respondents.
Order, Supreme Court, Bronx County (Stanley B. Green, J.), entered March 17, 2011, which,in this action alleging medical malpractice, granted defendants' motion to dismiss as time-barredall claims arising out of treatment rendered prior to October 11, 2005, unanimously modified, onthe law, to the extent of only dismissing claims for treatment rendered before May 17, 2005, andotherwise affirmed, without costs.
On April 11, 2008, plaintiff commenced this action based on the failure to timely diagnoseand treat lung cancer, leading to the unimpeded growth of the cancer and the patient's death.Plaintiff charges defendants with malpractice committed on May 30, 2002 through August 8,2006. At issue is the viability of any claim for malpractice committed prior to October 11, 2005,which is, on its face, outside the 2½ year statute of limitations (see CPLR 214-a).Supreme Court rejected plaintiff's continuous treatment argument for the period in question, anddismissed any such malpractice claim as time-barred.
CPLR 214-a sets forth, in pertinent part, that "[a]n action for medical . . .malpractice must be commenced within two years and six months of the act, omission or failurecomplained of or last treatment where there is continuous treatment for the same illness, injury orcondition which gave rise to the said act, omission or failure." "Generally, a medical malpracticeaction accrues on the date of the alleged wrongful act" (see Plummer v New YorkCity Health & Hosps. Corp., 98 NY2d 263, 267 [2002], citing Nykorchuck vHenriques, 78 NY2d 255, 258-259 [1991]). However, where there is a continuous course oftreatment for the conditions giving rise to the malpractice action, the running of the applicablestatutory period is tolled during the period of continuous treatment (see Young v New YorkCity Health & Hosps. Corp., 91 NY2d 291 [1998]; Langsam v Terraciano, 22 AD3d 414 [2005]).
The continuous treatment doctrine tolls the 2�-year limitations period for medicalmalpractice actions when the course of treatment which includes the wrongful acts or omissionshas run continuously and is related to the same original condition or complaint (CPLR 214-a;Nykorchuck, 78 NY2d 255; McDermott v Torre, 56 NY2d 399, 407 [1982]). "Thepremise underlying the doctrine is that a plaintiff should not have to interrupt ongoing treatmentto bring [*2]a lawsuit, because the doctor not only is in a positionto identify and correct the malpractice, but also is best placed to do so" (Cooper vKaplan, 78 NY2d 1103, 1104 [1991]; see also Ganess v City of New York, 85 NY2d733 [1995]). In the absence of continuing efforts by a doctor to treat a particular condition orcomplaint, however, those policy reasons do not justify the patient's delay in bringing suit(Cooper at 1104; Allende v New York City Health & Hosps. Corp., 90 NY2d 333[1997]).
With respect to failure to diagnose cases, courts have held that a "failure to make the correctdiagnosis as to the underlying condition while continuing to treat the symptoms does not mean,for purposes of continuity, that there has not been treatment" (Hein v Cornwall Hosp.,302 AD2d 170, 174 [2003]; Dellert v Kramer, 280 AD2d 438 [2001]). Thus, a physicianor hospital cannot escape liability under the continuous treatment doctrine merely because of afailure to make a correct diagnosis as to the underlying condition, where it treated the patientcontinuously over the relevant time period for symptoms that are ultimately traced to thatcondition (Hill v Manhattan W. Med. Group—H.I.P., 242 AD2d 255 [1997]; see e.g. Shifrina v City of New York, 5AD3d 660 [2004]).
