The opinion of the court was delivered by: Sifton, Senior Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Xiang Ren commenced this action against defendant Dr. Daniel C. Kuo, M.D. on December 23, 2008,*fn1 alleging that defendant was negligent in his medical treatment of plaintiff and that defendant had failed to acquire informed consent from her, in violation of Public Health Law § 2805-d.*fn2 Now before the court is a motion for partial summary judgment by plaintiff, seeking to dismiss defendant's statute of limitations defense, and defendant's cross motion for partial summary judgment, seeking dismissal of the complaint on the ground that the action was filed outside of New York State's 2.5 year statute of limitations for medical malpractice suits. For the reasons stated below, both summary judgment motions are denied.
The following facts are taken from plaintiff's complaint and the parties' submissions in connection with this motion. Disputes are noted.
At all times material to the complaint, plaintiff was a resident of Broward County, Florida, and a citizen of the State of Florida, and defendant was a resident of New York State with his principal place of business in New York. Complaint at ¶¶ 2, 4 ("Compl.").
Plaintiff was born in Shanghai, China, and resided in China until 2002. Compl. at ¶ 7. Plaintiff was married in China in 1992 and had a healthy male child in 1993. Id. Pursuant to Chinese law, plaintiff was prohibited from having additional children.
Id. at ¶ 8. When plaintiff became pregnant in China with her second child in 1994, the government of China forced her to have an abortion. Id. For this and other reasons, plaintiff immigrated to the United States in 2002. Id.
Plaintiff first met with defendant on January 9, 2004, for a gynecological check up. Deposition of Daniel Kuo, Dated October 14, 2008, at 6 ("Kuo Dep."). Defendant performed a Pap smear,*fn3 among other tests, and recommended that plaintiff return in 6 months. Id. at 8. The analysis of the Pap smear showed a low grade squamous intraepithelial lesion, which signifies atypical cells that may become cancerous (which Dr. Kuo referred to as "two steps" before cancer). Id. at 8. Plaintiff returned on May 5, 2004, and another Pap smear was taken; the results again showed the atypical cells. Id. at 11, Erichsen Aff. Ex. D. Plaintiff's next visit was on May 21, 2004, at which time a cervical biopsy was performed. Id. at 12. The results of the biopsy showed moderate to severe squamous epithelial dysplasia of the cervix, which indicated that plaintiff had a precancerous lesion, and the presence of the Human Papaloma Virus (HPV), which is associated with cancer. Id. at 13. A November 17, 2004 Pap smear showed atypical cells. Erichsen Aff. Ex. D. Plaintiff returned to defendant's office on January 10, 2005, at which time an examination was performed and plaintiff was instructed to return in three months. Kuo Dep. at 14-15.
In 2005, plaintiff moved to Florida, where she saw obstetrician Dr. Yat Min Chen seven times that year. Compl. at ¶ 10, Erichsen Aff. Ex. E. Dr. Chen's examinations found that plaintiff had HPV and a pre-cancerous lesion, leading him to recommend a LEEP cone biopsy,*fn4 which was performed on September 12, 2005. Erichsen Aff. Ex. E. Dr. Charles Markham, a lab analyst, interpreted the results as showing that plaintiff had a micro-invasive carcinoma, which is a form of cancer. Id. Plaintiff returned to New York and presented Dr. Markham's report to defendant on January 4, 2006. Compl. ¶ 13. At that time, plaintiff advised defendant that she wished to have more children. Id. at ¶ 14. Defendant conducted various tests, including a Pap smear, and advised plaintiff to undergo a hysterectomy. Compl. ¶ 15. Defendant did not communicate with the pathologist who reported the carcinoma, nor did he recommend that plaintiff seek a second opinion before having a hysterectomy. Id. at ¶¶ 23, 24. Defendant is a gynecologist, and is not trained in oncology. Kuo Dep. 32-33. Defendant performed the procedure on February 9, 2006. Id. at ¶ 18. As a result of the procedure, plaintiff is no longer able to bear children. Ren. Aff. ¶ 7.
On February 17, 2006, plaintiff returned to defendant for her first post-operative visit to check the wound. Kuo Dep. at 25-26. On June 14, 2006, plaintiff returned to defendant for a second visit, complaining of dizziness and a swollen breast. See Erichsen Aff. Ex. D. Defendant performed a physical examination, took a Pap smear, prescribed a vaginal cream, and told plaintiff to return in six months. Id. On June 24, 2006, the results from the Pap smear returned, showing atypical cells and the presence of HPV. Id. After receiving these results, defendant called plaintiff in Florida and urged her to return to New York for consultation. Deposition of Xiang Ren, taken June 23, 2009, at 167, 171-172 ("Ren Dep.").*fn5 Plaintiff made an appointment and returned to defendant's office on August 7, 2006, at which time defendant noted the results of the June 14 Pap smear and advised plaintiff to return in six months for another Pap smear. Erichsen Aff. Ex. D. Plaintiff testified that defendant seemed concerned and that he wanted to follow up with her; she had the impression that the surgery "might not [have been] thorough." Ren Dep. at 172. When asked whether she voiced these concerns with defendant, plaintiff stated that she was afraid to do so, because "later it wouldn't be good for me to seek medical attention from him because he was the person who performed the procedure." Id. at 173.
The parties contest the nature of the examinations that were performed on the August 7 visit. Defendant argues that no exam was performed, based on the lack of treatment notes. Erichsen Aff. ¶ 25. Plaintiff contends that the visit was a follow up visit to monitor plaintiff's abnormal cells and risk for cancer, and that an extensive exam was performed. Plaintiff provides a billing statement from defendant's office, which states that plaintiff was billed under billing code 99215 and that she had an abnormal Pap smear and a "high complex" condition. P. Opp. Ex. A.*fn6 Plaintiff submits the standard code booklet maintained by the American Medical Association for billing, which states that a physician charging code 99215 must perform two of the three following actions: (1) take a comprehensive history; (2) take a comprehensive examination; (3) make medical decisions of high complexity. P. Opp. Ex. B.*fn7 Furthermore, in order for a doctor to bill under this code, the problem should be of moderate or high severity, and the visit should last approximately 40 minutes. Id. Plaintiff maintains that, based on this evidence, it can be determined that the visit was a substantial one that constituted continuing treatment.
In 2007, plaintiff began treatment with the First Family HealthCare Clinic in North Carolina. Erichsen Aff. Ex. G. The results of a July 2, 2007 Pap smear showed that plaintiff continued to have atypical cells. Id. A February 19, 2008 Pap smear showed that plaintiff had more serious cell abnormalities. Id. A subsequent test was negative for cancer. Id.
Plaintiff filed her complaint on December 23, 2008, 2 years and 4 months after her last visit with defendant on August 7, 2006. Additionally, plaintiff has filed a related action entitled Xiang Ren v. Charles Markham, M.D., Laboratory Corporation of America and Laboratory Corporation of America Holdings, Case No. 07-29705, which is currently pending in Florida State Court, alleging that Dr. Markham, the pathologist who read ...