YOUNG v. COMMUNITY HEALTH PLAN

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

Norman YOUNG et al., Appellants, v. COMMUNITY HEALTH PLAN et al., Respondents.

Decided: October 25, 2001

Before CREW III, J.P., PETERS, SPAIN, CARPINELLO and ROSE, JJ. Bohl, Della Rocca & Dorfman (James B. Tuttle of counsel), Albany, for appellants. O'Connor, Yoquinto & Ryan L.L.P. (William D. Yoquinto of counsel), Troy, for respondents.

Appeal from an order of the Supreme Court (Malone Jr., J.), entered November 30, 2000 in Albany County, which granted defendants' motion for summary judgment dismissing the complaint.

 Despite plaintiffs' contentions to the contrary, Supreme Court did not err in concluding that this medical malpractice action was barred by the two-year and six-month Statute of Limitations of CPLR 214-a.   The action arose out of the alleged failure of defendant Gary De Brino, a physician at a clinic operated by defendant Community Health Plan (hereinafter CHP), to discover a cancerous lesion while examining plaintiff Norman Young (hereinafter plaintiff) for rectal bleeding on December 12, 1994.   The record reveals no other examination or treatment of plaintiff in connection with a complaint of rectal bleeding or bowel problems within the limitations period.   The fact that plaintiff returned to CHP and was seen by De Brino on several subsequent occasions in 1997 for medical conditions unrelated to his rectal lesion did not serve to toll the Statute of Limitations under the “continuous treatment doctrine” (see, Young v. New York City Health & Hosps. Corp., 91 N.Y.2d 291, 296, 670 N.Y.S.2d 169, 693 N.E.2d 196;  Shiffman v. Harris, 280 A.D.2d 752, 753, 720 N.Y.S.2d 262).

 Nor do we find merit in plaintiffs' contention that the application of CPLR 214-a in this case violated their State and Federal constitutional rights.   Measuring the accrual of a medical malpractice action from the date of the occurrence, act or failure, rather than from when the patient became aware of the medical condition, does not violate due process (see, Helgans v. Plurad, 255 A.D.2d 554, 555-556, 680 N.Y.S.2d 648, appeal dismissed 93 N.Y.2d 882, 689 N.Y.S.2d 425, 711 N.E.2d 639, lv. dismissed, lv. denied 93 N.Y.2d 994, 696 N.Y.S.2d 104, 718 N.E.2d 410).   Moreover, measuring accrual from the time of discovery is statutorily permitted only for claims based upon the presence of a foreign object in the patient's body (see, CPLR 214-a).   Accordingly, we conclude that Supreme Court properly granted defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

ROSE, J.

CREW III, J.P., PETERS, SPAIN and CARPINELLO, JJ., concur.

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