CHULLA v. DiSTEFANO

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

Catherine CHULLA, etc., Appellants, v. Sarina DiSTEFANO, et al., Respondents.

Decided: September 29, 1997

Before ROSENBLATT, J.P., and THOMPSON, SULLIVAN and FRIEDMANN, JJ. Macaluso & Associates, P.C., White Plains (Donna A. Fafinski, of counsel), for appellants. Rende, Ryan & Downes, LLP, White Plains (Wayne M. Rubin, of counsel), for respondents Sarina DiStefano and Sleepy Hollow Medical Group, P.C. Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains (Edward J. Guardaro, Jr., of counsel), for respondents Fertility and Hormone Center of Montefiore Medical Center and Barry Witt.

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Westchester County (Colabella, J.), entered July 9, 1996, which (1) denied that branch of their motion which was to strike the second affirmative defense of the defendants Sarina DiStefano and Sleepy Hollow Medical Group, P.C., based on the Statute of Limitations with respect to all alleged acts of malpractice occurring before July 15, 1990, (2) granted the motion of the defendants Sarina DiStefano and Sleepy Hollow Medical Group, P.C., for partial summary judgment dismissing as time-barred those causes of action asserted against them which were based on the alleged acts of malpractice occurring before July 15, 1990, (3) denied that branch of the plaintiffs' motion which was to strike the second affirmative defense based on the Statute of Limitations and the fourth affirmative defense of lack of personal jurisdiction of the defendants Fertility and Hormone Center of Montefiore Medical Center and Dr. Barry Witt, and (4) granted the motion of the defendants Fertility and Hormone Center of Montefiore Medical Center and Dr. Barry Witt for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with one bill of costs.

In January 1993 Catherine Chulla and her husband, Richard Chulla, commenced this action to recover damages for injuries allegedly caused by the defendants' negligence in failing to diagnose Catherine's breast cancer in a timely manner and in exacerbating her condition with the implantation of a birth-control device known as “Norplant”.   The Supreme Court, inter alia, dismissed as time-barred those claims arising out of the alleged acts of malpractice committed before July 15, 1990, by the Sleepy Hollow Medical Group, P.C., and Dr. Sarina DiStefano, Catherine's gynecologist.   On appeal, the plaintiffs contend that the continuous treatment doctrine tolled the Statute of Limitations.   We disagree.

 An action for medical malpractice must be commenced within two-and-one-half years from the date of accrual (CPLR 214-a).   Under the continuous treatment doctrine, however, the two-and-one-half-year period does not begin to run until after the patient's last treatment “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” (Borgia v. City of New York, 12 N.Y.2d 151, 155, 237 N.Y.S.2d 319, 187 N.E.2d 777).

 Although Catherine Chulla successfully established that an ongoing physician-patient relationship with Dr. DiStefano and the Sleepy Hollow Medical Group, she failed to demonstrate that either defendant provided continuous treatment for the condition that gave rise to her lawsuit.   From September 1989 to July 1991, Catherine Chulla consulted these defendants for prenatal and postpartum care, as well as birth control advice.   Contrary to our dissenting colleague's contentions, while breast examinations may have been performed during these visits, there was no diagnosis of cancer and no course of treatment was rendered or prescribed.   Quite the opposite, the doctors assured Catherine Chulla that because of her youth, there was no cause for concern.   Moreover, the gravamen of the plaintiffs' complaint is that the defendants failed to detect her breast cancer in a timely manner.   As was stated in Nykorchuck v. Henriques, 78 N.Y.2d 255, 259, 573 N.Y.S.2d 434, 577 N.E.2d 1026, “[w]hile the failure to treat a condition may well be negligent, we cannot accept the self-contradictory proposition that the failure to establish a course of treatment is a course of treatment”.   Under these circumstances, the continuous treatment doctrine does not toll the Statute of Limitations (see, Fisher v. Felix, 201 A.D.2d 453, 607 N.Y.S.2d 126;  Holic v. Chabot, 209 A.D.2d 924, 619 N.Y.S.2d 223;  Washington v. Elahi, 192 A.D.2d 704, 597 N.Y.S.2d 110;  cf., Allende v. New York City Health & Hosps. Corp., 90 N.Y.2d 333, 660 N.Y.S.2d 695, 683 N.E.2d 317;  Cox v. Kingsboro Med. Group, 88 N.Y.2d 904, 646 N.Y.S.2d 659, 669 N.E.2d 817;  Ganess v. City of N.Y., 85 N.Y.2d 733, 628 N.Y.S.2d 242, 651 N.E.2d 1261;  Altomare v. Schulman, 236 A.D.2d 494, 654 N.Y.S.2d 623;  Grippi v. Jankunas, 230 A.D.2d 826, 646 N.Y.S.2d 829).

