The
Statute of Limitations in Medical Malpractice Cases in New York
QUESTIONS
PRESENTED
1) What
is the Statute of Limitations in medical malpractice cases? How does the continuous treatment doctrine
affect the statute, particularly in failure to diagnose cancer cases?
2) How
does the continuous treatment doctrine affect the filing notice of claim
requirement against the New York City clinic?
BRIEF
ANSWER
For private hospitals and physicians,
the Statute of Limitations in medical malpractice actions is two and half years
under CPLR 214-a, while actions against municipal hospitals and their doctors fall
under a shorter, one-year-and-ninety-days statute. In both cases, the continuous treatment
doctrine tolls the Statutes of Limitations as well as the mandatory 90-day
requirement for filing of notice of claim on municipal defendants.
DISCUSSION
I.
Several Choices of Statutes of
Limitations in Medical Malpractice Cases
In cases involving medical malpractice,
the statutory limitations period must be drawn from a menu of various
choices. First, New York General Municipal Law §
50-i governs cases against municipal defendants. Second, Court of Claims Act § 10 controls
actions against the state. Third, CPLR
214-a governs medical, dental, and podiatric malpractice cases, while medical
malpractice cases arising before July 1, 1975 and ordinary negligent actions
implicate CPLR 214.
A. The Continuance Treatment Doctrine
Tolls the Statute of Limitations under CPLR 214-a
With
the exception of wrongful-death cases and cases prosecuted against a municipal
defendant or the state, CPLR 214-a controls medical malpractice cases. The statute provides:
An action for medical, dental or
podiatric malpractice must 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; provided, however, that where the action is based
upon the discovery of a foreign object in the body of the patient, the action
may be commenced within one year of the date of such discovery or of the date
of discovery of facts which would reasonably lead to such discovery, whichever
is earlier.
N.Y.
C.P.L.R. 214-a (McKinney 2014).
Even
though a medical malpractice cause of action accrues on the date of the alleged
act, omission, or failure complained of, and is subject to a 2 ½-year statute
of limitations, under the continuous treatment doctrine, the statute of
limitations is tolled “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.” Nespola v. Strang Cancer Prevention Ctr., 36
A.D.3d 774 (2d Dep’t 2007). The
“continuous treatment” is treatment for the same or related illnesses or
injuries, continuing after the alleged acts of malpractice, not mere continuity
of a general physician-patient relationship. Borgia v. City of New York,
12 N.Y.2d 151, 157 (1962), aff'd, 15 N.Y.2d 665 (1964). The Court of Appeals has recognized that it
“would be absurd to require a wronged patient to interrupt corrective efforts
by serving a summons on the physician or hospital.” Id. at 156. Further, the Court has noted that the doctor
committing the alleged malpractice is not only in a position to identify and
correct any mistakes but also best placed to do so. Allende v. New York City
Health & Hosps. Corp., 90 N.Y.2d 333, 338 (1997).
The
underlying premise of the continuous treatment doctrine is that the
doctor-patient relationship is marked by continuing trust and confidence and
that the patient should not be put to the disadvantage of questioning the
doctor's skill in the midst of treatment, since the commencement of litigation
during ongoing treatment necessarily interrupts the course of treatment itself.
Gomez v. Katz, 61 A.D.3d 108, 111 (2d Dep’t 2009).
Gomez established that the continuous
treatment doctrine contains three principal elements. Id. at 111. The first element
is that the plaintiff continued to seek, and in fact obtained, an actual course
of treatment from the defendant physician during the relevant period. Id. at 111-12. The term “course of treatment” speaks to
affirmative and ongoing conduct by the physician such as surgery, therapy, or
the prescription of medications. Id.
at 112. A mere continuation of a general
doctor-patient relationship does not qualify as a course of treatment for
purposes of the statutory toll. Id. Also, “continuing efforts to arrive at a
diagnosis fall short of a course of treatment, as does a physician's failure to
properly diagnose a condition that prevents treatment altogether.” Id.
