In New York: A Recent Decision On Continuous Treatment

Devadas v. Niksarli

The First Department's 4-1 decision in Devadas v. Niksarli , 120 A.D.3d 1000 (1st Dept. 2014), upheld a jury verdict finding continuous treatment following Lasik surgery to treat the plaintiff's myopia (nearsightedness), based in large part on the defendant's assurance of a lifetime guarantee.

The plaintiff first saw the defendant ophthalmologist in March 2004, when he accompanied his wife for a consult for the same type of surgery. After evaluating him and performing tests, the defendant advised the plaintiff that he was a suitable candidate.

The plaintiff underwent the procedure on April 6, 2004. He returned the day after the surgery, complaining that his left eye was blurry, tearing and felt like there were grains of sand inside. The defendant told him this was normal and would subside. The plaintiff returned again 12 days later, complaining of blurriness and dryness in the same eye, about which, he testified, the doctor was dismissive. The plaintiff testified that when he returned for a follow-up appointment on May 19, 2004, with the same complaints, the defendant was again dismissive and said that he was expecting too much too soon, and that his eyes needed time to heal. The defendant told him at this visit to follow up as needed, and that he could come back any time. The plaintiff testified there was no definite time to return, but he considered the defendant “his 'ophthalmologist for life'” based on the defendant's assurance to him that “the procedure came with a lifetime guarantee.”

The next contact between the plaintiff and the defendant was 33 months later, on Feb. 21, 2007. The plaintiff indicated he returned because his blurry vision, which never really resolved, had gotten worse, and he had developed visual distortions and double vision. After performing tests, the defendant diagnosed forme fruste keratoconus (FFK), which involves a bilateral bulging of the cornea. The defendant informed the plaintiff that it is a genetic condition that causes the collagen inside the cornea to progressively weaken, and that it has no known cure and only experimental treatment. He also told the plaintiff that it had nothing to do with his Lasik surgery.

The plaintiff brought a malpractice action against the defendant three months later, on May 31, 2007, alleging that the defendant should have recognized that he had dormant FFK before the surgery, which prohibited him as a candidate for the surgery, and that the surgery weakened the cornea and caused the condition to become active. As a result, the plaintiff suffered permanent damage, including double vision, starbursts, halos, and constantly dry eyes.

The defendant moved for summary judgment on the ground that the action was barred by the statute of limitations. The plaintiff opposed, arguing that there was continuous treatment, and submitted an expert affidavit connecting the complaints that led to the February 2007 visit to the surgery. The defendant submitted countervailing proof. The NY Supreme Court found that issues of fact precluded summary judgment. The defendant did not appeal.

At trial, the plaintiff's expert testified that the defendant should have diagnosed mild dormant FFK during pre-surgical evaluation, and should therefore not have performed the surgery. He testified that the complaints of blurry vision immediately after the surgery were not related to the FFK, but rather were normal postsurgical effects, and that the blurriness related to FFK did not begin until a few months before the February 2007 visit.

The defendant's expert testified that the pre-surgical testing did not indicate FFK and that the surgery was, therefore, not contraindicated. The defense expert further testified that there was no causal connection between the plaintiff's Lasik surgery and his subsequent FFK. The jury returned a verdict for the plaintiff, including a specific finding that the last date of continuous treatment was Feb. 21, 2007.

Next month, we will discuss the New York Appellate Division's reasoning, based on the doctrine of continuous treatment, for affirming the jury's verdict.

Thomas A. Moore is senior partner and Matthew Gaier is a partner at Kramer, Dillof, Livingston & Moore. This article also appeared in the New York Law Journal , an ALM sister publication of this newsletter.

The statute of limitations applicable to medical malpractice cases in New York is one of the most unjust in the country. It can, and too often does, expire before victims have even the ability to know that they have been injured. That is because, other than foreign objects left in a patient's body, New York does not have a rule that the statute begins to run at the time the patient discovers, or reasonably should discover, that he or she suffered injury as a result of malpractice. Almost all other jurisdictions have such a rule, and its absence in New York has had harsh consequences for countless malpractice victims. Efforts to pass legislation to end this injustice have repeatedly come up short.

