Branigan v. DeBrovner

197 A.D.2d 270, 612 N.Y.S.2d 119, 1994 N.Y. App. Div. LEXIS 5336
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 17, 1994
StatusPublished
Cited by7 cases

This text of 197 A.D.2d 270 (Branigan v. DeBrovner) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Branigan v. DeBrovner, 197 A.D.2d 270, 612 N.Y.S.2d 119, 1994 N.Y. App. Div. LEXIS 5336 (N.Y. Ct. App. 1994).

Opinion

OPINION OF THE COURT

Sullivan, J. P.

On May 14, 1989, plaintiff Jean Branigan, approximately five weeks pregnant, appeared at the emergency room of Central General Hospital complaining of flu-like symptoms and a rash covering most of her body. Routine blood tests, including a rubella titer, were taken. Eventually that same day, she spoke with defendant, Dr. DeBrovner, her gynecologist since 1987, and advised him of her hospital visit, her symptoms and the possibility of rubella. Plaintiff was subsequently told, that same day or the next, that the test for rubella was negative. Dr. DeBrovner thereafter dismissed rubella as the cause of plaintiffs flu symptoms and rash, which, as he advised her, were probably an allergic reaction to something she had eaten. According to plaintiff, Dr. DeBrovner saw no need to see her at his office at that time. Nor did he ever obtain the actual results of the rubella test taken in May 1989. Plaintiff continued to see Dr. DeBrovner for her prenatal care.

On June 29, 1989, during a routine prenatal visit, Dr. DeBrovner drew blood from plaintiff for the purpose of having various tests performed, one of which was for immunity to rubella. The rubella test reading, which he reviewed no later [272]*272than July 12, 1989, was valued at 3.160, a normal reading showing immunity to the disease. At plaintiffs next prenatal visit, on August 7, 1989, Dr. DeBrovner advised her that she was immune to rubella and had not contracted it during her pregnancy. As is made clear in an affidavit by plaintiffs expert, the rubella titer taken in July showing immunity to the disease was an insufficient basis on which to determine that plaintiff had not contracted rubella during the pregnancy. Plaintiffs final prenatal visit with Dr. DeBrovner was on September 11, 1989. Thereafter her prenatal care was managed by an associate of Dr. DeBrovner who specialized in obstetrics. On January 19, 1990, plaintiff gave birth to a son, Andrew, also a plaintiff herein, who, it was subsequently determined, was born suffering from congenital rubella syndrome.

This action, alleging malpractice in failing to diagnose plaintiffs rubella, purportedly contracted by her in May of 1989 while she was in the early stage of her pregnancy, was commenced against Dr. DeBrovner on January 30, 1992. After the completion of discovery, Dr. DeBrovner moved for, inter alia, summary judgment dismissing plaintiffs claim on the ground it is barred by the two-and-one-half-year Statute of Limitations governing medical malpractice actions. (CPLR 214-a.) In so moving, Dr. DeBrovner argued that any malpractice on his part occurred on May 15, 1989 or, at the latest, in mid-July of 1989, more than two and one-half years before the commencement of the action against him. Dr. DeBrovner also argued that the continuous treatment doctrine was unavailing to toll the statute since the course of treatment for the particular condition for which plaintiff was being treated, i.e., rubella, was complete when the doctor made his diagnosis that plaintiff was not suffering from the condition. The June 29, 1989 test, according to Dr. DeBrovner, was not a continuation of an earlier treatment, as the original diagnosis was complete and neither plaintiff nor the doctor contemplated the need for further treatment with respect to it.

In opposition, plaintiff argued, inter alia, that the continuous treatment doctrine applied, rendering the action timely. Avoiding the question of whether the continuous treatment doctrine applies to the facts presented, the IAS Court found that the cause of action did not accrue until August 7, 1989, thus bringing the action, commenced on January 30, 1992, within the two-and-one-half-year period. We affirm, but not for the reason relied upon by the IAS Court.

[273]*273The IAS Court erred in ruling that plaintiffs cause of action did not accrue until August 7, 1989. According to the court’s reasoning, on that date Dr. DeBrovner failed to verify the results of the earlier May 1989 test and, in light of the fact that, by mid-July 1989, plaintiff had developed an immunity to rubella—a clear indication that she had at some earlier time contracted it—was therefore allegedly negligent. A medical malpractice claim accrues on the date of the original act, omission or complained-of failure. (McDermott v Torre, 56 NY2d 399, 407; Matter of Daniel J. v New York City Health & Hosps. Corp., 77 NY2d 630, 634.) Taking plaintiffs claim at face value, the act of malpractice complained of occurred on May 15, 1989, when Dr. DeBrovner negligently attributed plaintiffs symptoms to food poisoning, rather than to rubella, and determined that she required no further treatment of the symptoms. Any cause of action plaintiff has for malpractice accrued on that date.

The argument that the malpractice occurred on August 7, 1989, which is within the two-and-one-half-year period, because, on that date, as plaintiff puts it, Dr. DeBrovner’s "memory should have been jogged” as to her earlier concern about the possibility of having contracted rubella, makes the obvious point—that Dr. DeBrovner was negligent because he should have reassessed his initial diagnosis. The actionable fault is not a memory lapse on August 7, 1989 but an earlier, May 15, 1989 or mid-July, at the latest, failure to diagnose. Even under that argument, however, the date of accrual would remain the same, i.e., the date of the original act or omission. (McDermott v Torre, 56 NY2d, supra, at 407.)

Even assuming, arguendo, that, as plaintiff contends, the critical omission was Dr. DeBrovner’s negligence in not obtaining the May 1989 Central General Hospital test results for comparison when he received the normal 3.160 rubella titer reading, that negligence, which occurred in mid-July, at the latest, would still have taken place at a time outside the applicable two-and-one-half-year Statute of Limitations.

Thus, since the misdiagnosis, whether May 15, 1989 or mid-July 1989 be the critical date, occurred beyond the statutory two and one-half years, this action is untimely unless the continuous treatment doctrine applies. While this doctrine, which is reflective of a public policy premised on the concept that "the trust and confidence that marks [physician-patient] relationships puts the patient at a disadvantage in questioning [274]*274the doctor’s skill because to sue while undergoing treatment necessarily interrupts the course of treatment” (Massie v Crawford, 78 NY2d 516, 519, rearg denied 79 NY2d 978), does not change the accrual date of a cause of action, it does serve to toll the running of the applicable Statute of Limitations. (McDermott v Torre, 56 NY2d, supra, at 407.) As has been held, to require a patient undergoing treatment to take legal action against the medical provider is asking too much. (See, Borgia v City of New York, 12 NY2d 151, 156.) The doctrine, obviously, "applies only when the course of treatment which includes the wrongful act or omission has run continuously and is related to the same original condition [citations omitted].” (Jorge v New York City Health & Hosps. Corp., 79 NY2d 905, 906.)

Here, it is undisputed that Dr. DeBrovner was plaintiffs gynecologist and had been providing her with prenatal care during her early pregnancy. While Dr.

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Bluebook (online)
197 A.D.2d 270, 612 N.Y.S.2d 119, 1994 N.Y. App. Div. LEXIS 5336, Counsel Stack Legal Research, https://law.counselstack.com/opinion/branigan-v-debrovner-nyappdiv-1994.