CUMMINS v. Quest Diagnostics, Inc. and Peter Vasilion, M.D., Defendants-Appellants.

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

Judith CUMMINS and James Brylinski, Plaintiffs-Respondents, v. David L. MARCHETTI, M.D., Defendant, Quest Diagnostics, Inc. and Peter Vasilion, M.D., Defendants-Appellants.

Decided: April 29, 2005

PRESENT:  HURLBUTT, J.P., SCUDDER, GORSKI, PINE, AND LAWTON, JJ. Hiscock & Barclay, LLP, Buffalo (Stephanie Williams Torres of Counsel), for Defendant-Appellant Quest Diagnostics, Inc. Brown & Tarantino, LLP, Buffalo (Margaret K. Hey of Counsel), for Defendant-Appellant Peter Vasilion, M.D. Lewis & Lewis, P.C., Buffalo (Emily L. Downing of Counsel), for Plaintiffs-Respondents.

Plaintiffs commenced this medical malpractice action seeking damages for the misdiagnosis of a tissue sample sent by the treating gynecologist of Judith Cummins (plaintiff), David L. Marchetti, M.D., to defendant Quest Diagnostics, Inc., (Quest).   Defendant Peter Vasilion, M.D., a pathologist and employee of Quest, reported that the tissue sample was not indicative of cervical cancer.   The sample was re-read by Vasilion at the request of Marchetti after plaintiff's cancer was diagnosed and treatment was commenced.

Supreme Court erred in denying the motions of Quest and Vasilion to dismiss the complaint as untimely pursuant to CPLR 214-a.   Plaintiffs commenced this action more than two years and six months after the alleged misdiagnosis by Quest and Vasilion, and the re-reading of the tissue sample by Vasilion for purposes other than diagnosis or treatment did not implicate the continuous treatment doctrine and toll the statute of limitations with respect to Quest and Vasilion (see McDermott v. Torre, 56 N.Y.2d 399, 407-408, 452 N.Y.S.2d 351, 437 N.E.2d 1108;  Waring v. Kingston Diagnostic Radiology Ctr., 13 A.D.3d 1024, 1026, 786 N.Y.S.2d 832).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motions are granted and the complaint is dismissed.

MEMORANDUM: