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

Jeffrey E. DAVIDSON, as Executor of the Estate of Donald L. Davidson, Deceased, and Mary Cooper Davidson, Plaintiffs-Appellants, v. John G. O'BRIEN, M.D., and Family Practice Associates, PLLC, Formerly Known as Family Practice Associates of Seneca Mall, Defendants-Respondents.

Decided: September 30, 2005

PRESENT:  PIGOTT, JR., P.J., GORSKI, MARTOCHE, PINE, AND LAWTON, JJ. Robert E. Lahm, PLLC, Syracuse (Robert E. Lahm of Counsel), for Plaintiffs-Appellants. Martin, Ganotis, Brown, Mould & Currie, P.C., DeWitt (Michael J. Cirincione of Counsel), for Defendants-Respondents.

Donald L. Davidson (decedent) was treated by John G. O'Brien, M.D. (defendant) on numerous occasions from 1991 through 2002.   Although decedent complained of erectile dysfunction in 1989 and 1992, he made no further complaints of such dysfunction until March 1999.   At that time, defendant prescribed Viagra.   In August 2000 defendant increased the strength of the prescription, and in June 2001 decedent was referred to a urologist and diagnosed with prostate cancer.   On May 23, 2003, decedent and his wife, plaintiff Mary Cooper Davidson, commenced this medical malpractice action alleging, inter alia, that defendant failed to diagnose decedent's prostate cancer.

Supreme Court erred in granting defendants' motion for summary judgment dismissing the complaint.   Although defendants met their initial burden of establishing that the action was time-barred, we conclude that plaintiffs raised a triable issue of fact whether the statute of limitations was tolled by the continuous treatment doctrine (see CPLR 214-a).   Plaintiffs submitted evidence that decedent's return visits were contemplated by both decedent and defendant and that defendant treated decedent for a symptom “ indicating the existence” of prostate cancer (Green v. Varnum, 273 A.D.2d 906, 907, 710 N.Y.S.2d 747).   Thus, plaintiffs raised a triable issue of fact whether defendant continuously treated decedent “for the same illness, injury or condition which gave rise to the said act, omission or failure” (CPLR 214-a;  see Green, 273 A.D.2d at 907, 710 N.Y.S.2d 747;  see also Shifrina v. City of New York, 5 A.D.3d 660, 662, 774 N.Y.S.2d 85;  Hein v. Cornwall Hosp., 302 A.D.2d 170, 173-174, 753 N.Y.S.2d 71;  Bonanza v. Raj, 280 A.D.2d 948, 949, 721 N.Y.S.2d 204;  Hill v. Manhattan W. Med. Group-H.I.P., 242 A.D.2d 255, 661 N.Y.S.2d 229;  cf. Doyaga v. Columbia-Presbyterian Med. Ctr., 307 A.D.2d 333, 334, 762 N.Y.S.2d 636).  “Merely because defendant[ ] did not diagnose ․ decedent's condition as cancer is not a basis to find that [he was] not treating [decedent] for it if his symptoms were such as to indicate its existence and [defendant] nevertheless failed to properly diagnose it” (Hill, 242 A.D.2d at 255, 661 N.Y.S.2d 229).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the complaint is reinstated.