NESBITT v. KOEHLER (2026)

Recitation, as required by CPLR 2219 (a), of the papers considered in the review: NYSCEF #s: 26-34, 37-51, 56

Defendant Steven M. Koehler M.D. (“Dr. Koehler”) moves for an Order pursuant to CPLR 3211 (a) (5) to dismiss Plaintiff's Verified Complaint on the grounds of the expiration of the statute of limitations. Defendant argues that the claims against Dr. Koehler are time-barred, and the continuous treatment doctrine does not render them timely.

Plaintiff commenced this action on April 16, 2025, against Dr. Koehler and University Orthopaedic Associates (“UOA”).

Plaintiff's claims sounding in medical malpractice involve treatment by Dr. Koehler which occurred from December 1, 2020 through December 22, 2021. Plaintiff was first referred to Dr. Koehler, who was then an employee at UOA, by non-party orthopedist Dr. Lovy for right carpal tunnel release with nerve transfer. Dr. Koehler performed the procedure on December 1, 2020. He gave Plaintiff a prescription for physical therapy treatment and instructed Plaintiff to begin therapy approximately two weeks after the surgery.

Two weeks following the surgery, on December 14, 2020, Plaintiff presented to Motion Physical Therapy (“MPT”) to begin physical therapy treatment on his right hand. After concern due to lack of improvement, an additional right ulnar nerve neuroplasty surgery was performed by Dr. Koehler on April 27, 2021. Plaintiff continued receiving physical therapy treatment with MPT following the April 27 surgery. MPT physicians noticed that Plaintiff's hand may need more intensive therapy methods that could not be offered in their office and recommended that Plaintiff seek continued physical therapy at NYU Langone. On May 12, 2021, Plaintiff first presented to NYU Langone for physical therapy until April 14, 2022.

On September 2, 2021, Dr. Koehler ended his employment relationship with UOA. On October 18, 2021, Dr. Koehler became an employee of Montefiore Medical Center (“MMC”) and has been employed by MMC since.

As shown in UOA's medical records, on October 15, 2021, Plaintiff returned to UOA for a follow up visit. At this time, Dr. Koehler was no longer employed by UOA and had not yet begun his employment with MMC. Plaintiff was seen by Dr. Hashem on this visit who recommended that the patient follow up on October 29, 2021, and December 17, 2021. Dr. Hashem noted that she gave Plaintiff the contact information about Dr. Koehler's new office for continued care. Plaintiff did not return to UOA for either recommended follow up visits.

On November 17, 2021, Plaintiff presented to Dr. Koehler at MMC, with complaints of numbness, weakness, and clawing in his right hand. Dr. Koehler referred Plaintiff for an EMG and continued physical therapy treatment at NYU Langone and recommended a follow up appointment after completion of the study.

Plaintiff sought a second opinion at NYU, and on December 13, 2021, non-party Dr. Jacques Hacquebord at NYU Langone documented in his clinical note that he discussed Plaintiff's case with Dr. Koehler.

Plaintiff returned to Dr. Koehler on December 22, 2021, and reported that he sought a second opinion and underwent an EMG and ultrasound. Dr. Koehler reviewed the test results with Plaintiff and noted that Plaintiff had areas of scarring and inflammation on the nerve. Dr. Koehler discussed possible intervention for the clawing but recommended observation as to whether his symptoms improved. Dr. Koehler advised Plaintiff to return within three months, or sooner, if he wished to proceed with surgical intervention.

Plaintiff did not return to Dr. Koehler's office, nor did he have any communication with Dr. Koehler following the December 22, 2021 follow-up visit. However, Plaintiff continued physical therapy treatment for his ulnar nerve injury at NYU Langone and received care there approximately twice a week until January 5, 2023. Physical therapy records dated May 12, 2021, to April 14, 2022, note Dr. Koehler as the referring physician.

On April 18, 2022, Plaintiff returned to Dr. Hacquebord at NYU Langone to address the continuing clawing deformity and nerve disfunction. On May 6, 2022, Dr. Hacquebord performed a nerve exploration on Plaintiff to repair damaged or compressed nerves in Plaintiff's hand.

