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Letters Between Doctors Insufficient To Trigger Continuous Treatment Doctrine


A doctor performed a laparoscopic cholecystectomy (removal of the gallbladder) on a woman. The doctor continued to provide related postoperative care for approximately four months. Subsequently, the doctor referred the woman to another doctor. The doctors exchanged letters about the woman’s medical condition for approximately two months. About a year later the woman was hospitalized for a medical condition unrelated to the laparoscopic cholecystectomy. The doctor who performed the laparoscopic cholecystectomy was called for a consultation.

 

Three and a half years later, the woman sued the doctor who performed the laparoscopic cholecystectomy and the doctor to whom she was referred. The doctor who performed the laparoscopic cholecystectomy and his practice group filed a motion to dismiss on the ground that the woman’s claim was time-barred and a motion for summary judgment. The doctor to whom she was referred and his practice group filed a motion for summary judgment. The Nassau County Supreme Court denied the doctors and their practice groups’ motions.

 

The Appellate Division of the New York Supreme Court, Second Department, reversed. The court held that the suit was time-barred to the extent the claim was premised on acts or omissions occurring prior to two and a half years before the commencement of the lawsuit, and the doctors and their practice groups established their prima facie entitlement to judgment as a matter of law.

 

The suit was time-barred to the extent the claim was premised on acts or omissions occurring prior to two and a half years before the commencement of the lawsuit. A mere continuous relationship does not qualify as continuous treatment. The court held that the continuous treatment doctrine acts to toll the two and one half year statute of limitations governing medical malpractice actions when there has been a course of treatment established with respect to the condition that gives rise to the lawsuit. The court found that letters exchanged between the doctors were insufficient to raise a triable issue of fact as to whether the woman continued to seek an actual course of treatment from the doctor who performed the laparoscopic cholecystectomy, let alone subject herself to such a course of treatment by affirmative and ongoing conduct such as surgery, therapy, or the prescription of medications. The court noted that a mere continuing relationship between the physician and patient does not qualify as a course of treatment for purposes of the statutory toll. The court found that the medical condition giving rise to the woman’s proffered reason for submitting to the laparoscopic cholecystectomy was different from the condition that gave rise to the reason given for calling in the doctor who performed the laparoscopic cholecystectomy for a consultation when she was hospitalized. The court held that the woman failed to raise a triable issue of fact as to whether the continuous treatment doctrine tolled the limitations period. The court concluded that the suit was time-barred to the extent the woman’s medical malpractice cause of action against the doctor who performed the laparoscopic cholecystectomy was premised on acts or omissions occurring prior to two and one half years before the commencement of the lawsuit.

 

The doctors and their practice groups established their prima facie entitlement to judgment as a matter of law. The doctor who performed the laparoscopic cholecystectomy and his practice group submitted an expert affirmation demonstrating that they did not depart from good and accepted medical practice in their treatment of the woman, and their treatment of the woman was not a proximate cause of her injuries. The doctor to whom the woman was referred and his practice group submitted an expert affirmation of a physician specializing in internal medicine and gastroenterology, which demonstrated that they did not depart from good and accepted medical practice in their treatment of the woman, and their treatment of the woman was not a proximate cause of her injuries. In response, the woman submitted the redacted affirmation of an expert surgeon and critical care specialist. The court found that the affirmation was conclusory, speculative, and without evidentiary support in the record. The court concluded that the affirmation was insufficient to raise a triable issue of fact.

 

The Appellate Division of the New York Supreme Court, Second Department, reversed the trial court’s denial of the doctors and their practice groups’ motions for summary judgment.

 

See: Raucci v. Shinbrot, 2015 WL 1541973, 2015 N.Y. Slip Op. 02952 (N.Y.A.D. 2 Dept., April 08, 2015) (not designated for publication). 

 

 

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