PETITO v. ROBERTS

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Rocco PETITO, et al., appellants, v. Stephen ROBERTS, etc., et al., respondent, et al., defendant.

Decided: January 22, 2014

PETER B. SKELOS, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and SANDRA L. SGROI, JJ. Mark M. Basichas & Associates, P.C. (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac and Jillian Rosen], of counsel), for appellants. Vaslas Lepowsky Hauss & Danke, LLP (Kaufman Borgeest & Ryan LLP, Valhalla, N.Y. [Adonaid C. Medina and Edward J. Guardaro, Jr.], of counsel), for respondent.

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Maltese, J.), dated January 26, 2012, as granted that branch of the motion of the defendant Stephen Roberts which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly granted that branch of the motion of the defendant Stephen Roberts which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him. An action alleging medical malpractice “must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure” (CPLR 214–a).

Here, in support of his motion, Roberts established that the last time he treated the injured plaintiff was on May 17, 2005, when he referred the injured plaintiff to a urologist. The statute of limitations therefore expired on November 17, 2007, and this action was untimely commenced on March 14, 2008. The burden then shifted to the plaintiffs to raise an issue of fact as to whether this action was timely commenced (see Massie v. Crawford, 78 N.Y.2d 516, 519; Matteawan on Main, Inc. v. City of Beacon, 109 AD3d 590; Rakusin v. Miano, 84 AD3d 1051).

The plaintiffs failed to raise an issue of fact as to whether the continuous treatment doctrine applies to toll the statute of limitations. The purpose of the continuous treatment doctrine is to ameliorate the harshness of a rule which ties accrual of a malpractice action to the date of the offending act, creating a dilemma for the patient, who must choose between silently accepting continued corrective treatment from the offending physician, with the risk that his claim will be time-barred, or promptly instituting an action, with the risk that the physician-patient relationship will be destroyed (see Rizk v. Cohen, 73 N.Y.2d 98, 104). Thus, the continuous treatment doctrine applies when further treatment is explicitly anticipated by both physician and patient, as manifested in the form of a regularly scheduled appointment for the near future, agreed upon during that last visit, which is for the purpose of administering ongoing corrective efforts for the same or a related condition (see Richardson v. Orentreich, 64 N.Y.2d 896, 898–899; Schrank v. Lederman, 52 AD3d 494). “Included within the scope of ‘continuous treatment’ is a timely return visit instigated by the patient to complain about and seek treatment for a matter related to the initial treatment” (McDermott v. Torre, 56 N.Y.2d 399, 406).

Here, the plaintiffs have not shown that the injured plaintiff continued to seek, and in fact obtained, an actual course of treatment from Roberts during the relevant period (see Gomez v. Katz, 61 AD3d 108, 111–112). There was simply no further plan for care or treatment once Roberts referred the injured plaintiff to a urologist on May 17, 2005. The failure to establish a course of treatment cannot itself constitute a “course of treatment” for the purpose of tolling the statute of limitations (see Nykorchuck v. Henriques, 78 N.Y.2d 255, 259–260; see also Williamson v. PricewaterhouseCoopers LLP, 9 NY3d 1, 8–9; Young v. New York City Health & Hosps. Corp., 91 N.Y.2d 291, 296–297). The Supreme Court therefore properly granted that branch of Roberts's motion which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against him as time-barred.

The parties' remaining contentions either are without merit or need not be reached in light of our determination.

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