FERRIS D. LEBOUS, J.
This is a medical malpractice action. Defendants Bassett Health Care and Prime Care, a Division of Bassett Health Care (hereinafter collectively "defendant") move for summary judgment dismissing the complaint on the ground that this action is time barred by the statute of limitations because more than two years and six months elapsed between the originally alleged malpractice on June 9, 2003 and the date this suit was commenced on March 20, 2007.
Plaintiffs Kathryn Simons and Donald Simons oppose the motion contending the action is timely based upon the application of the continuous medical treatment doctrine. Plaintiffs also move to strike defendant's first (culpable conduct), second (statute of limitations), and third (jurisdiction) affirmative defenses and for partial summary judgment on the issue of liability. During oral argument, defendant withdrew its first (culpable conduct) and third (jurisdiction) affirmative defenses. However, defendant opposes plaintiffs' motion to the extent it seeks dismissal of the second (statute of limitations) affirmative defense and partial summary judgment on the issue of liability.
The court heard oral argument from counsel on both motions on May 1, 2009.
On June 9, 2003, due to an unresolved foot fracture, plaintiff
(Def Exhibit N, pp 107-108; emphasis added).
It is undisputed that plaintiff was never told of these results or the radiologist's recommendation for a follow-up CT scan. In fact, the parties entered into a stipulation memorializing these events which states, in its entirety, as follows:
(Plaintiff's Ex D [hereinafter "Stipulation"]).
As a result of the foregoing, plaintiff never had a follow-up CT scan and the mass in her brain, which turned out to be a meningioma, went unchecked for eighteen (18) months.
It was not until November 17, 2004 when, due to the continuing and worsening nature of plaintiff's symptoms, that CT scans of plaintiff's sinuses and orbit were conducted revealing a mass in the apex of the right orbit. On November 27, 2004, plaintiff underwent MRIs of her brain, orbits, face and neck the findings of which suggested meningioma. On December 13, 2004, plaintiff underwent a craniotomy at Albany Medical Center with a post-operative diagnosis of a greater sphenoid wing meningioma.
PLAINTIFF'S MEDICAL HISTORY
Plaintiff's vast medical records preclude a verbatim recitation of each visit to and/or treatment by various medical providers at defendant's facility. However, the court will attempt to summarize the relevant portions of plaintiff's medical history at Bassett in chronological sequence.
Plaintiff began receiving treatment with defendant prior to the June 9, 2003 bone and skull series. From December 2001 through 2003, plaintiff was seen for a variety of complaints, but primarily migraine headaches, irregular menses, ear pain and pressure, and visual problems including right eyelid swelling and floaters in her right eye. During this time, plaintiff was prescribed medication for migraines which medication was monitored and adjusted as necessary.
On August 13, 2002 plaintiff was examined by Patricia A. Lewis, M.S.N., F.N.P, a nurse practitioner employed by defendant, for the first of what would be numerous office visits and examinations over the ensuing two plus years. Ms. Lewis' office notes from this initial visit make note of plaintiff's complaints of migraines, ear pain/pressure, and floaters in her eyes. Plaintiff's medication for migraines continued to be monitored and adjusted as necessary. Ms. Lewis also referred plaintiff for an x-ray of her left foot for what was described as an obvious fracture of the fifth metacarpal. Plaintiff was told to follow-up in 2-3 weeks (Def Ex N, p 32).
On October 1, 2002, plaintiff was examined by Paul M. Deringer, a neurologist employed by defendant, who noted, among other things, "[m]igraines are signaled by spots and lights in either the right or both eyes. The pain tends to be in the right occipital region. It is sharp, throbbing" (Def Ex N, p 51). Dr. Deringer recommended a trial of magnesium citrate, as well as over-the-counter medication to combat her ongoing migraines. Plaintiff was instructed to follow-up with Dr. Deringer in one month (Def Ex N, p 52).
On February 3, 2003, plaintiff saw Ms. Lewis for, among other things, complaints of right-sided circulation problems and a floater in her right eye which was impacting her vision (Def Ex N, p 80). Ms. Lewis instructed plaintiff to follow-up with her in 2-3 weeks (Def Ex N, p 81).
On June 3, 2003, Dr. LaBudde, an orthopedic surgeon employed by defendant, noted that plaintiff's fracture of her fifth metatarsal was slow to heal and ordered a bone scan (Def Ex N, p 105).
The bone scan and skull series were performed on June 9, 2003 as detailed above (Def Ex N, pp 107-108).
On June 16, 2003, plaintiff saw Samuel G. Hoskins, a physician's assistant employed by defendant. Mr. Hoskins' office notes state that "the bone scan is reviewed", but there are no notations or any reference whatsoever to the possible meningioma or recommendation for a follow-up CT scan (Def Ex N, p 110).
