In an action for medical malpractice arising from a negligent act occurring before July 1, 1975 and where there has been continuous treatment extending beyond that date, the three-year Statute of Limitations applies rather than the shorter period of CPLR 214-a. The continuing treatment by the physician, however, cannot be imputed to an independent laboratory in the absence of an agency or other relevant relationship between the laboratory and doctor or some relevant continuing relation between the laboratory and the patient.
On May 10, 1974, plaintiff consulted defendant Torre, a dermatologist, and requested that he examine a dark mole on her left ankle. Torre excised the mole and submitted a
Plaintiff saw Torre at least eight more times between May 10, 1974 and September 13, 1976.
In May, 1977, plaintiff consulted defendant Ju, a plastic surgeon. He assured her that her ankle was healed and free of disease.
Later developments proved the earlier diagnosis to be wrong. In May, 1978, plaintiff discovered a lump in her groin. She immediately consulted a surgeon, who discovered a malignant melanoma after an operation on May 18. Further surgery in June, 1978 included removing another malignant melanoma from the site where Torre had excised the mole some four years earlier. Plaintiff was required to undergo further, radical surgery and extensive physical therapy. She has a severe limp and other permanent, debilitating injuries.
Plaintiff commenced this suit for medical malpractice in 1979. Torre was served on July 5; Laboratories on August 17. Laboratories successfully moved to dismiss the complaint on the ground that the action was time-barred by
The Appellate Division unanimously reversed (82 A.D.2d 152). That court held that the continuous treatment doctrine could not be determined on the record as a matter of law and that the three-year Statute of Limitations was applicable. It also ruled that Torre's continuous treatment could be imputed to Laboratories. Defendants were granted leave to appeal by the Appellate Division on a certified question. The order of the Appellate Division should be modified by dismissing the action as to Laboratories.
Initially, attention must be directed to whether the continuous treatment doctrine is applicable in the present case. Under that rule, the time in which to bring a malpractice action is stayed "when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint" (Borgia v City of New York, 12 N.Y.2d 151, 155). The concern, of course, is whether there has been continuous treatment, and not merely a continuing relation between physician and patient.
As a starting point, continuous treatment does not contemplate circumstances where a patient initiates return visits merely to have his or her condition checked (see id.). The Statute of Limitations may begin to run "once a hospital or physician considers the patient's treatment to be completed and does not request the patient to return for further examination" (1 Weinstein-Korn-Miller, NY Civ Prac, par 214-a.03, p 2-321; cf. Davis v City of New York, 38 N.Y.2d 257).
Contrary to plaintiff's position, the continuing nature of a diagnosis does not itself amount to continuous treatment. Fonda v Paulsen (46 A.D.2d 540), upon which plaintiff relies, does not stand for that proposition. There, a pathologist's misdiagnosis of a biopsy resulted in the patient's not receiving treatment, notwithstanding the patient's repeated complaints of pain. Critical in Fonda was that the patient had returned to the doctor, albeit because of another injury, seeking treatment for tenderness at the spot where the biopsy excision had been made, and did so in a timely manner.
Properly read, Fonda does support plaintiff's claim of continuous treatment. As in Fonda, plaintiff returned to her doctor for other reasons, but she allegedly requested him also to examine her ankle because of continuing pain. Issues of fact exist on this record as to whether plaintiff's concern about her ankle was one of the purposes for her subsequent visits. Thus, it cannot be determined at this stage that plaintiff's relation with Torre did or did not amount to continuous treatment. The existence of these factual questions preclude granting summary judgment at this juncture (see Ugarriza v Schmieder, 46 N.Y.2d 471).
