The issue here is whether defendant William Contini or defendant Associates in Medicine, P. C. (hereinafter AIM) rendered continuous treatment to plaintiff by renewing plaintiff's prescription for prednisone by telephone and, thus, tolling the Statute of Limitations. Under the doctrine of continuous treatment, 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 (see, McDermott v Torre, 56 N.Y.2d 399, 405; Borgia v City of New York, 12 N.Y.2d 151, 155).
The operative circumstances herein are as follows. Contini is an internist and AIM is a professional corporation of which he is a shareholder. Plaintiff consulted Contini because of a chronic skin condition for which Contini prescribed prednisone, a steroid medication. Plaintiff's complaint alleges that Contini negligently prescribed prednisone for plaintiff during a seven-year period without properly monitoring either the dosage or his condition. It is alleged that a well-recognized danger of prednisone use is the development of open-angle glaucoma, a disease affecting vision, and that Contini failed to advise plaintiff, either orally or in writing, of the risks and dangers of the use of prednisone, which has caused glaucoma in plaintiff leading to blindness.
The examination before trial of Contini submitted on the motion indicates that after diagnosing plaintiff's skin rash and asthma on January 16, 1980, Contini saw plaintiff on October 15, 1982 and commenced treating him with prednisone. Plaintiff
Plaintiff sued defendants within 18 months of the last prescription issued for him. Supreme Court, inter alia, granted defendants' cross motion and dismissed the complaint as time barred. The court, citing McDermott v Torre (56 N.Y.2d 399, supra), rejected plaintiff's contention that defendants' action of prescribing medication over the telephone constitutes treatment. This appeal by plaintiff ensued.
In McDermott v Torre (supra, at 405), it was noted that "[t]he 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'" (quoting 1 Weinstein-Korn-Miller, NY Civ Prac ¶ 214-a.03). A fair reading of Contini's examination before trial indicates that he considered himself plaintiff's physician throughout the entire period when the prescriptions were being issued and though he had indicated to plaintiff that he ought to be seen at least once a year, Contini failed to insist on a personal visit and elected to treat him with medication, sight unseen.
The practice of the profession of medicine includes prescribing for any disease or physical condition (Education Law § 6521). It cannot be determined on the record, as a matter of law, that plaintiff's relationship with Contini had ceased. Unlike the situation in Cooper v Kaplan (78 N.Y.2d 1103), plaintiff in this case had a continuing relationship with defendants so that treatment occurred on each date a prescription was received. Defendants failed to raise any factual issue as to
Ordered that the order and judgment is modified, on the law, with costs to plaintiff, by reversing so much thereof as granted defendants' cross motion to dismiss the complaint; cross motion denied; and, as so modified, affirmed.