| Venditti v St. Catherine of Siena Med. Ctr. |
| 2012 NY Slip Op 06209 [98 AD3d 1035] |
| September 19, 2012 |
| Appellate Division, Second Department |
| Vincent Venditti, as Administrator of the Estate of Maria B.Germaine, Deceased, Appellant, v St. Catherine of Siena Medical Center et al.,Defendants, and Orlando V. Bautista et al., Respondents. |
—[*1] Kelly, Rode & Kelly, LLP, Mineola, N.Y. (Eric B. Betron and Susan M. Ulrich of counsel),for respondents.
In an action, inter alia, to recover damages for medical malpractice and wrongful death, theplaintiff appeals from an order of the Supreme Court, Suffolk County (Pitts, J.), entered January10, 2011, which granted the motion of the defendants Orlando V. Bautista and Family MedicalCare of Long Island, P.C., pursuant to CPLR 3211 (a) (5) to dismiss, as time-barred, so much ofthe complaint insofar as asserted against them as was based upon acts of alleged malpracticecommitted before September 27, 2006.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the motion of the defendants Orlando V. Bautista and Family Medical Care of LongIsland, P.C., which was pursuant to CPLR 3211 (a) (5) to dismiss so much of the cause of actionto recover damages for wrongful death insofar as asserted against them as was based upon acts ofalleged malpractice committed before September 27, 2006, and substituting therefor a provisiongranting that branch of the motion to the extent of dismissing so much of the cause of action torecover damages for wrongful death insofar as asserted against those defendants as was basedupon acts of alleged malpractice committed before December 30, 2005; as so modified, the orderis affirmed, without costs or disbursements.
On March 27, 2009, the plaintiff commenced this action against, among others, the defendantOrlando V. Bautista, a family practitioner, and his professional corporation, Family Medical Careof Long Island, P.C. (hereinafter together the respondents), alleging that they failed to properlydiagnose and treat atherosclerotic coronary heart disease, hyperlipidemia, microalbuminuria, andtobacco/nicotine addiction, resulting in the decedent's untimely death on June 30, 2008. Thecomplaint, as amplified by the bill of particulars, alleged negligent acts and omissions by therespondents from the date of the decedent's first visit with Bautista on July 14, 2001, until thedate of her death. The decedent's last visit with Bautista was on June 12, 2008. The respondentsmoved pursuant to CPLR 3211 (a) (5) to dismiss, as time-barred, so much of the complaintinsofar as asserted against them as was based upon acts of alleged malpractice committed beforeSeptember 27, 2006. The Supreme Court granted the motion.[*2]
The Supreme Court improperly determined that thestatute of limitations barred so much of the cause of action to recover damages for wrongfuldeath, insofar as asserted against the respondents, as was based upon acts of medical malpracticeprior to September 27, 2006 (i.e., 2½ years before the date the action was commenced),rather than December 30, 2005 (i.e., 2½ years before the date of the decedent's death) (see Capece v Nash, 70 AD3d 743,745 [2010]). Since, at the time of her death, the decedent had a valid cause of action to recoverdamages for medical malpractice, and since the wrongful death cause of action was commencedwithin two years of the date of her death, the wrongful death cause of action was timelyinterposed (see EPTL 5-4.1; Norum v Landau, 22 AD3d 650 [2005]; Murphy v Jacoby,250 AD2d 826 [1998]; Suarez v Phelps Mem. Hosp. Assn., 130 AD2d 571 [1987]).Accordingly, any claims to recover damages for wrongful death insofar as asserted against therespondents which were premised on acts of alleged malpractice occurring on or after December30, 2005 (i.e., within 2½ years of the decedent's death), including those allegedly arisingfrom the decedent's visit with Bautista on June 12, 2008, were timely interposed (seeEPTL 5-4.1; Norum v Landau,22 AD3d 650 [2005]; Fritz v Southside Hosp., 182 AD2d 671 [1992]).
However, in opposition to the respondent's motion, the plaintiff failed to establish that thedoctrine of continuous treatment tolled the statute of limitations (see Cox v Kingsboro Med.Group, 88 NY2d 904, 906-907 [1996]; Anderson v Central Brooklyn Med. Group, 56 AD3d 500, 501[2008]). Pursuant to CPLR 214-a, the statute of limitations is tolled until after the patient's lastvisit " 'when the course of treatment which includes the wrongful acts or omissions has runcontinuously and is related to the same original condition or complaint' " (McDermott vTorre, 56 NY2d 399, 405 [1982], quoting Borgia v City of New York, 12 NY2d 151,155 [1962]). Here, the evidence established that the decedent initially visited Bautista's office onJuly 14, 2001, to obtain medical clearance for surgery for pelvic inflammatory disease.Diagnostic tests demonstrated that the decedent had, among other conditions, Type II diabetesand high cholesterol. Bautista testified at his deposition that he did not prescribecholesterol-lowering medication at that time because the focus of treatment was on diabetescontrol through medication and diet which, if successful, would significantly reduce thedecedent's blood cholesterol levels. Bautista prescribed the decedent medication for her diabetes,referred her to a nutritionist, and advised her to follow up. The decedent returned for a follow-upvisit on August 1, 2001. Bautista arranged to have her repeat the "hemoglobin A1C" test andadvised her to follow up in three weeks. The decedent did not have the test and did not return toBautista until October 16, 2001, at which time she sought medical clearance for a surgicalevaluation of an abnormal pap smear. Thereafter, the decedent returned to Bautista several timesfor medical clearance for surgery or with various ailments including high blood sugar, sinusitis,bronchitis, knee pain, and a diabetes-related skin condition on her leg. Eventually, on June 11,2008, the decedent went to the emergency room with chest pains, and was treated and releasedthat day with orders to follow up with Bautista. She saw Bautista on June 12, 2008, and hediagnosed her with diabetes, hyperlipidemia, and acid reflux, referred her for a cardiologyconsultation and endocrinology follow-up, prescribed the cholesterol-lowering drug Zocor, anddirected her to follow up in one week. The decedent did not follow up, and she died on June 30,2008.
On the record presented, after the visit on August 1, 2001, the decedent and the physician didnot mutually agree upon or anticipate future appointments for the purpose of treating thedecedent's atherosclerotic coronary heart disease, elevated blood cholesterol levels,microalbuminuria, or tobacco/nicotine addiction (see Anderson v Central Brooklyn Med.Group, 56 AD3d at 501). The decedent's visits to Bautista after the August 1, 2001, visitwere 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 at 652). A mere continuation of a general doctor-patient relationship does not qualify asa course of treatment for purposes of the statutory toll (see Nykorchuck v Henriques, 78NY2d 255, 259 [1991]; McDermott v Torre, 56 NY2d at 405-406; Gomez v Katz, 61 AD3d 108, 112[2009]). Angiolillo, J.P., Eng, Lott and Cohen, JJ., concur.