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 ...