The
second element of the doctrine is that the course of treatment provided by the
physician be for the same conditions or complaints underlying the plaintiff's
medical malpractice claim. Id. at
112. The third element of the doctrine
is that the physician's treatment be deemed “continuous.” Continuity of
treatment is often found to exist “when further treatment is explicitly
anticipated by both physician and patient as manifested in the form of a
regularly scheduled appointment for the near future, agreed upon during th[e]
last visit, in conformance with the periodic appointments which characterized
the treatment in the immediate past.” Id.
Yet, a discharge by a physician does not
preclude application of the continuous treatment toll if the patient timely
initiates a return visit to complain about and seek further treatment for
conditions related to the earlier treatment. Id. at 113; Petito v. Roberts, 113 A.D.3d 743, 744 (2d Dep’t
2014).
The
Court of Appeals and the Second Department have ruled that a general
physician-patient relationship, routine examinations, or isolated and
intermittent examinations do not constitute continuous treatment to toll the
statute of limitations. Plummer ex rel. Heron v. New York City Health &
Hosps. Corp., 98 N.Y.2d 263, 268 (2002); Young v. New York City Health & Hosps. Corp., 91 N.Y.2d 291,
296 (1998); Massie v. Crawford, 78 N.Y.2d 516, 520 (1991); Nykorchuck v. Henriques, 78 N.Y.2d 255
(1991) (isolated breast examinations did not establish a continuous course of
treatment regarding patient’s breast condition); McDermott v. Torre, 56 N.Y.2d 399 (1982); Borgia, 12 N.Y.2d at 151; Little v. Nassau Health Care Corp.,
15 A.D.3d 359, 359-60 (2d Dep’t 2005).
Also, continuing diagnosis or the failure to establish a course of
treatment cannot be deemed continuous treatment. Nykorchuck, 78 N.Y.2d 255; Young,
91 N.Y.2d at 297; Massie, 78 N.Y.2d 516.
“Essential
to the application of the continuous treatment doctrine is ‘a course of
treatment established with respect to the condition that gives rise to the
lawsuit.’” Plummer, 98 N.Y.2d at 268. “Routine examination of a seemingly healthy
patient, or visits concerning matters unrelated to the condition at issue
giving rise to the claim, are insufficient to invoke the benefit of the
doctrine.” Id. A patient is not entitled to the benefit of
the toll in the absence of continuing efforts by a doctor to treat a particular
condition because the policy reasons underlying the continuous treatment
doctrine do not justify the patient's delay in bringing suit in such
circumstances. Massie, 78 N.Y.2d at 519. Massie
noted that continuous treatment does not contemplate circumstances where a
patient initiates return visits merely to have her condition checked. Id. at 520. Yet, the Second Department observed: “Included
within the scope of 'continuous treatment' is a timely return visit instigated
by the patient to complain about and seek treatment for a matter related to the
initial treatment.” Couch v. Cnty. of Suffolk, 296 A.D.2d 194, 196 (2d
Dep’t 2002).
If
there is no expressly contemplated or rendered treatment relating to the
patient’s condition, a continuous course of treatment is not found. Cole v.
Karanfilian, 117 A.D.3d 670, 671-72 (2d Dep’t 2014); Robertson v. Bozza
& Karafiol, 242 A.D.2d 613, 615 (2d Dep’t 1997). Robertson emphasized that CPLR 214–a
expressly exempts from continuous treatment “examinations undertaken at the
request of the patient for the sole purpose of ascertaining the state of the
patient's condition.” Robertson, 242 A.D.2d at 615. Robertson found that the diagnostic
services performed by the defendants were discrete and complete and not part of
a course of treatment and the patient’s return visits were initiated by her
merely to ascertain the state of her condition. Id. at 616. Cole also noted that the continuous
treatment doctrine does not apply to a diagnostician, such as a radiologist,
who renders discrete, intermittent medical services, unless the diagnostician
has a continuing relationship with the patient or acts as an agent for the
physician or otherwise acts in relevant association with the physician. Cole,
117 A.D.3d at 672.
However,
a patient remains under the “continuous treatment or care” of a physician
between the time of the last visit and the next scheduled one where the
latter's purpose is to administer ongoing corrective efforts for the same or a
related condition. Richardson v. Orentreich, 64 N.Y.2d 896, 899 (1985). Regardless of the absence of physical or
personal contact between them in the interim, where the physician and patient
reasonably intend the patient's uninterrupted reliance upon the physician's
observation, directions, concern, and responsibility for overseeing the
patient's progress, the requirement for continuous care and treatment for the
purpose of the Statute of Limitations is certainly satisfied. Id.