Assuming that continuous treatment did occur in the present case, the appropriate Statute of Limitations must be determined. The initial misdiagnosis occurred in May, 1974, at which time the period for bringing a medical malpractice action was three years (see CPLR 214, subd 6). Effective July 1, 1975, while plaintiff's treatment was continuing, the period was reduced to two and one-half years (see CPLR 214-a, added L 1975, ch 109, § 6). If section 214-a governs, then plaintiff's action is time-barred,
Resolution of this question depends on whether the continuous treatment doctrine delays the action's accrual or only tolls the running of the Statute of Limitations. If the former, then plaintiff's action is barred. Although the cases speak of the doctrine in terms of when the action "accrues" (see, e.g., Greene v Greene, 56 N.Y.2d 86, 93-95; Davis v City of New York, 38 N.Y.2d 257, 259, supra; Borgia v City of New York, 12 N.Y.2d 151, 155, supra), that term in this context is not strictly accurate. Section 214-a speaks to computing the limitation period in terms of "the act, omission or failure complained of", not of the entire course of treatment. And, there is a certain illogic in stating that no action is ripe — i.e., it does not "accrue" — until after treatment ends. Continuous treatment has nothing to do with the initial act of negligence. While such treatment itself may be negligent, that would give rise to a different cause of action and would not actually affect the original "act, omission, or failure complained of". Rather than define the action's accrual in terms of the doctrine, it is defined in terms of when the original negligent act occurred. Continuous treatment serves simply as a toll — the action may be brought at any time, but the patient will not be compelled to initiate judicial proceedings so long as the physician continues to treat the injury (see Borgia v City of New York, supra).
The action having accrued in 1974, the three-year Statute of Limitations then in effect attached. Torre's continuing treatment of plaintiff, if any, served to toll the running of the statute, but not to truncate it by imposing the lesser time limit of section 214-a. Thus, whenever treatment of plaintiff is found to have ended, a three-year time period for bringing suit should be imposed.
Finally, it must be determined whether the continuous treatment doctrine can be applied to Laboratories. In essence, this would require imputing Torre's continuing treatment, if any, to Laboratories, which performed a single, discrete act in May, 1974. Under the circumstances of this case, there is no justification for imputing the continuous treatment.
These considerations do not apply to an independent laboratory. In this context, the inquiry necessarily must be directed to the nature of a laboratory's relationship to the patient (see McQuinn v St. Lawrence County Lab., 28 A.D.2d 1035, 1036, mot for lv to app den 21 N.Y.2d 644). Generally, a laboratory neither has a continuing or other relevant relationship with the patient nor, as an independent contractor, does it act as an agent for the doctor or otherwise act in relevant association with the physician. A laboratory does not have the opportunity to discover an error in a report. Instead, it must rely on the treating physician to discover any diagnostic mistake. Therefore, the policy underlying the continuous treatment doctrine generally will not apply to the independent laboratory.
Here, the record is devoid of any evidence introduced by plaintiff to justify departing from this general rule. Nothing in the record shows that Laboratories was other than an independent contractor with no continuing relation to plaintiff or that there was any agency relation with Torre. Its misdiagnosis occurred in May, 1974. Under the Statute of Limitations then in effect, suit must have been commenced by May, 1977. Plaintiff did not serve Laboratories until August, 1979. Having been brought too late, her action against Laboratories should be dismissed.
Accordingly, the order of the Appellate Division should be modified, with costs to the corporate defendants against plaintiff and to plaintiff against defendant Torre, in accordance with this opinion and, as so modified, affirmed. The question certified should be answered in the negative.
While I agree that the action against the defendant Laboratories should be dismissed and that the plaintiff's action is governed by the
According to plaintiff's affidavit in opposition to the defendants' motion to dismiss the complaint, plaintiff had been under the care of defendant Torre, a dermatologist, for a variety of skin disorders. On May 10, 1974, Torre removed a dark mole from plaintiff's ankle. One week later, plaintiff was advised by Torre that a pathology report based on a specimen from the mole "was negative, and, therefore nothing further had to be done." (Emphasis supplied.)
Over the next two years, plaintiff consulted with Torre on at least eight occasions, the last visit apparently being on September 13, 1976. Although these visits were in connection with other ailments, plaintiff complained to Torre about a grayish color and inflammation in the area where the mole had been removed. On each occasion, Torre, after re-examining the ankle, assured plaintiff that there was no reason to worry.
In May of 1978, plaintiff discovered a lump in her groin that was later determined to be a malignant melanoma. In June of 1978, plaintiff underwent further surgery to remove another malignancy from the area where Torre had removed the mole four years earlier. As a result of yet another operation, plaintiff has been left with a variety of permanent injuries, including a severe limp.
