| Dugan v Troy Pediatrics, LLP |
| 2013 NY Slip Op 02444 [105 AD3d 1188] |
| April 11, 2013 |
| Appellate Division, Third Department |
| Shannon Dugan, Appellant-Respondent, v TroyPediatrics, LLP, et al., Respondents-Appellants. |
—[*1] O'Connor, O'Connor, Bresee & First, PC, Albany (Justin O'C. Corcoran of counsel),for respondents-appellants.
Stein, J. Cross appeals from an order of the Supreme Court (Zwack, J.), enteredJanuary 10, 2012 in Rensselaer County, which partially granted defendants' motion forsummary judgment dismissing the complaint.
Plaintiff (born in 1985) was a patient of defendant Pamela C. Walders—apediatrician employed by defendant Troy Pediatrics, LLP—from the time ofplaintiff's birth until her 11-year-old annual checkup in September 1996. According toplaintiff's mother, at the time plaintiff turned three years old, she grew concerned aboutthe development of plaintiff's right foot. In particular, plaintiff's feet were not the samesize and her right arch appeared to be higher than the left. Plaintiff's mother claims thatthe deformity of plaintiff's right foot and other related symptoms worsened as plaintiffgot older. Sometime after plaintiff's last annual checkup with Walders in September1996, plaintiff's mother changed to pediatrician Patricia Jolie. During Jolie's firstexamination of plaintiff in 1997, she observed plaintiff's right foot and referred her to apodiatrist. As a result of his examination, the podiatrist referred plaintiff to a pediatricneurologist, who ultimately diagnosed plaintiff with a tethered spine, a condition thatcaused, among other things, the deformities in her right foot, and required plaintiff toundergo multiple surgeries.[*2]
On December 23, 2005, plaintiff commenced thismedical malpractice action and alleged, among other things, that Walders' failure to referplaintiff to a specialist deviated from the accepted standard of care and that plaintiff wasinjured as a result of the delayed diagnosis and treatment of her condition. In theiranswer to the complaint, defendants asserted various affirmative defenses including, asrelevant here, that the claims were time-barred. Following discovery, defendants movedfor summary judgment dismissing the complaint on the ground that Walders did notdeviate from the accepted standard of care and, alternatively, that the claims weretime-barred. Supreme Court partially granted defendants' motion by dismissing astime-barred all claims that accrued more than 10 years prior to the commencement of theaction. As to the remaining claims, the court found that triable issues of fact existedregarding whether Walders departed from the accepted standard of care. These crossappeals ensued and we affirm.
Turning first to plaintiff's appeal, Supreme Court found that the continuous treatmentdoctrine did not apply and, therefore, that any claims that arose prior to December 23,1995 were untimely, as such claims were barred by the 2½-year statute oflimitations and were outside the 10-year maximum infancy toll (see CPLR 208,214-a; Cahill v Lat, 39AD3d 1013, 1014 [2007]). Thus, the first issue before us is whether Supreme Courterred in determining that the continuous treatment doctrine did not apply, in which caseall of plaintiff's claims would be timely.
The continuous treatment doctrine serves to toll the limitations period during apatient's course of treatment with his or her physician (see Simons v Bassett HealthCare, 73 AD3d 1252, 1254 [2010]; Aulita v Chang, 44 AD3d 1206, 1208 [2007]). "Essentialto the application of the continuous treatment doctrine is 'a course of treatmentestablished with respect to the condition that gives rise to the lawsuit' " (Plummer vNew York City Health & Hosps. Corp., 98 NY2d 263, 268 [2002], quotingNykorchuck v Henriques, 78 NY2d 255, 258-259 [1991]). Significantly, a failureto establish a course of treatment is not a course of treatment (see Nykorchuck vHenriques, 78 NY2d at 259; Baptiste v Harding-Marin, 88 AD3d 752, 753-754 [2011],lv denied 19 NY3d 808 [2012]; Johanson v Sullivan, 68 AD3d 1303, 1304-1305 [2009]).
In support of their motion, defendants argued that Walders never treated plaintiff forany condition related to her foot, and proffered, among other things, plaintiff's medicalrecords, the deposition testimony of Walders, plaintiff and her parents, as well as anaffidavit from defendants' expert, a board-certified pediatrician. Notably, plaintiff'smedical records, which document the treatment provided by Walders, do not reveal thatWalders diagnosed any condition or provided any treatment related to plaintiff's foot. Infact, the only remotely related entry appearing in such records is a notation in 1989 thatmerely indicates "arches good."
In opposition to the motion, plaintiff claimed that, up until she last saw Walders in1996, Walders had continuously treated her for a condition related to her foot. Tosupport this contention, plaintiff relied upon, among other things, her mother's affidavitalleging that she first raised concerns with Walders about plaintiff's right foot atplaintiff's three-year-old annual checkup and that she repeated her concerns eachyear.[FN1]Plaintiff's mother avers that Walders observed plaintiff's foot, high arch and gait at theseappointments, and always responded that there was nothing to worry about and thatplaintiff would grow out of the condition. We are unpersuaded by plaintiff's claims thatthe concerns raised by her mother to Walders during her [*3]annual visits were evidence of treatment of her footcondition by Walders. A "course of treatment speaks to affirmative and ongoing conductby the physician" which is recognized as such by both the patient and physician (Gomez v Katz, 61 AD3d108, 112 [2009] [internal quotation marks omitted]). Notably, a "[r]outineexamination of a seemingly healthy patient, or visits concerning matters unrelated to thecondition at issue giving rise to the claim, are insufficient to invoke the benefit of the[continuous treatment] doctrine" (Plummer v New York City Health & Hosps.Corp., 98 NY2d at 268).
