Plaintiffs instituted this malpractice action in November 1988 claiming, inter alia, that defendant Thomas F. Minehan erroneously diagnosed plaintiff Elbert Patterson (hereinafter plaintiff) as having cancer of the pancreas and that, as a result, plaintiff underwent unnecessary radiation therapy, surgery, X rays and laboratory tests. Supreme Court denied the motion of Minehan and defendant Adirondack Surgical Group (hereinafter collectively referred to as defendants) for summary judgment dismissing the complaint on the ground that the Statute of Limitations had expired and found questions of fact as to whether the treatment that Minehan provided was continuous and related to plaintiff's original condition. Defendants contend on this appeal that this determination was error because, upon plaintiff's discharge from the hospital in April 1985, no future plan of treatment was formed and Minehan's subsequent treatment of plaintiff for discrete illnesses was insufficient to toll the Statute of Limitations.
An action for medical malpractice must be commenced within 2½ years of the date of accrual (CPLR 214-a). A claim generally accrues on the date of the alleged wrongful act or omission (Nykorchuck v Henriques, 78 N.Y.2d 255, 258). Under the doctrine of continuous treatment, however, the statute is tolled until after a plaintiff's last treatment "`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'" (McDermott v Torre, 56 N.Y.2d 399, 405, quoting Borgia v City of New York, 12 N.Y.2d 151, 155). The doctrine is designed to "maintain the physician-patient relationship in the belief that the most efficacious medical care will be obtained when the attending physician remains on a case from onset to cure" (McDermott v Torre, supra, at 408) and, therefore, a patient need not "`choose between silently accepting continued corrective treatment * * * with the risk that his claim will be time-barred or promptly instituting an action, with the risk that the physician-patient relationship will be destroyed'" (Ross v Community Gen. Hosp., 150 A.D.2d 838, 840, quoting Rizk v Cohen, 73 N.Y.2d 98, 104).
Thus, the Court of Appeals has emphasized that a patient is not entitled to the benefit of the toll unless there has been a
The pertinent circumstances in the instant case are as follows. On April 1, 1985, Minehan diagnosed a mass at the head of plaintiff's pancreas as a carcinoma and then performed a pancreatoduodenal resection, a gastric and biliary bypass procedure and a vagotomy. Plaintiff was discharged from the hospital on April 23, 1985, but thereafter developed a pseudocyst that necessitated further surgery and hospitalization until June 2, 1985. Plaintiff had several appointments with Minehan between June 2, 1985 and April 13, 1988. Defendants' records indicate that plaintiff was being seen in "follow-up", and numerous laboratory tests and X rays, including blood tests and a liver scan, were ordered. In addition, Minehan arranged a consultation with an oncologist from Albany Medical Center to discuss further treatment of plaintiff in order to prevent a recurrence of the tumor. Plaintiff thereafter participated in a program of radiation therapy at Albany Area Radiation Therapy Center from June 25, 1985 until August 1, 1985. Subsequently, plaintiff was hospitalized from September 4, 1985 to September 15, 1985 for the treatment of thrombophlebitis which Minehan testified could be related to the tumor of the pancreas. Because Minehan suspected that the cancer which he had diagnosed as being in the pancreas had spread and that lung surgery was required, plaintiff was again hospitalized from April 22, 1986 to April 28, 1986. Surgery performed by Minehan's associate revealed that the lung lesion was benign. Additional tests performed in January 1987 and February 1987 showed that plaintiff's bilirubin and alkaline phosphatase were elevated, causing Minehan to believe that plaintiff's bile duct was obstructed, possibly by a recurrence of the tumor. As a result, Minehan recommended that plaintiff be evaluated by an oncologist and possibly undergo further diagnostic surgery.
Contrary to defendants' contention, Supreme Court properly
Ordered that the order is affirmed, with costs.