SHULTIS v. PATEL (2018)

MEMORANDUM AND ORDER

Appeal from an order of the Supreme Court (Mott, J.), entered April 4, 2017 in Ulster County, which, among other things, granted defendants' motion for summary judgment dismissing the complaint.

Plaintiff commenced this action alleging, as is relevant here, medical malpractice arising out of rectal surgery performed by defendant Deepak Patel.  Her last appointment with Patel was on January 12, 2012 and she commenced this action on July 31, 2014.  Patel and defendant Colon & Rectal Care, P.C., the professional corporation that employed him, served separate answers in which they advanced the statute of limitations as an affirmative defense.  Supreme Court granted defendants' subsequent motion for summary judgment dismissing the complaint as time-barred, and plaintiff appeals.

We affirm.  “[A] medical malpractice action must be commenced within 21/212 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’ ” (Lohnas v. Luzi, 30 N.Y.3d 752, 755, 71 N.Y.S.3d 404, 94 N.E.3d 892 [2018], quoting CPLR 214–a).  The alleged malpractice was committed during or in the aftermath of surgery performed in August 2011.  Plaintiff last saw Patel for treatment in January 2012, leaving a gap of more than 21/212 years between that visit and the July 2014 commencement of this action.  This gap was not dispositive, but was nevertheless sufficient to shift the burden “to plaintiff[ ] to demonstrate [a] triable issue[ ] of fact as to whether the continuous treatment doctrine tolled the statute of limitations” (Simons v. Bassett Health Care, 73 A.D.3d 1252, 1254, 900 N.Y.S.2d 781 [2010];  see Massie v. Crawford, 78 N.Y.2d 516, 519, 577 N.Y.S.2d 223, 583 N.E.2d 935 [1991] ).

In that regard, Patel referred plaintiff to another surgeon in the fall of 2011 due to the complexity of her case and made it clear that her care would be handled by that surgeon going forward.  Plaintiff left no doubt in her deposition testimony that she understood this by January 2012 and, indeed, acknowledged that she already suspected Patel of having bungled her treatment by that point and intended to pursue further treatment with her new surgeon (see Allende v. New York City Health & Hosps. Corp., 90 N.Y.2d 333, 339, 660 N.Y.S.2d 695, 683 N.E.2d 317 [1997];  Boyle v. Fox, 51 A.D.3d 1243, 1245, 858 N.Y.S.2d 444 [2008], lv denied 11 N.Y.3d 701, 864 N.Y.S.2d 388, 894 N.E.2d 652 [2008];  Schloss v. Albany Med. Ctr., 278 A.D.2d 614, 614–615, 719 N.Y.S.2d 148 [2000], lv denied 96 N.Y.2d 707, 725 N.Y.S.2d 637, 749 N.E.2d 206 [2001];  cf. Lohnas v. Luzi, 30 N.Y.3d at 756, 71 N.Y.S.3d 404, 94 N.E.3d 892).  Plaintiff did just that and, contrary to her contention, Patel later noting her treatment by other medical providers and issuing a courtesy renewal of a prescription at the request of a pharmacy did not suggest that more treatment was “explicitly anticipated by both” plaintiff and Patel so as to implicate the continuous treatment doctrine (Richardson v. Orentreich, 64 N.Y.2d 896, 898, 487 N.Y.S.2d 731, 477 N.E.2d 210 [1985];  see Nykorchuck v. Henriques, 78 N.Y.2d 255, 258–259, 573 N.Y.S.2d 434, 577 N.E.2d 1026 [1991];  Fuller v. Aberdale, 130 A.D.3d 1277, 1281–1282 [2015];  Boyle v. Fox, 51 A.D.3d at 1244, 858 N.Y.S.2d 444).  Thus, Supreme Court properly concluded that the doctrine was inapplicable and granted defendants' motion for summary judgment.

ORDERED that the order is affirmed, with costs.

Devine, J.

McCarthy, J.P., Egan Jr., Lynch and Aarons, JJ., concur,