Plaintiff returned to UOA on October 21, 2022, seeking evaluation for the clawing deformity and nerve complaints. Plaintiff again met with non-party Dr. Jenifer Hashem who documented that Plaintiff presented with continued right ulnar claw deformity following surgeries performed by Dr. Koehler. Dr. Hashem documented improvement in the posture of the hand and continued weakness and decreased sensation. Dr. Hashem advised Plaintiff that his hand will always have deficits due to muscle wasting, and that he should continue with therapy to decrease stiffness.

Plaintiff's continuous treatment argument relies primarily on the single return visit on October 21, 2022 to UOA, where he was originally treated by Dr. Koehler.

“A defendant who seeks dismissal of a complaint on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to commence an action has expired” (Rojas v. Tandon, 208 AD3d 702, 702-703 [2d Dept 2022]). Here, Defendant established, prima facie, that the action is time-barred by demonstrating that it was commenced on April 16, 2025, more than two years and six months after Plaintiff's last visit with Dr. Koehler on December 22, 2021 (see CPLR 214—a; Gray v. Wyckoff Hgts. Med. Ctr., 155 AD3d 616, 617 [2d Dept 2017]). Consequently, the burden shifts to the plaintiff to present evidence raising a question of fact as to whether the continuous treatment doctrine served to toll the limitations period (see Rojas, 208 AD3d at 703).

The statute of limitations for a medical or dental malpractice action is two years and six months from “the act, omission, or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure” (CPLR 214-a). “Under the continuous treatment doctrine, the limitations period does not begin to run until the end of the course of treatment if three conditions are met: (1) the patient continued to seek, and in fact obtained, an actual course of treatment from the defendant physician during the relevant period; (2) the course of treatment was for the same conditions or complaints underlying the plaintiff's medical malpractice claim; and (3) the treatment is continuous” (Chvetsova v Family Smile Dental, 202 AD3d 657, 658 [2d Dept 2022] [internal citations and quotation marks omitted]). The third element is demonstrated ”when further treatment is explicitly anticipated by both physician and patient as manifested in the form of a regularly scheduled appointment for the near future” (id. at 659).

Although Plaintiff last saw Dr. Koehler on December 22, 2021, Plaintiff contends that the last date of treatment should be October 21, 2022, the date Plaintiff presented to Dr. Hashem at UOA. Plaintiff attempts to benefit from the continuous treatment doctrine by imputing to Dr. Koehler the October 2022 medical visit at UOA despite having sought treatment by Dr. Koehler at another institution and after having been treated by other physicians at yet another hospital.

It is well established that the doctrine of continuous treatment may apply when a patient receives a continuous course of treatment from a medical group or practice, linking the earlier dates of treatment of individual providers to the continued treatment of others within that practice (see Osborn v DeChiara, 165 AD3d 1270, 1272 [2d Dept 2018]; Ozimek v Staten Is. Physicians Practice, P.C., 101 AD3d 833, 835 [2d Dept 2012]).

To apply the continuous treatment doctrine in this manner, the plaintiff must demonstrate that they were “a patient of the practice” rather than the individual physician. Further, the doctrine “may be applied to a physician who has left a medical group, by imputing to him or her the continued treatment provided by subsequently-treating physicians in that group” (Ozimek, 101 AD3d at 835, quoting Mule v. Peloro, 60 AD3d 649, 650 [2d Dept 2009]; see also Matthews v. Barrau, 150 AD3d 836, 838 [2d Dept 2017]).

In Osborn, the plaintiff was a patient of a medical practice whose two physicians performed separate but related surgeries on the same day (Osborn, 165 AD3d at 1271). The plaintiff subsequently developed a post-surgical wound infection and received treatment from both physicians at the same practice. The plaintiff contended that since she was a patient of the practice rather than one physician individually, the statute of limitations should be tolled to her last date of treatment with the second physician. In support of this, the plaintiff submitted evidence that billing was generated by the practice rather than individual physicians, that patient records and notes were shared among and maintained by the practice, that the practice's letterhead identified all treating physicians collectively, and that the plaintiff had been treated by multiple physicians within the practice continuously from 2006 through 2012. The court held that because the plaintiff was a patient of the practice, one physician's treatment within the statutory period could be imputed to the prior treating physician, rendering the action timely. (Id.)

