LANGSAM v. Westchester Square Medical Center, Defendant.

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Supreme Court, Appellate Division, First Department, New York.

Sol LANGSAM, et al., Plaintiffs-Respondents, v. Pasqual TERRACIANO, M.D., Defendant-Appellant, Westchester Square Medical Center, Defendant.

Decided: October 25, 2005

TOM, J.P., ANDRIAS, SULLIVAN, GONZALEZ, MALONE, JJ. Clausen Miller, P.C., New York (Melissa A. Murphy-Petros of counsel), for appellant. Simonson, Hess & Leibowitz, P.C., New York (Edward S. Goodman of counsel), for respondents.

Order, Supreme Court, Bronx County (Bertram Katz, J.), entered June 30, 2004, which, inter alia, upon renewal, granted plaintiffs' motion to amend the complaint to assert a cause of action for lack of informed consent, unanimously affirmed, without costs.

A cataract was removed from plaintiff Sol Langsam's eye by defendant doctor Terraciano on January 18, 2001.   Terraciano's deposition testimony established that he saw Langsam on nine occasions during the ensuing year, the last of which occurred on January 2, 2002.   During this period, Terraciano treated Langsam for two conditions allegedly caused by the surgery, namely, blurred vision and increased astigmatism, and agreed to monitor Langsam's prolapsed iris, also a condition allegedly caused by the surgery.   These circumstances demonstrate a continuous course of treatment for the conditions giving rise to this malpractice action (see Young v. New York City Health & Hosp. Corp., 91 N.Y.2d 291, 670 N.Y.S.2d 169, 693 N.E.2d 196 [1998];  Nykorchuck v. Henriques, 78 N.Y.2d 255, 573 N.Y.S.2d 434, 577 N.E.2d 1026 [1991];  Oksman v. City of New York, 271 A.D.2d 213, 705 N.Y.S.2d 360 [2000];  Pace v. Caron, 232 A.D.2d 617, 648 N.Y.S.2d 691 [1996] ).

Inasmuch as the running of the applicable statutory period was tolled during the period of continuous treatment, plaintiff's proposed amendment to the complaint, asserting a cause of action for lack of informed consent, was not time-barred, and its assertion was properly permitted.

We have reviewed defendant's remaining arguments and find them unavailing.