Here, the record is devoid of any evidence that would support a finding that Waldersprovided affirmative treatment to plaintiff for a condition related to her foot and Walders'failure to diagnose or treat the condition in response to the concerns of plaintiff's motherdoes not, by itself, establish an ongoing course of treatment (see Nykorchuck vHenriques, 78 NY2d at 259; Waring v Kingston Diagnostic Radiology Ctr., 13 AD3d1024, 1026 [2004]). The record does not reflect that Walders ever indicated that shewould monitor a condition related to plaintiff's foot, nor has plaintiff's mother assertedthat Walders assured her that she would do so. Moreover, when plaintiff was nine yearsold and was experiencing foot pain, her parents took her to see orthopedic surgeonRobert Heineman.[FN2]Heineman thereafter sent a report to Walders indicating, among other things, that aphysical examination showed that the arch of plaintiff's right foot was "slightly higher"than the left and that it had a higher and greater "dorsal prominence of the [first]metatarsal tarsal joint." Heineman also noted that he would "follow [plaintiff] withinterest," suggesting that he would monitor the condition. Walders never discussedHeineman's report or examination with plaintiff's parents. Under these circumstances,Supreme Court properly concluded that the continuous treatment doctrine did not applyand, accordingly, that all claims occurring more than 10 years prior to thecommencement of the action were untimely.
Turning to the cross appeal, we also agree with Supreme Court that, as to the claimsthat remain, questions of fact exist regarding whether Walders deviated from theaccepted standard of care during the time period from December 23, 1995 until she lasttreated plaintiff in 1996. Plaintiff alleges that defendants departed from the standard ofcare by, among other things, failing to recognize the symptoms of her condition and referher to a specialist. Defendants' expert opined that Walders comported with acceptedstandards of pediatric care in effect at the time as none of plaintiff's symptoms wouldhave prompted a reasonably prudent pediatrician to suspect the presence of a tetheredspine or other neurological condition, particularly considering that most of the symptomsof tethered spine syndrome were not present.[FN3]Defendants' expert [*4]further concluded that nothing inplaintiff's presentation to Walders would have caused a reasonably prudent pediatricianto refer plaintiff to a specialist or to further investigate plaintiff's foot. With thisevidence, defendants met their burden of establishing their prima facie entitlement tojudgment in their favor as a matter of law, thus shifting the burden to plaintiff todemonstrate a triable question of fact (see Martino v Miller, 97 AD3d 1009, 1010 [2012]; Derusha v Sellig, 92 AD3d1193, 1194 [2012]; Plourdv Sidoti, 69 AD3d 1038, 1039 [2010]; Menard v Feinberg, 60 AD3d 1135, 1137 [2009]).
Plaintiff's expert, also a board-certified pediatrician, reviewed plaintiff's medicalrecords and the deposition testimony and opined that the various symptoms exhibited byplaintiff should have caused Walders to refer her for a neurological consultation and thatthe failure to make such a referral was a deviation from acceptable standards of pediatriccare. While defendants claim that this expert failed to specify any deviation from the lastannual checkup—the only checkup that would fall within the timelyclaim—we cannot agree. In fact, plaintiff's expert specifically refers to a notationmade by Walders correlating to the September 1996 examination in which she indicatedthat plaintiff's extremities were within normal limits. Plaintiff's expert opines that,because her abnormality was significant and obvious, so much so that it had been noticedby Heineman, Walders should have referred her to a neurologist at that time. The expertalso noted that Jolie's first examination of plaintiff resulted in a referral to a podiatrist,which then led to the neurological consultation. Viewing the evidence in a light mostfavorable to plaintiff, we find that the affidavit of plaintiff's expert was sufficient todemonstrate the existence of triable issues of fact as to whether Walders departed fromthe appropriate standard of care, precluding summary judgment to defendants withrespect to those claims that are timely (see Derusha v Sellig, 92 AD3d at 1194;Hickey v Arnot-Ogden Med.Ctr., 79 AD3d 1400, 1401 [2010]).
Rose, J.P., Lahtinen and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Walders disputes theassertion that plaintiff's mother had expressed such concerns at each annual visit.
Footnote 2: The record is unclear asto whether Walders referred plaintiff to Heineman or whether plaintiff's parents initiatedthe contact with him. However, even assuming that a question of fact exists as to whetherWalders referred plaintiff to Heineman, plaintiff does not argue that this, alone, would besufficient to establish a course of treatment by Walders with respect to plaintiff's foot.
Footnote 3: Symptoms for tetheredspine also include abnormalities of the skin on the back, bowel or bladder dysfunction,back pain, loss of sensation or weakness in the lower extremities and walkingdifficulties.