 In addition, the Supreme Court properly dismissed the complaint insofar as asserted against Dr. Barry Witt and the Fertility and Hormone Center of Montefiore Medical Center (hereinafter the fertility center).   Dr. Witt merely supervised Dr. DiStefano when she inserted the Norplant device in Catherine Chulla's left arm at the fertility center.   Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient (see, Markley v. Albany Med. Center Hosp., 163 A.D.2d 639, 640, 558 N.Y.S.2d 688;  Murphy v. Blum, 160 A.D.2d 914, 915, 554 N.Y.S.2d 640).   The plaintiffs' other contentions do not warrant the denial of summary judgment in favor of Dr. Witt and the fertility center.

I respectfully dissent from so much of the majority's determination as affirms the Supreme Court's grant of partial summary judgment to the defendants Sarina DiStefano and Sleepy Hollow Medical Group, P.C. (hereinafter Sleepy Hollow), barring all causes of action based on treatment antedating July 15, 1990.   My review of the record suggests that the issue of whether or not the continuous treatment doctrine should be applied to toll the Statute of Limitations as against these defendants remains a question of fact that should be decided by a jury.

On August 24, 1989, in the course of a routine physical examination at her place of employment, the 23-year old plaintiff, Catherine Chulla, was informed of a “thickening” in her right breast.   Because, inter alia, there was a history of breast cancer in her family, Catherine decided to consult her gynecologists, the defendant Sleepy Hollow, where she had been a patient since she became pregnant with her first child in 1988.

At her appointment on September 1, 1989, Catherine was examined by one of Sleepy Hollow's partners, who noted the familial history of breast cancer.   According to the physician's own records, he “reassured” Catherine that her breasts were merely undergoing benign “cystic changes”.   At her deposition, Catherine testified that this doctor told her not to worry because, as she was so young, “he was sure it was nothing”.   She related that the doctor promised he would “order a baseline mammography when [she] was 27, if it would make [her] feel better”.

Six months later, on March 9, 1990, Catherine returned to Sleepy Hollow for a routine prenatal examination in connection with her second pregnancy.   The defendant Dr. Sarina DiStefano examined her on that occasion, testifying at her deposition that as a matter of routine she palpated Catherine's breasts and detected no masses.

Thereafter there is a conflict in the testimony as to whether Catherine continued to complain of the lump during subsequent prenatal visits.   Dr. DiStefano did not “recall” any such complaints, but both the plaintiff and her husband distinctly remembered Catherine expressing her anxieties about breast cancer to Sleepy Hollow doctors on more than one occasion, and being told by Dr. DiStefano that because she was so young her apprehensions were “farfetched”.   Catherine's daughter was born on September 19, 1990.

When Catherine noticed that the lump was growing, she again brought it to Dr. DiStefano's attention in June 1991, and a malignancy was diagnosed in July 1991.   On August 12, 1991, at the age of 25, Catherine underwent a right modified radical mastectomy.   According to her brief, it has recently been discovered that her cancer has metastasized.   The plaintiffs commenced the instant action against, inter alia, Dr. DiStefano and Sleepy Hollow in January 1993.

In my opinion, on this record, the plaintiff has created a triable issue of fact as to the exact nature of her continuing visits to the offices of the defendants DiStefano and Sleepy Hollow (see, e.g., Bartolo v. Monaco, 202 A.D.2d 535, 609 N.Y.S.2d 275).   That is, if the plaintiffs are believed, these defendants were arguably sufficiently alerted to Catherine's complaints of a possible breast malignancy such that their alleged negligence in attending to it could constitute a species of continuous treatment for the same condition which gave rise to the claim of malpractice so as to toll the Statute of Limitations (see, CPLR 214-a;  McDermott v. Torre, 56 N.Y.2d 399, 452 N.Y.S.2d 351, 437 N.E.2d 1108;  Borgia v. City of New York, 12 N.Y.2d 151, 237 N.Y.S.2d 319, 187 N.E.2d 777;  Koenigsberg v. Tannous, 225 A.D.2d 734, 639 N.Y.S.2d 947).   Put somewhat differently, the defendants have not established as a matter of law that the treatment they rendered prior to July 15, 1990, was exclusively for a condition separate and distinct from the condition claimed to have been negligently treated (see, e.g., Yelin v. American Dental Ctr., 184 A.D.2d 693, 585 N.Y.S.2d 95;  McKinney v. Bay Ridge Med. Group, 126 A.D.2d 711, 511 N.Y.S.2d 123;  cf., Cox v. Kingsboro Med. Group, 88 N.Y.2d 904, 646 N.Y.S.2d 659, 669 N.E.2d 817;  Ganess v. City of New York, 85 N.Y.2d 733, 628 N.Y.S.2d 242, 651 N.E.2d 1261;  Nykorchuck v. Henriques, 78 N.Y.2d 255, 573 N.Y.S.2d 434, 577 N.E.2d 1026).   Accordingly, I would submit to a jury the issue of whether the continuous treatment doctrine should be applied to this case (see, e.g., Yelin v. American Dental Ctr., supra).

MEMORANDUM BY THE COURT.

ROSENBLATT, J.P., and THOMPSON and SULLIVAN, JJ., concur.

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