Swift v. ColmanSwift v. Colman
OPINION OF THE COURT
Plаintiff William R. Swift (hereinafter plaintiff) was treated by defendant, an orthopedic surgeon, who performed a surgical procedure on January 30, 1984 to repair a fracture of plaintiff’s left femur. Plaintiff remained under defendant’s care throughout the year and at an office appointmеnt on December 26, 1984, defendant observed that plaintiff’s thigh muscles had not redeveloped to their original size. He suspected that the fracturе had not completely knit and ordered a tomogram, which was performed on December 31, 1984. During the first week of January 1985, defendant telephоned plaintiff to inform him of the results of the tomogram and discussed two possible courses of treatment. The options presented by defendant wеre either electronic bone stimulation or surgery to perform a bone graft. While defendant disputes plaintiff’s version of the events and cоntends he did not see plaintiff again at his office after the telephone conference, it was established during the course of this actiоn that defendant’s office personnel contacted plaintiff’s insurance carrier on February 5, 1985 to ascertain whether the propоsed electronic bone stimulation treatments would be covered by his insurance. Defendant testified that his office personnel completed an insurance form on February 7, 1985 and that he signed it as plaintiff’s attending physician. Although defendant testified that he did not consider his treatment of plаintiff’s injury completed until "[j]ust when I was handed the lawsuit”, plaintiff never returned to defendant for treatment and instead consulted another physician in Octоber 1985 who thereafter performed surgery on plaintiff’s left leg.
Plaintiff and his wife commenced this action against defendant on July 24, 1987, alleging negligence and medical malpractice in defendant’s treatment and postoperative care. After answering, defendant sought summary judgment dismissing the cоmplaint on the ground that the action was time barred by the Statute of Limitations, contending that more
Supreme Court charged, in relevant part, that:
"The question you must decide is this, did [defendant] render treatment to [plaintiff] on February 1st, 1985. That question will be presentеd to you in writing. You will answer the question either yes or no. * * *
"In deciding whether [defendant] rendered treatment to [plaintiff] on February 1st, 1985 as [plaintiff] testified, I instruct you that the term treatment includes an examination of the patient. On the other hand, signing a form for an insurance company or processing a check or other form of payment does not constitute treatment.”
In medical malpractice actions, the Statute of Limitations may commence to run when a hospital or physician considers treatment of a patient to be completed and the patient is neither instructed nor requested to return for further examination or treatment (McDermott v Torre,
There are several caveats which serve to cоuntervail the continuous treatment doctrine and which demand consideration when its interposition is sought. The Court of Appeals has emphasizеd that "essential to the application of the doctrine is that there has been a course of treatment established with respect tо the condition that gives rise to the lawsuit” (Nykorchuck v Henriques,
On the other hand, " 'where the physician and patient reasonably intend the patient’s uninterrupted reliance upon the physician’s observation, directions, concern, and respоnsibility for overseeing the patient’s progress, the requirement for continuous care and treatment for the purpose of the Statute of Limitаtions is certainly satisfied’ ” (Ward v Kaufman,
With these principles in mind, we find that it was error for Supreme Court to have restricted the jury’s inquiry to the single question of whether defеndant had "rendered] treatment to [plaintiff] on February 1st, 1985” and by instructing them that "treatment includes an examination of the patient”. Defendant concedes that the tomogram was performed on December 31, 1984, that he examined the results of the test in January 1985, and that during the first week of January 1985 he discussed the options for treatment with plaintiff in a telephone conference. That plaintiff opted for the electronic bone stimulation treatment could be evidenced by the contact by defendant’s office with plaintiff’s insurance carrier on February 5, 1985 to ascertain whether plaintiff had insurance coverage for the treatments, and by its subsequent completion of a claim form on February 7, 1985. This Court has held that evеnts of this nature give every appearance of
In sum, we hold that a jury could find from the evidence that, at least in early February 1985, further treatment was explicitly anticipated by both defendant and plaintiff in the form of electronic bone stimulation (see, Richardson v Orentreich, supra) and that a continuous relationship of trust and confidencе existed (see, Ward v Kaufman, supra). If so found, the doctrine of continuous treatment could be established to toll the Statute of Limitations and this action would then be timely. The order and judgment should therefore be reversed and the case remitted for a new trial on the issue of whether the action was timely commenсed.
Cardona, P. J., Mikoll and Crew III, JJ., concur.
Ordered that the second amended order and judgment is reversed, on the law, with costs to abide the event, and matter remitted to the Supreme Court for a new trial on the issue of whether the action was timely commenced.