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WEINBERG v. GIBSTEIN

February 15, 1991

SAMUEL WEINBERG, PLAINTIFF,
v.
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.

Facts

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.

Discussion

"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 pertinent part:

  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. ยง 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 ...


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