One ameliorating provision of New York's statute is its codification of the continuous treatment doctrine, which takes on added importance due to the absence of a discovery rule. Civil Practice Law & Rules (CPLR) 214-a provides that a malpractice action must be commenced within two and a half years of “the act, omission or failure complained of or the last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure ' .”

One recent Appellate Division decision on the subject of the continuous treatment doctrine in New York stands out as meriting extended discussion.

Devadas v. Niksarli

The First Department's 4-1 decision in Devadas v. Niksarli , 120 A.D.3d 1000 (1st Dept. 2014), upheld a jury verdict finding continuous treatment following Lasik surgery to treat the plaintiff's myopia (nearsightedness), based in large part on the defendant's assurance of a lifetime guarantee.

The plaintiff first saw the defendant ophthalmologist in March 2004, when he accompanied his wife for a consult for the same type of surgery. After evaluating him and performing tests, the defendant advised the plaintiff that he was a suitable candidate.

The plaintiff underwent the procedure on April 6, 2004. He returned the day after the surgery, complaining that his left eye was blurry, tearing and felt like there were grains of sand inside. The defendant told him this was normal and would subside. The plaintiff returned again 12 days later, complaining of blurriness and dryness in the same eye, about which, he testified, the doctor was dismissive. The plaintiff testified that when he returned for a follow-up appointment on May 19, 2004, with the same complaints, the defendant was again dismissive and said that he was expecting too much too soon, and that his eyes needed time to heal. The defendant told him at this visit to follow up as needed, and that he could come back any time. The plaintiff testified there was no definite time to return, but he considered the defendant “his 'ophthalmologist for life'” based on the defendant's assurance to him that “the procedure came with a lifetime guarantee.”

The next contact between the plaintiff and the defendant was 33 months later, on Feb. 21, 2007. The plaintiff indicated he returned because his blurry vision, which never really resolved, had gotten worse, and he had developed visual distortions and double vision. After performing tests, the defendant diagnosed forme fruste keratoconus (FFK), which involves a bilateral bulging of the cornea. The defendant informed the plaintiff that it is a genetic condition that causes the collagen inside the cornea to progressively weaken, and that it has no known cure and only experimental treatment. He also told the plaintiff that it had nothing to do with his Lasik surgery.

The plaintiff brought a malpractice action against the defendant three months later, on May 31, 2007, alleging that the defendant should have recognized that he had dormant FFK before the surgery, which prohibited him as a candidate for the surgery, and that the surgery weakened the cornea and caused the condition to become active. As a result, the plaintiff suffered permanent damage, including double vision, starbursts, halos, and constantly dry eyes.

The defendant moved for summary judgment on the ground that the action was barred by the statute of limitations. The plaintiff opposed, arguing that there was continuous treatment, and submitted an expert affidavit connecting the complaints that led to the February 2007 visit to the surgery. The defendant submitted countervailing proof. The NY Supreme Court found that issues of fact precluded summary judgment. The defendant did not appeal.

At trial, the plaintiff's expert testified that the defendant should have diagnosed mild dormant FFK during pre-surgical evaluation, and should therefore not have performed the surgery. He testified that the complaints of blurry vision immediately after the surgery were not related to the FFK, but rather were normal postsurgical effects, and that the blurriness related to FFK did not begin until a few months before the February 2007 visit.

The defendant's expert testified that the pre-surgical testing did not indicate FFK and that the surgery was, therefore, not contraindicated. The defense expert further testified that there was no causal connection between the plaintiff's Lasik surgery and his subsequent FFK. The jury returned a verdict for the plaintiff, including a specific finding that the last date of continuous treatment was Feb. 21, 2007.

Next month, we will discuss the New York Appellate Division's reasoning, based on the doctrine of continuous treatment, for affirming the jury's verdict.

Thomas A. Moore is senior partner and Matthew Gaier is a partner at Kramer, Dillof, Livingston & Moore. This article also appeared in the New York Law Journal , an ALM sister publication of this newsletter.