Further,
courts have found continuous treatment where continuing periodic examinations
are prescribed or anticipated. Although
routine diagnostic examinations, even when conducted repeatedly over a period
of time, do not constitute a course of treatment, diagnostic examinations that
are specifically prescribed as part of ongoing care for an existing medical
condition may be sufficient to invoke the continuous treatment toll. Elkin v. Goodman, 285 A.D.2d 484 (2d
Dep’t 2001); Mandel v. Herrmann, 271
A.D.2d 661 (2d Dep’t 2000); Nelson v.
Weiss, 275 A.D.2d 399 (2d Dep’t 2000); Ren v. Kuo, 09-CV-1186, 2009
WL 3111721 (E.D.N.Y. Sept. 24, 2009) (patient sought and received treatment
from physician over the course of two years for abnormal cell growth that was
the precursor for cancer). In Nelson,
the plaintiff made numerous complaints throughout the course of treatment about
a lump in her breast, but the physician assured her that her symptoms were
related to pregnancy and advised her to have a follow-up examination at the
conclusion of pregnancy. Nelson, 275
A.D.2d at 399. Shortly after the birth
of her child, the plaintiff was diagnosed with breast cancer. Id.
Nelson stated that the
question of whether the plaintiff required additional treatment for her breast
condition was not resolved until completion of the allegedly agreed-upon
postpartum breast examination and subsequent sonogram because the defendants
had advised her that her breasts would be re-examined on her first postpartum
visit. Id. at 400. Nelson
found the plaintiffs demonstrated the existence of issues of fact as to whether
the continuous treatment doctrine tolled the Statute of Limitations. Id.
Moreover,
the physician-patient relationship of continuing trust and confidence does not
end with the referral to a radiologist while the physician is anticipated to
review the results from the radiologist. Adams v. Frankel, 242 A.D.2d
595 (2d Dep’t 1997) (holding the continuous treatment doctrine tolled the 2
1/2-year Statute of Limitations where physician referred patient to a
radiologist for a mammography). In Adams,
the radiologist's findings were disclosed only to the physician, who reviewed
and evaluated the findings and informed the patient of the results of the
mammography approximately one month after the test. Id. Under these
circumstances, the patient remained under the physician’s care and treatment
while she was awaiting the mammography results. Id.
Furthermore,
failure to diagnose accompanied by some form of treatment is deemed continuous
treatment to satisfy the doctrine if the treatment is related to the same
original condition or complaint. Canter v. E. Nassau Med. Grp., 270
A.D.2d 381, 382 (2d Dep’t 2000) (holding that a question of fact exists as to
whether the treatment by physician, surgeon, and radiologist constitutes a
continuing course of treatment of lump in patient’s breast); Pace v. Caron,
232 A.D.2d 617 (2d Dep’t 1996). Pace held that a physician’s monitoring
and treatment of a patient for fibrocystic conditions in her breasts over the
15-year period was a continuous course of treatment because the treatment was
related to the same original condition which continued without interruption for
15 years and included the failure to timely diagnose a malignant tumor in the
patient's breast. Pace, 232 A.D.2d at 617. Even though a long-lasting, uninterrupted
course of treatment may satisfy the doctrine, the tolling exception does not
apply if the time between treatments exceeds the period of limitation. Curcio
v. Ippolito, 97 A.D.2d 497, 497 (2d Dep’t 1983), aff'd, 63 N.Y.2d
967 (1984) (continuous treatment rule was inapplicable as the hiatus between
the last postoperative treatment and patient's final visit exceeded the
then-applicable three-year Statute of Limitations).
