United States District Court, Eastern District of New York
February 15, 1991
SAMUEL WEINBERG, PLAINTIFF,
ALAN GIBSTEIN, M.D., DEFENDANT.
The opinion of the court was delivered by: Bartels, District Judge.
MEMORANDUM-DECISION & ORDER
The defendant in this diversity suit, Dr. Alan Gibstein,
moves for summary judgment pursuant to Fed.R.Civ.P. 56 on the
grounds that plaintiff's action is time barred by New York's
two and one-half year statute of limitations for medical
malpractice actions. C.P.L.R. § 214-a. Plaintiff Samuel
Weinberg, suing on behalf of his wife, decedent Estelle
Weinberg, counters that the statute was tolled by the
"continuous treatment" doctrine.
Plaintiff's decedent Estelle Weinberg (hereafter "Weinberg")
first visited the Defendant Gibstein in March of 1980,
complaining of vaginal bleeding. In May of 1980 defendant
diagnosed Weinberg as having cancer of the uterus and
prescribed Megace hormonal treatment. Weinberg visited the
defendant intermittently through 1983, with continuing
complaints of vaginal and rectal bleeding. In May of 1983 the
defendant's diagnosis showed that Weinberg's cancer was still
spreading. The defendant finally performed a hysterectomy on
Weinberg on September 7, 1983. During a post-operative
conference held a week later, a committee of doctors concluded
that Weinberg had no residual cancer and that no additional
therapy was required.
Weinberg continued to visit the defendant intermittently
after her hysterectomy. During visits through 1984 Weinberg
complained of a number of maladies, including pains around the
location of her surgical incision, diarrhea, headaches,
extreme tiredness, and rectal bleeding. In 1985 she complained
of problems with eating, nausea, vomiting and diarrhea.
Weinberg continued seeing defendant semi-annually from 1986
through 1988. During that period she continued to complain of
bleeding, as well as a greenish discharge.
Weinberg last visited defendant in March of 1989. At that
time she was admitted to Long Island Jewish Medical Center,
where it was discovered that her cancer had metastasized to
the abdomen and colon. Weinberg subsequently underwent surgery
for the removal of very large abdominal tumors. Weinberg
commenced this action in September of 1989 and has since died.
"If the defendant in a run-of-the-mill civil case moves for
summary judgement . . . based on the lack of proof of a
material fact, the judge must ask himself not whether he
thinks the evidence unmistakably favors one side or the other
but whether a fair-minded jury could return a verdict for the
plaintiff on the evidence presented." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 2512, 91
L.Ed.2d 202 (1986). "[S]ummary judgement will not lie if the
dispute about a material fact is `genuine', that is, if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party." Id., at 477 U.S. 247, 106 S.Ct. 2510.
"[T]he question whether summary judgement is appropriate in any
case is one to be decided upon the particular facts of that
case." First National Bank of Arizona v. Cities Service Co.,
391 U.S. 253, 259, 88 S.Ct. 1575, 1577, 20 L.Ed.2d 569 (1968).
"Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are
jury functions, not those of a judge. . . ." Anderson, supra,
at 477 U.S. 255, 106 S.Ct. 2513. "The evidence of the
non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor." Id.
"Continuous Treatment" Doctrine
Plaintiff claims that the "continuous treatment" doctrine
tolls the statute of limitations. C.P.L.R. § 214-a provides in
An action for medical, dental or podiatric
malpractice must be commenced within two years
and six months of the act, omission or failure
complained of or last treatment where there is
continuous treatment for the same illness, injury
or condition which gave rise to the said act,
omission or failure. . . . For the purpose of
this section the term "continuous treatment"
shall not include examinations undertaken at the
request of the patient for the sole purpose of
ascertaining the state of the patient's
condition. . . .
