Simons v. Bassett Health CareSimons v. Bassett Health Care
In December 2001, plaintiff Kathryn Simons (hereinafter plaintiff) became a patient at defendant Bassett Health Care and, over the next several years, received treatment for a variety of medical conditions including, among other things, migraines, other headaches and sinus infections. On June 9, 2003, in connection with a bone fracture in plaintiff‘s foot, a whole body bone scan of plaintiff was performed. The radiologist noticed аn abnormality in the right side of plaintiff‘s skull and ordered X rays, the results of which prompted him to recommend a CT scan for thе purpose of ruling out a possible meningioma. According to plaintiff, she was never advised of these findings and a CT scan was not performed at that time. Subsequently, from June 2003 through November 2004, Bassett‘s providers continued to treat plаintiff for a variety of complaints, including migraines, headaches, dizziness, vision problems, facial pain and swelling on thе right side of her face. In November 2004, a CT scan was conducted in connection with plaintiff‘s various complaints of “sinusitis-type pains over the right side of her face around her right eye.” That scan detected a right-side orbital mass which, upon referral, was diagnosed by third parties as meningioma.
Plaintiff and her husband, derivatively, commenced this medicаl malpractice action in March 2007, alleging that Bassett and its division, defendant Prime Care, deviated from acсepted medical standards by, among other things, failing to disclose the June 9, 2003 bone scan results so that a timely diagnosis and appropriate follow-up care could have lessened or prevented the consequenсes of the meningioma. Following joinder of issue, defendants moved for summary judgment dismissing the complaint as untimely. Plaintiffs cross-mоved for partial summary judgment seeking, among other things, that certain affirmative defenses be stricken. Supreme Court рartially granted plaintiffs’ cross motion and, as relevant herein, denied that part of defend
The narrow issue presented is whether Supreme Court should have dismissed the medical malpractice cause of action as barred by the applicable 2 1/2-year statute of limitations (see
Notably, the continuous treatment doctrine tolls the commencement of the limitations period until the end of a course of treatment “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” (McDermott v Torre, 56 NY2d 399, 405 [1982] [internаl quotation marks and citation omitted]). Where, in a case such as this, it is alleged that a medical practitionеr fails to properly diagnose a condition, the continuous treatment doctrine may apply as long as the symptoms being treated indicate the presence of that condition (see Davidson v O‘Brien, 21 AD3d 1330, 1331 [2005]; Bonanza v Raj, 280 AD2d 948, 949 [2001]).
Here, plaintiffs’ medical exрert, Guy Napolitana, a board certified physician in the field of internal medicine, described in an affidavit how, upon review of plaintiff‘s medical records and deposition testimony, he identified several dates between June 2003 and November 2004 when defendants’ personnel provided treatment for symptoms and complaints suggestive of or сonsistent with a meningioma. Although there is no question that certain of the visits relied on by Napolitana focused primаrily on other intermittent or discrete conditions, such as plaintiff‘s reaction to a bee sting or her foot fracture, which could not constitute continuous treatment for a condition suggestive of a meningioma (see Plummer v New York City Health & Hosps. Corp., 98 NY2d 263, 268 [2002]; Young v New York City Health & Hosps. Corp., 91 NY2d 291, 296 [1998]), significantly, the mеdical records for many of these visits make express additional references to complaints or ongoing treatment of migraines, headaches, dizziness, pain on the right side of her face and blurred vision. These records аlso reflect the scheduling of regular follow-up visits to address these complaints, thus presenting a factual question as to whether further treatment of conditions suggestive of meningioma were contemplated (see Young v New York City Health & Hosps. Corp., 91 NY2d at 297). Under the circumstances, we find no basis to disturb Supreme Court‘s denial of defendants’ motion for summary judgment on statute of limitations grounds (sеe McDermott v Torre, 56 NY2d at 406).
We have examined defendants’ remaining arguments and find them to be unpersuasive.
Spain, Malone Jr., McCarthy and Egan Jr., JJ., concur.
Ordered that the order is affirmed, with costs. [Prior Case History: 24 Misc 3d 1208(A), 2009 NY Slip Op 51303(U).]