700 NYS2d 354 | N.Y. Sup. Ct. | 1998
OPINION OF THE COURT
Defendants present a motion for partial summary judgment
The definition of continuous medical treatment has been a recurring subject of review for the courts. Accordingly, considerable thought has been expended to formulate a definition. In Massie v Crawford (78 NY2d 516 [1991]), it was determined that a plan of continuing corrective treatment or procedures must be contemplated. Therein, the Court of Appeals held (at 519-520): “ ‘continuous treatment’ involves more than a physician-patient relationship. [Citations omitted.] There must be ongoing treatment of a medical condition. The doctrine rests on the premise that the trust and confidence that marks such relationships puts the patient at a disadvantage in questioning the doctor’s skill because to sue while undergoing treatment necessarily interrupts the course of treatment. ‘It would be absurd’, we stated, ‘to require a wronged patient to interrupt corrective efforts by serving a summons on the physician’ under those circumstances [citation omitted]. 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 [citations omitted]. Thus, we have emphasized that continuous treatment ‘does not contemplate circumstances where a patient initiates return visits merely to have * * * her condition checked’ [citation omitted]. Routine examinations of a patient who appears to be in good health or diagnostic examinations, even when conducted repeatedly over a period of time, are not ‘a course of treatment’ [citations omitted].”
In other words, “a patient is not entitled to the benefit of the toll unless there has been a course of treatment established with respect to the condition that gives rise to the lawsuit”
Dr. Cupelo recites that in March 1993 he was concerned and sent his patient to Dr. Metzger, an ear, nose and throat specialist. After examination, Dr. Metzger wrote to Dr. Cupelo on April 20, 1993, that the examination was normal and no evidence of disease was found. Dr. Cupelo states in his affidavit (UTf 7-13) the following facts concerning his involvement with this patient after March 5, 1993:
“I did not see or hear from the patient again until an office call of November 1, 1993 at which time my impression of the symptoms complained of at that time was that he had acute prostatitis. It was my habit to list and comment upon any physical complaints mentioned by my patients. There is nothing in my notes documenting that he complained of a problem with his right neck at that time, nor do I recall such complaint then being made. In any event, I did not examine or treat him for any condition of his right neck. I did give him a prescription for a medication to treat his prostatitis, a condition which he experienced from time to time over the years.
“I had a telephone conversation with Mr. Schleicher on November 29, 1993, at which time he complained of recurrence of his prostatitis symptoms, and I renewed a prescription for appropriate medication. I have no recollection of any reported complaints at that time regarding his right neck and my office notes do not reflect any such complaints.
“The next office visit of the patient was on November 28, 1994, and that visit, as indicated by my notes, concerned the prostatitis for which I had referred him to Dr. Birnbaum in the past, and for which I occasionally gave him medication. No complaints regarding the neck were mentioned or discussed.
“There were various telephone calls from the patient in 1995 namely on August 11th, 31st and September 1st, but none of these related to the neck complaints.
“At an office call of November 20, 1995, the patient had bilateral upper anterior cervical lymphadenopathy, but his throat appeared to be normal and his ears were normal. The patient was told on this occasion that if his glands did not completely go to normal, I would want to examine him again.
“On January 16, 1996, following a discussion with Dr. Frank Ryan, an oral surgeon, and a CT scan of the neck, which was abnormal, I called in the patient and found two firm, rubbery lymph nodes on the anterior portion of the right and a smaller one on the left neck. I arranged for screening blood work and referred the patient to Dr. Daniel Rabuzzi, an ear, nose and throat consultant, who performed a diagnostic procedure and discovered a mass lesion at the base of the tongue which turned out to be squamous cell carcinoma. Treatment of the patient thereafter was by others.”
Disagreeing with the doctor’s account of the facts, the plaintiff highlights that he made various complaints or comments as to the condition of his neck and ear to Dr. Cupelo between March 1993 and January 1996.
Assuming that the plaintiffs factual version is correct, the important element in this analysis is what was the treatment modality that the plaintiff asserts for the time period in question. Plaintiff refers to Dr. Metzger’s letter from April 20, 1993. Therein, the plaintiff highlights the phrase “if it worsens or changes in any way, I would like to see him back.” (Plaintiffs exhibit A.) As set forth in plaintiffs memorandum of law, “at that point in time (April 1993) the recommended treatment for Mr. Schleicher’s right ear and right sided neck symptoms was observation and monitoring for any changes or worsening of those symptoms.”
Based upon the above facts, this court finds that there was no continuing course of treatment of the condition complained
The thrust of this action is closely akin to the issues presented in Nykorchuck v Henriques (78 NY2d 255 [1991]) declaring that continuous treatment does not encompass the failure to treat. (See also, Williams v Aziz, Sup Ct, Onondaga County, Feb. 3, 1997, Tormey, III, J., index No. 99-3505, affd 251 AD2d 1061 [4th Dept 1998].) In Williams, when the plaintiff saw the doctor no corrective efforts were prescribed. The doctor made a determination that she was in remission and she should return if her condition deteriorated. At that time, no additional medical intervention or procedures were prescribed. The plan of Dr. Aziz to “return for follow-up as needed” mirrored the nebulous medical plans of “ ‘we will have to keep an eye on it’ ” (Nykorchuck v Henriques, supra, at 258) or “ ‘[she] should return to [him] periodically for routine gynecologic examinations’ ” (Massie v Crawford, supra, at 518). Each of these medical plans standing alone, without any additional corrective efforts on the physician’s part, have been determined to be legally insufficient to be considered as indicia of continuous medical treatment. Rather, the Court declared that “The gravamen of plaintiff’s claim is not that the doctor performed certain negligent acts or omissions during the course of treatment * * * but rather that the doctor was negligent in failing to establish a course of treatment at all. While the failure to treat a condition may well be negligent, we cannot accept the self-contradictory proposition that the failure to establish a course of treatment is a course of treatment.” (Nykorchuck v Henriques, supra, at 259.) The continuous treatment exception, where no apparent treatment is prescribed and only monitoring is contemplated, would not extend the Statute of Limitations. Likewise, in Mr. Schleicher’s case, Dr. Cupelo intended to simply monitor the condition and refer as necessary. Nowhere does the plaintiff set forth any treatment provided by Dr. Cupelo other than to monitor, “keep an eye on,” or to refer, if the condition changes. This does not constitute continuous treatment.
Defendants’ motion for partial summary judgment is granted. Any course of conduct of the defendants which is in question as