RAMIREZ v. FRIEDMAN

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

Jose RAMIREZ, Plaintiff-Respondent, v. Dr. Joel FRIEDMAN, Defendant-Appellant.

Decided: October 23, 2001

NARDELLI, J.P., TOM, MAZZARELLI, ELLERIN and LERNER, JJ. Joel M. Kotick, for Plaintiff-Respondent. Edward J. Guardaro, Jr., for Defendant-Appellant.

Order, Supreme Court, Bronx County (Gerald Esposito, J.), entered on or about June 21, 2000, denying defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

 Under the continuous treatment doctrine, “the time in which to bring a malpractice action is stayed ‘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’ ” (McDermott v. Torre, 56 N.Y.2d 399, 405, 452 N.Y.S.2d 351, 437 N.E.2d 1108, quoting Borgia v. City of New York, 12 N.Y.2d 151, 155, 237 N.Y.S.2d 319, 187 N.E.2d 777).   Here, the record establishes that plaintiff's last visit to defendant, on February 6, 1996, was directly related to the surgery performed by defendant which allegedly caused plaintiff permanent facial and oral numbness.   Whether defendant actually “treated” plaintiff during his surgical follow-up visits is not dispositive since defendant was clearly monitoring the progress of plaintiff's post-surgical healing as well as his numbness.   Thus, there was an ongoing relationship of trust and confidence between plaintiff and defendant relating to the March 1995 surgeries which continued until plaintiff's last visit to defendant.   This being the case, the continuing treatment doctrine is applicable (see, Allende v. New York City Health and Hosp. Corp., 90 N.Y.2d 333, 338, 660 N.Y.S.2d 695, 683 N.E.2d 317) and plaintiff's action, commenced in March of 1998, is timely.

 Contrary to defendant's contentions, plaintiff has raised several questions of fact as to whether the oral surgery performed upon him by defendant was necessary and as to whether he was properly informed of the significant risk of permanent numbness as a result of the surgery.   Accordingly, summary judgment in favor of defendant was properly denied.