| Hauss v Community Care Physicians, P.C. |
| 2014 NY Slip Op 05003 [119 AD3d 1037] |
| July 3, 2014 |
| Appellate Division, Third Department |
[*1]
| 1 Marilyn Hauss, Individually and as Executor ofArthur Hauss, Deceased, Respondent, v Community Care Physicians, P.C., et al.,Appellants. |
Carter, Conboy, Case, Blackmore, Maloney & Laird, PC, Albany (KathleenClark of counsel), for appellants.
LaFave, Wein & Frament, PLLC, Guilderland (Jason A. Frament of counsel),for respondent.
Rose, J. Appeal from an order of the Supreme Court (Breslin, J.), entered October 8,2013 in Albany County, which denied defendants' motion for summary judgmentdismissing the complaint.
Arthur Hauss (hereinafter decedent) became a patient of defendants in 2001 at theage of 74. In July 2007, he terminated his relationship with them and, shortly thereafter,he suffered a massive heart attack, was diagnosed with coronary artery disease andunderwent bypass surgery. Decedent died in December 2008, and plaintiff commencedthis action on November 27, 2009, alleging that defendants had committed medicalmalpractice by, among other things, failing to diagnose decedent's coronary arterydisease. After joinder of issue and discovery, defendants moved for summary judgmentdismissing the complaint on the grounds that they had neither deviated from the standardof care nor caused any injury. In the alternative, defendants sought partial summaryjudgment dismissing the claims with respect to any alleged malpractice occurring prior toMay 27, 2007 as time-barred. Supreme Court denied the motion, finding that issues offact exist as to whether the continuous treatment doctrine applies and whether defendantscommitted malpractice. Defendants appeal.
[*2] We agree with defendants' contention that the continuous treatment doctrine doesnot apply here to toll the statute of limitations. While medical malpractice claimsgenerally accrue at the time the malpractice is committed, the continuous treatmentdoctrine provides that "when the course of treatment which includes the wrongful acts oromissions has run continuously and is related to the same original condition orcomplaint, that 'accrual' comes only at the end of the treatment" (Borgia v City ofNew York, 12 NY2d 151, 155 [1962]; see CPLR 214-a; Nykorchuck vHenriques, 78 NY2d 255, 258 [1991]). It is well settled, however, that "[a] patient'scontinuing general relationship with a physician, or routine, periodic health examinationswill not satisfy the doctrine's requirement of 'continuous treatment' " (Youngv New York City Health & Hosps. Corp., 91 NY2d 291, 296 [1998]; seePlummer v New York City Health & Hosps. Corp., 98 NY2d 263, 268 [2002];Boyle v Fox, 51 AD3d1243, 1244 [2008], lv denied 11 NY3d 701 [2008]).
Here, decedent's medical records indicate that he visited defendants periodically formonitoring of his blood pressure and cholesterol levels, which were generallywell-controlled, and otherwise only saw defendants for unrelated acute health issues.Plaintiff's expert agrees with defendant Michael Greenblatt, a member of defendantCommunity Care Physicians, P.C. who treated decedent, that high cholesterol and highblood pressure are risk factors for the potential development of coronary artery disease,rather than symptoms of the condition itself. As identified by both Greenblatt andplaintiff's expert, symptoms of coronary artery disease include chest pain, shortness ofbreath, nausea, an acute change in the ability to tolerate exercise and arm pain. There issimply no proof in this record that decedent was treated by defendants for any suchsymptoms prior to June 2007. Rather, the allegation is that defendants failed to discoverand treat decedent's coronary artery disease by failing to order appropriate testing or referdecedent to a specialist. These alleged omissions do not amount to the establishment of a"course of treatment" and, accordingly, the motion for partial summary judgmentdismissing any claims prior to May 27, 2007 should have been granted (seeCPLR 214-a; Young v New York City Health & Hosps. Corp., 91 NY2d at296-297; Dugan v TroyPediatrics, LLP, 105 AD3d 1188, 1190-1191 [2013]; White v Murphy,277 AD2d 852, 854 [2000]).
Nevertheless, plaintiff adequately rebutted defendants' prima facie establishment ofentitlement to summary judgment dismissing the complaint in its entirety. Plaintiffsubmitted a redacted affidavit from a physician board-certified in internal medicine witha subspecialty in cardiovascular disease who opined that, in light of decedent's riskfactors for heart disease, defendants should have ordered a complete cardiac evaluationfor decedent in July 2007 when he presented on two separate occasions with complaintsincluding shortness of breath, achy arms and nausea, all potential symptoms of heartdisease. The expert also opined that, had the appropriate testing been ordered inconformance with the applicable standard of care, it would have revealed evidence ofunderlying coronary artery disease at a time when appropriate action could have beentaken to avoid the damage ultimately caused by decedent's heart attack. Viewing theevidence in a light most favorable to plaintiff, we find the expert affidavit sufficient todemonstrate the existence of triable issues as to whether defendants departed from thestandard of care and whether any such departure proximately caused decedent injury (see Longtemps v Oliva, 110AD3d 1316, 1318 [2013]; Dugan v Troy Pediatrics, 105 AD3d at1191-1192; Carter v Tana,68 AD3d 1577, 1579-1580 [2009]). Accordingly, Supreme Court appropriatelydenied the motion for summary judgment dismissing the complaint in its entirety.
Peters, P.J., Stein, Egan Jr. and Clark, JJ., concur. Ordered that the order is modified,on the law, without costs, by reversing so much thereof as denied defendants' motion forpartial summary judgment dismissing all claims arising prior to May 27, 2007 as barredby the statute of limitations; said motion granted and said claims dismissed; and, as somodified, affirmed.