In
sum, the continuous treatment doctrine tolls the statute of limitations when
the course of treatment has run continuously and is related to the same
original condition or complaint. It is
imperative that the course of treatment has been established with respect to
the condition that give rise to the lawsuit and that there must be an ongoing
effort to treat, ameliorate, or cure a particular medical condition.
B. Gen. Mun. Law § 50 Applies to
Municipal Defendants in Medical Malpractice Cases
Prior to commencing a medical
malpractice action, it is critical to properly and promptly identify whether a
hospital is owned or operated by the state, a public benefit corporation, or a
municipal subdivision. A hospital that is governed directly
by the state, and conducted by the officers and agents of the state, is a
strictly public corporation, or governmental agency, and is entitled to the
immunities afforded other public corporations. 40A Am. Jur. 2d Hospitals and
Asylums § 3. In contrast, a hospital
organized as a nonprofit corporation is a private hospital, even
when it has a contract with a governmental entity or receives aid from the
government. Id.
Gen.
Mun. Law § 50-d sets forth municipal liability for malpractice of physicians,
resident physicians, interns, dentists, and podiatrists in public
institutions. The statute provides that
every municipal corporation shall assume the liability of any resident
physician, physician, intern, dentist, podiatrist or optometrist rendering
medical, dental, podiatry or optometry services to a person without receiving
compensation from such person in a public institution maintained in whole or in
part by the municipal corporation for damages for personal injuries alleged to
have been sustained by such person by reason of the malpractice of such resident
physician, physician, intern, dentist, podiatrist or optometrist. N.Y. Gen.
Mun. Law § 50-d (1) (McKinney 2014). The
statute explains that every such healthcare professional shall be deemed an
employee of the municipal corporation. Id.
To commence an action against a
municipality or public authority, a notice of claim is required to be filed
within 90 days after the event. N.Y. Gen. Mun. Law § 50-i (McKinney 2014). Filing a notice of claim is a condition
precedent to the commencement of the action against a public corporation or its
employees. § 50-e. The 90-day time
limitation for filing a notice of claim may be excused upon compliance with §
50-e (5). “The requirement of notice is
one of the safest safeguards devised by law to protect municipalities against
fraudulent and stale claims for injuries to persons and property. It is
designed to afford the municipality opportunity to make an early investigation
of the claim while the facts surrounding the alleged claim are still ‘fresh.’” Adkins v. City of New York, 43 N.Y.2d
346, 350 (1977).
Service
and filing of the 90-day notice is not equivalent of commencing an action,
which is accomplished by service of a summons and complaint, and the claimant
is required to file the action for personal injuries within one year and 90
days. Campbell v. City of New York, 4 N.Y.3d 200, 203 (2005). The Court of Appeals has consistently treated
the year–and–90–day provision contained in § 50–i as a statute of limitations subject
to the tolls. Id. In addition to the
90-day notice, the municipal and all public health care corporations are
entitled to demand that claimant submit to pre-action disclosure. § 50-h.
In
New York City, the New York City Health and Hospitals Corporation (HHC) is
often the principal municipal corporation against which malpractice claims are
brought. HHC is a public benefit
corporation, independent of the City of New York. Brennan v. City of New
York, 59 N.Y.2d 791, 792 (1983). HHC
is denominated an “agency” of the city for purposes of Gen. Mun. Law § 50–k,
thus “entitling its officers and employees to legal representation and
indemnification at the expense of the corporation for acts performed within the
scope of duty.” Id. Public hospitals, affiliated with HHC, as
well as their doctors, must be characterized as employees of HHC. De Gradi
v. Coney Island Med. Grp., P.C., 172 A.D.2d 582, 583 (2d Dep’t 1991). They are entitled to the benefits of the
abbreviated statutory period of one year and 90 days set forth in Gen. Mun. Law
§ 50-i. Id. Service of a notice of claim is a condition
precedent to a lawsuit against a municipal corporation. Davidson v. Bronx
Mun. Hosp., 64 N.Y.2d 59, 61 (1984).