Likewise, in Ozimek, the plaintiff presented to a group practice for a mammogram performed by the defendant physician (Ozimek, 101 AD3d at 833). The plaintiff returned to that facility on three additional occasions and thus sought to toll the statute of limitations to her last visit at the practice (id. at 834). Although the physician who performed the mammogram presented evidence that he had left the practice and did not personally treat the plaintiff after that date, the court held that since the plaintiff was a patient of the practice, the treatment rendered by subsequent treating physicians in that group may be imputed to him (id).

Here, there is no evidence that Plaintiff was treated as a patient of the UOA “practice” so to impute to Dr. Koehler a continuous course of treatment until October 21, 2022, the date he saw Dr. Hashem at UOA. In fact, Plaintiff's conduct forecloses any argument that he was a patient of the UOA practice rather indicates that he was a patient of Dr. Koehler, individually. When Dr. Koehler left UOA in September 2021, Plaintiff did not remain with UOA. After treating with Dr. Hashem at UOA on October 15, 2021, he did not return for the two follow-up dates documented in UOA's medical records. Dr. Hashem's notes from Plaintiff's visit in October 2021 reflect that she recommended Plaintiff follow up with the practice but also provided Plaintiff with Dr. Koehler's new practice information. Plaintiff ceased follow up treatment with the UOA practice and instead continued with Dr. Koehler individually at MMC on November 17, 2021. He again returned to Dr. Koehler a month later, on December 22, 2021 at MMC. The record clearly evidences Plaintiff's intention to continue treatment with Dr. Koehler at his new practice, rather than obtain treatment with other providers at UOA.

The fact that Plaintiff was a patient of Dr. Koehler is further confirmed by Plaintiff's deposition transcript from a separate Court of Claims action submitted with this motion. In that deposition Plaintiff stated, “I followed [Dr. Koehler] and found him at Montefiore” (see NYSCEF Doc. No. 44 at 217, lines 11-12). Plaintiff's testimony that “Dr. Koehler was one of the people [Dr. Lovy] recommended” also emphasizes that he specifically sought treatment with Dr. Koehler.

Consequently, Plaintiff has not raised an issue of fact to support his claim that he was a patient of the UOA practice, as to impute the October 21, 2022 visit to Dr. Koehler for purposes of tolling the statute of limitations. Further, no discovery can affect the Court's determination that plaintiff was treated by Dr. Koehler individually and not as a patient of the UOA practice. No discovery in this case can support a finding that there was continuous treatment beyond December 2021.

Plaintiff also argues that continuous treatment doctrine applies here because an agency relationship existed between Dr. Koehler and UOA. It is a well-established principle that a third party's treatment can be attributed to a physician under the continuous treatment doctrine when there exists “an agency or other relevant relationship” between the physician and the providers who rendered subsequent care (Allende v New York City Health and Hosps. Corp., 90 NY2d 333, 339 [1997], quoting McDermott v Torre, 56 NY2d 399, 403 [1982]; see also Pierre-Louis v Hwa, 182 AD2d 55 [2d Dept 1992]). However, “a plaintiff in a medical malpractice action may not avoid the effect of CPLR 214—a by attempting to impute continuous treatment by one physician to another physician based solely upon allegations of a vague and amorphous 'relationship' between the two medical professionals” (Cox v Kingsboro Med. Group, 214 AD2d 150, 151 [2d Dept 1995], affd 88 NY2d 904 [1996]).

In Pierre-Louis, the patient saw various providers across the hospital's Cardiology, Arthritis, and Dermatology clinics, and the court noted “there is no proof․that the defendants and their successors practiced as a team or that the clinics in which they worked operated in a manner resembling a medical group” (Pierre-Louis, 182 AD2d at 60). Further, in that case, the court held that showing that defendants and their successors were “coemployees” of an institution is insufficient to impute the latter's continuous treatment to the former for the purpose of tolling the statute of limitations (id at 59).

In this case, there is no evidence of an agency relationship between Dr. Koehler and UOA or with its physicians. It is uncontroverted that Dr. Koehler terminated his employment with UOA on September 2, 2021; no agency or relevant relationship continued between Dr. Koehler and UOA and/or its employees past that date. Further, that Dr. Koehler may have been a “coemployee” with Dr. Hashem while he was working at UOA is an insufficient relationship to support a finding of continuous treatment.

