Darlene M. Lohnas, Respondent,
Frank A. Luzi, Jr., M.D. et al., Appellants.
J. Hager, for appellants.
P. Fitzgerald, for respondent.
judgment was properly denied, as there are triable issues of
fact concerning whether the continuous treatment doctrine
tolls the statute of limitations on plaintiff's claims.
was treated by defendant for chronic shoulder problems
beginning in 1998. Defendant performed surgery on plaintiff
in 1999 and five post-operative visits followed over the
course of the next year. After a scheduled one-year
post-surgery appointment, plaintiff did not see defendant
until 19 months later, when she returned after experiencing
increased pain in her shoulder. Defendant recommended
injections and a second surgery, which was performed in
January 2002. Plaintiff returned to defendant for a
post-operative visit in April 2002. In September 2003, she
saw defendant after her shoulder injury was aggravated.
this appointment, there was a gap in treatment of more than
thirty months. Plaintiff testified that she "had gotten
discouraged with [defendant]" but ultimately returned to
him because defendant "was all [she] had." She
returned in April 2006 because of continued pain, at which
point defendant ordered x-rays and referred plaintiff to his
partner for a third surgery because defendant was no longer
performing shoulder surgeries. She consulted defendant's
partner but ultimately began seeing a new orthopedic surgeon
in July 2006.
brought this action against defendant in September 2008,
alleging that defendant negligently performed her original
1999 surgery and subsequently failed to diagnose the flawed
surgery, leading to continued problems with her shoulder and
a second surgery. Following discovery, defendant moved for
partial summary judgment dismissing the suit to the extent it
alleged malpractice based on conduct before March 2006.
Supreme Court denied the motion, finding that plaintiff
raised triable issues of fact concerning the possible tolling
of the statute of limitations based on continuous treatment.
Appellate Division affirmed, holding that plaintiff had
raised "issues of fact whether plaintiff and defendant
reasonably intended plaintiff's uninterrupted reliance
upon defendant's observation, directions, concern, and
responsibility for overseeing plaintiff's
progress'" (140 A.D.3d 1717, 1718 [4th Dept 2016],
quoting Shumway v DeLaus, 152 A.D.2d 951');">152 A.D.2d 951 [2d Dept
1989]). One justice dissented and would have found that the
continuous treatment doctrine did not apply because the
parties only intended treatment after September 2003 on an
as-needed basis. The Appellate Division granted
defendant's application for leave to appeal to this
affirm. CPLR 214-a provides that a medical malpractice action
must be commenced within 2½ years of the relevant act
or the "last treatment where there is continuous
treatment for the same illness, injury or condition which
gave rise to the [challenged] act, omission, or
failure." The operative accrual date for the purposes of
determining a claim's statute of limitations is at the
end of treatment "when the course of treatment which
includes the wrongful acts or omissions has run continuously
and is related to the same original condition or
complaint" (Borgia v City of NY, 12 N.Y.2d 151');">12 N.Y.2d 151,
155 ). The continuous treatment doctrine "seeks to
maintain the physician-patient relationship" in order
for the patient to receive the "most efficacious
care[;]... [i]mplicit in the policy is the recognition that
the doctor not only is in a position to identify and correct
[the] malpractice, but is best placed to do so"
(McDermott v Torre, 56 N.Y.2d 399, 408 ).
raises various arguments aimed at the gaps between
plaintiff's visits and the "as needed" basis
for scheduling some of those appointments. However, plaintiff
raised issues of fact as to whether she and defendant
intended a continuous course of treatment. Plaintiff saw
defendant over the course of four years, underwent two
surgeries at his hand, and saw no other doctor for her
shoulder during this time. She returned to him after the
thirty-month gap, discussed yet a third surgery with him, and
accepted his referral to his partner only because defendant
was no longer performing such surgeries. Plaintiff's
testimony regarding feeling discouraged with defendant's
treatment does not demonstrate as a matter of law that she
never intended to return to his care; in fact, her testimony
reveals that she considered defendant her only doctor during
this time. Nor does the fact that defendant repeatedly told
plaintiff she should return "as needed" foreclose a
finding that the parties anticipated further treatment.
Notably, Plaintiff's injury was a chronic, long-term
condition which both plaintiff and defendant understood to
require continued care. Each of plaintiff's visits to
defendant over the course of seven years were "for the
same or related illnesses or injuries, continuing after the
alleged acts of malpractice" (Borgia, 12 N.Y.2d
at 157). As to the 30-month period between visits, we have
previously held that a gap in treatment longer than the
statute of limitations "is not per se dispositive of
defendant's claim that the statute has run"
(Massie v Crawford, 78 N.Y.2d 516, 519 ). To
the extent that lower courts have held to the contrary
(see e.g. Marmol v Green, 7 A.D.3d 682');">7 A.D.3d 682 [2d Dept
2004]; Matter of Bulger v Nassau County, 266 A.D.2d
212 [2d Dept 1999]), those cases should not be followed.
test we apply today is not whether it would be
"absurd" for the plaintiff to commence suit
(dissenting op at 5); instead we apply the established
summary judgment standard to the question of whether there is
"ongoing treatment of a medical condition"
(Massie, 78 N.Y.2d at 519). The rhetoric of the
dissent, warning of the dire consequences of our decision, is
unwarranted. Of course, no "ghastly" written notice
from a doctor banishing a patient is now required (dissenting
op at 7). The dissent would institute a rule requiring
plaintiffs to get second opinions; yet such a rule would
disadvantage plaintiffs without access to such resources.
Likewise, by accusing plaintiff - based on the testimony of
her expert that her condition worsened during the time she
was treated by defendant - of "aggravat[ing] the
effects" of the alleged malpractice by "choosing
not to switch physicians" (dissenting op at 7), the
dissent would place an affirmative burden on the plaintiff to
change doctors by a certain time or risk being blamed, as a
matter of law, for the extent of her injury. In charging the
plaintiff with "seeking no medical care for her shoulder
from 2003 to 2006" (dissenting op at 7), the dissent
seems to be taking issue with our lack of a per se rule
governing gaps in treatment, rather than with any act or
omission by the plaintiff. Reasonable minds may indeed differ
on whether plaintiff ultimately makes her case - somewhat the
point in denying summary judgment - but here we hold only
that issues of fact exist that are for a jury to decide.
record therefore raises triable issues of fact concerning
whether the continuous treatment rule applies here.
Accordingly, the order of the Appellate Division, insofar as
appealed from, should be affirmed, with costs, and the
certified question answered in the affirmative.
WILSON, J. (dissenting)
majority has confused "continuous treatment" with a
chronic condition, effectively reading "continuous"
out of the statute of limitations without regard for the
plain meaning of the word or the ...