“Plaintiff must not only plead in his complaint that he has served a
notice of claim, but must also allege that the notice was served at least 30
days prior to commencement of the action and that in that time defendants
neglected to or refused to adjust or to satisfy the claim.” Id. at 61-62. Failure to comply with provisions requiring
notice and presentment of claims prior to the commencement of litigation
ordinarily requires dismissal. Id. at
62. The mandatory 30-day period between
service of the notice of claim and the summons and complaint serves the
salutary purpose of allowing municipal defendants to conduct an investigation
and examine the plaintiff with respect to the claim and to determine whether
the claims should be adjusted or satisfied before the parties are subjected to
the expense of litigation. Id.
C. The Continuance Treatment Doctrine Also
Tolls the Statutory Notice of Claim Period and Statute of Limitation in Actions
against Municipal Defendants
Even
though the continuous treatment doctrine is codified in CPLR 214–a, the tolling
provision has equal application in determining whether a suit was filed within
the relevant Statute of Limitations period or whether a plaintiff has timely
filed a notice of claim. Young, 91 N.Y.2d at 295-96. Thus, under the “continuous treatment
doctrine,” a Statute of Limitations or a notice of claim period does not begin
to run until “the course of treatment which includes the wrongful acts or
omissions has run continuously and is related to the same original
condition or complaint.” Id. at
296. The toll of the continuous
treatment doctrine was created to enforce the view that a patient should not be
required to interrupt corrective medical treatment by a physician and undermine
the continuing trust in the physician-patient relationship in order to ensure
the timeliness of a medical malpractice action or notice of claim. Id. Analyzing whether the doctrine applied to toll
the 90–day notice of claim period in a suit against defendants for their
alleged failure to timely diagnose breast cancer, Young held since the plaintiff had been unaware of the need for
further treatment of her breast and that no course of treatment for that
condition had otherwise been established during the dispositive time period,
the purpose of the toll would not be served by its application. Id. at 293.
The
doctrine of continuance treatment also applies to a shorter,
one-year-and-ninety-days statutory period for municipal defendants. The Second Department in Cherise v. Braff,
50 A.D.3d 724, 726 (2d Dep’t 2008), found that an agreement between a physician,
an employee of HHC, and a patient to continue observing suspicious breast
tissue might constitute sufficient monitoring to toll the one-year-and-90-days
statute under the continuous treatment doctrine.
In
sum, the continuance treatment doctrine tolls both the statutory notice of
claim period (§ 50-i) and statute of limitation (§ 50-d) in actions against
municipal defendants.
D. Which Limitation Period Applies:
CPRL 214-A (2 ½ Years) vs. CPRL 214 (Three Years)
Dealing with private actors, courts often
must determine whether to apply a three-year statute of limitations for
negligence (CPLR 214) or a two-and-half year statute for medical malpractice
(CPRL 214-a). In applying CPLR 214-a to
hospitals and its professional staff, the Court of Appeals in Bleiler v. Bodnar, 65 N.Y.2d 65 (1985), held
that in determining whether an action sounds in medical malpractice or in
simple negligence for purposes of determining the applicable statute of
limitations, the critical factor is the nature of the duty owed to the
plaintiff that the defendant is alleged to have breached. Bleiler noted that a claim against a
hospital for the negligence of its medical personnel in treating a patient is
governed by the Statute of Limitations for medical malpractice, as is a direct
cause of action against the doctor and the nurse. Id at 66. However, a claim
that the hospital failed to provide competent personnel or to promulgate
appropriate emergency room rules sounds in negligence, and is subject to the
three-year limitations period (CPLR 214), rather than the shorter medical
malpractice limitations period (CPLR 214–a). Id.
In
sum, a negligent act constitutes medical malpractice when it can be
characterized as a “crucial element of diagnosis and treatment” and “an
integral part of the process of rendering medical treatment.” Bleiler,
65 N.Y.2d at 72.
CONCLUSION
In
conclusion, the Statute of Limitations in medical malpractice
actions is two and half years for private defendants pursuant to CPLR 214-a,
while actions against municipal hospitals and their employees fall under a
shorter, one-year-and-ninety-days statute.
In both cases, the continuous treatment doctrine tolls the Statutes of
Limitations as well as the mandatory 90-day requirement for filing of notice of
claim on municipal defendants.