The gist of plaintiff's action is that defendant Torre misdiagnosed her condition and was negligent in removing the mole from her ankle. Defendant Torre was served with the summons and complaint on July 5, 1979. Because the action was commenced more than five years after the initial misdiagnosis and negligent removal of the mole, plaintiff has invoked the "continuous treatment" doctrine so as to toll the running of the applicable three-year
A majority of this court has concluded that questions of fact exist concerning the applicability of the "continuous treatment" doctrine to this case. In support of this conclusion, the majority states, without citation of authority, that a "complete discharge" of a patient by a physician does not preclude a finding of "continuous treatment" in situations where the discharged patient, without being requested by the physician to do so, makes "a timely return visit * * * to complain about and seek treatment for a matter related to the initial treatment." (At p 406.) I cannot agree.
The general rule is that an action for malpractice accrues and the Statute of Limitations begins to run on the date of the alleged act of malpractice. In Borgia v City of New York (12 N.Y.2d 151, supra), this court recognized an exception to this rule in instances where "the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint." (12 NY2d, supra, at p 155 [emphasis supplied].) In Borgia, however, the court readily acknowledged that the "continuous treatment" doctrine had its limitations. Indeed, "continuous treatment" was carefully defined to mean "treatment for the same or related illness or injuries, continuing after the alleged acts of malpractice, not mere continuity of a general physician-patient relationship." (12 NY2d, supra, at p 157 [emphasis supplied].) Thus, to invoke the doctrine successfully so as to avoid the otherwise applicable Statute of Limitations, a plaintiff must demonstrate: (1) that "treatment" subsequent to the malpractice was, in fact, rendered; and (2) that there was no disruption in the course of treatment from when the malpractice originally occurred.
The continuity aspect of the doctrine was clarified and, in a sense, amplified in Davis v City of New York (38 N.Y.2d 257). In Davis, the decedent was examined by a city cancer detection center in connection with a lump on her breast on February 26, 1968. Decedent was advised at that time "that there was nothing to be concerned about and to return in two years." (38 NY2d, supra, at p 259.) A year later, in February of 1969, decedent returned to the center
In the present case, it can be assumed that the periodic re-examinations of plaintiff's ankle undertaken by defendant Torre at plaintiff's behest in the two years following the alleged malpractice constituted "treatment".
In view of our decision in Davis, the majority's reliance on Fonda v Paulsen (46 A.D.2d 540) for purposes of determining whether there has been continuity in treatment is misplaced. Fonda was decided prior to Davis, and the Fonda court itself acknowledged that "[t]here is no New York case which supplies an adequate definition of the term `continuous' as it applies to treatment in a malpractice case". (46 AD2d, supra, at p 543.) That jurisprudential gap having since been filled by our decision in Davis, Fonda, to the extent that it is to the contrary, is not an accurate statement of the law in this area.
In my view, whether treatment has been "continuous" for purposes of a medical malpractice action should not be determined from the perspective of a discharged patient's desire to have his physician conduct a re-examination concerning a matter for which treatment already has been completed. (See, e.g., Florio v Cook, 65 A.D.2d 548, affd 48 N.Y.2d 792.) Rather, whether there has been continuity in treatment should depend upon the medical services actually rendered. (See Davis v City of New York, supra.) Indeed, the policy underlying the "continuous treatment" doctrine is that it would be "absurd" to require a malpractice victim to interrupt ongoing, corrective treatment by commencing a lawsuit against the negligent physician. (Borgia v City of New York, 12 N.Y.2d 151, 156, supra.) That policy, however, is not advanced where, as here, the treatment is completed and the patient is specifically informed that "nothing further had to be done." Once treatment has ended and the patient has been discharged, later complaints about the same ailment should not serve to revive the expired course of treatment and thereby delay further the commencement of the statutorily prescribed limitations period. Statutes of repose such as CPLR 214 seek to finally put to rest stale claims. The view adopted by the majority today will only frustrate that purpose.
Order modified, etc.