"The policy underlying the continuous treatment doctrine seeks
to maintain the physician-patient relationship in the belief
that the most efficacious medical care will be obtained when
the attending physician remains on a case from onset to cure
. . . [and] that the doctor not only is in a position to
identify and correct his or her malpractice, but is best
placed to do so." McDermott v. Torre, 56 N.Y.2d 399, 408, 452
N YS.2d 351, 355, 437 N.E.2d 1108, 1112 (1982).
Courts applying the continuous treatment doctrine must
differentiate between cases involving discrete diagnostic
visits as opposed to return visits related to the same
original condition. "[E]xaminations undertaken at the request
of the patient for the sole purpose of ascertaining the state
of the patient's condition" are excluded from the statutory
definition of "continuous treatment". C.P.L.R. § 214-a. See
also, Bobrow v. DePalo, 655 F. Supp. 685, 688 (S.D.N.Y. 1987)
(Leval, J.) ("independent checkups for the detection of breast
cancer do not constitute a continuous course of treatment");
Werner v. Kwee, 539 N.Y.S.2d 449, 450, 148 A.D.2d 701 (2d Dept.
1989) (no continuous treatment where plaintiff underwent
surgery for cancer by different physician and then saw
defendant physician semi-annually to guard against recurrence;
visits with defendant were discrete, complete, and for the sole
purpose of ascertaining state of patient's condition).
However, as the New York Court of Appeals held in
McDermott, supra, at 56 N.Y.2d 405-06, 452 N.Y.S.2d 354,
437 N.E.2d 1111, once a condition has been diagnosed and treatment
has begun, return visits to treat the original condition
obviously constitute continuous treatment:
The statute of limitations may begin to run once
a hospital or physician considers the patient's
treatment to be completed and does not request
the patient to return for further examination.
This is not to say, however, that a complete
discharge by a physician forever bars a finding
of continuous treatment. Included within the
scope of "continuous treatment" is a timely
return visit instigated by the patient to
complain about and seek treatment for a matter
related to the initial treatment.
Nevertheless, the plaintiff must show more than the mere
continuation of the physician-patient relationship. As the
McDermott Court cautioned, there is no treatment where a
patient initiates a return visit merely to have her condition
checked, since "the continuing nature of a diagnosis does not
itself amount to continuous treatment". Id. Instead, the
patient must have returned for "treatment for a matter related
to the initial treatment." Id. (emphasis added).
"The cases illustrate that the determination as to whether
continuous treatment exists must focus on the patient. When
`a timely return visit instigated by the patient' is made, the
policies underlying the continuous treatment doctrine are
implicated and the toll is properly invoked." Rizk v. Cohen, 73
N Y2d 98, 538 N.Y.S.2d 229, 535 N.E.2d 282 (1989) (emphasis in
original), quoting McDermott, supra, at 56 N.Y.2d 406, 452
N YS.2d 351, 437 N.E.2d 1108. By contrast, "mere
doctor-initiated contact, in the absence of other objective
factors indicative of a continuing relationship, should not
fall under the continuous treatment doctrine." Rizk, supra.
However, doctor-initiated post-operative observation is a
classic example of an objective factor indicative of
continuous treatment. Id. "If a patient continues under
post-operative observation by his physician and is advised that
his condition is being cured, this is as much `treatment' as
affirmative acts such as surgery, therapy, or prescription of
medicines". Fonda v. Paulsen, 363 N.Y.S.2d 841, 844, 46 A.D.2d 540
(3d Dept. 1975). See also, Ward v. Kaufman, 502 N.Y.S.2d
883, 120 A.D.2d 929 (4th Dept. 1986) (phone call from a doctor
telling the patient to return for an x-ray held sufficient to
prolong the treatment). "A determination as to whether there is
continuous treatment should be based upon whether there exists
a relationship of continuing trust and confidence between the
patient and the physician . . . Regardless of the absence of
physical or personal contact between them in the interim, where
the physician and patient reasonably intend the patient's
uninterrupted reliance upon the physician's observation,
directions, concern, and responsibility for overseeing the
patient's progress, the requirement for continuous care and
treatment for the purpose of the statute of limitations is
certainly satisfied." Ward, supra, at 520 N.Y.S.2d at 884, 120
A.D.2d at 930.