Accordingly, in this case, the applicability of the continuous treatment doctrine to thedefendants' dealings with plaintiff's decedent prior to October 11, 2005, turns on whether or notdefendants were consistently treating and/or monitoring the decedent for specific symptomsrelated to lung cancer. Our review of the record establishes that prior to May 2005, there was nocontinuous treatment for symptoms that are ultimately traced to lung cancer. Plaintiff's ownmedical expert opines that during this time period—May 2002 through May2005—the only symptom related to lung cancer that the doctors discovered was highalkaline phosphate levels, which consistently showed up in the decedent's blood work analysis.Nonetheless, other than noting that the levels were elevated, there is nothing in the record toshow that defendants ever discussed these results with the decedent, much less agreed to monitorthe abnormal readings at her future examinations. Thus, given that the patient was not aware ofthe need for further treatment of this condition, the decedent was not faced with the dilemma thatthe continuous treatment doctrine is designed to prevent, i.e. interrupting the treatment ormonitoring a condition in order to protect her rights (Young, 91 NY2d at 296;Allende, 90 NY2d at 337-338).
The same cannot be said with respect to the activities that began on May 17, 2005. There issufficient evidence on the record to raise an issue of fact as to whether the statute of limitationswas tolled by the continuous treatment doctrine for the period from May 17, 2005 throughAugust 9, 2006 (Hill at 255). Plaintiff's medical expert opines that four symptomsassociated with lung cancer were manifested during this time period, namely bilateral knee pain,leg swelling, finger clubbing and high alkaline phosphate levels in the blood. From May 17, 2005through August 9, 2006, a 13-month period, plaintiff's decedent visited the doctors at least fourtimes for these conditions allegedly suggestive of lung cancer. At the inception, on May 17,2005, the decedent was examined for her leg swelling, knee pain and toe fungus. The doctorrecommended, inter alia, that the patient elevate her feet to alleviate the leg swelling, and wearopen toed shoes for the toe fungus. However, seven weeks later, July 6, 2005, the patientreturned to the doctor with the recurring knee pain and swelling. This time, the doctor prescribedTylenol and ordered an X ray of her knees. The X ray came out normal, but plaintiff's painremained. The doctor continued to look for the source of the knee pain and leg swelling andordered blood work (August 9, 2005), which revealed the high levels of alkaline phosphates. Thenext visit was eight months later, April 11, 2006, when the patient complained again about [*3]her knee pain. On this occasion, the doctor diagnosed the possiblesource of the pain as arthritis. The doctor prescribed Naproxyn and scheduled a furtherexamination, which took place three months later, on July 14, 2006. On that day, the doctoraddressed the recurring knee pain and swelling, as well as clubbing. At this time, the doctorprescribed Advair, and ordered blood work and an X ray of the lungs. Phone calls were made anda letter was sent to the decedent instructing her to follow-up with defendants. The X ray revealeda "large mass," which on August 9, 2006 was diagnosed as lung cancer.
In our view, this record, read in a light most favorable to plaintiff, presents a triable questionof fact as to whether the decedent's visits to defendants from May 17, 2005 through August 9,2006 were part of a continuous treatment for symptoms that are ultimately traced to lung cancer.During this relatively short period of 13 months, the doctor examined the decedent a total of fourtimes, often at very short intervals (see Shifrina, 5 AD3d at 661-662). Significantly,during these visits, the doctors appeared to be actively engaged, albeit unsuccessfully, inattempting to find the source of the knee pain and swelling, as suggested by the many diagnostictests performed, including the X ray and blood tests. Moreover, on at least one occasion (July 6,2005), the doctor was sufficiently concerned about plaintiff's persistent knee pain and legswelling that the doctor scheduled a follow-up examination. Based on the frequency and intensityof the course of treatment of plaintiff's knee condition, it cannot be said, as matter of law, that thedecedent did not receive continuous treatment of such a condition, which, according toplaintiffs's expert, was a symptom, among others, ultimately traceable to the cancerous conditionwhose alleged misdiagnosis has given rise to this action (see Harris v Dizon, 60 AD3d 495 [2009]; Hein, 302 AD2dat 174; Williams v Health Ins. Plan of Greater N.Y., 220 AD2d 343 [1995]).Concur—Mazzarelli, J.P., Catterson, Moskowitz, Renwick and Abdus-Salaam, JJ.