Continuous Treatment Doctrine, No Further Care, and Limitations

A patient’s doctor referred him to an urologist. The man did not return to the doctor to complain about or seek treatment for the same condition. Subsequently, the man was diagnosed with colon cancer.


Two years and ten months after the doctor referred him to the urologist, the man sued his doctor for failure to timely diagnose his colon cancer. The doctor moved to dismiss the complaint because it was filed beyond the two year and six month statute of limitations for medical malpractice. The patient argued that the continuous treatment doctrine applied to toll the limitations period. The Richmond County Supreme Court granted the physician's motion to dismiss the complaint.


The Second Department of New York’s Supreme Court, Appellate Division, affirmed holding that the patient's action was not timely filed and the continuous treatment doctrine did not apply to toll the limitations period. New York’s statute of limitations for medical malpractice claims states that they 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 act, omission or failure. The doctor established that the last time he treated the man was when he referred the injured plaintiff to an urologist. The cause of action accrued, and the two year and six months limitations period began to run, on last date the physician treated the patient. The statute of limitations therefore expired about four months before this action was commenced. The burden then shifted to the man to raise an issue of fact as to whether this action was timely commenced.


The court held that the continuous treatment doctrine did not apply to toll the limitations period. The continuous treatment doctrine applies to toll the limitations period in a medical malpractice action when further treatment is explicitly anticipated by both the physician and the 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. 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. Continuous treatment doctrine did not apply to this case, absent showing that the man continued to seek, and in fact obtained, an actual course of treatment from the doctor during the relevant period. There was simply no further plan for care or treatment once the doctor referred the man to an urologist. The failure to establish a course of treatment cannot itself constitute a course of treatment for the purpose of tolling the statute of limitations


The New York appellate court affirmed the trial court’s grant of the physician’s motion to dismiss.


See: Petito v. Roberts, 2014 WL 228596, 2014 N.Y. Slip Op. 00334 (N.Y.A.D. 2 Dept., January 22, 2014) (not designated for publication).


See also Medical Law Perspectives, October 2012 Report: Mistakes in Diagnosing Cancer: Liability Concerns for Misdiagnosis, Failure to Diagnose, and Delayed Diagnosis