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First Department Finds Case Not Time-Barred Because of Continuous Treatment

In the case of Lewis v. Rutkovsky, the First Department was asked to review the continuous treatment doctrine as it applied to a patient who brought a lawsuit against her primary care physician. The plaintiff alleged that her primary care physician failed to detect, diagnose, and treat her brain tumor. As a result of the doctor’s failure to diagnose, the plaintiff underwent brain surgery that left her legally blind. The First Department reviewed the continuous treatment doctrine in determining whether or not the lawsuit should be time-barred.

The plaintiff first treated with the defendant doctor in 1999 when she began experiencing blurred vision and migraines. She continued to treat with the doctor until 2007. On March 5, 2010, plaintiff commenced a malpractice action against the doctor. The doctor’s counsel filed a motion for summary judgment as they believed the action was filed outside of New York State’s two-and-one-half-year statute of limitations for medical malpractice actions. However, plaintiff proffered the argument that the continuous treatment doctrine tolls the statute of limitations for a medical malpractice action 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.

Therefore, the court was required to determine whether there was continuity of treatment for the plaintiff’s symptoms from March 1999 to September 5, 2007 that were traceable to her brain tumor. If the court was able to find such treatment, then the action would not be time-barred. However, if the court did not find treatment relating to the brain tumor between 1999 and 2007, then the action would be time-barred.

The court analyzed its earlier precedent set forth in Wilson v. Southampton Urgent Medical Care, P.C. In that case, the plaintiff received treatment on 11 separate occasions during a three-year period for symptoms, including headaches, and was later diagnosed with lung cancer. Deposition testimony revealed that a brain tumor resulting from metastasized lung cancer was a possible cause of the plaintiff’s headaches. Therefore, the court allowed the claim to proceed because there was an issue of fact as to whether the plaintiff’s continuous treatment for headaches was traceable to lung cancer.

In the case at bar, the court agreed with the reasoning of the Wilson case. The evidence provided showed that plaintiff complained of headaches or vision issues on at least six different occasions over the time in question. Therefore, the court found there was an issue of fact to be determined at trial as to whether the defendants were monitoring the plaintiff for specific symptoms related to the brain tumor.

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