A man suffered from bladder tumors. Over the course of 17 years between his diagnosis and his death, the man was treated by a doctor. When the man experienced hematuria, he would return for treatment. He did not seek treatment for one 28-month period and one 22-month period during the 17 years when he did not experience hematuria.
The man’s estate sued the doctor for medical malpractice and lack of informed consent. The doctor filed a motion to dismiss arguing the statute of limitations barred all claims based on the alleged acts of medical malpractice and lack of informed consent committed over two and a half years prior to the filing of the suit. The Supreme Court of Kings County denied the doctor's motion to dismiss.
The New York Supreme Court, Appellate Division, Second Department, reversed holding that the statute of limitations for claims of medical malpractice and lack of informed consent was not tolled by the continuous treatment doctrine. The court reasoned that the two gaps in the man's 17-year treatment, because the decedent did not continue to seek a course of treatment, severed any continuity in treatment. The court concluded that the lower court should have granted the defendant's motion to dismiss, as time-barred, so much of the complaint as was based upon alleged acts of medical malpractice and lack of informed consent committed prior to the start of the limitations period.
See: Peykarian v. Yin Chu Chien, 2013 WL 4824854, 2013 N.Y. Slip Op. 05809 (N.Y.A.D. 2 Dept., September 11, 2013)(not designated for publication).