EMAIL TO A COLLEAGUE COMMENT

 

Unsuccessful Shoulder Surgeries; Continuous Treatment Doctrine


A woman was treated for chronic shoulder problems. The woman underwent shoulder surgery and had five post-operative visits with the orthopedic surgeon over the subsequent year.

 

After a scheduled one-year post-surgery appointment, the woman did not see the orthopedic surgeon until 19 months later, when the woman returned after experiencing increased pain in the shoulder. The orthopedic surgeon recommended injections and a second surgery. The orthopedic surgeon performed the second surgery on the woman’s shoulder three years after the first surgery. The woman returned to the orthopedic surgeon for a post-operative visit three months later.

 

The woman did not see the orthopedic surgeon again for 17 months. The woman returned after the shoulder pain became aggravated.

 

The woman returned to see the orthopedic surgeon after a gap in treatment of more than 30 months due to continued pain in the same shoulder. The orthopedic surgeon ordered x-rays and referred the woman to the orthopedic surgeon’s partner for a third surgery because he was no longer performing shoulder surgeries. The woman consulted the partner, but ultimately began seeing a new orthopedic surgeon.

 

The woman brought a medical malpractice claim against the orthopedic surgeon two years and five months after the woman’s final appointment with the original orthopedic surgeon. The complaint alleged that the orthopedic surgeon negligently performed the original surgery and subsequently failed to diagnose the flawed surgery, leading to continued problems with the shoulder and a second surgery.

 

The orthopedic surgeon moved for summary judgment dismissing the suit to the extent it alleged malpractice based on conduct more than two and a half years prior to the date the lawsuit was filed. The Erie County Supreme Court denied the orthopedic surgeon’s motion for summary judgment.

 

The Appellate Division of the New York Supreme Court, Fourth Department, affirmed. The appellate court held that a fact issue precluded summary judgment on the issue of whether the continuous treatment doctrine tolled the two-and-a-half-year statute of limitations.

 

The Court of Appeals of New York affirmed. The court held that there were triable issues of fact concerning whether the continuous treatment doctrine tolled the statute of limitations on the woman’s claims.

 

There were triable issues of fact concerning whether the continuous treatment doctrine tolled the statute of limitations on the woman’s claims. The woman raised a genuine issue of material fact as to whether the woman and the orthopedic surgeon intended a continuous course of treatment. The court found the fact that the orthopedic surgeon repeatedly told the woman to return “as needed” was not dispositive regarding whether the orthopedic surgeon and woman anticipated further treatment. The court noted that the woman’s shoulder pain was a chronic, long-term condition, which both the orthopedic surgeon and woman understood to require continued care. The court noted that the woman saw the orthopedic surgeon over the initial course of four years, underwent two surgeries the orthopedic surgeon performed, and saw no other doctor for the shoulder during those four years. As to the 30–month period between visits, the court held that a gap in treatment longer than the statute of limitations was not per se dispositive of a claim that the statute of limitations had run. The court found that the woman’s testimony regarding feeling discouraged with the orthopedic surgeon’s treatment showed that the woman considered the orthopedic surgeon to be the woman’s only doctor during the 30-month gap in treatment. Each of the woman’s visits to the orthopedic surgeon over the total course of seven years were for the same condition, continuing after the alleged acts of malpractice. The court held that the record raised triable issue of fact concerning whether the continuous treatment doctrine applied.

 

The Court of Appeals of New York affirmed the trial court’s denial of summary judgment in favor of the surgeon.

 

See: Lohnas v. Luzi, 2018 WL 889531 (N.Y., February 15, 2018) (not designated for publication).

 

See also Medical Law Perspectives Report: Arthritis Pain and Inflammation: Diagnosis and Treatment Risks

 

See also Medical Law Perspectives Report: New Hips, New Knees, New Problems: Hip and Knee Replacements

 

 

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