VINES v. The Bronx-Lebanon Hospital Center et al., Defendants-Respondents. (2021)

Order, Supreme Court, Bronx County (George J. Silver, J.), entered May 21, 2019, which, to the extent appealed from, granted defendants Bronx–Lebanon Hospital Center, Bronx Care IPA, Inc., Trisha Chan, M.D., Anita Narula, M.D., Harvey Stern, M.D., Richa Sharma, M.D., Madanmohan Patel, M.D., and Kathryn Parker, M.D.’s motion for summary judgment dismissing claims for any medical treatment occurring before July 10, 2010 as against them as time-barred, all claims as against defendant Trisha Chan, M.D. as time-barred, and all claims relating to GERD before July 10, 2010 as against defendants as time-barred, unanimously affirmed, without costs.

Plaintiff failed to raise an issue of fact as to whether the statute of limitations on the medical malpractice claims was tolled by the continuous treatment doctrine for the period preceding July 10, 2010.  Plaintiff was first diagnosed with Thymoma on July 19, 2011, when chest imaging, including a chest X ray, revealed multiple masses.  “Where, as here, a malpractice claim is predicated upon an alleged failure to properly diagnose a condition, the continuous treatment doctrine may apply as long as the symptoms being treated indicate the presence of that condition” (Dookhie v. Woo, 180 A.D.3d 459, 464, 119 N.Y.S.3d 447 [1st Dept. 2020] [internal quotation marks omitted]).  “Routine” or “diagnostic examinations,” even when conducted repeatedly over a period of time, are not “a course of treatment” (Flaherty v. Kantrowich, 144 A.D.3d 542, 543, 41 N.Y.S.3d 502 [1st Dept. 2016] [internal quotation marks omitted]).

The symptoms that were treated during the period that plaintiff argues is subject to toll by defendants Bronx Care IPA, Inc., and Trisha Chan, M.D. did not indicate the presence of thymoma, “the [ ] illness, injury or condition” that gave rise to this action (CPLR 214–a;  see McManus v. Lipton, 107 A.D.3d 463, 967 N.Y.S.2d 691 [1st Dept. 2013]).  The record shows that the decedent's complaints of chest pain were intermittent, her multiple chest x-rays were clear, and her cough was eventually controlled by medication and dietary restrictions.  As Dr. Chan did not render any treatment to the decedent after December 17, 2009, all claims were correctly dismissed as against her.

With respect to Bronx–Lebanon Hospital Center, Harvey Stern, M.D., Richa Sharma, M.D., Madanmohan Patel, M.D., and Kathryn Parker, M.D., the medical record shows that the decedent went to the emergency room twice, three years apart, on August 10, 2006 and on August 6, 2009, and that there was no follow-up treatment anticipated (see Estrella v. Montefiore Med. Ctr., 190 A.D.3d 638, 638–39, 141 N.Y.S.3d 40 [1st Dept. 2021]).

Plaintiff's remaining arguments are academic in light of the foregoing and, in any event, unavailing.