The Court also rejects Plaintiff's argument that because Dr. Koehler is listed as the referring physician for physical therapy at NYU Langone up to about April 14, 2022, continuous treatment extends to the last date of therapy. A referral is not sufficient to establish the kind of agency or supervisory relationship the doctrine requires (see Florio v Cook, 65 AD2d 548, 548-549 [2d Dept 1978], affd 48 NY2d 792 [1979]). Instead, evidence would have to demonstrate that Dr. Koehler exercised some supervisory or directive role over the physical therapy treatment beyond the referral. Here there is none.

There is no evidence demonstrating that the relationship between Dr. Koehler and NYU Langone physical therapy group was in any manner different than that between any independent physician who refers a patient to any other independent specialist (see Cox v Kingsboro Med. Group, 214 AD2d 150, 155-56 [2d Dept 1995], affd 88 NY2d 904 [1996]). Significantly, assuming, arguendo, that the period of physical therapy ending on April 14, 2022 can be imputed to Dr. Koehler, the statute of limitations would still have expired on or about October 14, 2024, six months before Plaintiff commenced this action.

The continuous treatment doctrine also requires that further treatment must be explicitly anticipated by both the physician and the patient. This mutual anticipation may be manifested in the form of a scheduled appointment for the near future, agreed upon during the last visit. (See Hillary v. Gerstein, 178 AD3d 674, 675-676 [2d Dept 2019]; Nisanov v. Khulpateea, 137 AD3d 1091, 1093 [2d Dept 2016].)

Plaintiff contends that Dr. Koehler's December 22, 2021 recommendation to return within three months, or sooner if he wished to pursue surgical intervention, constitutes the mutual anticipation of further treatment. However, this argument also fails. A mere recommendation that a patient should follow up with a physician does not satisfy a continuous course of treatment when no follow-up appointment was scheduled (see Yanez v. Watkins, 164 AD3d 547, 549 [2d Dept 2018]). There is no evidence that an appointment was made with Dr. Koehler after December 22, 2021. Further, even if Plaintiff had appeared for the three-month follow-up that Dr. Koehler recommended, it would have been in March 2022; Plaintiff's action, commenced in April 2025, would still be time-barred.

Similarly, despite the lack of agency or other relevant relationship between Dr. Koehler and NYU Langone, if the Court were to accept Plaintiff's argument that his subsequent “corrective surgery” at non-party NYU Langone on May 6, 2022 demonstrates a continuous course of treatment, this would only extend the statute of limitations to November 6, 2024. This action, commenced on April 16, 2025, would still be untimely.

Lastly, Plaintiff's reliance on Mule v Peloro (60 AD3d 649 [2d Dept 2009]) is misplaced. In that case, the plaintiff raised issues of fact with evidence that she was treated by various physicians in the medical practice for the same complaints over a number of years. Additionally, Plaintiff's reliance on this Court's decision in Black v. Aspen Dental Mgt., Inc. (87 Misc 3d 1235(A) [Sup Ct 2025]) similarly does not support his position. In Black, the plaintiff received treatment from various dentists within a dental practice. It was uncontroverted that she received all her treatment from dentists at the dental group. In this case, the evidence is clear that Plaintiff sought treatment by Dr. Koehler, individually, and followed him to his new practice at MMC. The visit to UOA constituted no more than a return visit to a physician at that medical practice and not a continuation of his treatment with Dr. Koehler.

For these reasons, the Court finds Plaintiff fails to raise an issue of fact to rebut Defendant Dr. Koehler's showing that this action is time barred. In this matter, the continuous treatment doctrine does not apply and does not render Plaintiff's claims against Dr. Koehler timely. Accordingly, the motion seeking to dismiss the Complaint against him as time-barred is granted.

It is hereby:

ORDERED that the motion of Steven M. Koehler M.D. (Seq. No. 2) to dismiss Plaintiff's Complaint against him as time-barred pursuant to CPLR 3211 (a) (5) is granted; and it is further

ORDERED the caption is amended to read:

KEVIN ANDREW NESBITT,

Plaintiff,

against

UNIVERSITY ORTHOPAEDICS ASSOCIATES,

Defendant.

This constitutes the decision and order of the Court.

Consuelo Mallafre Melendez, J.