On August 21, 2003, plaintiff saw Ms. Lewis with a primary complaint of a recent bee sting. However, Ms. Lewis' office notes also make reference to plaintiff's continuing complaints of migraine headaches and irregular menses. Ms. Lewis directed laboratory tests for further evaluation of plaintiff's dizziness and instructed plaintiff to return for a follow-up visit in one week (Def Ex N, pp 148-149).
On August 29, 2003, plaintiff again saw Ms. Lewis with complaints of dizziness, lightheadedness, as well as a sensation that her "right eye is bulging" (Def Ex N, p 154). Ms. Lewis' office notes also state that plaintiff "[i]s also very concerned about the fact that she may have stomach cancer" and "[i]s concerned about the fact that she does not ever feel well" (Id.).
Ms. Lewis instructed plaintiff to return for a follow-up in one month, sooner if necessary (Def Ex N, p 155).
On September 29, 2003, plaintiff was seen by Ms. Lewis "[f]or ongoing management of multiple concerns including chronic foot pain following a fracture in August of 2002, obesity, recent complaints of dizziness and lightheadedness..." (Def Ex N, p 159). Ms. Lewis' office notes state, among other things, that plaintiff "[i]s convinced that she has a cancer of some sort as there is a strong family history of cancer. Last month, she was convinced she had diabetes" (Id.). Ms. Lewis' assessment states, in part,"[d]izziness, lightheadedness, and blurred vision episodes; normal metabolic evaluation. Possibly related to her anxiety disorder". Ms. Lewis notes that plaintiff was "[r]eassured that at this point there does not seem to be a metabolic reason for her dizziness, lightheadedness, and visual changes..." (Def Ex N, p 160). Ms. Lewis made adjustments to plaintiff's medications to help with the dizziness and instructed plaintiff to return in one month (Def Ex N, p 160).
On March 18, 2004, Ms. Lewis' office notes indicate that plaintiff complained, among other things, of "[v]isual changes in the right eye, like `a flash going off in my eye with that residual dot after the flash.' She has had eye exams recently and no pathology has been identified. These are likely related to her migraines" (Def Ex N, p 198). Ms. Lewis made further adjustments to the migraine medication and told plaintiff to return for a visit on April 9, 2004 (Def Ex N, p 199).
On April 9, 2004, plaintiff was examined by Ms. Lewis and complained of profound depression. Plaintiff's medications were reviewed and noted and she was directed to return in two months (Def Ex N, p 204).
On June 16, 2004, plaintiff was examined by Ms. Lewis who advised plaintiff that she would be leaving Bassett and that plaintiff's care would be continued with John Dier, M.D. at Bassett.
On August 16, 2004 (before seeing Dr. Dier) plaintiff was examined by Peter J. Howard, Jr. at Bassett for complaints of pain on the right side of her face, ear, and behind her jaw. Plaintiff was treated for sinusitis with a Z-pak (Def Ex N, p 238).
On August 25, 2004, plaintiff was seen by Dr. Dier for continuing sinus infection and upper respiratory difficulties. Dr. Dier's office notes recite plaintiff's medications including her migraine medication (Def Ex N, p 241). Plaintiff was instructed to return in two months (Def Ex N, p 242).
On November 17, 2004, plaintiff saw Robert Dewell, M.D. at Bassett for continuing evaluation of sinusitis. Dr. Dewell's office notes recite plaintiff's history of migraine-type headaches and indicate that the sinusitis symptoms are associated with blurring of vision in the right eye and swelling of the right eyelid (Def Ex N, p 244). Dr. Dewell notes that plaintiff was scheduled for a CT scan of her sinuses and CT scan of her orbits the following day.
The CT scan was performed on November 17, 2004 showing an "ovoid mass in the apex of the right orbit adjacent to and possibly in the optic canal" (Def Ex N, p 245). Further evaluation of the mass was recommended via an MRI.
On November 18, 2004, plaintiff saw Charles Deichman, M.D., an opthalmologist at Bassett, who confirmed the orbital mass and referred plaintiff to the Lions Eye Institute in Albany.
In addition to this outside referral, plaintiff was seen again at Bassett on November 24, 2004 by Dr. Dier for increasing ptosis (drooping eyelid) on the right eye. Dr. Dier notes that a MRI had previously been recommended, but not yet completed. Plaintiff also was examined by Philip Marra, M.D., a neurologist at Bassett, who noted plaintiff's more than two year history of swelling around her right eye. Dr. Marra also recommended an MRI (Def Ex N, p 264).
