2018 NY Slip Op 01114
Court for the Trial of Impeach...2018Background
- Plaintiff (Lohnas) treated by defendant (Dr. Luzi) for chronic shoulder problems beginning 1998; initial surgery in 1999 with multiple postoperative visits through 2000.
- Plaintiff returned in 2001–2002 for worsening symptoms; defendant performed a second surgery in January 2002 and saw her postoperatively in April 2002.
- Plaintiff saw defendant in September 2003 after an aggravating injury; defendant advised exercises and to return "as needed."
- There was a gap of over 30 months (Sept 2003–April 2006) during which plaintiff did not see defendant; she returned in April 2006 and was later referred to defendant’s partner and then to a new surgeon in July 2006.
- Plaintiff sued in September 2008 alleging malpractice stemming from the 1999 surgery and subsequent failures; defendant moved for summary judgment to dismiss claims arising before March 2006 as time-barred.
- Supreme Court denied summary judgment; Appellate Division affirmed that triable issues exist whether the continuous treatment doctrine tolled the statute of limitations; the Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the statute of limitations was tolled by the continuous treatment doctrine | Lohnas: ongoing treatment relationship continued (same condition), so limitations tolled until treatment ended | Luzi: gaps and "as needed" instructions show treatment was not continuous; claims before Mar 2006 are time-barred | Triable issues exist whether treatment was continuous; summary judgment improperly granted for defendant — issues for jury/factfinder |
| Whether gaps >30 months are dispositive against continuous-treatment tolling | Lohnas: gaps do not automatically defeat tolling where course of related care continued and patient reasonably relied on physician | Luzi: >30-month gap shows no continuous treatment as a matter of law (analogous to Massie) | Gap alone is not per se dispositive; factual questions remain about intent and reliance |
| Whether "as-needed" scheduling defeats continuous-treatment tolling | Lohnas: "as-needed" language does not preclude an understanding of ongoing oversight and responsibility | Luzi: "as-needed" is equivalent to periodic/check-ins (Massie) and bars tolling | Court: "as-needed" remarks do not conclusively foreclose continuous treatment; context and intent are factual questions |
| Proper summary-judgment standard for continuous treatment disputes | Lohnas: apply ordinary summary-judgment test to existence of ongoing treatment | Luzi: apply categorical rules (e.g., gaps or "as-needed" visits end tolling) | Apply summary-judgment standard; where factual disputes exist, tolling is a jury issue |
Key Cases Cited
- Borgia v. City of New York, 12 N.Y.2d 151 (1962) (announced continuous-treatment accrual rule delaying accrual until end of continuous treatment)
- McDermott v. Torre, 56 N.Y.2d 399 (1982) (doctrine preserves physician–patient relationship; diagnosis alone is not continuous treatment)
- Massie v. Crawford, 78 N.Y.2d 516 (1991) (continuous-treatment toll not available where treatment is not continuous; periodic/as-needed visits may not suffice)
- Rizk v. Cohen, 73 N.Y.2d 98 (1989) (policy rationale for doctrine: avoid forcing patients to sue while undergoing corrective treatment)
- Young v. New York City Health & Hosps. Corp., 91 N.Y.2d 291 (1998) (reiterated policy against requiring patients to interrupt corrective treatment to sue)
- Curcio v. Ippolito, 63 N.Y.2d 967 (1984) (gap in return visits may justify summary dismissal when delay is untimely)
- Goldsmith v. Howmedica, Inc., 67 N.Y.2d 120 (1986) (limitations may bar claims where injury manifests long after alleged malpractice)