Verdicts

Break in Visits Does Not Preclude 'Continuous Course of Treatment' Finding

Judge Norman A. Mordue of the U.S. District Court for the Northern District of New York, deeming the statute of limitations for the filing of medical malpractice actions tolled by a “continuous treatment” provision, denied a doctor's motion for summary judgment that was based on the alleged untimely filing of this medical malpractice action. Estes v. Singh, 2011 U.S. Dist. LEXIS 88053 (N.D.N.Y. 8/9/11).

In March 2007, the defendant physician performed surgery on the plaintiff, who had been suffering ongoing gastrointestinal problems. Over the next two months the plaintiff followed up with her doctor with further complaints, and he recommended that she remain on a liquid diet and continue to seek treatment from her gastroenterologist. The plaintiff testified that although she was scheduled to return to the defendant doctor eight to 12 weeks after her surgey on May 31, 2007, she could not do so because of transportation and financial problems. She testified that she spoke to the doctor about these problems and that he therefore left her treatment options “open” so that if she needed to come back, she could. About two years later, on April 21, 2009, the plaintiff returned to the defendant doctor at the suggestion of an emergency room physician. The defendant doctor's notes from that visit indicate that the plaintiff was still following the liquid diet he had recommended in 2007, and that she had not tried any change in her medical therapy since then. The plaintiff stated that because the defendant offered her no new help or answers at that 2009 visit, she stopped seeing him. She filed a medical malpractice suit against him on Feb. 26, 2010.

The defendant moved for summary judgment, asserting that the suit was not timely filed in accordance with New York Civil Practice Law and Rules ' 214-a, which requires medical malpractice actions to be commenced within 2.5 years of “the act, omission or failure complained of.” The plaintiff countered that she was under continuous treatment with the defendant for the ailment complained of until April 21, 2009, and the continuous-treatment exception of ' 214-a applied (the running of the limitations period is delayed “where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure.”)

The court looked to the New York Appellate Division, Second Department's, decision in Gomez v. Katz, 61 AD3d 103 (2d Dept. 2009), for guidance on the continuous treatment doctrine in New York. According to Gomez, the tolling provision contains three principle elements. The first of these is that the plaintiff sought out and obtained an actual course of treatment from the defendant during the relevant period. The second element is that the course of treatment was for the same conditions or complaints underlying the plaintiff's medical malpractice claim. And the third is that the physician's treatment was “continuous.” Continuity may be shown if both the patient and physician anticipate that there will be further treatments specifically for the condition complained of; this can be shown through appointments made or when regular visits have been ongoing and there is no indication that they were to stop. Here, the court found that the plaintiff's case fulfilled the first two elements of the Gomez test. The only question was as to the third, with the defendant claiming that the 2009 doctor visits constituted a resumption of treatment, rather than a continuation. The court, however, sided with the plaintiff on this issue, finding that she had not stopped seeing the defendant because she preferred another doctor, but only because she could not afford to see him and could not arrange transportation to get there. She had continued to follow his diet advice and had also continued to see her gastroenterologist, as the defendant had recommended she do. Based on these facts, the court found that the plaintiff has established her entitlement to the continuous tolling provision, and her suit was not untimely filed. Thus, the defendant's motion for summary judgment must be denied.

Break in Visits Does Not Preclude 'Continuous Course of Treatment' Finding

Judge Norman A. Mordue of the U.S. District Court for the Northern District of New York, deeming the statute of limitations for the filing of medical malpractice actions tolled by a “continuous treatment” provision, denied a doctor's motion for summary judgment that was based on the alleged untimely filing of this medical malpractice action. Estes v. Singh, 2011 U.S. Dist. LEXIS 88053 (N.D.N.Y. 8/9/11).

In March 2007, the defendant physician performed surgery on the plaintiff, who had been suffering ongoing gastrointestinal problems. Over the next two months the plaintiff followed up with her doctor with further complaints, and he recommended that she remain on a liquid diet and continue to seek treatment from her gastroenterologist. The plaintiff testified that although she was scheduled to return to the defendant doctor eight to 12 weeks after her surgey on May 31, 2007, she could not do so because of transportation and financial problems. She testified that she spoke to the doctor about these problems and that he therefore left her treatment options “open” so that if she needed to come back, she could. About two years later, on April 21, 2009, the plaintiff returned to the defendant doctor at the suggestion of an emergency room physician. The defendant doctor's notes from that visit indicate that the plaintiff was still following the liquid diet he had recommended in 2007, and that she had not tried any change in her medical therapy since then. The plaintiff stated that because the defendant offered her no new help or answers at that 2009 visit, she stopped seeing him. She filed a medical malpractice suit against him on Feb. 26, 2010.

The defendant moved for summary judgment, asserting that the suit was not timely filed in accordance with New York Civil Practice Law and Rules ' 214-a, which requires medical malpractice actions to be commenced within 2.5 years of “the act, omission or failure complained of.” The plaintiff countered that she was under continuous treatment with the defendant for the ailment complained of until April 21, 2009, and the continuous-treatment exception of ' 214-a applied (the running of the limitations period is delayed “where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure.”)

The court looked to the New York Appellate Division, Second Department's, decision in Gomez v. Katz, 61 AD3d 103 (2d Dept. 2009), for guidance on the continuous treatment doctrine in New York. According to Gomez, the tolling provision contains three principle elements. The first of these is that the plaintiff sought out and obtained an actual course of treatment from the defendant during the relevant period. The second element is that the course of treatment was for the same conditions or complaints underlying the plaintiff's medical malpractice claim. And the third is that the physician's treatment was “continuous.” Continuity may be shown if both the patient and physician anticipate that there will be further treatments specifically for the condition complained of; this can be shown through appointments made or when regular visits have been ongoing and there is no indication that they were to stop. Here, the court found that the plaintiff's case fulfilled the first two elements of the Gomez test. The only question was as to the third, with the defendant claiming that the 2009 doctor visits constituted a resumption of treatment, rather than a continuation. The court, however, sided with the plaintiff on this issue, finding that she had not stopped seeing the defendant because she preferred another doctor, but only because she could not afford to see him and could not arrange transportation to get there. She had continued to follow his diet advice and had also continued to see her gastroenterologist, as the defendant had recommended she do. Based on these facts, the court found that the plaintiff has established her entitlement to the continuous tolling provision, and her suit was not untimely filed. Thus, the defendant's motion for summary judgment must be denied.