On December 7, 2004, MRIs were performed at Bassett confirming the presence of "[a] complex mass extending from the right extraconal orbital space laterally through the optic foramen into the middle cranial fossa, causing displacement of the optic nerve and possible involvement of the right lateral rectus muscle" (Def Ex N, p 265).
On December 13, 2004, plaintiff underwent a craniotomy at Albany Medical Center performed by Alan Boulos, M.D. Dr. Boulos was not able to remove the entire tumor (Def Ex N, p 269). Plaintiff was seen at Albany Medical Center for periodic check-ups over the next year and six months.
Plaintiff, however, also returned to Bassett's emergency room for severe post-operative head pain on December 26, 2004 and was seen on multiple occasions at Bassett for pain management from December 26, 2004 through March 23, 2006. Plaintiff was also seen at Bassett on July 18, 2007 and September 14, 2007.
A medical malpractice action "[m]ust 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 said act, omission or failure" (CPLR § 214-a; see generally Young v New York City Health & Hosp. Corp., 91 N.Y.2d 291 ; McDermott v Torre, 56 N.Y.2d 399, 405 ). Generally, case law has established that the continuous treatment doctrine is not triggered by the mere continuation of a physician-patient relationship (McDermott, 56 NY2d at 405-6); the continuing nature of a diagnosis (Fonda v Paulsen, 46 A.D.2d 540 ); a patient who initiates a return visit to check a condition (McDermott, 56 NY2d at 405); purely diagnostic visits (Nykorchuck v Henriques, 78 N.Y.2d 255, 259 ); or routine examinations (Charalambakis v City of New York, 46 N.Y.2d 785, 787 ). The period of time between examinations may also be a factor, albeit not dispositive, for consideration as well (Massie v Crawford, 78 N.Y.2d 516, 519 ).
Here, the original act of malpractice occurred on June 9, 2003 when, among other things, defendant failed to inform plaintiff about the radiologist's recommendation for a follow-up CT scan. Thus, the two years and six months statute of limitations calculated from that date would have expired on December 9, 2005. This action was commenced on March 20, 2007. In view of the foregoing, the court finds that defendant has established its prima facie right to summary judgment by demonstrating that plaintiff commenced this action more than two years and six months after the June 2003 bone and skull scan (White v Murphy, 277 A.D.2d 852, 853 ).
Thus, the burden shifts to the plaintiff to establish that she received continuous treatment in order to avail herself of the tolling provision of CPLR § 214-a (Massie, 78 NY2d at 519). Plaintiff concedes that she did not receive treatment from defendant specifically for her meningioma from June 2003 to November 2004. However, plaintiff argues that defendant did continuously treat her during that time for complaints and symptoms such as migraines, lightheadedness and dizziness, and visual changes which are consistent with someone suffering from a space-occupying lesion of the brain or meningioma.
Defendant argues that plaintiff has failed to distinguish such complaints and symptoms from those complaints and symptoms consistent with transient conditions such as colds and sinus infections. Further, defendant argues that the case law is overwhelming that the failure to diagnose is not a course of treatment sufficient to invoke the continuous treatment doctrine.
The above arguments of both plaintiff and defendant were distilled during oral argument as the following legal question for this court's consideration, namely whether the continuous treatment of plaintiff's complaints and symptoms of migraines, lightheadedness and dizziness, and visual changes which are consistent with someone suffering from a meningioma is sufficient to invoke the application of the continuous treatment doctrine. This court believes it does under the unique factual circumstances presented on this record.
The court finds that this record demonstrates that plaintiff was consistently instructed to return for future visits at the completion of nearly every examination. By way of example, the court notes that on August 21, 2003 plaintiff was instructed to return for a follow-up examination in one week which she did; on August 29, 2003 plaintiff was instructed to return in one month for a follow-up examination which she did; and on September 20, 2003 plaintiff was instructed to return in one month for a follow-up examination which she did.
Even if some of plaintiff's visits during this time were related to transient conditions such as the bee sting, the record further establishes that even on these visits plaintiff raised the continuing pain and difficulties caused by her migraines, lightheadedness and dizziness, and visual changes. The court finds Ross v Community General Hosp. of Sullivan County, 150 A.D.2d 838 (1989), distinguishable. In Ross, the decedent was examined by defendant physician in December 1980 and diagnosed with the flu, although the defendant physician ordered a chest x-ray. The radiologist's report noted suspicious results and recommended further diagnostic testing. However, the copy of the radiologist's report received by the defendant physician only four days after the test was illegible, but the physician neglected to request a legible copy. The decedent next saw defendant in April 1982 — over one year after the prior x-ray — for treatment for a cold, cough and congestion which was diagnosed as bronchitis. In August 1982, decedent fell ill again and was diagnosed with lung cancer. In this court's view, the frequency of return visits here distinguishes this case from Ross. Unlike in Ross, here there was a constant pattern of return visits on a frequent basis explicitly anticipated by both plaintiff and defendant from June 2003 through November 2004 and even beyond relating to the same constellation of complaints and symptoms namely, migraines, lightheadedness and dizziness, and visual changes.