Appropriateness of Summary Judgment
There is a genuine factual question as to whether Weinberg's
visits during the period 1983 through 1989 constituted a
continuous course of treatment. There are a myriad of New York
cases which hold that summary judgement should be denied under
circumstances similar to those here present. For example, the
Court refused to grant summary judgment in Babcock v. Lane,
1990 WL 3194 (S.D.N.Y. 1990), where a doctor did not diagnose
cancer in the plaintiff's knee during repeated visits for
treatment from 1979 until 1984, when a malignant tumor was
finally discovered and the plaintiff's leg had to be amputated,
finding "that a genuine issue of fact is in dispute as to
whether or not plaintiff had been undergoing continuous
treatment". See also, Richardson v. Orentreich, 64 N.Y.2d 896,
487 N.Y.S.2d 731, 477 N.E.2d 210 (1985) (question of fact as to
whether patient's treatment ended on date of last visit or
whether treatment continued until next scheduled appointment
precluded summary judgment); Edmonds v. Getchonis, 541 N.Y.S.2d
250, 252, 150 A.D.2d 879 (3rd Dept. 1989) (where plaintiff
sought dental treatment in 1977, was discharged in 1978,
returned with related problems in 1980, and remained under
dentist's care through 1982, genuine factual question existed
as to whether 1980 return visit was "timely", for purposes of
establishing continuous treatment); McKinney v. Bay Ridge
Medical Group, 511 N.Y.S.2d 123, 126 A.D.2d 711 (2d Dept. 1987)
(genuine factual question existed as to whether one of purposes
of patient's visits to doctors during period 1973 through 1979
was continuous treatment of pain in leg, which was caused by
broken drill bit which had become embedded in leg during
surgery in 1967); Otero v. Presbyterian Hospital, 497 N.Y.S.2d
381, 382, 116 A.D.2d 511 (1st Dept. 1986) (genuine factual
question existed as to whether patient was treated or merely
diagnosed during a post-operative examination). Cf. Brown v.
St. Barnabas Hosp. for Chronic Diseases, 553 N.Y.S.2d 48,
159 A.D.2d 674 (2d Dept. 1990) (no triable issue of fact where
plaintiff failed to tender sufficient proof to establish that
treatment was for same condition as that which plaintiff was
subsequently treated for).
Many factual questions remain concerning whether Weinberg's
treatment was continuous: Who instigated her periodic visits
with the defendant from 1983 through 1989? Were the symptoms
she complained of related to the cancer which was treated in
1983? Would a reasonable person assume that the defendant
wanted to see Weinberg through 1989 because of a continuing
concern with her prior condition?
The Court recognizes that the defendant flatly asserts that
he stopped treating Weinberg for cancer because she was cured
after her hysterectomy. However, given the patient's
persistent complaints and the subsequent spread of her cancer,
this bald assertion strains credulity. In particular, her
complaints of bleeding, which resembled the initial symptoms
preceding her first cancer diagnosis, as well the fact that
the cancer was progressively metastasizing into large tumors
throughout her abdomen, makes it hard to believe that the
defendant was not continuing to treat her for her original
condition. At the very least, this dispute raises a clear
question of credibility for the jury.
Moreover, the issue of continuous treatment would still
remain even if the defendant's position of cure were true. "If
a patient continues under post-operative observation by his
physician and is advised that his condition is being cured,
this is as much `treatment' as affirmative acts such as
surgery, therapy, or prescription of medicines". Fonda v.
Paulsen, 363 N.Y.S.2d 841, 844, 46 A.D.2d 540 (3d Dept. 1975).
All of these questions present material issues of fact for
the jury, making summary judgment inappropriate. Defendant's
motion is accordingly denied.
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