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Gomez v. Katz

February 10, 2009


APPEAL by the defendants, as limited by their brief, in an action, inter alia, to recover damages for medical malpractice, etc., from so much of an order of the Supreme Court (Gerald E. Loehr, J.), entered August 17, 2007, in Westchester County, as denied that branch of their motion which was for summary judgment dismissing as time-barred the causes of action asserted by the plaintiff Maria Gomez.

The opinion of the court was delivered by: Dillon, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.


(Index No. 9994/04)


We are asked on this appeal to consider whether a patient's consultation with a new physician severs the patient's relationship with her initial physician for purposes of the "continuous treatment" toll of the statute of limitations. We also consider whether, under the circumstances of this case, a 24-month gap in the patient's treatment with her initial physician requires a finding that the physician's treatment is not continuous.

I. Relevant Facts

On June 29, 1999, the defendant, Dr. Neil Katz, a member of the defendant Westchester Eye Associates (hereinafter together the defendants), performed LASIK surgery upon the eyes of the plaintiff Maria Gomez, to correct her vision. Dr. Katz and Gomez discussed the risks of the procedure prior to the surgery. Such risks included discomfort, visualizing halos, glare and distortion, infection, scarring, loss of best corrected visual acuity, the need for enhancement surgery, and the need for a cornea transplant.

Medical records and deposition testimony provided by Dr. Katz revealed post-operative visits on June 30, 1999, July 9, 1999, July 19, 1999, November 24, 1999, May 10, 2000, and 24 months later on May 16, 2002. Dr. Katz's chart also notes an undated post-operative telephone call from Gomez regarding her eyes. During many of these visits and during the undated phone call, Gomez complained of eye conditions that were consistent with some of the disclosed risks of LASIK surgery, such as glare in her visual field, dry eyes, and blurry vision. Dr. Katz conducted two cornea topographic studies during the July 19, 1999, and November 24, 1999, post-operative consultations. Gomez's presentation on May 16, 2002, when she again complained of deteriorating vision, was the last time Dr. Katz examined her eyes.

On April 4, 11, and 18, 2002, Gomez presented to a nonparty ophthalmologist, Dr. Jay Lippman of the Eye Care Center in New Rochelle. Gomez complained to Dr. Lippman of dry eyes, blurry vision, and difficulties with reading fine print. She received a full eye examination and new prescription contact lenses.

Dr. Katz testified at his deposition that Gomez had been diagnosed with myopic and retinal degeneration prior to the LASIK surgery. He had pre-operatively discussed this diagnosis with Gomez as potentially worsening over time regardless of whether the LASIK procedure was performed. In Dr. Katz's opinion, Gomez's post-operative complaints were attributable to her pre-existing condition of central myopic and retinal degeneration. In contrast, Gomez maintains that she never experienced halos, glare, and dry eyes until after the LASIK procedure had been performed.

Gomez commenced this action by the filing of a summons and complaint on July 2, 2004, more than 2 1/2 years after the performance of the LASIK surgery and the early post-operative visits. Gomez seeks to recover damages for significant permanent loss of vision sustained as a result of the alleged medical malpractice of the defendants. The defendants' answer contained an affirmative defense that the action was barred by the applicable statute of limitations.

The defendants moved for summary judgment on the ground that Gomez's action was time-barred under CPLR 214-a. In support of their motion, the defendants raised three specific points, which they reiterate on appeal. First, the defendants contend that continuous treatment ended with the post-operative follow-up visit on November 24, 1999, as the May 10, 2000, visit did not involve post-operative care, thus rendering the action untimely by more than two years. Second and alternatively, the defendants contend that the 24-month gap between Gomez's consultations with Dr. Katz on May 10, 2000, and May 16, 2002, is too attenuated to constitute "continuous treatment" under ...

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