Additionally, plaintiff was taking medications as prescribed by defendant on a daily basis over the course of many years including the June 2003 through November 2004 time period. Defendant's constant monitoring, supervision, and adjustments to plaintiff's medications for her migraines raises further questions of fact as to the issue of continuous treatment (Fonda, 46 NY2d at 543). In sum, both plaintiff and defendant clearly anticipated further treatments and visits.
The court is well aware of the case law cited by defendant that finds that the failure to diagnose does not qualify for the continuous treatment doctrine. Arguably, however, that is not the case here since there was a diagnostic test run (the bone and skull scan series) with suspicious results reported. Nor is this a case where no treatment was initiated since plaintiff's medical records are replete with defendant's attempts to alleviate her migraines by prescribing, monitoring, and adjusting various medications.
Based upon a review of this extensive medical record and under the unique factual circumstances of this case, the court finds that questions of fact exist regarding the application of the continuous treatment doctrine. Accordingly, the court finds that the jury must be presented with the following question as set forth in the Pattern Jury Instructions, namely "what was the last date of the continuous course of treatment by defendant for the (illness, injury or condition) that plaintiff claims was negligently treated?" (1B NY PJI3d 2:149, at 797). Consequently, with respect to plaintiff's first cause of action, defendant's motion for summary judgment is denied without prejudice to renewal upon the close of plaintiff's proof at trial.
With respect to plaintiff's second cause of action — the derivative action brought by plaintiff's husband — any tolling of the statute of limitation under the continuous treatment doctrine is personal to the recipient of such treatment and does not extend to a derivative claim for loss of services (Wojnarowski v Cherry, 184 A.D.2d 353, 354-355 ). As such, plaintiff's second cause of action — the derivative cause of action — is dismissed.
Plaintiff's motion to dismiss defendant's second (statute of limitations) affirmative defense is denied without prejudice for the reasons stated above, namely the existence of questions of fact regarding the application of the continuous medical treatment doctrine.
The court will now turn to plaintiff's motion for partial summary judgment on the issue of liability. Plaintiff must establish a departure from accepted practice and that such departure was a proximate cause of the injury or that a delay in diagnosis caused or enhanced said injury (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 ). Plaintiff submits an affidavit from expert Guy Napolitana, M.D. Dr. Napolitana opines to a reasonable degree of medical certainty that defendant deviated and departed from accepted medical practice by, among other things, failing to advise plaintiff of the results of the radiological series and failing to arrange follow-up imaging studies. The court finds that Dr. Napolitana's affidavit satisfies plaintiff's burden, thereby shifting the burden to defendant to submit evidentiary proof in admissible form sufficient to raise a material issue of fact necessitating a trial (Id.).
In opposition, defendant has submitted an affidavit from Charles B. Rheeman, M.D., a neuro-ophthalmologist, averring that meningiomas are slow-growing tumors. Dr. Rheeman avers, among other things, that even if the tumor had been discovered in June 2003, the course of treatment for plaintiff would have been substantially similar to the treatment plaintiff actually received.
In reply, plaintiff submits contrary medical opinions from Murray D. Robinson, M.D. and Howard D. Pomeranz, M.D., both of whom opine that the delay in diagnosis impacted the degree of complication and success of the surgery, as well as the outcome to the patient.
The court finds that defendant has submitted sufficient evidence in admissible form which raises issues of material fact regarding whether the alleged departures were the proximate cause of the alleged injury. Stated another way, the question of causation can best be described at this juncture as the classic battle of the experts that may not be resolved on a motion for summary judgment (Corbett v County of Onondaga, 291 A.D.2d 886, 887 ). Consequently, plaintiff's motion for partial summary judgment on the issue of liability is denied without prejudice.
Finally, defendant requests that this court search the record and grant summary judgment to defendant on the issue of liability. In support of this position, defendant again argues that Dr. Napolitana's affidavit contains only a sole conclusory paragraph on the issue of proximate cause. By comparison, defendant argues its expert, Dr. Rheemen, details how plaintiff's course of treatment of craniotomy, radiation therapy, and pain management would have been the same whether the tumor was discovered in June 2003 or November 2004. For the reasons stated above, the court finds that the conflicting expert opinions prohibit reverse summary judgment as well.
In view of the foregoing, the court finds as follows:
It is so ordered.