On August 29, 2017, the Appellate Division, First Department affirmed an Order of the Supreme Court (Lobis, J.) denying summary judgment to defendants in a medical malpractice action. The defendants, the treating physician and his medical practice, argued that the plaintiff, Michelle Lewis, failed to bring suit within the 2 and ½ statute of limitations for causes of action sounding in medical malpractice.
Lewis commenced an action on March 5, 2010 alleging that the defendants failed to detect, diagnose, and treat a benign brain tumor from on or about April 3, 1998 until September 5, 2007, despite her regular complaints of debilitating headaches and blurry vision.
The defendants asserted that plaintiff's malpractice claims were time-barred, as she had commenced the action on March 5, 2010, more than two and one-half years after her last appointment on September 5, 2007. The defendants further contended, preemptively, that plaintiff's care did not fall within the continuous treatment exception to the statute of limitations because she was not involved in a continuous course of treatment related to her headaches.
Considering the merits of the defendants’ motions, the Appellate Division determined that
the record presents issues of fact as to continuous treatment. As is well established, ‘the continuous treatment doctrine tolls the Statute of Limitations for a medical malpractice action when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint’ (Cox v Kingsboro Med. Group, 88 NY2d 904, 906 [1996] [internal quotation marks omitted]). In addition, ‘[w]here the malpractice claim is based on an alleged failure to properly diagnose a condition, the continuous treatment doctrine may apply as long as the symptoms being treated indicate the presence of that condition’ (Wilson v Southhampton Urgent Med. Care, P.C., 112 AD3d 499, 500 [1st Dept 2013][internal quotation marks omitted]).
Lewis v. Rutkovsky, 2017 NY Slip Op 06342 at *3.
Notably, in a dialogue with one dissenting Justice, the Court stated that “the case law contains no requirement that a plaintiff have attended ‘regular’ appointments in the sense that the appointments were scheduled for the sole purpose of treating the allegedly misdiagnosed condition. Rather, the inquiry centers on whether the treated symptoms indicated the presence of the condition that was not properly diagnosed — here, a meningioma that gave rise to plaintiff's severe headaches and partial loss of vision, both of which [the defendants] undertook to treat by, among other things, prescribing reading glasses.” Lewis at 3–4.
The distinction raised by the Court is an important one for any plaintiff or attorney looking to bring a malpractice claim after the 30 month statute of limitations has expired. It focuses judicial scrutiny on the symptoms experienced by the patient that a medical professional failed to properly diagnose, rather than on the regularity or volume of consultations with the treatment provider. This clarification will provide plaintiffs with a fair opportunity to have their claims adjudicated, while still allowing doctors to enjoy the repose provided by the Statute of Limitations.
Lewis v. Rutkovsky, 2017 NY Slip Op 06342
Gordon & Silber, P.C., New York (Eldar Mayouhas of counsel), for Frederick D. Rutkovsky, M.D., appellant.
Kaufman Borgeest & Ryan LLP, Valhalla (David A. Beatty of counsel), for LHHN Medical, P.C. and Lenox Hill Community Medical Group, P.C., appellants.
Law Offices of Annette Hasapidis, White Plains (Annette G. Hasapidis of counsel), for respondent.